2007-05-23 Older Case, Good Law: Incorporation of Website by Reference

In Affinity Internet, Inc., d/b/a Skynetweb, v. Consolidated Credit Counseling Services, Inc. No. 4D05-1193 (4th Dist. FL 2006), the Court of Appeals refused to enforce an arbitration clause which had been incorporated by reference --- to a web site. Chief among the reasons for rejecting such incorporation was that the link was a dead link, or did not point to the arbitration clause. Of course, an argument could have been made as well that no foundation was laid to establish that the link was *the* link in question to specific arbitration clause asserted. Imo, the evidentiary quality is otherwise very weak.

2007-05-20 Magistrate Judge's eDiscovery Rulings Subject To Abuse of Discretion Standard

Which means, of course that a District Judge will (at least in the Southern and Eastern District of New York) accord substantial deference to an eDiscovery ruling.

From the May 15, 2007 Eastern District decision in Curto v. Medical World Communications, Inc. Slip Copy, 2007 WL 1452106 (E.D.N.Y. 2007).

"This Court reviews a magistrate judge's decision regarding non-dispositive pretrial matters under a “clearly erroneous or contrary to law” standard. See 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). Discovery matters are generally considered non-dispositive of litigation. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir.1990).

An order is “clearly erroneous” only if a reviewing court, considering the entirety of the evidence, “ ‘is left with the definite and firm conviction that a mistake has been committed’ “; an order is “contrary to law” when it “fails to apply or misapplies relevant statutes, case law, or rules of procedure.' “ EEOC v. First Wireless Group, Inc., 225 F.R.D. 404, 405 (E.D.N.Y.2004) (quoting Weiss v. La Suisse, 161 F.Supp.2d 305, 320-21 (S.D.N.Y.2001)). This standard is “highly deferential,” “imposes a heavy burden on the objecting party,” and “only permits reversal where the magistrate judge abused his discretion.” Mitchell v. Century 21 Rustic Realty, 233 F.Supp.2d 418, 430 (E.D.N.Y.2002). Because it is clear that a magistrate judge is best qualified to “judge the entire atmosphere of the discovery process,” Bogan v. Northwestern Mut. Life Ins. Co., 144 F.R.D. 51, 53 (S.D.N.Y.1992), his discovery-related rulings are entitled to substantial deference. See Nikkal Indus., Ltd. v. Salton, Inc., 689 F.Supp. 187, 189 (S.D.N.Y.1988) ( “Consistently, it has been held that a magistrate's report resolving a discovery discourse between litigants should be afforded substantial deference and be overturned only if found to be an abuse of discretion.”)."

2007-05-20 Electronic Discovery Requests - Be Very Careful What You Ask For...And How You Ask For It


Just because you ask for electronically stored information, does not mean the producing party must produce the information requested in electronic format.

In Pace v. International Mill Service, Inc. Slip Copy, 2007 WL 1385385 (N.D.Ind. 2007), the Court denied a motion to compel, holding that "[Plaintiff's] assumption that Rule 34 can be read to provide a general standard for electronic documents, without reference to his specific request, is incorrect. The Court reasoned that so long as the production is "reasonably usable" it complies with discovery rules.

The Court then offers a wonderful gotcha issued in Northern Crossarm Company, Inc. v. Chemical Specialities, Inc., 2004 WL 635606 (W.D.Wis.2004) in which it notes with approval that Court's observation that “First, plaintiff did not specifically request production of the e-mail in electronic format, it simply asked for production of documents, adopting the definition in Rule 34(a). This certainly entitled plaintiff to disclosure of the information stored electronically, but it did not require production in electronic format.”

Moral: Competency competency check: Just because you make an Fed. R. Civ. P. Rule 34 Request does not mean that you will get electronically stored information in the manner in which it is stored. Stripped electronic information, by way of .pdf or .tiff format may, absent a specific request (and be ready understand how to defend that request) suffice.

2007-05-15 Attorney's Competency Includes Technology

From The May 15 Issue of the Florida Bar News

Said Bar Ethics Counsel Elizabeth Tarbert: “Lawyers have an obligation of confidentiality, which requires that lawyers take reasonable precautions from inadvertently disclosing client information, as well as from purposefully disclosing client information. “Lawyers also have a duty of competence, which includes keeping current with technological changes that may affect the lawyers’ clients.”

2007-05-15 Materiality to Change to a Qualitative Test?

The latest issue of Compliance Magazine reports that the SEC is thinking about, if not formally considering, reviewing and changing the definition of materiality. The last revision to that definition was, according to the article, eight years ago, and the current question is whether to shift from a quantitative to a qualitative definition. This type of shift would actually align with the shift to "risk based" guidelines. My bet is that the SEC does shift to this, because it will appear to allow more wiggle room. If this shift does occur, it will open a litigation floodgate, because a failure to implement proper info-sec policies and processes, which only by extension could be argued to be material, now would be a component of materiality (what's info-sec if not qualitative)

I've had (rather loud) discussions as to whether info-sec policies and processes can be factored into current materiality criteria. A good argument can be made for content authentication technology, but PKI deployments such as identity authentication present more attenuated analyses.

Substituting, or even incorporating a qualitative test into a materiality analysis would, imo, remove the attenuation between info-sec and materiality. It would also open the litigation floodgates.

2007-05-04 Lorraine v Markel -Excerpts: Evidentiary Treatment of Computer Generated Information from the Decision. Here, eMails

You can find the opinion here
http://www.mdd.uscourts.gov/Opinions152/Opinions/Lorraine%20v.%20Markel%20-%20ESIADMISSIBILITY%20OPINION.pdf

CIVIL ACTION NO. PWG-06-1893

MEMORANDUM OPINION
"Be careful what you ask for, the saying goes, because you might actually get it. For the last several years there has been seemingly endless discussion of the rules regarding the discovery of electronically stored information (“ESI”). The adoption of a series of amendments to the Federal Rules of Civil Procedure relating to the discovery of ESI in December of 2006 has only heightened, not lessened, this discussion. Very little has been written, however, about what is required to insure that ESI obtained during discovery is admissible into evidence at trial, or whether it constitutes “such facts as would be admissible in evidence” for use in summary judgment practice. FED. R. CIV. P. 56(e).3 This is unfortunate, because considering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted. The process is complicated by the fact that ESI comes in multiple evidentiary “flavors,” including e-mail, website ESI, internet postings, digital photographs, and computer-generated documents and data files.

Whenever ESI is offered as evidence, either at trial or in summary judgment, the following evidence rules must be considered: (1) is the ESI relevant as determined by Rule 401 (does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be); (2) if relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show that the ESI is what it purports to be); (3) if the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception (Rules 803, 804 and 807); (4) is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, of if not, is there admissible secondary evidence to prove the content of the ESI (Rules 1001-1008); and (5) is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403."

Excerpted from the conclusion, which pretty much sums it all up.

"In this case the failure of counsel collectively to establish the authenticity of their exhibits,resolve potential hearsay issues, comply with the original writing rule, and demonstrate the absence of unfair prejudice rendered their exhibits inadmissible, resulting in the dismissal, without prejudice,of their cross motions for summary judgment. The discussion above highlights the fact that there are five distinct but interrelated evidentiary issues that govern whether electronic evidence will be admitted into evidence at trial or accepted as an exhibit in summary judgment practice. Although each of these rules may not apply to every exhibit offered, as was the case here, each still must be considered in evaluating how to secure the admissibility of electronic evidence to support claims and defenses. Because it can be expected that electronic evidence will constitute much, if not most, of the evidence used in future motions practice or at trial, counsel should know how to get it right on the first try. The Court hopes that the explanation provided in this memorandum will assist in that endeavor."

Steven

2007-05-04 Seminal Computer Generated Evidence Admissibility Analysis --- Lorraine v Markel,
PWG-06-1893 (DC MD May 4, 2007) Getting It Right on the First Try.



Chief Magistrate Judge Paul Grimm of the United States District Court for the District of Maryland issued what is more guidance and analysis than decision in this magnum opus opinion. Largely directed at counsel, the opinion exposes the heightened scrutiny for computer generated information generally, and almost literally talks a walk through almost every section of the Federal Rules of Evidence. The 9th Circuit's decision in In re Vee Vinhnee, the Connecticut Court of Appeals decision in Swinton, and others are all viewed quite the positive light.

Oh, and btw, counsel failed to meet their authentication burden.

The last paragraph of the Markel decision sums it up:

"In this case the failure of counsel collectively to establish the authenticity of their exhibits,resolve potential hearsay issues, comply with the original writing rule, and demonstrate the absence of unfair prejudice rendered their exhibits inadmissible, resulting in the dismissal, without prejudice,of their cross motions for summary judgment. The discussion above highlights the fact that there are five distinct but interrelated evidentiary issues that govern whether electronic evidence will be admitted into evidence at trial or accepted as an exhibit in summary judgment practice. Although each of these rules may not apply to every exhibit offered, as was the case here, each still must be considered in evaluating how to secure the admissibility of electronic evidence to support claims and defenses. Because it can be expected that electronic evidence will constitute much, if not most, of the evidence used in future motions practice or at trial, counsel should know how to get it right on the first try. The Court hopes that the explanation provided in this memorandum order will assist in that endeavor."