06 Saturday Feb 2016
Posted in Android Phones, Blackberry Phones, Cell Phones, Discovery, E-Discovery, Evidence, Forensic Evidence, iPhones, Legal Technology, Preservation, Sanctions, Spoilation
≈ Comments Off on Clients – Don’t Wipe That Cell Phone!
Appeals Court Upholds Terminating Sanctions For Wipe of Cell Phone, by Doug Austin, eDiscovery Case Law
In Woodell v. Bernstein, et. al., No. 14-2836 (Cal. App., Dec. 30, 2015), the California Court of Appeals affirmed the judgment of the trial court, which imposed terminating sanctions against the plaintiff for spoliation of evidence and dismissed his lawsuit with prejudice after the plaintiff had wiped his cell phone, which was key to the case. . . .
04 Sunday Oct 2015
Posted in Admissibility, Discovery, E-Discovery, Emails, Emails, Evidence, Federal Rules of Discovery, Forensic Evidence, Gap-Period Emails, Legal Technology, Motion to Compel, Relevance, Requests for Production
≈ Comments Off on Defendant Ordered by Court to Produce Gap-Period Emails on Backup Tapes.
Defendant Compelled to Restore and Produce Emails from Backup Tapes: eDiscovery Case Law, by Doug Austin, eDiscoveryDaily Blog
In United States ex rel Guardiola v. Renown Health, No. 3:12-cv-00295-LRH-VPC, (D. Nev. Aug. 25, 2015), Nevada Magistrate Judge Valerie P. Cooke concluded that emails contained on backup tapes held by the defendants was not reasonably inaccessible due to undue cost and, even if the emails were reasonably inaccessible due to undue burden or undue cost, ‘good cause supports their discoverability.’ . . .
04 Tuesday Aug 2015
Posted in Discovery, E-Discovery, Evidence, Forensic Evidence, Law Office Management, Litigation Hold, Office Procedures, Preservation, Technology
≈ Comments Off on Is It Okay To Wipe A Former Employee’s Computer?
Tags
Computer Files, Doug Austin, E-Discovery Preservation, eDiscoverydaily, Law Office Management, Litigation Hold, Spoliation
Court Denies Request for Sanctions for Routine Deletion of Files of Departed Employees: eDiscovery Case Law, by Doug Austin, eDiscoverydaily
For many employers, it is normal procedure to “wipe” the computer of recently former employees after removing anything not already stored on the employer’s network. Is this a bad practice? -CCE
In Charvat et al. v. Valente et al., 12-5746 (N.D. Ill. July 1, 2015), Illinois Magistrate Judge Mary M. Rowland denied the plaintiff’s request for spoliation sanctions for the defendant’s admitted destruction of computer files belonging to two departed employees, finding that the plaintiff did not provide any evidence that the defendant acted in bad faith. . . .
18 Wednesday Mar 2015
Posted in Admissibility, Evidence, Expert Witness Report, Expert Witnesses, Forensic Evidence, Litigation, Motion in Limine, Motions in Limine, Motor Vehicle
≈ Comments Off on Defendant in Motor Vehicle Accident Files Motion In Limine to Exclude BAC Evidence – Nice Try.
Tags
Autopsy Report, BAC Evidence, Daniel E. Cummins, Motion in Limine, Motor Vehicle Accident, TortTalk Blog
Admissibility of BAC Evidence Requires Proof of Intoxication, by Daniel E. Cummins, TortTalk Blog
http://www.torttalk.com/2015/03/admissibility-of-bac-evidence-requires.html
(Please contact Daniel Cummins at dancummins@comcast.net if you wish to review a copy of this opinion.)
In his recent February 9, 2015 Opinion in the case of Ritter v. Van Campen Motors, Inc., No. 12-00,379 (C.P. Lycoming Co. Feb. 9, 2015 Anderson, J.), Judge Dudley M. Anderson addressed Motions in Limine pertaining to DUI evidence filed by a Defendant in a motor vehicle accident case.
According to the Opinion, this matter involved a motor vehicle accident during which each party claimed that the other driver crossed the centerline resulting in the fatal accident. Accident reconstruction experts offered by each party came to opposite conclusions.
The Defendant filed a Motion In Limine to preclude evidence that the Defendant driver had a BAC of .257 at the time of the accident as confirmed by an autopsy report, testimony that the Defendant had been drinking prior to driving that day, and evidence that there was beer in the Defendant’s vehicle at the time of the accident. The Defendant contended that the BAC evidence was inadmissible absent proof of intoxication. . . .
27 Sunday Jul 2014
Posted in Android Phones, Appellate Law, Apple, Blackberry Phones, Cell Phones, Computer Forensics, Crime Scene Investigation, Criminal Law, Cybersecurity, Discovery, E-Discovery, Emails, Evidence, Experts, Forensic Evidence, Forensic Evidence, Forensic Expert Witness, Fourth Amendment - Search & Seizure, Google, Internet, iPad, iPhones, Legal Technology, Mac, PC Computers, Privacy, Search Warrants, Tablets, Trial Tips and Techniques, U.S. District Court for the District of Columbia, U.S. District Court for the Southern District of New York
≈ Comments Off on Government Can Access Individual’s Gmail Account In Money Laundering Probe.
Tags
Computers, Email, Evidence, Forensic Experts, Gmail, Google, Hard Drives, Magistrate Judge Gabriel W. Gorenstein, Money Laundering, Search & Seizure, Warrants
In a landmark ruling that might fuel a nationwide debate, the New York Court issued a warrant against Google, giving access to user emails.
A New York Court issued a warrant against Google Inc ruling that the government can access all mails of a Gmail account of an individual under a money laundering probe. The judge said that courts have long been waiting for law enforcement to take the required documents in the custody if it is within the purview of the warrant.
Contrary to previous rulings
This decision is not in line with the previous court rulings including courts in the Districts of Columbia and Kansas, Magistrate Judge Gabriel W. Gorenstein of the U.S. District Court for the Southern District of New York noted on Friday. Also, this latest ruling will spark a debate over the privacy, in the country, according to Computer World.
A District of Columbia judge denied from revealing the entire content of the email as this will seize a large amount of emails for which the authorities have not given any reason.
The Court in Kansas, also, did not rule in favor of a similar warrant, stating that it failed to ‘limit the universe of electronic communications and information to be turned over to the government to the specific crimes being investigated.’
However, the New York Court ruled in favor of such warrant, allowing authorities to take into account the emails and other information from a Google inc’s Gmail account, including the address book and draft mails, and also the authority to search the emails for certain specific categories of evidence.
Experts must scan emails, not Google employee
Judge Gorenstein argued that it is not possible to search the hard-disk drives of computers and other storage devices on the spot due to the complexities of electronic searches. Thus, the authorities can seize such storage.
‘We perceive no constitutionally significant difference between the searches of hard drives just discussed and searches of email accounts,’ the judge wrote. He added that in most of the cases data in an email account will be less ‘expansive’ compared to the information contained in the hard drive.
Judge Gorenstein stated that Google employees are not expert enough to know the importance of particular emails without having been given proper training in the substance of the investigation. Judge said this in response to an opinion by the District of Columbia court that gave the government the option of getting the email scanned by the host itself.
He said that an agent, who is completely absorbed in the investigation, will be able to understand the importance of a particular language in emails contrary to the employee.
30 Monday Jun 2014
Posted in Computer Forensics, Discovery, E-Discovery, Emails, Employment Law, Evidence, Forensic Evidence, Law Office Management, Legal Technology, Requests for Production, Technology
≈ Comments Off on Why Defendant Former Employers Do Not Get Mirror-Image of Plaintiff’s Personal Computer.
Tags
Bow Tie Law’s Blog, Computer Forensics, Discovery, Employment Litigation, ESI, Joshua Gilliland, Judge James G. Welsh, Proportionality
Proportionality Prevents Mirror Imaging of Family Computers, by Joshua Gilliland, Bow Tie Law’s Blog
The Defendants in employment litigation sought the mirror imaging of the Plaintiff’s personal computers three years after she had been terminated. The crux of the eDiscovery centered on the former employee forwarding emails from her supervisors email to her personal account, which the Defendants claimed were lost by the Plaintiff. The Court denied the motion to compel. Downs v. Va. Health Sys., 2014 U.S. Dist. LEXIS 74415, 6-11 (W.D. Va. June 2, 2014).
Judge James G. Welsh did a very nice job of summarizing ESI relevant to a case,proportionality, and the rules for conducting forensic analysis on an opposing party’s hard drive. The Court held the following:
(1) Nothing in the record suggests any willful failure, fault or bad faith by the plaintiff on her discovery obligations that would justify the requested computer forensics examination;
(2) The “mirror-imaging” of the plaintiff’s family computers three years after her termination raises significant issues of confidentiality and privacy;
(3) There was no duty on the part of the plaintiff to preserve her family computers as evidence;
(4) Principles of proportionality direct that the requested discovery is not sufficiently important to warrant the potential burden or expense in this case; and
(5) On the current record that the defendants have failed to justify a broad, and frankly drastic, forensic computer examination of the plaintiff’s two family computers.
Downs, at *9-10, referencing McCurdy Group v. Am. Biomedical Group, Inc., 9 Fed. Appx. 822, 831 (10th Cir. 2001); see also Basile Baumann Prost Cole & Assocs., Inc. v. BBP & Assocs. LLC, 2013 U.S. Dist. LEXIS 51264, *8 (D. Md. Apr. 9, 2013). . . .
11 Wednesday Jun 2014
Posted in Admissibility, Authentication, Evidence, Forensic Evidence, Litigation, Motor Vehicle, Trial Tips and Techniques
≈ Comments Off on Vehicular Black Box Is Admissible Evidence To Prove Speed.
Tags
Admissible Evidence, Colin Miller, Event Data Recorder, EvidenceProf Blog, Litigation, Trial Tips & Techniques, Vehicle Accident, Vehicular Black Blox
Until reading this article from the Pittsburgh Post-Gazette, I wasn’t aware that a vehicle has an ‘event data recorder’ akin to an airplane’s ‘black box.’ And now, according to the Superior Court of Pennsylvania in Commonwealth v. Safka, such evidence is admissible to determine a car’s speed at the time of an accident. . . .
19 Monday May 2014
Posted in Adobe Acrobat, Authentication, Bates Numbers, Computer Forensics, Databases, Discovery, Document Review, E-Discovery, Emails, Evidence, Federal Judges, Federal Rules of Discovery, Federal Rules of Evidence, Forensic Evidence, Judges, Legal Forms, Legal Technology, Native Format
≈ Comments Off on Craig Ball’s Lawyers’ Guide to Forms of Production.
Tags
Adobe Acrobat, Ball in Your Court, Bates Numbering, Craig Ball, Databases, E-Discovery, E-Mail, ESI, Evidence, Lawyers' Guide to Forms of Production, Native Format, Redaction
A Guide to Forms of Production, by Craig Ball, Ball In Your Court Blog
http://ballinyourcourt.wordpress.com/2014/05/19/a-guide-to-forms-of-production/
Craig Ball’s Lawyers’ Guide to Forms of Production! Although Mr. Ball says there is much he wants to re-organize and rewrite, I can’t wait to dive in. You will find the hyperlink to the Guide when you go to the web site. Thank you, Craig Ball! -CCE
Semiannually, I compile a primer on some key aspect of electronic discovery. In the past, I’ve written on computer forensics, backup systems, metadata and databases. For 2014, I’ve completed the first draft of the Lawyers’ Guide to Forms of Production, intended to serve as a primer on making sensible and cost-effective specifications for production of electronically stored information. It’s the culmination and re-purposing of much that I’ve written on forms heretofore, along with new material extolling the advantages of native and near-native forms.
Reviewing the latest draft, there is much I want to add and re-organize; accordingly, it will be a work-in-progress for months to come. Consider it a “public comment” version. The linked document includes exemplar verbiage for requests and model protocols for your adaption and adoption. I plan to add more forms and examples. . . .
22 Saturday Mar 2014
Posted in Damages, Evidence, Forensic Evidence, Litigation, Motor Vehicle, Personal Injury, Product Liability, Uninsured Motorist
≈ Comments Off on How To – Investigating Traffic Accidents.
Tags
Car Accident, Dick Warrington, Documentation, Evidence, Evidence Collection, Fender Bender, Forensic Evidence, Forensic Magazine, High Speed Chase, Personal Injury, Product Liability, Traffic Accidents
Evidence Collection in a Traffic Investigation, by Dick Warrington, Forensic Magazine
This post is an excerpt from Mr. Warrington’s post, Investigating the Fender Bender (http://tinyurl.com/o979zk5). I recommend it, and the links to more information on this subject that you will find at the end of the post. -CCE
Most of the time traffic accidents are fairly standard—the typical fender bender where one person runs into another. The officer on duty responds, assesses the situation, and completes the proper paperwork. But sometimes officers deal with much more serious, complex situations. Dealing with a hundred car pile-up, for example, is quite challenging, since it’s like carrying out multiple investigations simultaneously. When responding to multiple car accidents, hit and runs, fatalities, and high speed chases, officers can benefit by calling in Crime Scene Officers to assist with the investigation.
Because this type of case usually involves extensive damage to property, serious injuries, and/or fatalities, lawsuits will likely result. Questions of liability, product failure, etc. will also come up. Given these facts, it’s important to work together to conduct a thorough investigation. Since the CSO’s responsibilities include documentation, evidence identification, and evidence collection, we’ll look at each of those areas. . . .
06 Friday Dec 2013
Posted in E-Discovery, Emails, Evidence, Forensic Evidence, Legal Technology, Metadata, Trial Tips and Techniques
≈ Comments Off on Craig Ball Answers His Mail.
http://ballinyourcourt.wordpress.com/2013/12/06/good-questions/
As always, Craig Ball delivers. Great answers to e-discovery terminology and best practices. -CCE
22 Tuesday Oct 2013
Posted in Admissibility, Court Rules, Evidence, Expert Witnesses, Forensic Evidence, Trial Tips and Techniques, Voir Dire
≈ Comments Off on Experts, Admissibility, and Rule 705
Who Made You The Expert?: Rule 705 & The Admissibility of Underlying Facts or Data, by Evidence ProfBlogger, EvidenceProfBlog
http://bit.ly/1a085YM
15 Tuesday Oct 2013
Posted in Evidence, Forensic Evidence
≈ Comments Off on DNA Evidence
Tags
DNA Evidence: Brave New World, Same Old Problems, posted by Ken Strutin, LLRX.com
http://www.llrx.com/features/dnaevidence.htm
The Researching Paralegal 
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