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The Impact of Technology on Case Law under the 2006 FRCP Amendments
The 2006 amendments to the Federal Rules of Civil Procedure ('FRCP') contain a host of technology-oriented standards and procedures. Accordingly, it is not surprising that the case law in the wake of these amendments reflects the unstoppable march and advancement of computer technology. This article illustrates some of the most important ways in which this technology has influenced judicial opinions regarding electronically stored information ('ESI') under the new rules, including:
- Increased use of forensic preservation and collection;
- Strategic control of search protocols;
- Definition of 'reasonably accessible' ESI sources; and
- Expanding scope of potential sources of relevant ESI.
Forensic Preservation and Collection
ESI is often collected logically (i.e., backup or file copy) by client IT resources rather than forensically (i.e., complete bit-by-bit copy), under various rationales, e.g., that the client should not have to produce deleted ESI recoverable only through forensic imaging, or that metadata that could be altered by logical copying is irrelevant.
Forensic imaging is expected when computer inspections are ordered, and the amended rules explicitly recognize the inspection of ESI as a procedural weapon. Recent rulings involving forensic imaging and inspection echo prior case law ' inspections will not be ordered as a matter of course, but only where the information in question goes to the heart of the matter and is likely to be recoverable, or where there has been a showing that the party possessing the ESI has not been forthcoming with respect to relevant information from that source. See, Palgut v. City of Colorado Springs, 2007 U.S. Dist. LEXIS 91719 (D. Colo. Dec. 3, 2007) (forensic examination denied clarifying that without a compelling reason, the 2006 FRCP amendments provide no more 'access to electronic information storage systems than to warehouses storing paper documents'); Bulter v. Kmart Corp., 2007 U.S. Dist. LEXIS 61141 (N.D. Miss. Aug. 20, 2007) (direct access to internal databases without evidence of improprieties denied). See also, Orrell v. Motorcarparts of Am., 2007 U.S. Dist. LEXIS 89524 (W.D.N.C. Dec. 5, 2007) (forensic examination allowed where corporate computer was 'wiped' and home computer 'crashed'); Benton v. Dlorah Inc., 2007 U.S. Dist. LEXIS 80503 (D. Kan. Oct. 30, 2007) (forensic inspection granted of personal computer from which deleted e-mails were sent, if employee failed to produce such e-mails).
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?