Ephemeral messaging applications are considered solutions for data protection and privacy concerns (Blink, And I’m Gone: E-Discovery Challenges and Considerations With Ephemeral Messaging).  However, courts are wary of ephemeral messaging applications given they can empower a litigant to avoid discovery obligations.  A recent decision from the District Court for the District of Arizona, details the consequences of using improperly ephemeral messaging applications (Fed. Trade Comm’n v Noland, 2021 WL 3857413 [D. Ariz. Aug. 30, 2021]). Background The Federal Trade Commission (the “FTC ..read more

In a few short weeks, the global loss attributable to cybercrime is expected to surpass $6 trillion.*  Therefore, in an effort to protect financial institutions and consumers from further loss, agencies including the United States Securities and Exchange Commission (A Cybersecurity Wake Up Call: SEC Sanctions Eight Firms for Cybersecurity Deficiencies) and the United States Department of the Treasury Financial Crimes Enforcement Network (“FinCEN”), are prioritizing cybersecurity enforcement actions and offering guidance on how to detect and report suspicious ransomware attacks (Advisory o ..read more

For some, discovery is merely a necessary evil in the litigation process.  And so, it should come as no surprise that the discovery process is often ripe with gamesmanship.  A recent decision reminds practitioners, however, that discovery is meant to be cooperative, and gamesmanship – especially repetitive and intentional gamesmanship – may be met with “death penalty sanctions” (Heslin v Jones, (2021 WL 4571198 [Tex Dist, Travis County, Sept. 27, 2021]). Background: The facts of the underlying litigation are not relevant.  Rather defendants’ flagrant refusal to comply with their ..read more

The U.S. Securities and Exchange Commission (“SEC”) recently identified cyberthreats as an enforcement priority (see 2021 Examination Priorities).  Within months of the Commission’s announcement, the Commission brought three enforcement actions* which resulted in sanctions against eight investment advisory firms who failed to report cyber related attacks, failed to adopt,  or failed to implement proper cybersecurity policies in violation of Rule 30(a) of Regulation S-P (17 C.F.R. § 248.30(a)) (the “Safeguards Rule”).** In each of the three matters, the various firms had their email a ..read more

When confronted with an issue of first impression – how to authenticate text messages – the Colorado Court of Appeals chose not to reinvent the wheel.  Rather, it wisely borrowed from the Federal Rule of Evidence (“FRE”) 901. Factual Background In People v Heisler, the defendant and victim had been romantically involved.  They remained in touch after they broke up but eventually, the victim began dating another person and requested Heisler stop texting her. Heisler ignored the victim’s request and continued – with increasing frequency – to text and write letters to the victim, who di ..read more

It is estimated that more than 100 million people are wearing an Apple Watch* and another approximately 31 million people are using the Fitbit.** It is further predicted that sales and use of these devices will continue to grow. And so, as people increasingly look for wearables that both “make technology more personal” and include a “cool factor”*** we are reminded that wearables are a repository of information (The Document Demand That Seeks Electronically Stored Information) that could be discoverable in a litigation depending on the relevance of the data.  The Bartis case, pending in t ..read more

A prior post (Keyword Searching – What is it? And How Do I Do It (Well)?) offered some tips for crafting effective search terms for use in the e-discovery process. Although those tips still hold true, today’s blog offers ways to utilize an ESI protocol to promote a more seamless electronic search process.* An ESI protocol is intended to allow parties to agree on, among other things, how data will be accessed and produced in connection with a litigation. As part of the protocol, parties should negotiate the process for crafting search terms, identifying the universe of data to be searched, and ..read more

The need to input a username and password when logging into a computer is a “single factor” authentication. But, from a security perspective, that single factor authentication only goes so far. Consider, for example, the ramifications if a hacker steals or guesses your username and password. What information could be compromised? For law firms, cybercrime and data breaches have become a major concern because of the confidential and sensitive information lawyers have access to and often store on their computers.* Recently, the New York City Law Department, a 1,000 lawyer agency responsible for ..read more

We have heard it many times before – document review in today’s e-ubiquitous world is expensive.  But imagine a client’s surprise when it learns an already expensive litigation task was plagued by associate over-billing. According to a recent complaint filed with the Illinois Attorney Registration and Disciplinary Commission (“IADRC”) (see In the Matter of Stephanie Alexandra Gerstetter), an associate litigation attorney at Reed Smith, LLP, Stephanie Gerstetter (“Gerstetter”), was assisting a more senior associate with two separate document review projects.  Specifically, Gerstetter ..read more

Bursztein v Best Buy Stores, L.P., (2021 WL 1961645 [SD NY 2021]) involves a personal injury lawsuit arising from plaintiff Perla Bursztein’s slip and fall accident in a New York City Best Buy store. During discovery, Bursztein requested: (i) video surveillance footage of the accident; (ii) maintenance, and repair records for the location of the accident; and (iii) Best Buy’s customer safety policy. In response, Best Buy produced two documents, interposed boilerplate specific objections to Plaintiff’s requests and claimed it did not maintain surveillance footage of the accident and other criti ..read more