Maxon v. Ottawa Pub. Co., — N.E.2d —, 2010 WL 2245065 (Ill.App. 3 Dist. June 1, 2010)

The rules of civil procedure in Illinois permit an aggrieved party to file a petition with the court asking for an order requiring unknown potential defendants to be identified. This is called a Rule 224 petition.

A couple from Ottawa, Illinois got their feelings hurt over some anonymous comments left in response to content published by the local newspaper on its website. Wanting to sue for defamation, the couple filed a Rule 224 petition. The newspaper opposed the petition. (For something similar, see Enterline v. Pocono Medical Center.)

The trial court denied the petition, applying the standards articulated in Dendrite v. Doe and Doe v. Cahill, finding that the petitioners had not presented a strong enough case for defamation to justify the unmasking of the anonymous commenters. Those cases require, among other things, that a party seeking to identify an anonymous speaker make efforts to notify the anonymous party, and present enough evidence to establish a prima facie case of defamation (Dendrite) or survive a hypothetical motion for summary judgment (Cahill).

The aggrieved couple sought review with the Appellate Court of Illinois. Reviewing the decision to deny the Rule 224 petition de novo, the court reversed and remanded, ordering the identification of the anonymous speakers to be made.

In reaching its decision, the court rejected the newspaper’s (and amicis’) arguments that the trial court should apply the rigorous standards of Dendrite and Cahill. That’s not to say, however, that the court left anonymous speakers at great risk of having their First Amendment rights trampled upon.

The court held that the mechanics of Rule 224 adequately protect the potential First Amendment rights of anonymous internet speakers. Here’s why, according to the court:

• The petition must be verified – the threat of the pain of perjury should keep out half-hearted claims.
• The petition must state the reason discovery is necessary.
• The discovery is limited only to learning the identity of the potential defendant.
• Most importantly, before the discovery will be permitted, the court must hold a hearing and determine the petition sufficiently states a cause of action.

In this fourth step, the court is to apply the standard it would apply in a Section 2-615 motion. Such a motion is, essentially, the Illinois version of a motion to dismiss for failure to state a claim. That is no insignificant test, because unlike federal court and other state jurisdictions, Illinois requires fact pleading. That means the petition needs to include a significant amount of specific information to survive the motion to dismiss.

A troubling aspect of the ruling is the omission from the test of a requirement that the party seeking discovery attempt to notify the anonymous target of the inquisition. The appellate court held that a trial court may, in its discretion, impose such a requirement.

But it would be nice to know that the real party whose First Amendment interests are at stake (the anonymous speaker) is guaranteed a fair opportunity to argue from his or her perspective. After all, it’s that party with the real incentive to do so. Let’s hope the trial courts exercise that discretion wisely (and that they know in the first place that they have that discretion).

Photo courtesy Flickr user TheTruthAbout… under this Creative Commons license.

Maldonado v. UPRR, No. 09-1187, 2010 WL 1980318 (D.Kan. May 18, 2010)

Even the fear of social media won’t keep some things under wraps.

The video camera onboard a locomotive captured the moments before the train struck a car at a railroad crossing, killing one of the occupants. In the inevitable lawsuit against the railroad following the accident, the plaintiffs’ lawyers demanded that the video of the accident be produced in discovery.

The railroad objected to the production of the video absent a court order keeping it confidential, arguing that the presence of services like YouTube would permit the video to be widely distributed to the public. To keep the video from serving as “entertainment for gawkers looking to satisfy their morbid curiosity,” the railroad wanted only the parties, lawyers, staff and experts to be able to see the video.

The court rejected the arguments and found that nothing in the video depicted gruesome images of death or injury. It denied the railroad’s motion for protective order. So if you’re into this kind of content, keep an eye on YouTube. Though from what I gather from the court’s description of this video, there’s plenty of gorier stuff out there.

The New Jersey supreme court has held that emails an employee sent to her lawyer using her company-issued computer and a personal Yahoo account are protected by the attorney-client privilege.

Stengart v. Loving Care Agency, Inc., — A.2d —, 2010 WL 1189458 (N.J. March 30, 2010)

The New Jersey courts have a reputation of being protective of “informational privacy.” See, e.g., State v. Reid. A recent decision concerning employee privacy in personal emails adds to that reputation.

Plaintiff-employee used a work-issued laptop to access her Yahoo email account, through which she communicated with her lawyer about her lawsuit against the employer. During the discovery phase of that employment discrimination lawsuit, the employer used computer forensics to recover those Yahoo emails that had been copied to the computer’s temporary internet files folder.

Counsel for plaintiff demanded that the employer turn over the recovered emails, arguing that the communications were protected by the attorney-client privilege. When the employer agreed to turn them over but not discontinue use of the information garnered from them, plaintiff sought relief from the court.

The trial court denied relief and plaintiff sought review with the appellate court. That court reversed, and the employer sought review with the state’s supreme court. The supreme court upheld the appellate court’s decision, holding that the employee had a reasonable expectation of privacy in the communications.

The employer relied on a broadly-written company policy through which the employer reserved the right to review and access “all matters on the company’s media systems and services at any time.” But the court rejected those arguments.

Framework for the analysis

The supreme court considered two aspects in its analysis: (1) the adequacy of the notice provided by the company policy, and (2) the important public policy concerns raised by the attorney-client privilege.

As for the adequacy of the notice provided by the policy, the court found that because the policy did not address the use of password-protected personal email accounts, the policy was “not entirely clear.” As for the importance of the attorney-client privilege, the court lavished it with almost-sacred verbal accoutrements, calling it a “venerable privilege . . . enshrined in history and practice.”

“Intrusion upon seclusion” as source for standard

The court noted that the analysis for a reasonable expectation of privacy in dealings between two private parties was a bit different than the analysis in a Fourth Amendment case. The common law source for the standard in this context is with the tort of “intrusion upon seclusion.” Under New Jersey law, that tort is committed when one intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, in a manner that would be highly offensive to a reasonable person. (This language comes from the Restatement (Second) of Torts § 652B.)

In this situation, the court found that plaintiff had both a subjective and objective expectation that the messages would be private. Supporting her subjective belief was the fact that she used a private email account that was password protected, instead of her work email account. And she did not store her password on the computer. Her belief was objectively reasonable given the absence of any discussion about private email accounts in the company policy.

Plaintiff’s expectation of privacy was also bolstered by the fact that the email messages were not illegal, nor would they impact the performance of the employer’s computer system. And they bore all the “hallmarks” of attorney-client communications.

For all these reasons, not the least of which the priority of the courts “to keep private the very type of conversations that took place here,” the court found that the conversations were protected by the attorney-client privilege.

Please take a moment to visit Practical Ediscovery, a new blog written by a team of attorneys at my law firm, Hinshaw & Culbertson LLP. I’ve already contributed one post, and plan on generating as much content for the blog as I reasonably can. The focus of the blog is, as its name suggests, practical considerations and approaches for handling the various issues that arise with the identification, preservation and production of electronically stored information in the course of litigation.

While you’re at it, grab the feed, or drop me a line with your positive comments.

My firm also publishes a blog on legal ethics called The Ethical Quandary. Thanks for having a look.

Allcare Dental Management, LLC v. Zrinyi, No. 08-407, 2008 WL 4649131 (D. Idaho October 20, 2008)

Plaintiffs filed a defamation lawsuit against some known defendants as well as some anonymous John Doe defendants in federal court over statements posted to Complaintsboard.com. The plaintiffs did not know the names or contact information of the Doe defendants, so they needed to get that information from the Does’ Internet service provider.  But the ISP would not turn that information over without a subpoena because of the restrictions of the Cable Communications Policy Act, 47 U.S.C. § 501 et seq. [More on the CCPA.]

Under Federal Rule of Civil Procedure 26(d)(1), a party generally may not seek discovery in a case until the parties have had a Rule 26(f) conference to discuss such things as discovery. Because of the Rule 26(d)(1) requirement, the plaintiffs found themselves in a catch-22 of sorts: how could they know with whom to have the Rule 26(f) conference if they did not know the defendants’ identity.

So the plaintiffs’ filed a motion with the court to allow a subpoena to issue to the ISP prior to the Rule 26(f) conference. Finding that there was good cause for the expedited discovery, the court granted the motion. It found that the subpoena was needed to ascertain the identities of the unknown defendants. [More on Doe subpoenas.] Furthermore, it was important to act sooner than later, because ISPs retain data for only a limited time.

The Plaintiffs also contended that that the known defendants would likely delete relevant information from their computer hard drives before the parties could engage in the ordinary process of discovery. So the plaintiffs’ motion also sought an order requiring the known defendants to turn over their computers to have their hard drives copied.

The court granted this part of the motion as well, ordering the known defendants to turn their computers over to the plaintiffs’ retained forensics professional immediately. The forensics professional was to make the copies of the hard drives and place those copies with the court clerk, not to be accessed or reviewed until stipulation of the parties or further order from the court.

CNet News has a report on the decision here.  Download the court’s order here.

Columbia Pictures v. Bunnell, No. 06-1093, (C.D. Cal., December 13, 2007).

Bakhtiari v. Lutz, — F.3d —-, 2007 WL 3377215 (8th Cir. November 15, 2007)

Not too many e-discovery (or any type of discovery) disputes get to the federal courts of appeal. But we have a recent decision from the Eighth Circuit that addressed the topic of “spoliation” when emails had been deleted.

A party in litigation is guilty of spoliation when the court finds that he or she “intentionally destroyed evidence with a desire to suppress the truth.” Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1035 (8th Cir. 2007). Plaintiff Bakhtiari filed suit against the University of Missouri-Rolla and a number of administrators there, alleging Title VII and civil rights violations. He had been terminated from his position as a teaching assistant in the chemistry department.

Soon after Bakhtiari was terminated, but before he filed suit, the university’s IT staff backed up the contents of his email account onto two CDs. The university then allowed the messages to be deleted as part of “automated systems maintenance.” It turned over a copy of the CDs to Bakhtiari, but he claimed that large portions of data were missing.

At the trial court level, Bakhtiari claimed that the university should be sanctioned for spoliation for deleting the email messages from the server. The court denied this motion, however, and Bakhtiari sought review with the Eighth Circuit. On appeal, the court affirmed the denial of the motion.

The appellate court held that the lower court did not abuse its discretion in finding that the IT staff had taken appropriate steps to backup the data, and that Bakhtiari may himself have been responsible for the missing portions. Moreover, there was credible evidence that third parties had access to the account before the backups were made, and that Bakhtiari had asked that portions be deleted. Bakhtiari had failed to demonstrate, the court held, that the university acted with a “desire to suppress the truth.”

Case highlights important privacy interests in electronic discovery dispute.

From Ray Beckerman, we learn of the U.S. District Court for the Eastern District of Texas’s decision on a motion to compel discovery filed by the recording industry against an accused file-sharer. While the defendant will have to submit her hard drive for forensic examination to see whether she had any copyrighted sound recordings stored on it, she will not have to turn it over to the recording industry’s forensic expert.

Instead, seeking to “balance the legitimate interests of both sides,” the court ordered the parties to select a neutral computer forensics expert to conduct the inspection. Such an approach, the court found, would protect the disclosure of the defendant’s personal information, such as personal correspondence, household financial matters, school homework, and perhaps attorney-client privileged information.

Although in theory this sounds like a reasonable approach to protect the confidentiality of the defendant’s information, one could be troubled by a particular part of the court’s decision. The order states that “the Plaintiffs shall have the right to suggest hard drive search methodologies to the neutral expert and the expert shall make every effort to utilize those methodologies.”

But there is nothing in the order giving the defendant the right or opportunity to object to those methodologies. With an obligation to “make every effort” to comply with the suggestions of the plaintiffs, just how neutral is that forensic examiner really going to be?

Sony BMG Music Entertainment et al. v. Arellanes, No. 05-CV-328 (E.D. Tex., October 27, 2006).

In the case of Arista Records v. Tschirhart, the U.S. District Court for the Western District of Texas has shown little mercy on a defendant accused by record companies of illegal file-sharing.

Knowing that a court order was in place requiring her to turn over her hard drive to be copied, the defendant allegedly used “wiping” software in an attempt to destroy all evidence of her illegal P2P file sharing. In response, the plaintiff record companies moved, pursuant to Fed. R. Civ. P. 37(b), for the most severe form of sanctions against the defendant – entry of default against her. The court granted the plaintiffs’ motion, and provided them with 30 days to submit a proposed order spelling out their damages.

Given that the record companies’ expert opined that the defendant had downloaded over 200 sound recordings during 2005, those requested damages will probably be substantial. Statutory damages under the Copyright Act can go as high as $150,000 per work infringed, in the most egregious cases.

In reaching its decision to enter default against the defendant, the court exercised its inherent power to do so, making a note of its obligation to act with “restraint and discretion.” It found that the defendant had acted in bad faith. That bad faith was exacerbated – and the default was further warranted – by the fact that the defendant herself was responsible for the destruction of evidence, that the deletion of the files destroyed the strongest evidence relevant to the plaintiff’s infringement claims, and that less drastic sanctions would not be appropriate.

Not only was the sanction intended to dissuade the plaintiff from destroying evidence in the future, it was intended to make an example out of her. Merely awarding the plaintiffs their attorney’s fees or giving the jury an adverse inference instruction at trial would not have been enough to remedy the situation. Given the defendant’s “blatant contempt” for the court and a “fundamental disregard for the judicial process,” only default would be an adequate punishment and deterrent to others considering similar conduct.

[Hat tip to Techdirt for posting on this case.]

Arista Records, LLC, v. Tschirhart, No. 05-372 (W.D. Tex., August 23, 2006).

Administrative law judge’s discovery order permitting “access to literally everything” on petitioner’s computer did not adequately protect against disclosure of confidential and privileged information.

After being suspended from his job as a school teacher, petitioner Menke was placed under investigation for alleged misconduct. In a formal proceeding against Menke before Florida’s Division of Administrative Hearings, the school board sought discovery of all of the computers in Menke’s household. The board requested that its retained computer expert be allowed to inspect Menke’s computers in a laboratory, so that it could search for improper instant messages.

Menke objected to the discovery request on the grounds that such a wholesale inspection of his computers would violate his Fifth Amendment right and his right of privacy, and would reveal privileged communications with his wife, attorneys, accountants, clergy, or doctors.

Over Menke’s objections, the administrative law judge granted the motion to compel production of the computers for inspection. Menke sought review with the Florida appellate court, which quashed the discovery order.

The appellate court looked to the only other Florida appellate court decision relating to electronic discovery, Strasser v. Yalamanchi, 669 So.2d 1142 (Fla.App.1996), noting that the relevant rules of procedure were broad enough to encompass requests to examine computer hard drives, but only in limited and strictly controlled circumstances. The court concluded that permitting unlimited access to everything on a computer would constitute irreparable harm, because it would expose confidential and privileged information to the opposing party.

The court continued by noting that in cases where there is a need for access to electronically stored information, searching for such data should first be done by the party responding to the discovery request, unless there is evidence of data destruction designed to prevent the discovery of relevant evidence.

In this case, there was no evidence of any destruction of evidence or thwarting of discovery. The court sent the matter back to the administrative body, allowing the school board to request that Menke produce relevant, non-privileged, information. In the court’s words, Menke was not required to provide unfettered access to the entire “electronic filing cabinet” that was his computers.

Menke v. Broward County School Bd., — So.2d —-, 2005 WL 2373923 (Fla.App., Sep 28, 2005).