KTLitSmart

Assigning a single unique name to identify an individual has created problems that precede the inception of e-discovery. Think of Santa Claus, St. Nicholas, St. Nick, Noel or simply Santa. These variations are associated with a unique individual and yet, our society has been using different names to refer to him since before we were born. In e-discovery, identifying individuals with information relevant to a dispute is one of the first and most important steps we go through at the inception of a case. As such, the identification of the different names for these individuals is critical to ensuring we do not miss potentially relevant files. 

Two recent decisions highlight the usefulness of phased e-discovery as a tool to satisfy Rule 26(b)(1)’s ever-important proportionality requirement. Model orders for patent cases in numerous courts require phased discovery, typically phasing email discovery to occur after other discovery and only if deemed necessary. However, phased discovery is becoming prevalent in other types of cases as well.

As our work force has shifted to mobile and remote working practices (a trend in place before COVID, which only accelerated during the pandemic), businesses have turned to collaborative messaging tools such as Slack and various versions of Teams to manage communications. On the positive side, by using these messaging tools, organizations are able to more efficiently discuss ideas and brainstorm solutions. However, when an organization becomes involved in a dispute and those communications are potentially relevant to the dispute and need to be preserved and collected, the process may not be as straightforward as a simple email collection.

Seeking to resolve a split among the Circuits “regarding the scope of liability under the [Computer Fraud and Abuse Act]’s “exceeds authorized access” clause, the Supreme Court granted certiorari to the appeal of Robert Van Buren, a former Georgia police sergeant whose criminal conviction for violating the act was upheld by the Eleventh Circuit in 2019. Under the "gates-up or gates-down" threshold established by the Court's opinion, the access to information relevant to the question of civil or criminal liability under the CFAA is defined by IT permissions. Specifically, the question is now what files or folders within a computer system is an authorized user allowed to access and did that user exceed that authorized access? 

Companies and organizations use social media ("SoMe") to gain market advantage, shape and model their own image, market and advertise to customers, track how effective their marketing campaigns might be, understand who their customers are, test new products or services and provide a platform through which customers can provide feedback. Every post or piece of analytics could be considered a “business record,” subjecting it to discovery in both civil and criminal litigation, internal and government investigations or audits. As a result, attorneys and their IT teams should understand the best practices for preserving, processing, reviewing, and producing data from SoMe sites to acquire valuable – and usable – evidence.

I had the recent opportunity to sit down (virtually) with Senior E-Discovery Attorney Jim Hefferan and find out more about his extremely interesting background and life. Considering his role as a member of the City Council for his town of Belmont, NC, I also thought he might have a unique perspective on how COVID-19 has changed our lives.