Lori Drew MySpace Suicide Verdict – What Will You Do?

November 27, 2008

Yesterday, a federal jury in Los Angeles returned guilty verdicts against Lori Drew on misdemeanor charges arising from Drew’s alleged violations of MySpace terms of service (TOS), while acquitting Drew of felony charges. The prosecution was brought in the wake of the suicide of 13-year-old Megan Meier in suburban St. Louis, which followed Meier being rejected by a fictitious 16-year-old boy allegedly created by Drew.

George Washington University law professor and former Department of Justice computer crime prosecutor Orin Kerr is a member of Drew’s defense team, and he provides his post-verdict take here. http://volokh.com/posts/1227728513.shtml

There is lots of lawyering remaining in this case. If Drew’s post-trial motion to throw out the misdemeanor convictions is denied, an appeal of her convictions and sentence is a near-certainty. Given the controversy over the government’s decision to base its prosecution upon a violation of an Internet site’s terms of agreement — the cyberspace equivalent of speeding — it’s likely that Congress and state legislatures will act, too.

Meanwhile, Internet users are confronted by the reality that at least one federal jury has deemed it a federal offense to violate terms of service. What does that mean for the general public?


Would You Make Them Pry Your Laptop From Your Cold, Dead Hands?

November 18, 2008

Does the thought of a judge ordering you to allow a total stranger to make a copy of your entire laptop, down to the very last bit, send a chill down your spine?

Or does the possibility strike you as too implausible to worry about?

A federal judge in Louisiana has ordered just that in the case of Hoover v. Florida Hydro, Inc., 2008 U.S. Dist. LEXIS 87839. In the contract dispute, the defendant subpoenaed the plaintiff’s mother and former college roommate, demanding that each produce for inspection various computers and storage media.

The plaintiff moved to quash the subpoenas, but the court rejected arguments that the subpoenas were unduly burdensome and that the various media contained privileged communication between the plaintiff and his attorneys.

The court did acquiesce to the plaintiff’s suggestion that the defendant produce a search protocol to be approved by the court in advance of the inspections. The defendant was also required to execute a confidentiality agreement prior to the inspections.

I’m loathe to critique litigation strategy without a full understanding of the relevant facts, but it’s difficult to read the opinion without wondering whether arguments of undue burden made by the mother and former roommate would have been better received.

Another interesting aspect of the opinion is that the court seemingly did not require any showing on the part of the defendant that a forensic examination was necessary. Ordinarily, the producing party is allowed to produce duplicates of responsive electronic data rather than provide direct access to its media. The clear trend among courts across the country is not to authorize direct access to media absent at least some evidence that the producing party has failed to discharge its production obligations.

The court did order the defendant to reimburse the mother and former roommate for all costs of the inspections, including attorney’s fees, and for any damage caused by the inspection.

The opinion was silent as to whether the mother and former roommate could seek reimbursement for any treatment necessary to stop the chills from running up and down their spines.

E-Discovery Webinar: Thursday, November 20 12-2 CST

November 17, 2008

I will be presenting as part of The Missouri Bar’s webinar, “Everything You Always Wanted to Know About E-Discovery But Were Afraid to Ask,” on Thursday, November 20, from 12:00 p.m. – 2:00 p.m., CST.

Whitney E. Deacon of Kansas City’s Baker Sterchi Cowden & Rice, LLC will be the moderator. My brother, Keith Chval of Protek International, and I will be discussing topics including: the importance of Federal Rules of Civil Procedure e-discovery amendments in state court practice; spoliation and sanctions; counseling clients; and e-discovery ethical landmines for practitioners.

Keith will also provide expertise from the vendor’s perspective in a discussion entitled, “Technical Issues in E-Discovery: Peeking Inside The “Black Box.”

For Missouri-licensed attorneys, the webinar offers 2.4 hours of CLE credit, including 0.6 hours of ethics credit. Registration is at: http://www.legalspan.com/mobar/calendar.asp?UGUID=&ItemID=20080908-420974-154718

E-mails Felled Missouri Gov. Matt Blunt; Will You Be Next?

November 16, 2008

If e-mails are the smoking gun of the 21st Century, yesterday’s articles in the St. Louis Post-Dispatch paint a picture of a governor’s administration brought to its knees by electronic weapons of mass destruction. (www.stltoday.com/stltoday/news/stories.nsf/missouristatenews/story/C0EBA8398C4CF4DE86257502007997A1?Open Document)

Emails from Blunt’s office obtained by the Post-Dispatch via a lawsuit brought under Missouri’s Sunshine Law refute a number of claims by the Blunt Administration that never really passed “the smell test.”

Blunt subordinates claimed that fired Blunt attorney Scott Eckersley never raised concerns with his superiors that the Blunt administration was deleting e-mails it was required by law to keep. The e-mails established that Eckersley did.

Members of the Blunt administration denied doing government business using campaign e-mail accounts. Again, the e-mails obtained by the Post-Dispatch refute that denial.

The e-mails reviewed by the Post-Dispatch also include personal e-mails authored and received by Blunt administration officials, including former chief-of-staff Ed Martin.

It’s remarkable that the governor and officials at the highest level of state government apparently believed that the truth would never see the light of day. But I wonder how many other CEOs and high-level managers in both the public and private sectors are in the same predicament. While private concerns, of course, are not subject to Sunshine Law requests, the same type of data that doomed the Blunt administration is subject to subpoenas and other legal process directed to private concerns.

The question is, who will learn from the demise of Gov. Blunt?

DISCLOSURE: Prior to founding The Chval Law Group in January 2008, I was employed by Attorney General (now Governor-elect) Jay Nixon as the chief of the Attorney General’s High Tech and Computer Crime Unit. I had no involvement in any investigation of or litigation involving the e-mail or data retention practices of Governor Blunt’s office.

What To Do With A Departing Employee’s Computer?

November 15, 2008

Computing resources are hardly like paper clips for most small and medium businesses. When an employee leaves, most businesses want to put those valuable resources back to work as quickly as possible.

But simply turning over those devices – whether desktop, laptop, PDA, etc. – to another employee could have disastrous results. The media may contain saved passwords or sensitive information that the new user should not be able to access.

One possible preventative measure involves wiping the device’s hard drive clean before re-issuing the device. But doing so may destroy electronically stored information required by law to be preserved. Even if none of the data on a wiped hard drive is subject to legal retention requirements, if a former employee later institutes legal action against the business, electronic data which may have helped the business defend itself may have been lost forever.

Some experts advise installing a new hard drive and preserving the old one. A downside to that approach, however, is the likelihood of retaining information long past the time your data retention policy (you do have one of those, right?) would otherwise permit its deletion. Potentially making the matters even worse is that, in the event of future litigation, searching dozens or possibly hundreds of preserved hard drives could significantly inflate the cost of data review and production.

Here are a few considerations regarding departing employees and their company-issued computing devices:

(1) Never re-issue digital media without effectively purging sensitive data.

(2) Have procedures in place to identify data subject to retention (pending or anticipated litigation, regulatory compliance, etc.) when an employee leaves.

(3) Determine whether circumstances surrounding the former employee’s tenure or departure warrant preservation of data, and if so, preserve that data in a forensically-sound manner.

It’s very unlikely any departing employee’s data is either all properly deleted or all properly retained. Developing and implementing procedures to determine what to keep and what to delete will go a long way toward saving your business some big headaches.