In This Issue:

	FROM THE BENCH: COURT FINDS “CUT-AND-PASTE” CHAT ROOM TRANSCRIPT INADMISSIBLE EVIDENCE
	THE BRILL FILES: IN MEMORY OF DEAN SCHMIDT, KROLL ONTRACK OPERATIONS DIRECTOR
	TECHNOLOGY YOU SHOULD KNOW: FEDERAL RULES UPDATE
	NEWS & EVENTS

FROM THE BENCH: COURT FINDS "CUT-AND-PASTE" CHAT ROOM TRANSCRIPT INADMISSIBLE EVIDENCE

Court Issues Adverse Jury Instruction Where Plaintiff Disposed of Home Computer after Filing Discrimination Suit
United States v. Jackson, 2007 WL 1381772 (D. Neb. May 8, 2007). In a criminal case, the defendant filed a motion in limine to exclude evidence of chat room conversations. At the conclusion of each chat room session, an undercover police officer conducting the chat room conversation would cut-and-paste the entire conversation into a word document for later review. However, a computer forensics expert testified that this cut-and-paste method created several errors and that several portions of the defendant’s conversations were omitted. The defendant argued the omitted portions of the transcript contained evidence relating directly to his intent and should not be admitted as evidence. The court found that the cut-and-paste document was not admissible evidence at trial because it was not authentic under the Federal Rules of Evidence. The government did not prove the proper foundation to show that the cut-and-paste transcript was a trustworthy source of evidence. Additionally, the court found that the transcript was not the “best evidence” as required by the Federal Rules of Evidence. Although original duplicate documents may be admitted as evidence in lieu of original documents, they still must be an accurate reflection of the original’s content. The court found the cut-and-paste document offered by the government could not be proven to be an accurate reflection of the original chat room discussions.

THE BRILL FILES: IN MEMORY OF DEAN SCHMIDT, KROLL ONTRACK OPERATIONS DIRECTOR

This month I am dedicating my column to the memory of a Kroll Ontrack colleague, Dean Schmidt, who recently passed away after succumbing to a battle with cancer. Dean worked in our Electronic Discovery division, serving as Director of Electronic Discovery Operations Engineering in our headquarters facility in Eden Prairie, Minnesota. He was an esteemed friend in the Kroll Ontrack family and will be greatly missed by all of his colleagues and many clients that had the opportunity to work with him.

In the five years that Dean was with Kroll Ontrack, the Legal Technologies business experienced tremendous growth. His operations organization grew into a solid, professional and efficient team. This team provided world-class service and timely deliveries to electronic discovery clients. 

Dean faced his illness with the same dignity and determination with which he lived his life. He continued to give back to the community that embraced him; having served as a volunteer firefighter, councilman, mayor and very active in youth hockey around the state.

If you would like to explore the opportunity of Alan Brill speaking at a conference you are supporting or organizing, please contact Amanda Karls at 952 516 3637 or at akarls@krollontrack.com.

TECHNOLOGY YOU SHOULD KNOW: FEDERAL RULES UPDATE

The new Federal Rules of Civil Procedure (FRCP) relating to Electronically Stored Information (ESI) became law a little over six months ago on December 1, 2006. Since then, both legal professionals and technologists alike have been striving to update their practices and systems to ensure compliance with new federal electronic discovery regulations for active or pending civil litigation. For most organizations this means some of the following important activities.

• Under-going data accessibility mapping assessments
• Evaluating data storage methods and the risks inherent in those methods
• Preparing for pre-trial conferences where technical discovery subjects will be discussed
• Defining discovery collection strategies, including determining when to collect active data only and when to forensically image a hard drive
• Delineating discovery review and production procedures

Organizations are learning that insufficient preparation--oftentimes due to a lack technical proficiency, funding, and/or legal expertise--could prove dire if exposed in front of a federal court judge. For example, in the past six months a number of judges have become familiar with ESI technology topics and have not been hesitant to enforce the new FRCP provisions. As the jurisprudence relating to ESI continues to develop, enforcement of the new rules will likely only continue to escalate.

In addition to the FRCP amendments, a new evidence rule may be on the horizon, Federal Rule of Evidence 502, which corporations and the law firms representing them will want to watch closely. After meeting on April 12th and 13th, the Advisory Committee on Evidence Rules issued its final report and recommended that the Standing Committee on Rules of Practice and Procedure approve the proposed rule and submit it to the Judicial Conference with a recommendation that it be approved by Congress. The Advisory Committee's report to the Standing Committee can be accessed at: www.uscourts.gov/Reports/EV05-2007.pdf.

Proposed Federal Rule of Evidence 502 addresses waiver of attorney-client privilege and work product protections during discovery. Among its provisions, the new rule would:

• Eliminate waiver by inadvertent disclosure in instances where the producing party took reasonable precautions to prevent the disclosure and prompt measures to correct the error;
• Limit subject matter waiver to instances where fairness would require it; and
• Enable parties to enter into a non-waiver agreement that would be binding outside of the litigation at-hand so long as the agreement was incorporated into a court order.

If enacted, this new rule will certainly add to the already extensive list of pre-litigation “best practices.” The bottom line: staying up to speed on the changes to the law and technology relating to e-discovery will help organizations in the technology age – whether two employees or two thousand employees -- retain the strategic edge when litigation ensues.

NEWS & EVENTS

New Job Opportunity with Kroll Ontrack: Senior Technical Consultant

Kroll Ontrack is currently seeking qualified candidates for several Senior Technical Consultant positions that will form a new group focused on helping corporations and outside counsel navigate technical intricacies and legal standards associated with the accessibility of electronically stored information (ESI) and other technical issues relating to electronic discovery. Ideal candidates will possess a Bachelor’s degree and a minimum of five years in a technical advisory or professional services consulting role. They will have a strong technical aptitude and advanced understanding of storage technologies and procedures, document management systems, e-mail and messaging systems and network administration. Knowledge of electronic discovery and/or computer forensics technologies is highly desired. We are looking for candidates in major metropolitan areas, and relocation to Minnesota is not required. For more information about these opportunities and other open positions at Kroll Ontrack visit: http://www.krollontrack.com/careers/jobsearch.aspx?news=US_CaseLaw_June_07.

Meet our representatives at the following events:

Visit www.krollontrack.com/upcomingevents for more information on these events and others.

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WE REQUEST YOUR INPUT

Our legal consultants, project managers, and technology experts strive to stay on top of e-discovery law. If you are aware of any additional local court rules or new cases in this area of the law, please contact us by writing to mlange@krollontrack.com.

This newsletter is written by Michele C.S. Lange, an Ontrack Forensics staff attorney with Kroll Ontrack. Ms. Lange has published numerous articles and speaks regularly on the topics of e-discovery, computer forensics, and technology’s role in the law. She can be contacted by writing to mlange@krollontrack.com.

For more information about e-discovery and computer forensics services, contact Kroll Ontrack at 800 347 6105 or www.krollontrack.com.