Informative Articles About Digital Forensics Litigation Support
Is Digital Different? Electronic Disclosure and Discovery in Civil Litigation
By Kenneth J. Withers I. Introduction A new phenomenon has surfaced in civil litigation in the United States, or rather in the media coverage of significant cases. In the Microsoft antitrust litigation, the investigation of President Clinton by Judge Starr, Raytheon Corporation’s suit against its own employees for libel, countless employment-related actions, and even routine divorce cases, the evidence takes a new form. E-mail, chat room transcripts, databases, spreadsheets, web browser history files, and information derived from system backup tapes are replacing conventional paper documents. This phenomenon is not confined to the United States and its tradition of broad discovery. In 1997, the British press reported that insurance giant Norwich Union paid a 450,000 settlement to a rival company after disclosure of internal e-mail containing libelous allegations. In 1999, BG (formerly known as British Gas) paid more than 225,000, half of which represented legal fees, to settle a similar case. As in the United States, e-mail is emerging in UK employment-related litigation. The legal and business press in other common law countries, such as Canada, South Africa, and Australia, have noted the phenomenon. Even in Scotland, proud of its civil law heritage, a commentator in the popular press wrote that “these cases emphasize the growing importance of companies adopting policies to deal with requests [for electronic documentation] that might arise as a result of legal action.” The emergence of evidence in electronic form,…
Read MoreFailing To Preserve Electronic Evidence Can Gut Your Case
By Eric Sinrod, If you want to succeed in litigation these days, it is imperative that relevant electronic data be preserved. The destruction of such data can lead to serious adverse evidentiary inferences, as illuminated by a very recent case. The case of Easton Sports v. Warrior Lacrosse involves the movement of an employee from one company to another and the allegation that he misappropriated trade secrets and confidential business information from the employee’s first employer. A federal magistrate in Michigan recently was called upon in the case to decide whether and to what extent sanctions should be awarded with respect to the failure to preserve certain electronic evidence. The magistrate found that the employee had inappropriately accessed numerous confidential electronic documents in his first employer’s computer record system. He then transferred at least a portion of those records to his personal Yahoo computer system account. The magistrate further found that the employee corruptly terminated his Yahoo contract with the intent to cause the destruction of information or data compiled through that service. Additionally, the magistrate concluded that he improperly copied confidential business information of his first employer to a CD, that he retained control of the CD after he ceased working for that employer, and that he later accessed the contents of the CD via a computer assigned to him by his second employer. That information was deleted after the filing of…
Read MoreGathering electronic evidence
A NEW field of evidence gathering involves techniques designed to find relevant electronic evidence on personal computers. This investigative discipline will become an important discovery tool for both lawyers and law enforcement agencies. Here Dr Henry B Wolfe* explains the basics of what it can and cannot do. Computer forensics refers to the developing field that captures and analyses information stored on personal computers. Relevant information is prepared in a format that will be easily used and understood in a court of law. The methods used can be demonstrated to be sound. Information found in this way can be used either to convict or to exonerate depending on each case. Some of these investigative techniques are legal, some require a warrant to execute legally and some are completely illegal. Nevertheless, they are all used to one degree or another in the pursuit of evidence to prove guilt or innocence. Electronic forensics is based on some technical facts that most personal computer users are not aware of. A good deal of information, whether deleted or not, may reside on a target PC without the knowledge of its user. Data resides in many places on a hard drive. Everyone knows that there are files and directories and system files. What most users do not realize is that there is a great deal of left over data stored on their disk drives. This data may be…
Read MoreZubulake v. UBS Warburg, ZUBULAKE 2
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK LAURA ZUBULAKE, :: Plaintiff, -against- UBS WARBURG LLC, UBS WARBURG, and : UBS AG, : Defendants. OPINION AND ORDER : 02 Civ. 1243 (SAS) SHIRA A. SCHEINDLIN, U.S.D.J.: On May 13, 2003, I ordered defendants UBS Warburg LLC, UBS Warburg, and UBS AG (collectively “UBS”) to restore and produce certain e-mails from a small group of backup tapes. Having reviewed the results of this sample restoration, Laura Zubulake now moves for an order compelling UBS to produce all remaining backup e-mails at its expense. UBS argues that based on the sampling, the costs should be shifted to Zubulake. For the reasons fully explained below, Zubulake must share in the costs of restoration, although UBS must bear the bulk of that expense. In addition, UBS must pay for any costs incurred in reviewing the restored documents for privilege. I. BACKGROUND The background of this lawsuit and the instant discovery dispute are recounted in two prior opinions, familiarity with which is presumed.1 In brief, Zubulake, an equities trader who earned approximately $650,000 a year with UBS,2 is now suing UBS for gender discrimination, failure to promote, and retaliation under federal, state, and city law. To support her claim, Zubulake seeks evidence stored on UBS’s backup tapes that is only accessible through costly and time-consuming data retrieval. In particular, Zubulake seeks e-mails relating to her that were…
Read MoreAnalog Devices, Inc. v. Michalski, 2006 NCBC 14
STATE OF NORTH CAROLINA COUNTY OF GUILFORD ANALOG DEVICES, INC., Plaintiff, v. CHRISTOPHER MICHALSKI, KIRAN KARNIK AND MAXIM INTEGRATED PRODUCTS, INC., Defendants. IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION 01 CVS 10614 ORDER AND OPINION {1} This matter is before the Court on Defendants’ Motion to Compel. Defendants have requested that Plaintiff produce e-mails from each of the originators of twenty-one trade secrets at issue for a two-year period surrounding the release dates of products implementing those trade secrets. Much of the information requested is contained in inaccessible form. {2} The opinion in this case and the opinion in Bank of America Corp. v. SR International, Inc., 2006 NCBC 15 (N.C. Super. Ct. Nov. 1, 2006), filed contemporaneously, discuss for the first time the extent to which inaccessible electronic data is discoverable and who should pay for its production under the North Carolina Rules of Civil Procedure. This case addresses the issues in the context of a party-to-party request for production of documents, and the Bank of America decision addresses those issues in the context of a subpoena to a nonparty. In some instances the considerations are the same, and in others they differ dramatically. In both contexts, trial judges should be guided by the language of the applicable Rules of Civil Procedure, supplemented by the Guidelines adopted by the Conference of Chief Justices. In this instance the Court has decided…
Read MoreZubulake v. UBS Warburg, ZUBULAKE 5
Commenting on the importance of speaking clearly and listening closely, Phillip Roth memorably quipped, “The English language is a form of communication! . . . Words aren’t only bombs and bullets — no, they’re little gifts, containing meanings!”1 What is true in love is equally true at law: Lawyers and their clients need to communicate clearly and effectively with one another to ensure that litigation proceeds efficiently. When communication between counsel and client breaks down, conversation becomes “just crossfire,” and there are usually casualties. I. INTRODUCTION This is the fifth written opinion in this case, a relatively routine employment discrimination dispute in which discovery has now lasted over two years. Laura Zubulake is once again moving to sanction UBS for its failure to produce relevant information and for its tardy production of such material. In order to decide whether sanctions are warranted, the following question must be answered: Did UBS fail to preserve and timely produce relevant information and, if so, did it act negligently, recklessly, or willfully? This decision addresses counsel’s obligation to ensure that relevant information is preserved by giving clear instructions to the client to preserve such information and, perhaps more importantly, a client’s obligation to heed those instructions. Early on in this litigation, UBS’s counsel both in-house and outside instructed UBS personnel to retain relevant electronic information. Notwithstanding these instructions, certain UBS employees deleted relevant emails. Other employees never…
Read MoreZubulake v. UBS Warburg, ZUBULAKE 4
“Documents create a paper reality we call proof.” The absence of such documentary proof may stymie the search for the truth. If documents are lost or destroyed when they should have been preserved because a litigation was threatened or pending, a party may be prejudiced. The questions presented here are how to determine an appropriate penalty for the party that caused the loss and the flip side — how to determine an appropriate remedy for the party injured by the loss. Finding a suitable sanction for the destruction of evidence in civil cases has never been easy. Electronic evidence only complicates matters. As documents are increasingly maintained electronically, it has become easier to delete or tamper with evidence (both intentionally and inadvertently) and more difficult for litigants to craft policies that ensure all relevant documents are preserved.2 This opinion addresses both the scope of a litigant’s duty to preserve electronic documents and the consequences of a failure to preserve documents that fall within the scope of that duty. I. BACKGROUND This is the fourth opinion resolving discovery disputes in this case. Familiarity with the prior opinions is presumed, and only background information relevant to the instant dispute is described here. In brief, Laura Zubulake, an equities trader who earned approximately $650,000 a year with UBS,4 is suing UBS for gender discrimination, failure to promote and retaliation under federal, state, and city law.…
Read MoreZubulake v. UBS Warburg, ZUBULAKE 3
On May 13, 2003, I ordered defendants UBS Warburg LLC, UBS Warburg, and UBS AG (collectively “UBS”) to restore and produce certain e-mails from a small group of backup tapes. Having reviewed the results of this sample restoration, Laura Zubulake now moves for an order compelling UBS to produce all remaining backup e-mails at its expense. UBS argues that based on the sampling, the costs should be shifted to Zubulake. For the reasons fully explained below, Zubulake must share in the costs of restoration, although UBS must bear the bulk of that expense. In addition, UBS must pay for any costs incurred in reviewing the restored documents for privilege. I. BACKGROUND The background of this lawsuit and the instant discovery dispute are recounted in two prior opinions, familiarity with which is presumed.1 In brief, Zubulake, an equities trader who earned approximately $650,000 a year with UBS,2 is now suing UBS for gender discrimination, failure to promote, and retaliation under federal, state, and city law. To support her claim, Zubulake seeks evidence stored on UBS’s backup tapes that is only accessible through costly and time-consuming data retrieval. In particular, Zubulake seeks e-mails relating to her that were sent to or from five UBS employees: Matthew Chapin (Zubulake’s immediate supervisor and the alleged primary discriminator), Jeremy Hardisty (Chapin’s supervisor and the individual to whom Zubulake originally complained about Chapin), Rose Tong (a human…
Read MoreZubulake v. UBS Warburg, ZUBULAKE I,
The world was a far different place in 1849, when Henry David Thoreau opined (in an admittedly broader context) that “[t]he process of discovery is very simple.”1 That hopeful maxim has given way to rapid technological advances, requiring new solutions to old problems. The issue presented here is one such problem, recast in light of current technology: To what extent is inaccessible electronic data discoverable, and who should pay for its production? I. INTRODUCTION The Supreme Court recently reiterated that our “simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.” Thus, it is now beyond dispute that “[b]road discovery is a cornerstone of the litigation process contemplated by the Federal Rules of Civil Procedure.” The Rules contemplate a minimal burden to bringing a claim; that claim is then fleshed out through vigorous and expansive discovery. In one context, however, the reliance on broad discovery has hit a roadblock. As individuals and corporations increasingly do business electronically5 — using computers to create and store documents, make deals, and exchange e-mails the universe of discoverable material has expanded exponentially.6 The more information there is to discover, the more expensive it is to discover all the relevant information until, in the end, “discovery is not just about uncovering the truth, but also about how much of the truth the parties…
Read MoreFederal Trade Commision – Staff Workshop Report: Technologies for Protecting Personal Information, 2003
Benchmarks and Standards Panelists discussed the extent to which benchmarks and standards can help provide guidance to industry on the effective management of privacy issues. In particular, such standards have been valuable in providing guidance on how to develop effective security programs. Several industry groups outlined policy initiatives or programs to promote better information security. For example, the Visa Card holder Information Security Program (CISP) requires Internet merchants and processors that are authorized to handle Visa payments to meet 12 different security criteria. The criteria include the installation and maintenance of firewalls, security patching, and encryption. Visa audits companies to ensure compliance and has fined one major processor $500,000 for non-compliance. One of the criteria for the CISP is based on the benchmarks produced by the Center for Internet Security (CIS), which produces security benchmarks for a variety of technologies, including operating systems, routers, and databases. The benchmarks, which are freely available at the CIS Web site, provide technically detailed guidance on how to configure technologies for increased security. Standardized professional training programs in information protection also are gaining acceptance. The Certified Information System Security Professional (CISSP) and the Global Information Assurance Certification (GIAC) from the SANS Institute are two examples of formalized training programs for aspiring information protection professionals. Internet service providers also are coordinating their responses to network security threats, such as worms and denial-of-service attacks. Additional security guidance may come…
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