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Texas Federal Court decision illustrates need for BYOD policies

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 … Continue Reading

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

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 … Continue Reading

Florida ramps up data breach notification law

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 … Continue Reading

Porter Wright announces 2014 Technology Seminar Series

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 … Continue Reading

Lack of reasonable efforts to maintain secrecy of trade secrets can undermine otherwise compelling claim of misappropriation

If you believe that a former employee may have taken your trade secrets on his way out the door and you are considering court action to rectify the situation, it is important to have compelling evidence of the misappropriation. But as we discuss in this post, even with compelling evidence of misappropriation, the plaintiff’s failure … Continue Reading

Hashtag promotions could spell #trouble with FTC Endorsement Guides

The Federal Trade Commission’s Division of Advertising Practices has recently finalized its investigation into Cole Haan’s “Wandering Shoe” contest wherein contestants could enter the contest by creating Pinterest boards titled “Wandering Sole” and including five shoe images from Cole Haan’s Wander Sole Pinterest Board as well as five images of contestants’ “favorite places to wander.” … Continue Reading

FTC strikes back against virtual Peeping Tom

Okay, folks, we won’t beat around the bush. This is just plain creepy! On Monday, the FTC finalized its order against Aaron’s, one of the country’s largest rent-to-own (RTO) stores, charging that its franchisees were spying on its customers.1 By the way, by spying, we mean to include taking webcam pictures every two minutes that … Continue Reading

Facebook updates policy regarding remembering loved ones, which begs the question: Is legislation over digital assets necessary or inevitable?

A few days after we posted “Facebook’s ‘Look Back’ videos send reminder: Get digital accounts in order before death,” which provided guidance to digital account users on how to make plans for their digital accounts before death, Facebook announced a policy change regarding how it would maintain the profiles of its users who have passed away … Continue Reading

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

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 … Continue Reading

Key e-discovery cases in December

The end of the year brought another decision that impacts Bring Your Own Device (BYOD) policies as well as another Court of Appeals decision addressing the recoverability of e-discovery costs under 28 U.S.C. § 1920(4), which permits a court to award “the costs of making copies of any materials where the copies are necessarily obtained … Continue Reading

Key e-discovery cases in November

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 … Continue Reading

LabMD joins Wyndham in challenging FTC’s data privacy authority

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

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 … Continue Reading

Defensible deletion: No spoliation where defendant destroyed emails and documents pursuant to its records retention policies

When I present on e-discovery, I often use EDRM’s Electronic Discovery Reference Model to explain how decisions made about the creation, storage and deletion of electronically stored information (ESI) can affect how e-discovery is conducted in a lawsuit. The EDRM model illustrates how a company’s records and information management policies can impact the volume of … Continue Reading

Facebook eases requirements for sweeps and contest promotions

For many years, we have been advising our clients that, in addition to the laws addressing sweepstakes and contest promotions, they must also be aware of the Facebook’s promotion guidelines if they wished to link their sweepstakes promotion to the company Facebook presence. While that remains true, Facebook has now made it much easier for … Continue Reading

Subpoenas seeking identifying information and login data associated with email addresses did not violate First Amendment or privacy rights

A federal court in California has held that subpoenas served on Google and Yahoo! seeking the subscriber and usage information associated with 68 email addresses did not infringe on the subscribers’ First Amendment rights or their right to privacy. Chevron Corp v. Donziger, No. 12-mc-80237 (N.D. Cal. Aug. 22, 2013). The subpoenas also did not … Continue Reading

Implementing cloud strategies

As companies struggle with how to develop cloud strategies that are both cost effective and protect sensitive consumer and corporate data, the National Institute of Standards and Technology (NIST) can provide hands-on information to the private sector to help implement a reasonable cloud computing solution. Though NIST provides guidelines to the U.S. Government, the private … Continue Reading

Sanctions for spoliation of evidence

This article was published originally at The article is the final installment of a six-part series focusing on evidence spoliation. Read more here, here and here. Spoliation of evidence occurs when an individual or entity violates its duty to preserve relevant evidence. A finding of spoliation will often result in the imposition of sanctions and … Continue Reading