Slack is a new communications software in use in many companies. Do your policies deal with the implications of the use and misuse of yet another new technology? How will you handle this when litigation comes in?
Category Archives: Discovery
Apparently, NCAA rules prohibit coaches from using a burner phone to contact football recruits. Or lying about it when you do.
“‘Burner Phone’ Accusation Marks New Chapter in Ole Miss Scandal,” The Wall Street Journal, September 20, 2017 A16. Coaches accused and investigated, and asked to sign certifications that they had never used pre-paid phones for recruiting or other work-related purpose.
Is this a question you normally ask your employees, or is this a form you have them sign? Should you ask for a certification that exiting employees do not have any company information on a non-company asset or location?
“Makers Of Opioids Are Asked For Data,” The Wall Street Journal, September 20, 2017 A6. Subpoenas served on 5 manufacturers, as 41 states investigate marketing and sales of painkillers.
How much will this cost? Who will pay? What will we learn?
I was otherwise engaged last week and missed posting. Here are some catch-ups.
- Comey – reportedly, former FBI Director wrote memos to the file on his conversations with the President. Two points: just because you write something, doesn’t mean it’s true – that’s why you have hearsay rules and cross-examination. Doesn’t mean it’s not true, either. Also, interesting question in the area of obstruction of justice: if what was written was not 100% accurate, are there implications for the former Director under 18 USC §1519? “Trump Asked Comey to Drop Probe,” The Wall Street Journal, May 17, 2017 A1.
- “Tests Show More American Workers Using Drugs,” The Wall Street Journal, May 17, 2017 B1. Does your company have a drug policy that your employees are violating?
- “Putin Says Trump Divulged No Secrets,” The Wall Street Journal, May 18, 2017 A6.
- “Cover-Up Alleged In Probe Of Attack,” The Wall Street Journal, May 18, 2017 A7. Criminal complaint by Berlin filed against police investigators, alleging documents were altered.
- VW (the adventure continues) – The VW CEO and a few others (including Board members) are being investigated over whether they intentionally withheld information about the diesel emission testing scandal from investors. “Inquiry Targets Volkswagen CEO,” The Wall Street Journal, May 18, 2017 B1.
- “Uber Threatens to Ax Executive,” The Wall Street Journal, May 20, 2017 B3. Company threatens to fire executive (hired from Alphabet) if he doesn’t turn over documents. No Fifth Amendment protections against getting fired?
Companies begin to move towards the use of quantum mechanics into practical application.
“A Quantum Leap for Computers Looms,” The Wall Street Journal, May 8, 2017 B4. Huge processing speed increases possible when processing and analyzing huge volumes of data.
You think you have ediscovery problems now, wait until the qubits disappear or mutate (sublimate?) to a different state.
Does it matter whether information is stored in the US or overseas, if the same person controls the storage?
“Google and U.S. Fight Over Data,” The Wall Street Journal, April 4, 2017 B4. Google no longer captures information stored overseas in response to US warrants. Google isn’t alone. The government says Google is impeding investigations. Google calls for an investigation of the government’s conduct, which ignores a US Court of Appeals decision that says information on foreign servers is beyond US jurisdiction.
Where are you going to store your data? In the US, subject to government warrants, or overseas, where different privacy protections apply? You’re between a rock and a hard place. The Federal Rules of Civil Procedure provide yet another standard, which is not necessarily limited to the US.
The discovery rules for discovery in litigation in the US Federal courts changed recently, drawing a distinction between electronically stored information and everything else. If it’s ESI, then it is more difficult to get sanctions for destroying evidence.
“FTC Claims VW Mobile Phones Missing,” The Wall Street Journal, December 10, 2016 B3. Twenty-three mobile phones assigned to people important to the investigation emissions scandal have been lost or wiped.
For those phones that were lost (as opposed to those that were wiped), what rules on sanctions apply? The ones applicable to ESI, or the ones applicable to tangible things? Or since it’s obstruction of justice, it just doesn’t matter? See 18 USC § 1519.