In This Issue:

	FROM THE BENCH: COURTS ISSUE SPOLIATION SANCTIONS WHERE PARTIES DISPOSED OF COMPUTER EQUIPMENT
	THE BRILL FILES: NEW TECHNOLOGY TRENDS CULTIVATE SECURITY RISKS FOR THE UNWARY
	TECHNOLOGY YOU SHOULD KNOW: COMPUTER FORENSICS – FRONT AND CENTER NEWS
	NEWS & EVENTS

FROM THE BENCH: COURTS ISSUE SPOLIATION SANCTIONS WHERE PARTIES DISPOSED OF COMPUTER EQUIPMENT

Court Issues Adverse Jury Instruction Where Plaintiff Disposed of Home Computer after Filing Discrimination Suit
Teague v. Target Corp., 2007 WL 1041191 (W.D.N.C. Apr. 4, 2007). In a gender discrimination suit, the defendant brought a motion for sanctions against the plaintiff for spoliation of evidence, specifically seeking dismissal of the suit because the plaintiff disposed of her home computer after filing an EEOC claim against the defendant. The plaintiff’s home computer contained evidence relating to her lawsuit against the defendant. The plaintiff claimed that she disposed of her computer after the hard drive crashed and was unable to be repaired by her brother. The court held that sanctions were appropriate since the computer contained evidence directly related to the plaintiff’s claims and her efforts to mitigate her damages by finding another job after leaving the defendant’s company. The court determined that she disposed of the computer with a “culpable state of mind” and an adverse inference jury instruction at trial was proper.

Court Issues Spoliation Sanctions for “Crashed” Hard Drive and Appoints Special Master at Defendant’s Expense
Padgett v. City of Monte Sereno, 2007 WL 878575 (N.D. Cal. Mar. 20, 2007). In a case alleging civil rights violations and infliction of emotional distress, the plaintiff sought to explore claims about the authorship of a harassing letter he received from a city employee. The court initially denied the plaintiff’s request to compel inspection of the city’s computers but ordered the defendant to preserve “everything.” The city assured the court it would abide by the preservation order. However, after a subsequent court order for production of three of its employee’s hard drives, the defendant acknowledged it had destroyed one of them. The defendant explained that the hard drive in question had been inadvertently discarded after the user’s laptop “crashed.” However, at a hearing before the court, the city explained the laptop had “appeared”. Unsatisfied with the city’s explanation, the plaintiff moved for terminating sanctions, monetary sanctions and default judgment. In turn, the defendant moved for clarification of the court’s previous order to allow inspection or, in the alternative, for a protective order. The court found the defendant had discarded the laptop with notice of its potential relevance, causing delay and additional expense to the plaintiff. While reserving judgment as to whether the defendant’s actions warranted terminating sanctions, the court ordered monetary sanctions against the defendant in the amount of the plaintiff’s attorney fees and traveling costs associated with bringing the motion. It also ordered the defendant to pay the plaintiff’s expert’s fees and to bear the cost of a court-appointed special master. The court declined to consider the defendant’s motion for clarification, directing the defendant to seek further direction from the special master.

THE BRILL FILES: NEW TECHNOLOGY TRENDS CULTIVATE SECURITY RISKS FOR THE UNWARY

Social-networking Web sites and web-hosted videos are two of the hottest technology trends today. However, as a corporation, it is easy to overlook some of the risks associated with these technology trends and how employees may be using this technology when off-the-clock. Traditional security attacks on companies, such as viruses and worm invasions, are so commonplace that corporate protective measures are almost automatic. However, companies should not overlook the newest technological techniques and the correlating possible security weaknesses.

Social-Networking Web sites
A vast cross-section of the public – from teenagers to presidential candidates – find social networking sites, such as MySpace, Friendster, or Facebook, a compelling method for online communication. These Web sites allow users to input personal information (including employment information), develop a personal Web page, and communicate with others. However, for corporations, these sites can open your organization to increased risk. For example, without knowing it, an employee could be deceived by a hacker lurking in the social-networking depths. A hacker need only visit the Web site and search for a specific company name to find employees who may be susceptible to social-engineering. Experienced hackers seeking to gain sensitive information about a company may employ fraudulent tactics to solicit a personal relationship with employees, especially if they expose where they are employed, their job title, responsibilities, co-workers names and more. Corporations should discourage employees from disclosing specific employment information on social-networking sites.

Web-Hosted Videos
Another cutting-edge technology trend includes Web sites that have video capabilities, such as YouTube or MySpace. Users of these sites can post and view videos directly from the web. However, companies should be aware that adware, spyware and other malicious code can be actively spread through some of these video downloads or the tools used to view the video clips. This malware can quickly take over a computer so that the hacker has complete control over the content on the hard drive. Employers should consider applying proper filters to disallow unknown video feeds or to minimize web-hosted video downloads on corporate computers.

Social-networking and web-hosted video Web sites are two of the hottest trends in technology today. However, as with any aspect of technology, risks abound. Organizations looking to stay on top of security issues will not overlook these areas when assessing risk.

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: COMPUTER FORENSICS – FRONT AND CENTER NEWS

Once again, the importance of computer forensics has dominated the covers of newspapers in the recent weeks. From the Whitehouse scandals, the U.S. attorney firings, and the Iraq war to the Virginia Tech tragedy, computer forensic investigators are providing valuable insight into each of these headline news stories. Focusing on computer conduct, computer forensic specialists are helping bring pieces of the puzzle together for the government, military, judicial system, media, educators and members of the public.

Computer forensic experts are most adept at performing the following activities:

• Determining dates and times of logon and log-off on the computer
• Locating files and information about when they were created, accessed, modified and deleted
• Retrieving e-mails and information about when they were sent, received and drafted
• Creating a list of Internet Web sites visited and the activities performed on those Web sites
• Finding key words and key data, whether contained in active or deleted files
• Searching for the existence of certain programs such as file deletion and wiping programs
• Issuing official, expert opinions based on their experience and knowledge of best practices

In these high-profile media events recently, the world is continuing to see what many of us already know. Digital fingerprints contained within the ones and zeros of a computer hard drive can be some of the richest sources of information in today’s high-tech society. In any incident where digital media was involved – even tangentially – a computer forensic expert can augment the investigation with a timeline of events occurring on the computer, cell phone, personal digital assistant and more.

NEWS & EVENTS

KROLL ONTRACK LAUNCHES NEW E-MAIL INVESTIGATION & ANALYTICS SOFTWARE

On March 22, 2007, Kroll Ontrack announced the launch of Ontrack® Firstview™, an e-mail investigation analytics tool that helps in-house attorneys appraise the scope, volume and potential significance of e-mail communication. Enabling attorneys to investigate incidents of employee misconduct, form legal case strategy and intelligently collect data in preparation for discovery, this technology allows corporate counsel to gain more control of internal investigations upfront and minimize costs by reducing the volume of information processed during e-discovery. Through the use of this desktop platform, in-house counsel are better equipped to evaluate what happened and whether misconduct occurred, as well as what data should be processed for e-discovery and whether to retain an outside expert for further forensic or discovery analysis.

Specifically, Ontrack Firstview’s features and functionality enables users to:

• Reveal the dominant themes present within e-mail communications.
• Establish the timeline for the events giving rise to the investigation or suit.
• Graphically display communication lines between internal and external people.
• Search for key people, words and phrases, or dates and times.
• Create graphs, charts and reports to help demonstrate conclusions and present to corporate executives, opposing parties or judges.

For more information about Ontrack Firstview, visit www.ontrackfirstview.com.

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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.