Gibbons Law Alert

Gibbons Law Alert

Tagged: Computer Systems

Orbit One: Inadequate ESI Preservation Does Not Merit Sanctions Absent Evidence That Relevant Information Has Been Destroyed

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 14, 2011

Orbit One Communications, Inc. v. Numerex Corp., 2010 WL 4615547 (S.D.N.Y. Oct. 26, 2010) represents a dichotomy in jurisprudence on ESI preservation efforts and the imposition of automatic sanctions. In Orbit One, Magistrate Judge James C. Francis, IV found that regardless of how inadequate a litigant’s preservation efforts may be, sanctions are not appropriate without proof that “information of significance” has been lost. The court determined that the threshold determination must be “whether any material that has been destroyed was likely relevant even for purposes of discovery.” In so holding, the court discussed and diverged from Judge Shira A. Scheindlin’s decision in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, which earlier held that sanctions may be warranted for inadequate preservation efforts even if no relevant evidence is lost. 685 F. Supp.2d 456, 465 (S.D.N.Y. 2010).

You Want Discovery of an Adversary’s Computer? Better Have a Good Reason.

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Posted in E-Discovery: Legal Decisions and Court Rules

On January 24, 2011

That was the lesson of a recent case out of the New York State Supreme Court, Nassau County, where the court refused to order a forensic examination of a plaintiff’s personal computer hard drive. DeRiggi v. Krischen arose out of the death of a woman during a routine surgical procedure to treat lower back pain. Plaintiffs alleged that her death was the result of perforation of the left common iliac vein by a “Spine Jet HydroDisectomy” system utilized during the procedure. Plaintiffs further alleged, among other things, that the manufacturer of the system misrepresented the risks affiliated with its use, and one of the plaintiffs, the decedent’s husband, testified at deposition that he and his wife visited the manufacturer’s website prior to the surgery and read that the procedure “felt like a bee sting and nothing more.”

Federal Communications Commission to Move to the Cloud

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Posted in Technology Developments and Issues

On January 18, 2011

In early 2011, the Federal Communications Commission will launch a new, updated website and become the first major federal agency to utilize cloud computing technology to completely support its principal web presence. By moving to cloud technology, the FCC hopes to give a boost to this increasingly popular technology and to improve the FCC’s technology platform. In announcing its move to cloud computing, the FCC’s Managing Director stated, “given that we oversee an industry that should lead this country in innovation, we want to lead the government in the things we do every day as well.” Terremark will manage the FCC’s transition to cloud computing.

Internet File Sharing Constitutes Distribution in Child Porn Case

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Posted in E-Discovery: Legal Decisions and Court Rules

On January 10, 2011

New Jersey’s Appellate Division recently held in State v. Lyons, __ N.J. Super. __, 2010 N.J. Super. LEXIS 227 (App. Div. Nov. 30, 2010) that Defendant Richard Lyons’ placement of child pornography in a shared online folder constituted an offer and distribution of child pornography in violation of N.J.S.A. 2C:24-4b(5)(a). Lyons’ computers contained videos of children engaged in sexual activities, including one that a detective discovered and downloaded when he accessed a shared folder on Gnutella, a peer-to-peer file sharing network, accessible via LimeWire software program.

“Cached” Web Files May Serve as Evidence in Child Pornography Case

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Posted in E-Discovery: Legal Decisions and Court Rules

On November 22, 2010

In a prosecution for promoting and possessing computer images of child pornography, a Brooklyn appellate panel upheld the conviction of defendant and determined that temporary files automatically “cached” by an internet browser may serve as evidence of promoting and possessing child pornography. People v. Kent, ___ A.D.3d ___, 2010 N.Y. Slip. Op. 7364, 2010 N.Y. App. Div. LEXIS 7405 (App. Div. 2d Dept. Oct. 12, 2010). The defendant, a professor of public administration at a Dutchess County college, was found guilty of 134 counts of possession of a sexual performance and 2 counts of promotion related to his use of an office computer.

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