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E-Discovery for Dummies Outline - Chapter 17 - E-Discovery for Small Cases

17. E-Discovery for Small Cases

a. Small to Medium Enterprise (SME)

b. Computer Fraud and Abuse Act (CFAA) – provides remedies for the theft of customer or product data by terminated employees.

c. Motions to have ESI excluded i. Wiretap statute – only covers message intercepted while in transit. Not messages on a hard drive. ii. Privacy invasion – if computer is in a shared space where it can be used by both spouses – no claim, even if the computer is employer owned. iii. No expectation of privacy motion if computer is not password protected or encrypted.

d. Byrne v. Byrne (2002) – home computer compared to a filing cabinet by Justice Rigler - "Clearly, plaintiff could have access to the contents of a file cabinet left in the marital residence. In the same fashion she should have access to the contents of the computer." Company issued laptop subject to e-discovery because it is used for both business and personal purposes; when computer is shared by family, or couples tell each other their passwords, reading a spouse’s email and introducing them in court in a divorce case is often allowed.

e. Steps for Managing E-Discovery in Small Matters i. What access a party has had with devices and ESI? 1. Spyware programs may violate federal and state wiretap laws, ii. Send a preservation letter. 1. Instructs to stop using, accessing, turning on, powering, copying, deleting, removing or uninstalling any programs files, or folders, or booting up. iii. Retain forensics expert. 1. Both a computer forensic expert and a forensic accountant for opinions on password protected files or internet activities. iv. Review reports of both forensics experts.

f. Curbing E-Discovery with Proportionality i. Case value ii. Probative value of the evidence 1. FRCP 26(b)(2) discovery is limited if burden or expense outweighs proposed benefit considering needs of the case, amount in controversy, importance of issues at stake in the controversy, and importance of discovery in resolving the issues.

g. Personal Correspondence and Files i. Lorranine v. Markel Am. Ins. Co. – Judge Grimm disallowed emails offered by both parties in support of their summary judgment motions because neither attempted to authenticate the messages. ii. Courts will admit evidence so long as party can produce expert or witness who will claim that the records appear to be authentic.

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