See Outlines on specific Privileges
Protocols for determination & protection
Attorney-Client communications
Duty of Confidentiality
Privilege - see e-mail issues below and inadvertent disclosure issues
Waiver by Inadvertent Disclosure :
See California Law at Attorney-Client
Outline at California Civl Discovery
webpage
ABA Civil Discovery Standard 28
E-mail issues
Work Product
Privacy
Trade Secrets
re storage systems
PROTOCOLS TO DETERMINE & PROTECT
Appointment of "neutral" operating under court guidelines
Henry
v. IAC/Interactive Group and Expedia, Inc., 2006 WL
354971 (W.D.Wash.) Employer
sought return of its documents and computer from a former employee
claiming breach of contract to return such property and
misappropriation of trade secrets. Employee
was allowed to use the company computer and e-mail server while on
leave, before terminated, and before lawsuit. She communicated with
her attorney via email during that period and some privileged
documents were on the computer. The court issued a preliminary
injunction requiring return of the computer and all company documents
but allowed the employee's computer expert to remove the employee's
privileged documents from the computer and provide a log to the employer
Williams v. Massachusetts
Mut. Life Ins. Co. 226 F.R.D. 144 (D.Mass.,2005).
[preliminarily there must be some justification or good cause for
examination
of hard drives]
Etzion v. Etzion 2005
NY Slip Op 25115; 2005 N.Y. Misc. LEXIS 519 (Nassau County
Supreme Court, 2005)
"The court previously
appointed ... attorney
referee to supervise discovery. Defendant shall notify the referee of
the
locations of computers on which business records are maintained or
entered.
Thereafter, Plaintiff's expert, accompanied by Defendant's expert and
the
attorney referee, shall be present at the locations designated as
sources of computer
data. The Plaintiff's expert shall clone or copy the hard drives of
such
computers. The resultant hard drive shall be immediately turned over to
the
Referee. This procedure shall be followed until all computers on which
business
records of Variety and/or the foreign entities appear shall be cloned,
with the
resultant copy turned over to the Referee.
At a location jointly selected by the aforesaid computer experts of
each of the
parties and the Referee, the hard drives shall be examined. Hard copies
of any
Business Records found on such hard drives will be made and distributed
to
attorneys for both parties. The records must relate to the Foreign
Entities
and/or Variety. Personal records, emails or other correspondence
between
Defendant and third parties and/or Defendant and his counsel shall not
be
copied or transmitted to any attorney.
At the conclusion of the review of the cloned hard drives, the Referee
shall
maintain control of the clones until conclusion of this matter, at
which time
the cloned hard drives will be returned to Defendant for disposal.
Where
questions arise as to the appropriate review of a particular document,
the
Referee's determination shall be final."
Playboy Enterprises v. Welles (S.D. Cal.1999), 60 F.
Supp.2d 1050 [Tr Ct established protocol: mirror image by neutral
expert at requesting party's expense; producing party to print and
review all documents and submit privilege log ]
Simon Property Group v. mySimon Inc.(S.D.Ind.2000), 194
F.R.D. 639 [Court defines parameters of discovery; Discoverable hard
drives identified; Moving party selects expert to act as officer of
court; mirror image retained by expert; recovered documents provided by
expert to producing party for review and objections]
Tulip Computers International B.V. v. Dell Computer Corporations
(D.Del.2002), 2002 WL 818061 [mySimon procedure
followed: Dell provides emails in electronic form to Tulip's expert for
search based on agreed list of search terms; e-mail list provided to
Dell for production to Tulip subject to objections for privilege and
confidentiality]
Requesting party expert conducting examination under suggested
protocol where producer has option of
Prior review for privilege or confidentiality at expense of
producing party on theory that its failure to segregate such documents
was its responsibility or
Allowing exam by requesting "atorney eyes only" and subect to
protective order
Review by requesting attorneyy deemed to not be waiver
See Rowe Entertainment v. The William Morris Agency (S.D.N.Y.
2002), 205 F.R.D. 421; Murphy Oil USA v. Fluor Daniel Inc.
(2/19/02, E.D. La.) 2002 WL 246439
The courts adopted the following general protocol subject to
modificatioon by counsel
1. Requester selects expert subject to objection
2. Expert isolates e-mail for review [coop of producers technical
personnel]
3. Mirror image hard drive and copy backup tapes
4. Requester may employ sampling to reduce costs
5. Requester formulates search procedure and selects "key words"
subject to objections
6. Requester attorney reviews documents on attorney's eyes only basis
7. Requester selects format for review and selects relevant e-mails
8. Relevant documents provided to producer's counsel in hard copy with
bates stamps
9. Requester pays for above
10. Producer reviews for privilege and confidentiality
IF PRIOR REVIEW BY PRODUCER
11. Producer's expense to copy, review and delete privileged documents
12. Provide redacted hard drive or backup tape and privilege log
Murphy case required requester's expert to perform initial
review without communicating with requester's attorney re content of
documents similar to My Simon case
See also Southern Diagnostic Assoc. v. Bencosme
(Fla.App.2002), 833 So.2d 801, 2002 WL 31422863 [In footnote 1, the
court suggested the parties provide expert assistance to the court to
enable it to formulate limitations on the discovery to protect
confidential information while allowing access to the relevant
information. Ins.Co. Sued for bad faith contracted out medical exams to
3d party; frequency of expert testimony and payments for 3 year period
re two physicians discoverable; 3rd party couldn't produce documents or
information from its computer system; tr CT granted access to the
computer system to retrieve the information but writ was granted
setting aside order because the trial court set no parameters or
limitations and private and privileged medical information of
nonparties was involved; the matter was remanded for the trial court to
tailor the order to accomplish the purpose of discovery while
protecting confidentiality; The court cited Strasser v. Yalamanchi
(Fla.4th DCA 1996), 669 So.2d at 1145 as "holding that an order
permitting discovery by computer search might be appropriate, but the
'order must define parameters of time and scope and must place
sufficient access restrictions to prevent compromising patient
confidentiality and to prevent harm to the computer and databases".]
Sufficiency of confidentiality orders
Gilliam
v. Addicts Rehabilitation Center Fund, Inc. Slip
Copy, 2006 WL 228874 (S.D.N.Y.2006). Court relied
on FRCP
Rule One to justify prompt disclosure, while noting that producing
party had already had 4 months to review documents.Privacy objection to
producing electronic records was rejected since the information was
routinely shared with an outside contractor and requesting party had
agreed to a confidentiality order. Offer to produce in paper form was
rejected by the court noting "...discs could then be reviewed in a more
efficient manner and the sensitive information skipped by the
reviewer(s). Admittedly, this means that the individual reviewing the computer
files could look at the personal data, but the confidentiality order
addresses this concern."
ATTORNEY - CLIENT COMMUNICATIONS
Duty to Client to maintain Confidentiality
Model Rule 1.6(a) "(a) a lawyer shall not reveal information
relating to representation of a client unless a client consents after
consultation, except for disclosures that are impliedly authorized in
order to carry out the representation."
ABA Opinion re
duty to client
"Lawyers have a reasonable expectation of privacy in communications
made by all forms of e-mail, including unencrypted e-mail sent on the
Internet, despite some risk of interception and disclosure. It
therefore follows that its use is consistent with the duty under Rule
1.6 to use reasonable means to maintain the confidentiality of
information relating to a client's representation."
"mode of transmission affords a reasonable expectation of privacy" www.abanet.org/cpr/fo99-413.html
Model Rule 1.1 and 1.4(b).
Attorney - Client Privilege See case outline and Calif. Evidence Code §§950 et seq
Waiver of privilege by inadvertent disclosure: See case outline and Calif. Evidence
Code §912
United States v. Rigas, 2003 WL 22203721 (S.D.N.Y.9/22/03) [ hard drive production]
United States v. Stewart, 2003 WL 22384751 (S.D.N.Y. 10/20/03). [disclosure to family]
WORK PRODUCT
Computer data base
Created by experts or with input from counsel
Williams v. E.I. duPont (W.D.Ky. 1987), 119 F.R.D.648
[30 years of data obtained from employer to create data base that
expert used for analysis and basis for opinion; employer sought data
base on CD, code book, user manual etc; critical evidence, necessary to
validate entries, necessary for effective cross examination, too
expensive and wasteful to duplicate; discovery granted on condition
employer pay "fair portion" of the expense; employer required to
purchase copywrited materials from vendor]
PRIVACY
No privacy when lack reasonable expectation of privacy on company
computer
TBG Insurance Services Corp. v. Superior Court (2002), 96
Cal.App.4th 443 [Wrongful discharge resulting from termination for
misuse of work computer. Tr. Ct. denied discovery of personal matter on
home computer owned by employer. Ct.App rev'd. Issue re Right to
Privacy of personal matters of employee and family on home computer.
Employer provided 2 computers for work and home and obtained signed
policy statement re right to monitor, employer ownership, employee
agreement to use solely for work and not for personal use and that
communications via computer were not private. Employee acknowledged
that improper use could result in discharge. Employee claimed privacy
in part based on company practice of permitting personal use which
claim was disregarded by appellate court in reversing the trial court's
denial of discovery. Other than the privacy and relevancy issues, there
was no dispute as to the discoverability of the home computer pursuant
to request to produce.]
Haynes v. Kline (Kan.D.C.12/23/03 Case No. 03-4209-RDR),
[Expectation of privacy in private computer files recognized and
preliminary injunction granted preventing employer's further access and
use of information; the court noted the following facts:
"employees
are allowed to use their work computers for private communications;
employees are told how to create "public" and "private"
files; employees are advised that "intentional access to another
user's e-mail without permission" is prohibited; employees are
given passwords to prevent others from gaining access to their
computers; and there was no evidence that any AG official had ever
monitored or viewed any private files, documents or e-mails of any
employee." These facts overcame a message flashed on the screen warning
employees of employer right to access.]
Privacy waived by consent
TBG Insurance Services Corp. v. Superior Court (2002), 96
Cal.App.4th 443 [consent in employer agreement to employer ownership,
use and subject matter limitations, monitorying, and discharge for
violation of agreement]
Privacy waiver by failure to object
R.S. Creative Inc. v. Creative Cotton Ltd. (1999), 75
Cal.App.4th 486 [privacy re materials on hard drive waived when not
raised by protective order motion]
Discovery of anonymous web site authors
See Practice Point under
Depositions: Anonymous Posters to Web sites
Extraction, accummulation, and use of private information
"Cookies"
Privacy.net
explains how cookies work and much more
In re Doubleclick, Inc Privacy Litigation (S.D.N.Y.2001),
154 F.Supp.2d 497 [process of gathering information explained at pages
502-3; page 504 describes that "GET" produces querry string that shows
information reqested, "POST" information includes information provided
on site when fields completed, and GIF tags or "web bugs" track site
activity to show what information sought and viewed; complaint
dismissed; gathering info not violation of Electronic Cmmunications
Privacy Act]
In re Pharmatrak, Inc Privacy Litigation (D.Mass. 2002),
F.Supp.2d , 2002 WL 1880387 [Summary judgment for defendant &
jurisdiction not retained on remainder; process of extracting
information described; court authorized plaintiff's forensic computer
expert to examine defendant's servers; data extracted: ID by name,
address, telephone number, birth date, sex, insurance status, medical
conditions, education levels, occupations, email communication
information including user name, email address, and subject lines;
capability of creating detailed personal profiles and matching to other
database such as telephone book]
California SB 1386, Civil Code §1798.29. New law re duty to
disclose hacking of certain personal information
Amend, renumber, and add Section 1798.82 of, and to add Section 1798.29
to, the Civil Code
Computerworld "Bracing
for the New Privacy"
EContent Magazine SB
1386: How California Wants to Keep Your Secrets
StrongAuth Inc.: SB 1386 Resource
Center http://www.strongauth.com/
Information Awareness Office
of
DARPA : Defense Advanced
Research Projects Agency (DARPA)
Total
Information Awareness System renamed Terrorism Information
Awareness
Electronic Communication
Privacy Act of 1986, 18 USC
§2510 [private cause of action]
Stored
Wire & Electronic Communications & Transactional Records Act,
18 USC 2701
Computer Fraud and Abuse Act, 18 USC §1030
Electronic Privacy Information Center http://epic.org
Electronic Frontier Foundation http://eff.org
privacy.net: Consumer
information
Privacy International London
based civil liberties organization
See also Department
of Justice Outline at http://www.cybercrime.gov/s&smanual2002.htm
Trade Secrets re Storage & Software
Proprietary
Software
Licence restrictions
Databases
In Re:
Lowe's Companies, Inc. (5/18/04), 134 S.W.3d
876, 2004 Tex. App. LEXIS 4432 The Texas Court of
Appeals
rejected the trade secret claim for an accident database suggesting
that,
otherwise, all internal records would be trade secrets. PI case
resulting
from falling merchandise in a store, the corporate representative was
questioned regarding a database containing information regarding
accident
trends. Tr.Ct was reversed for ordering production or access to entire
database
on grounds the order was overbroad