Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of August 12-18. Here’s what’s happening.
Email Preservation Raises Question About IT Access to Accounts
The U.S. Court of Appeals for the Sixth Circuit recently decided an interesting question about access to electronically stored information. Doug Austin writes about it in depth at eDiscovery Today.
In a nutshell: A businessman sold the assets from one of his companies, a restaurant and catering business, to another party, but the deal later broke down.
The seller’s IT administrator had previously created new email accounts for the buyers under the sold company’s domain. As the deal started to fall apart, the seller told the IT administrator — who still had access to those email accounts — to preserve emails from the buyer and others in advance of litigation.
When the seller shared those files during discovery, the buyer alleged the seller had violated the Computer Fraud and Abuse Act and the Stored Communications Act.
The appeals court disagreed. The law prohibits use that “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains ... information,” and the IT administrator had used his standard credentials to access those emails. He didn’t think that he was doing anything beyond the realm of his job. He also believed the seller still owned the email accounts.
You can read the full opinion here. There’s also a concurrence that raises a concern about a potential loophole, that someone could avoid liability by directing their employees or other agents to unwittingly commit a violation.
The case is a good reminder that organizations need to balance IT administrator access needs with data privacy concerns and eDiscovery teams should ask what steps they need to take to ensure email preservation efforts don't risk violating cybercrime laws.
What Happens When Meet-and-Confers Are Recorded?
Should a court reporter transcribe meet-and-confer sessions that were ordered by the court? It’s not common, but during disputes in the discovery process, it can happen. Michael Berman writes about an employment discrimination case from Maryland where the court did just that.
In ordering the meet-and-confer, the court was trying “to get both sides back on track so that discovery could end.” The goal was to resolve the plaintiff’s request for documents (many of which weren’t relevant or proportional, the court said) while allowing the defense to object (with something beyond boilerplate).
When the plaintiff later moved for sanctions after the session, the court was able to analyze the transcript to find resolutions.
Berman quotes a now-deceased judge who would order videotaping of meetings between parties: “I’ve never had to watch one of those videotapes. Just the idea that I’ll be watching it seems to put them all on their best behavior and suddenly they have an agreement.”
While the judge’s motive to tape meetings served his interest – efficiency – parties need to think about the potential downsides or risks of having a verbatim record of these typically informal discussions before they proceed.
Other recent eDiscovery news and headlines:
