Discovery In An Electronic Age


The term “e-discovery” refers to a process involving information gathering for the purpose of producing it to opposing counsel for review. Some examples of the kinds of data that is included in e-discovery include: e-mail, documents, instant messaging, database information, websites, raw data (computer forensics), CAD/CAM files and other data that is stored electronically and could be considered relevant evidence.

Since e-discovery pertains to sensitive information obtained through an array of electronic methods, privacy, as well as validity have become recent issues for lawyers and the public. It remains a rather gray legal area, which has provoked arguments concerning what information may be obtained and from which sources. Below are two recent relevant e-discovery related cases.

Ceglia v. Zuckerberg

Case No. 10-CV-00569A(F), 2012 WL 1392965 (W.D.N.Y. Apr. 19, 2012) involved whether inadvertently producing an email from an information technology expert rendered this data inadmissable. The court held that the attorney-client privilege was waived, since plaintiff took no reasonable action to prevent email disclosure, or took steps to promptly rectify the error upon discovering it.

People v. Harris

In Case No. 2011NY080152 (N.Y. Crim. Ct.), the court issued an order requiring production of defendant’s Twitter account information. Twitter countered with a motion to quash the court’s order on the grounds of Fourth Amendment privacy violations, as well as undue burden.

Electronic Data Protection

In today’s information age, as e-discovery continues to become more prevalent, below are some tips on how to protect your personal and company information, in addition to privacy.

  • Configure web browsers using pseudonyms. While IP addresses may still trace identity, this is still a good level of security. Do not enter e-mail addresses, or provide other identifiable data that should not be shared.
  • Turn on all security functions on computers, such as cookies in browsers and management systems. Regularly clean out computer caches using maintenance devices or manual methods.
  • Use pseudonym e-mails for mailing to unknown parties, newsgroups, vendors, chat rooms, lists and other public cyberspaces. Use the “whoisguard” safety feature when registering websites so that physical addresses are not readily available.
  • Avoid using public forums such as Facebook to display images or make statements that could provoke problems. Even using a “screen name” can still be traced through an IP address, if there is any suspicion of law violation.
  • Before revealing any personal or company identifying information, understand fully how it will be used and if it will be shared with others. Find out about company privacy. Choose to keep all information provided confidential, and only if it is certain this designation will be honored.
  • Refrain from revealing personal details to online acquaintances. Always remember that you really do not know who is behind the computer screen or with whom you are communicating.
  • Opt out of special sales, contests and other enticing offers. These are mostly a method of garnering personal information for marketing purposes
  • Be mindful of how you express yourself in all statements made in e-mail, online chats and other digital forums that can be traced. If you are uncertain, don’t say it.
  • Ensure that passwords are on your all digital accounts. Change and update them regularly to discourage information theft or tampering.
  • Avoid using easy to obtain information for a pass code to your information. Minimize the level of identification information provided. Keep all identifying information in a safe and protected place, rather than online.
  • Do not leave a paper trail of receipts or account information out in the open or online. Make every effort to discard personal information expediently and safely, including online.

Rachel Oda is a master of security. She brushed up on her skills after studying the law cases and choosing what not to do while she is online.

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