Well, it's 2013, and it's time to restart the Discovering E-Discovery blog!
Late in 2010, I accepted a new position at a small electronic discovery software provider, Clearwell Systems, and my focus was on the new job.
Clearwell was acquired by Symantec Corporation in the summer of 2011, and I am now part of Symantec's Information Intelligence Group, which focuses on archiving and electronic discovery.
It feels like the right time to continue my observations on the world of electronic discovery. Many exciting things are going on, not the least computer-assisted review, a.k.a. predictive coding.
I plan on publish a post on predictive coding in the near future.
But in the meantime, I'm celebrating the restart of this blog, and look forward to many posts in the future!
-Christoph
Monday, March 4, 2013
Tuesday, October 5, 2010
Jail time! (Victor Stanley v. Creative Pipe)
Big news in the world of e-discovery! A judge has found a defendant in contempt of court, and has ordered jail time for the defendant, at least until he pays plaintiff's attorney fees and costs!
The case is called Victor Stanley v. Creative Pipe, and the decision was issued last month, September 2010.
In a nutshell, the defendant in this case, Mark Pappas, deleted and destroyed electronically stored information ("ESI"), on a massive scale. Much of this ESI can't be recovered.
As a result, the plaintiff requested sanctions, and Judge Paul Grimm, of the U.S. District Court in Maryland, granted them.
On top of the sanctions, defendant basically conceded the underlying case (which was copyright infringement) when he agreed to a default judgment against himself on the primary claim!
That's how bad things became in discovery in this case - the defendant gave up defending against the original claim. He admitted that most of plaintiff's allegations were accurate.
Here's the amazing quote:
"Among the sanctions this memorandum imposes is a finding... that Pappas's pervasive and willful violation of serial Court orders to preserve and produce ESI evidence be treated as contempt of court, and that he be imprisoned for a period not to exceed two years, unless and until he pays to Plaintiff the attorney's fees and costs..."
Wow!
What happened?
The defendant really upset the judge. The case went on for years, taking up "hundreds of hours of my time and my law clerk's time", according to the judge. The judge was not happy, and let the defendant have it.
The background of the case can be stated somewhat simply: Victor Stanley, Inc. ("VSI") makes park benches, bike racks, metal trash cans, and other things one might find outdoors, in a public space.
Someone using the name "Fred Bass" extensively downloaded design drawings and similar material from VSI's website.
VSI filed a complaint against Mark Pappas in October 2006 alleging violations of copyrights and patents, and unfair competition, claiming that "Fred Bass" was actually Pappas.
For the next several years, "Pappas engaged in a cat and mouse game to hide harmful ESI from production during discovery, repeatedly trying to stall or prevent VSI from discovering evidence that he improperly accessed or used VSI's website or drawings."
The judge lists eight preservation failures:
1) Pappas did not implement a litigation hold.
2) Pappas deleted ESI soon after VSI filed suit.
3) Pappas did not preserve his external hard drive after VSI demanded preservation of ESI.
4) Pappas did not preserve files and emails after VSI asked for preservation.
5) Pappas deleted ESI after the court issued its first perservation order.
6) Pappas continued to delete ESI, and use programs to permanently remove files after the court reminded the parties of their duty to perserve evidence and issued its second preservation order.
7) Pappas did not preserve ESI when he replaced his company's server.
8) Pappas continued to permanently delete ESI after the court issued a number of production orders.
What seems to have upset Judge Grimm the most is defendant's continued deletion and permanent destruction of ESI, after the court told him to preserve all material related to the case. Defendant did this for years, over the life of the case... He intentionally tried to destroy evidence - information that would hurt his defense.
That's what upset the judge. And that's why the judge ordered jail time, until the defendant pays plaintiff's attorney's fees and costs.
Victor Stanley v. Creative Pipe is an amazing case, with lots of interesting details.
Details for another time, though...
That's all for this week, on Discovering E-Discovery!
The case is called Victor Stanley v. Creative Pipe, and the decision was issued last month, September 2010.
In a nutshell, the defendant in this case, Mark Pappas, deleted and destroyed electronically stored information ("ESI"), on a massive scale. Much of this ESI can't be recovered.
As a result, the plaintiff requested sanctions, and Judge Paul Grimm, of the U.S. District Court in Maryland, granted them.
On top of the sanctions, defendant basically conceded the underlying case (which was copyright infringement) when he agreed to a default judgment against himself on the primary claim!
That's how bad things became in discovery in this case - the defendant gave up defending against the original claim. He admitted that most of plaintiff's allegations were accurate.
Here's the amazing quote:
"Among the sanctions this memorandum imposes is a finding... that Pappas's pervasive and willful violation of serial Court orders to preserve and produce ESI evidence be treated as contempt of court, and that he be imprisoned for a period not to exceed two years, unless and until he pays to Plaintiff the attorney's fees and costs..."
Wow!
What happened?
The defendant really upset the judge. The case went on for years, taking up "hundreds of hours of my time and my law clerk's time", according to the judge. The judge was not happy, and let the defendant have it.
The background of the case can be stated somewhat simply: Victor Stanley, Inc. ("VSI") makes park benches, bike racks, metal trash cans, and other things one might find outdoors, in a public space.
Someone using the name "Fred Bass" extensively downloaded design drawings and similar material from VSI's website.
VSI filed a complaint against Mark Pappas in October 2006 alleging violations of copyrights and patents, and unfair competition, claiming that "Fred Bass" was actually Pappas.
For the next several years, "Pappas engaged in a cat and mouse game to hide harmful ESI from production during discovery, repeatedly trying to stall or prevent VSI from discovering evidence that he improperly accessed or used VSI's website or drawings."
The judge lists eight preservation failures:
1) Pappas did not implement a litigation hold.
2) Pappas deleted ESI soon after VSI filed suit.
3) Pappas did not preserve his external hard drive after VSI demanded preservation of ESI.
4) Pappas did not preserve files and emails after VSI asked for preservation.
5) Pappas deleted ESI after the court issued its first perservation order.
6) Pappas continued to delete ESI, and use programs to permanently remove files after the court reminded the parties of their duty to perserve evidence and issued its second preservation order.
7) Pappas did not preserve ESI when he replaced his company's server.
8) Pappas continued to permanently delete ESI after the court issued a number of production orders.
What seems to have upset Judge Grimm the most is defendant's continued deletion and permanent destruction of ESI, after the court told him to preserve all material related to the case. Defendant did this for years, over the life of the case... He intentionally tried to destroy evidence - information that would hurt his defense.
That's what upset the judge. And that's why the judge ordered jail time, until the defendant pays plaintiff's attorney's fees and costs.
Victor Stanley v. Creative Pipe is an amazing case, with lots of interesting details.
Details for another time, though...
That's all for this week, on Discovering E-Discovery!
Tuesday, September 21, 2010
Social Networking and Electronic Discovery: An Introduction
Social networking has changed our world. It has changed both personal communications and work-related communications. Some of the most interesting challenges in the electronic discovery world come from questions about social networking.
One question is: who owns user-created content on a social network? Is it the person who posted the picture; uploaded the video; wrote on someone's wall? Or does the social network itself own this content?
What happens when a user closes her account? Is everything she created wiped off the network, or does some of it remain, perhaps on someone else's personal page? For example, if Mary had a back-and-forth public conversation with Bob, on Bob's personal page, and Mary closes her account, is the conversation erased from Bob's page? Or not? Or is Mary's part of the conversation deleted, while Bob's writings remain?
What about a court's request for evidence? Is a social network obliged to turn over data created by a user? Or does the court go to this user for the data?
There is a federal law which attempted to address some of these questions, but the law was enacted long before today's social networks existed. In fact, the law was enacted in 1986, so it predates even the World Wide Web!
As part of the 1986 Electronic Communications Privacy Act, the U.S. Congress passed the Stored Communications Act (the SCA).
The SCA defines two types of online services:
One question is: who owns user-created content on a social network? Is it the person who posted the picture; uploaded the video; wrote on someone's wall? Or does the social network itself own this content?
What happens when a user closes her account? Is everything she created wiped off the network, or does some of it remain, perhaps on someone else's personal page? For example, if Mary had a back-and-forth public conversation with Bob, on Bob's personal page, and Mary closes her account, is the conversation erased from Bob's page? Or not? Or is Mary's part of the conversation deleted, while Bob's writings remain?
What about a court's request for evidence? Is a social network obliged to turn over data created by a user? Or does the court go to this user for the data?
There is a federal law which attempted to address some of these questions, but the law was enacted long before today's social networks existed. In fact, the law was enacted in 1986, so it predates even the World Wide Web!
As part of the 1986 Electronic Communications Privacy Act, the U.S. Congress passed the Stored Communications Act (the SCA).
The SCA defines two types of online services:
- Electronic communication services
- Remote computing services
The definitions are straight-forward:
Electronic communcation services include any service that lets users send or receive data.
Remote computing services include any service that lets the public store data or use processing services, over an electronic communications system (a network).
The SCA protects data that is stored or transmitted via electronic communciation services much more than data that is stored or transmitted via remote computing services. Congress' logic seems to have been that by placing data on a remote site, the data user has a lower expectation that the data will remain private, while data sent over an electronic communication service is more like a phone call, where the user has higher expectations of privacy.
U.S. courts are looking to the SCA to fit social networking fact patterns, and they are having difficulty applying the 2010 facts to the 1986 law.
There is much more to be said about social networking and electronic discovery, and I will address the topic in the future.
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