Header graphic for print
Technology Law Source Mapping the evolving legal landscape

Category Archives: Information Technology

Subscribe to Information Technology RSS Feed

Texas Federal Court decision illustrates need for BYOD policies

Posted in Information Technology, Privacy

Saman Rajaee was a salesman for Design Tech Homes. He used his personal iPhone to connect to his employer’s Microsoft Exchange Server, which allowed him to access his work-related email, contacts and calendar from his phone. Design Tech did not have a BYOD policy. When Rajaee’s employment terminated, Design Tech remotely wiped his phone, which deleted all of his data, including personal emails, texts, photos, personal contacts, etc.

Rajaee sued under the federal Stored Communications (SCA) and Computer Fraud and Abuse Acts (CFAA) as well as raising various state law claims. Design Tech moved for summary judgment on the federal claims. On the SCA claim, the court held, based on Fifth Circuit precedent, that information an individual stores to his hard drive or cell phone is not in electronic storage within the meaning of the statute.…


Continue Reading →

Immigration reform may help out tech companies

Posted in Information Technology

Our colleagues at Employer Law Report recently discussed how President Obama’s immigration reform measures could affect tech companies whose workforces include non-U.S. residents with H-1B visas. According to a memo from the Department of Homeland Security, the visa application and approval process may become easier for employers and their highly skilled workers. Read more


Continue Reading →

Coinye West will not take over bitcoin’s reign on cryptocurrency

Posted in Information Technology, Intellectual Property, Trademarks

There’s exciting news in the world of cryptocurrency, the exchange medium that uses cryptography to secure the transactions and control the creation of new units. Bitcoin, created in 2009, was the first cryptocurrency and remains the most popular, though numerous other cryptocurrencies, such as Coinye, have emerged in the interim.

Where can you find cryptocurrency? Certainly not at your local bank.

Cryptocurrency is essentially digital money, a virtual medium of exchange that is not issued, backed, or tied to any particular nation or government. Cryptocurrency derives value through a variety of ways, such as buying either from exchanges, or directly from other people selling them, or try your hand at mining, which requires software you download to your computer.

After obtaining cryptocurrency, such as a bitcoin, the next hurdle is finding someone who will accept the currency in exchange for goods and services — which isn’t as difficult as you might think. Analysts estimate that over 65,000 bitcoin transactions occur every day through electronic transactions. What types of goods and services are exchanged, you may ask? Almost anything from the mundane products, such as electronics or dog apparel, to swanky cocktails or a Tesla, or to the illegal, including drugs and guns. Because purchases occur online through user’s virtual wallets, purchasers can remain anonymous and law enforcement can’t freeze their accounts.


Continue Reading →

Privacy law in the U.S. and Europe: University of Amsterdam Summer Course explores current issues

Posted in Information Technology, Privacy, Social Media

On July 7-11, 2014, a group of 25 privacy lawyers met in a historic building overlooking the Keizersgracht, one of Amsterdam’s most beautiful canals, and spent five days learning about U.S. privacy law, European data protection law, and the complex interactions between them. The setting was the Summer Course on Privacy Law and Policy, presented by the University of Amsterdam’s Institute for Information Law (IViR), one of the largest information law research centers in the world. Course faculty included leading practitioners, regulators and academics from both sides of the Atlantic. Course participants came from an even wider geographic area that included Hungary, Greece, Poland, the Netherlands, Hong Kong, Kyrgyzstan, Switzerland, the UK, Belgium and Canada. I was lucky enough to serve as a co-organizer of, and faculty member in, the course. In this post, I describe presentation highlights and identify some cross-cutting themes that emerged during the week.

Dr. Kristina Irion, Marie Curie Fellow at IViR (and the other course organizer) started the course with “An Update on European Data Protection Law and Policy.” The Summer Course does not try to cover every aspect of privacy law. Instead, it focuses on law and policy related to the Internet, electronic communications, and online and social media. In her presentation, Irion analyzed the latest European legal and policy developments in these areas. The most important such development is the proposed General Data Protection Regulation (GDPR) — a major reform proposal that several of the faculty presenters believe will become law …


Continue Reading →

Beware of the Antitrust Laws’ extraterritorial reach

Posted in Information Technology

Our colleagues Jay Levine and Jason Startling recently wrote an interesting post on Porter Wright’s FedSec Law Blog. Though the article covers some interesting international and antitrust issues, the case Jay and Jason focus on is one that many in the technology industry may wish to follow. With technology products in particular, more and more goods are sold outside of the United States, yet seem to find their way back into the U.S. economy — often as a resale product or as part of a finished downstream product. The question that arises for many companies is whether U.S. antitrust law applies to that foreign sale. The article discusses how the  Foreign Trade Antitrust Improvements Act (FTAIA), governs this conduct.…


Continue Reading →

Florida ramps up data breach notification law

Posted in Data Breach Notification, Information Technology, Privacy

The Florida Information Protection Act of 2014, aimed at strengthening Florida’s data breach notification law, goes into effect tomorrow, July 1, 2014. The act contains major changes to Florida’s existing data breach notification statute and makes it one of the toughest in the nation.

Shortened notice period

For example, notice to consumers must be given within 30 days of the discovery of the breach or belief that a breach occurred, unless delayed at the request of law enforcement for investigative purposes or for other good cause shown. Previously, the law allowed 45 days for such notice. Fines may be imposed on private entities for failure to comply with the notice provisions ($1,000 per day for the first 30 days following a violation of the notification requirements; $50,000 for each subsequent 30-day period thereafter; and, if the violation continues for more than 180 days, an amount not to exceed $500,000). The notice requirement applies to personal information contained in any computerized data system and is triggered when unencrypted personal information may have been acquired by an unauthorized person.…


Continue Reading →

LinkedIn class suit proceeds because endorsement (spam) emails might cause users reputational harm

Posted in Information Technology, Privacy, Social Media

Have you ever received an email from LinkedIn with the invitation: “I’d like to add you to my professional network.”? If you did not respond, did you receive a reminder email a week later? And another one a few weeks after that? If you did, or if you were one of the LinkedIn users who (inadvertently) sent out one of these “endorsement emails,” then Perkins v. LinkedIn (N.D. Ca. June 14, 2014) is a class action lawsuit against LinkedIn you might want to keep an eye on.

The crux of the complaint, which has been brought by nine individual plaintiffs as a class suit, is that LinkedIn violated several state and federal laws by harvesting email addresses from the contact lists of email accounts associated with the class plaintiffs’ LinkedIn accounts and used the contacts to spam their users’ contacts with LinkedIn ads. The class complaint alleged five causes of action:

  1. violation of California’s common law right of publicity;
  2. violation of California’s Unfair Competition Law (“UCL”);
  3. violation of the Stored Communications Act (“SCA”);
  4. violation of the Wiretap Act; and
  5. violation of California’s Comprehensive Data Access and Fraud Act (“CCDAFC”).

The district court is allowing the case to proceed on the California right of publicity claim, but not on any others. Here is how the court came to that decision.…


Continue Reading →

Porter Wright announces 2014 Technology Seminar Series

Posted in Data Breach Notification, Domain Names, gTLDs, HIPAA Compliance, HITECH Act Compliance, Information Technology, Intellectual Property, Porter Wright News, Privacy

Porter Wright continues its tradition of providing cutting-edge information about how technology affects your business with the 2014 Technology Seminar Series, beginning June 18. This year’s sessions are:

Social media in litigation: a shield and a sword

June 18

The worlds of social media and litigation have collided. Social media evidence is used in employment discrimination lawsuits, in divorce and custody cases, in criminal cases – and intellectual property cases are won and lost based on the information disclosed on social media sites. Like it or not, social media is an aspect of litigation that is here to stay. Sara Jodka, Colleen Marshall and Jay Yurkiw will walk you through how social media affects the way companies prepare for and engage in litigation, including the good, the bad and the ugly. This session will provide guidance about how you can make sure that your company’s social media use will not get the company into hot water. Presenters also will share helpful insights regarding what to do about social media when litigation is filed and identify the biggest social media in litigation hazards.…


Continue Reading →

Employers can learn from recent cases involving the Federal Trade Commission

Posted in Information Technology, Privacy

Two recent decisions – one from the federal district court in New Jersey and one from a federal Administrative Law Judge – potentially will have significant impact on the Federal Trade Commission’s (FTC) enforcement of business’s data security obligations. (Read more about these cases here and here.)

FTC v. Wyndam Worldwide

In FTC v. Wyndham Worldwide Corporation, the New Jersey federal district court upheld the FTC’s authority to find that a business that has sustained a data breach has committed an “unfair trade practice” in violation of Section 5(a) of the Federal Trade Commission Act, 15 U.S.C. §45(a) when its privacy controls are found to be inadequate. Over the past several years, the FTC has regulated data privacy and security under Section 5(a) by bringing actions against businesses that have sustained data breaches on the ground that the business has committed a deceptive and/or an unfair trade practice. The deceptive trade practice claim typically alleges that the business has failed to live up to its promises to consumers about how it will secure the privacy of their data. More controversially, however, the FTC also has sought to regulate data security by bringing actions against businesses alleging that they had inadequate data security protections even in the absence of any consumer promises. Until Wyndham challenged the FTC authority, these “unfair trade practice” cases brought by the FTC have settled.…


Continue Reading →

District court gives the FTC the go-ahead in Wyndham data security enforcement suit

Posted in Data Breach Notification, Information Technology

A decision from the U.S. District Court for the District of New Jersey last week affirmed the Federal Trade Commission’s assertion of authority to prosecute data security breaches under Section 5 of the Federal Trade Commission Act. The FTC has increasingly used its authority under Section 5, which makes it unlawful to engage in “unfair methods of competition … and unfair or deceptive acts or practices,” to regulate data security. Two companies, Wyndham Worldwide Corp. and LabMD Inc., have publicly challenged the FTC’s authority over their data security policies (and subsequent lapses). We posted in December about LabMD’s challenge, which remains pending before the FTC. The District of New Jersey, however, has rejected Wyndham’s challenge.

In June 2012, the FTC filed a complaint against Wyndham, alleging that Wyndham used unfair and deceptive practices by failing “to maintain reasonable and appropriate data security for consumers’ sensitive personal data,” which, in turn, exposed customers’ personal and credit card information to hackers in three system attacks between 2008 and 2011, resulting in fraudulent charges to consumers’ accounts totaling $10.6 million.

Wyndham moved to dismiss the complaint, arguing, among other things, that the FTC’s unfairness authority does not extend to data security because:…


Continue Reading →

Tech companies can’t escape antitrust liability for agreeing not to solicit competitors’ employees

Posted in Information Technology

Our colleagues at Employer Law Report have been following a case that considers antitrust issues as they relate to competition among high-tech employers. In re High-Tech Employee Antitrust Litigation will now proceed to trial. The case is an excellent reminder to businesses across industries. Though companies may be able to enter into agreements with their employees restricting their ability to compete, entering into agreements with competitors in an attempt to reach the same result may violate antitrust laws. Read more


Continue Reading →

Another sunrise, another new beginning. New gTLDs delegated and set to launch; are you ready?

Posted in gTLDs, Information Technology, Intellectual Property, Trademarks

New to the delegation pool

ICANN delegates new gTLDs daily, which keeps trademark owners on their toes. Since our last blog article, new gTLD delegations include:

  • .gop
  • .ryukya
  • .yokohama
  • .rest
  • .saarland
  • .consulting
  • .vodka
  • .haus
  • .cooking
  • .moe
  • .rodeo
  • .country
  • .商城(xn--czru2d) – Chinese for “mall”
  • .horse
  • .fishing
  • .vegas
  • .miami
  • .archi
  • .black
  • .ren
  • .meet
  • .sohu

The most recent additions will join the growing list of gTLDs that can begin their Sunrise periods. It is important to remember that though many gTLDs are allowing Sunrise periods to last longer than 30 days, they are required to have only a 30-day period.

gTLDs beginning Sunrise

Sunrise periods can quickly come and go — notice to the unwary. Following is a list of gTLDs set to launch and their corresponding Sunrise periods.…


Continue Reading →

“You, you, and you: Panic. The rest of you: Come with me.” – It’s time for trademark owners to arm themselves against the dot’s new friends.

Posted in gTLDs, Information Technology, Intellectual Property, Trademarks

The Internet Corporation for Assigned Names and Numbers (ICANN) announced this week at ICANN 49 Singapore that the number of new generic top levels domains (gTLDs) that have been “delegated” — i.e., designated as ready for launch — now tops 175. Recently delegated gTLDs include:

  • .london
  •  .nyc
  • .cologne
  •  .trade
  •  . 世界 (Chinese for “world/shijie”)
  •  .bid
  • .vote
  • .reviews
  • .events
  • .democrat
  • .education
  • .coffee
  • .florist

The ICANN website shows the complete list of delegated gTLDs. As this number climbs, it becomes increasingly and even alarmingly important for trademark owners, regardless of whether they have vast or small trademark portfolios, to take action so they have the ability to receive notice and protect their registered marks in the rapidly expanding Internet.

What does delegation mean to brand owners?

Logistically, delegation means that the gTLD registry can begin the “Sunrise” period. For trademark owners however, delegation signals that the battle to quash unauthorized use of domain names has begun.…


Continue Reading →

Three additions to your new year’s resolutions from Pradaxa

Posted in Electronic Discovery, Information Technology

Many people use the start of a new year to resolve to improve their diet, get more sleep and exercise more. Professional resolutions for attorneys often focus on improving efficiency, expanding networks and areas of expertise or simply submitting their time entries properly. A decision late last year in the In re Pradaxa Products Liability Litigation suggests some potential professional resolutions for litigators and in-house litigation counsel to consider when litigation arises or is reasonably anticipated.1

Pradaxa is a multidistrict products liability action pending in the Southern District of Illinois. The case involves, among other things, the safety of a blood thinner and a pharmaceutical manufacturer’s alleged representations about the efficacy of that product. This complex case involved extensive discovery involving millions of documents and hundreds of witnesses and, not surprisingly, discovery issues and disputes arose that were not particularly unique.

In a detailed opinion reviewing the history of the discovery disputes brought to its attention by the plaintiff’s steering committee, the district court commented that it had been “exceedingly patient and, initially, was willing to give the defendants the benefit of the doubt” on the discovery issues. For example, this was not the first opinion in this action addressing defendants’ discovery responses and document preservation efforts.2 Indeed, the court had “warned the defendants in the past, when such conduct continues, there is a cumulative effect” that the court not only can but also should take into account.…


Continue Reading →

Top 10 e-discovery developments and trends in 2013: Part 2

Posted in Electronic Discovery, Information Technology, Privacy

Following is Part 2 of my third annual list of the top 10 e-discovery developments and trends from the past year. Read Part 1.

6. “It is malpractice to not seek a 502(d) order from the court before you seek documents.” U.S. Magistrate Judge Andrew Peck began last year at Legal Tech providing his thoughts on the importance of orders entered pursuant to Federal Rule of Evidence 502(d). He said: “I’ll give you a fairly straight takeaway on 502(d). In my opinion it is malpractice to not seek a 502(d) order from the court before you seek documents. That doesn’t mean you shouldn’t carefully review your material for privileged documents before production, but why not have that insurance policy?” Other judges echoed these sentiments as the year progressed.

As if hearing federal judges say malpractice and Rule 502(d) orders in the same sentence were not enough to convince federal court litigants to use them, cases throughout the year further highlighted the importance of securing these orders. Magistrate Judge Waxse enforced a Rule 502(d) order over the objection of the party that originally requested it in Rajala v. McGuire Woods, LLP, 08-2638 (D. Kan. Jan. 3, 2013). Earlier in the case, the defendant moved for a protective order that contained a clawback provision pursuant to Rule 502(d). Magistrate Judge Waxse entered the order which included language stating that “[t]he inadvertent disclosure or production of any information or document that is subject to an objection on the basis of attorney-client …


Continue Reading →

Top 10 e-discovery developments and trends in 2013: Part 1

Posted in Electronic Discovery, Information Technology, Privacy

Here is my third annual list of the top 10 e-discovery developments and trends from the past year.

1. The growth of Bring Your Own Device (BYOD) policies and work-related text messaging is creating litigation hold challenges. A Cisco survey found that 89% of companies are currently enabling employees to use their own electronic devices for work. Gartner predicts that by 2017 a half of all employers will require employees to provide their own devices. The growing prevalence and convenience of personal devices in the workplace is leading more employees to use text messaging for work-related purposes.

With these trends, it is no wonder that there were a number of decisions last year addressing whether an employer must produce ESI (mainly text messages) from its employees’ devices (mainly cell/smart phones). One of the key issues in these cases is whether the employer has “possession, custody, or control” over the devices. To decide this issue, courts have looked at whether the employer provided the devices, whether the employees used the devices for work-related purposes, and whether the employer otherwise had any legal right to obtain ESI from the devices on demand. Other issues that have been raised are the privacy rights of the employees and the employer’s obligations if its employees refuse to turn over their devices during discovery.

In ordering the production of business-related text messages on employees’ cell/smart phones, a court rejected the argument that the failure to preserve text messages should not be sanctioned because they are …


Continue Reading →

Forensic computer examination is where the rubber hits the (off) road

Posted in Electronic Discovery, Information Technology, Privacy

Forensic computer examinations can be expensive and therefore may prompt the question during litigation – are they worth it? A recent decision from the Southern District of Ohio illustrates why the answer is “yes” in many trade secret cases. In H&H Industries, Inc. v. Miller, the court relied heavily on the results of the forensic examination of the defendant’s computers to enter a preliminary injunction that prohibited the defendant, the plaintiff’s former employee, not only from divulging or using the plaintiff’s trade secrets but also from working for his new employer.

The plaintiff, H&H Industries, retreads and repairs off-the-road (“OTR”) tires and sells used OTR tires. The defendant, Erik Miller, began working for H&H in 2006, and since 2007 had worked as a salesperson of OTR tires. Miller had access to H&H’s confidential information, including pricing information, and, as such, H&H required him to sign a confidentiality agreement. On July 26, 2013, Miller notified H&H that he was leaving the company to join one of H&H’s direct competitors, Polar Rubber Products.…


Continue Reading →

Dawn of a new Internet — mechanisms to protect your brand

Posted in Domain Names, gTLDs, Information Technology, Intellectual Property, Trademarks

Many people have not yet heard or may not understand, but the Internet will expand vastly and quickly beyond the familiar .com, .org, and .edu top level domain names. The Internet Corporation for Assigned Names and Numbers (ICANN) launched an initiative in 2008 to enable the introduction of new generic topic level domains (gTLDs). The primary reason for the expansion is to promote competition in the domain name market while continuing to ensure the Internet’s security and stability. Though ICANN’s efforts have not been without criticism, the objective is to expand the number of new gTLDs to increase competition among registry service providers and, in turn, provide greater consumer choice.

ICANN reported receiving 1,930 new gTLD applications during the application window, which closed March 29, 2012. Of those applications 1,815 are active. Most of these new gTLD applications are for generic terms such as .app, .auto, .car, .music, .shopping, .singles. But ICANN also received a subset of applications known as “.brands” created submitted on behalf of brand owners to operate as closed registries (not open to the public) designated specifically for the brand’s use — such as .apple, .chevrolet, .goodyear and .samsclub.…


Continue Reading →

Key e-discovery cases in November

Posted in Electronic Discovery, Information Technology, Privacy

Last month, Magistrate Judge David J. Waxse decided an issue that we likely will see more of in the age of big data. He rejected a defendant’s undue burden argument even though even though the “data warehouses” at issue contained over 100 terabytes of data and the production would take several months to develop a process to extract and pull the data in the manner requested by the plaintiffs. In addition to that case, there were key cases in November involving BYOD issues, cooperation, the form of production, and spoliation.

Bring your own device (BYOD)

Ewald v. Royal Norwegian Embassy, No. 11-cv-2116 (D. Minn. Nov. 20, 2013). In my summary of key October cases, I discussed how the magistrate judge in this case denied the plaintiff’s motion to compel discovery, including a request for forensic images of certain laptops, phones, memory cards and tablets. The district court judge largely affirmed the magistrate judge’s order but reversed the order as it related to the discovery of text messages and voice messages contained on two work-provided mobile phones. The court held that the plaintiff was entitled to receive responsive text messages and voice messages contained on the mobile phone the defendant-employer provided to her and another employee. Accordingly, the court ordered the parties to meet and confer and agree on a protocol to conduct a search for responsive text messages and voice messages contained on their work-provided mobile phones used between Nov. 1, 2008 and Nov. 1, 2011. Interestingly, the …


Continue Reading →

LabMD joins Wyndham in challenging FTC’s data privacy authority

Posted in HIPAA Compliance, HITECH Act Compliance, Information Technology, Privacy

Section 5 of the Federal Trade Commission Act — the Act that established the FTC in the first place — makes it unlawful to engage in “unfair methods of competition … and unfair or deceptive acts or practices…” Though the words seem simple enough, its application in today’s world is anything but simple, particularly when you talk about data privacy. Two companies — Wyndham Worldwide Corp. and LabMD Inc. — are publicly, and independently, challenging the FTC’s authority over their data security policies (and subsequent lapses). This post is a quick update about LabMD’s challenge.

In August 2013, the FTC filed an administrative complaint against LabMD, alleging that it lacked appropriate data security and unreasonably exposed the health and personal data of its consumers. LabMD conducts clinical laboratory tests on patients and reports its finding to patients’ health care providers. In performing the needed tests, LabMD typically obtains personal information, including names, addresses, dates of birth, SSNs, bank account or credit card information, laboratory tests, test codes and results, diagnoses, clinical histories, and health insurance company names and policy numbers. LabMD possesses such data for approximately 1 million consumers.

The FTC charged that LabMD “failed to provide reasonable and appropriate security for personal information on its computer networks.” Among other things, the complaint states that LabMD failed to:…


Continue Reading →

A Trans-Atlantic exploration of emerging privacy law and policy issues

Posted in Information Technology, Privacy, Social Media

This past summer, the University of Amsterdam launched a new, week-long Privacy Law and Policy Summer Course related to the Internet, electronic communications, and online and social media. Course faculty included European and U.S. academics, European regulators and the head of the global privacy law practice at an international law firm, among others. Course participants consisted of 25 legal practitioners and post-graduate researchers from the Netherlands, Spain, Italy, Slovakia, the United States, Japan, Brazil, Kenya and other countries. I was lucky enough to serve as a co-organizer and faculty member for the course.

Taken together, the nine mini-seminars that constituted the backbone of the course provide a snapshot of developments in privacy law and policy in Europe and in the United States, and how they relate to one another. This should be of interest to U.S. lawyers and others who work in the areas of privacy law, compliance and management. What follows is a brief description of some key takeaways from the week, and an attempt to pull them together into a broader perspective.

Doing business over the Internet

Daniel Cooper, head of the Global Privacy Practice at Covington & Burling, discussed emerging legal and policy challenges facing European companies that seek to do business over the Internet. Cooper’s comprehensive presentation stressed that companies face a wide array of matters, including privacy issues related to online behavioral advertising and business use of social media, facial recognition technology, mobile apps, and big data. The 1995 Data Protection Directive pre-dates these technological …


Continue Reading →

Who owns your website, software and other works of authorship?

Posted in Copyright, Information Technology, Intellectual Property

Many businesses outsource work such as website creation, software development or other creative tasks, engaging the services of companies or individuals experienced in these fields. Some are surprised to learn, often the hard way, that paying someone to create your website, develop software or produce other works of authorship does not mean you own the copyright in the final work product. Lack of ownership may prove costly, as a copyright owner has the exclusive right to reproduce, distribute and even modify the original work.

Copyright protection, which has been referred to as the “forgotten stepchild” of intellectual property, deserves more respect and attention than it often receives. For starters, copyright protection is rather cheap — in fact, it’s actually free (more on that below). Unlike patents, you don’t need to spend thousands of dollars on an application, hoping that the Copyright Office agrees that you created something artistic or worthy of copyright.

Copyright protects works of authorship, including: literary works; musical works; dramatic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. 17 U.S.C. § 102(a). Though copyright does not extend to ideas, processes, systems, discoveries, etc., the tangible expression of these — e.g., computer software — is entitled to copyright protection.…


Continue Reading →

Privacy on the go: California’s recommendations for the mobile ecosystem

Posted in Information Technology, Privacy

Privacy policies are often lengthy, difficult to read and even more complicated to understand. Facebook’s data use policy, for instance, fills 16 pages and contains more than 9,000 words. The idea of reading through an entire privacy policy on the small screen of a mobile device exemplifies the need for a different, more user-friendly approach. In addition, mobile devices pose unique privacy challenges such as GPS tracking, text messages and call logs.

California, a state with consumer protection laws that are among the strongest in the country, has had explicit legislation governing online privacy since 2004 when the California Online Privacy Protection Act1 (“CalOPPA”) was enacted. CalOPPA § 22575(a) forces all operators of websites or online services to post their privacy policies in a conspicuous manner assuming they target individuals residing in California.

The California Attorney General, Kamala Harris, concluded in 2012 that, with regard to mobile devices and the apps they employ, the “conspicuous” display of privacy notices required an app-specific version and that a mere link to the company’s website was insufficient to meet the posting requirements referenced above. Harris sent notices to mobile developers Oct. 30, 2012, warning that they were not in compliance with California privacy law if their apps did not contain a conspicuously posted privacy notice. Shortly thereafter, California filed suit against Delta Airlines Inc., alleging the airline’s “Fly Delta” app lacked the requisite privacy notice despite collecting extensive personally identifiable information (PII) of its customers.…


Continue Reading →

Key e-discovery cases in August

Posted in Electronic Discovery, Information Technology, Social Media

In addition to the posting of the proposed discovery amendments to the Federal Rules of Civil Procedure for public comment, August was packed with a number of interesting e-discovery decisions. Here are my thoughts on key e-discovery cases decided last month, including another spoliation blockbuster from Judge Shira Scheindlin and rulings on e-discovery costs, search terms, proportionality and privacy.

Spoliation/sanctions

Sekisui American Corp. v. Hart, No. 12 Civ. 3479 (S.D.N.Y. Aug. 15, 2013). Judge Scheindlin considered the “appropriate penalty for a party that — with full knowledge of the likelihood of litigation — intentionally and permanently destroyed the email files of several key players.” Based on Judge Scheindlin’s analysis of the facts, she reversed the magistrate judge’s order declining to award sanctions and instead ordered that an adverse jury instruction be given at trial.

The most notable part of the decision was that it was issued on the same day the public comment period opened for the proposed discovery amendments and Judge Scheindlin included a footnote openly disagreeing with the proposed changes to Rule 37(e). She stated: “I do not agree that the burden to prove prejudice from missing evidence lost as a result of willful or intentional misconduct should fall on the innocent party. Furthermore, imposing sanctions only where evidence is destroyed willfully or in bad faith creates perverse incentives and encourages sloppy behavior. Under the proposed rule, parties who destroy evidence cannot be sanctioned (although they can be subject to ‘remedial curative measures’) even if they were …


Continue Reading →