Industry associations are another useful information source for researching experts. Organizations, such as DRI and TIDA offer electronic expert databases to members allowing for a fast exchange of information. A number of private websites, including Daubert Tracker also provide background information, including prior trial testimony, to users for a fee.

Adverse experts who specialize in a particular subject may post articles they have written on their websites explaining their views on subjects that may be relevant to your lawsuit. For instance, the surgeon who has written that rotator cuff injuries are usually chronic injuries caused by wear and tear over many years may be questioned effectively on that opinion when offering the view in pending litigation that a rotator cuff injury was the result of trauma. Where there are emerging issues and disagreements within the discipline, it may also be helpful to review the expert’s published articles to explore for inconsistencies.

Social networking sites such as Friendster, MySpace and Facebook are becoming useful resources for employers. Although there is no case law on the subject, there is growing concern that disgruntled job applicants will allege discrimination in the hiring process if their online profile, blog, or chat log prevents them from securing a position.

Steven Rothberg, founder of CollegeRecruiter.com points out: “Many people, especially students have an unreasonable expectation of privacy. There’s some awareness, and some password protections are being put in place for MySpace users, but on the whole, many of the younger generation think it’s a good thing to be an exhibitionist and talk about bad behavior.”

Rosemary Haefner, Vice President of Human Resources at CareerBuilder.com notes that candidates tend to be more honest in online blogs and profiles than on their resumes. A simple Google search can reveal an applicant’s fabricated qualifications in a matter of minutes.

As younger people enter the human resources field, it is likely that use of social networking sites to screen candidates will significantly increase. If discrimination suits arise, it will be difficult for plaintiffs to prove that the disqualification stemmed from a blog post or online profile. George L. Lenard, a labor and employment attorney, recommends that companies enact clear policies regarding internet screening of potential employees to avoid exposure to liability for discrimination.

The solution for job candidates is simple. By limiting the amount of negative information on personal blogs, social networking profiles, and both public and private online conversations, an applicant can easily protect his or her reputation.

Source: “Online Background Checks: As social networking sites grow, so does the ability of employers to discriminate,” Elizabeth Millard, ABA Journal, January 2007.

Statistics on Online Background Checks:

- More than one in 10 hiring managers search social networks to screen candidates, according to one CareerBuilder.com survey.

- Less than one in four hiring managers perform an Internet search to screen job candidates, according to Rosemary Haefner, CareerBuilder.com’s vice president of human resources.

Source: “Online Background Checks: As social networking sites grow, so does the ability of employers to discriminate,” Elizabeth Millard, ABA Journal, January 2007.

The Communications Decency Act of 1996 (”CDA”) Section 230(c)(1) shields providers of interactive computer services from liability for the actions of the individuals using those services. The law may also apply to employers that provide internet access to employees.

A recent case entitled Delfino v. Agilent Technologies, Inc, 2006 SOS 6033 granted immunity to an employer under the CDA. In that case, an employee of Agilent Technologies, Cameron Moore, posted anonymous threats on message boards and sent harassing e-mails to the plaintiffs through the employer’s server. Plaintiffs sued Agilent and Moore for negligent infliction of emotional distress and intentional infliction of emotional distress, claiming that Agilent knew Moore was using its computer system to threaten the plaintiffs and failed to prevent him from harassing them.

Moore posted numerous threats against plaintiffs on a Yahoo message board primarily under the screen name “crack_smoking_jesus”. The FBI traced the user’s IP address to Agilent’s computer system. Agilent, cooperating with the FBI, then traced the e-mails and message board posts to Moore. Agilent was not informed of the precise content of the messages, but met with Moore to discuss his use of the company’s computer system. Moore denied sending the messages. Agilent’s Standards of Business Practices included a section prohibiting use of company computer systems to send threatening or harassing materials. Moore was eventually terminated for this violation. Attorneys for the plaintiffs documented their quest for the anonymous user’s identity in a law review article. See Eisenberg & Rosen, Unmasking “crack_smoking_jesus”: Do Internet Service Providers Have a Tarasoff Duty to Divulge the Identity of a Subscriber Who Is Making Death Threats? (2003) 25 Hastings Comm. & Ent. L.J. 683.)

The court, using a broad application of CDA Section 230(c)(1) held that Agilent, by granting its employees internet access, was an interactive computer provider and it was not liable for the alleged torts arising out of employee communications sent through its computer system.

Full text version of Delfino v. Agilent Technologies.

For more information on e-harassment, please visit the following Wikipedia sources:
Internet Troll
Baiting
Flaming

Cyber Stalking Statistics (2002):

- 62% of Cyber Stalking Victims are Female, primarily ages 18-24.

- Groups most at risk for Cyber Harassment include:
- Women, particularly abused women
- Special Ability Groups
- Minors
- Members of Minority Groups
- New Internet Users

- Cyber Stalking Offenders are primarily male, but the number of female cyber stalkers is growing steadily.

- 25% of Offenders are personally known by their victims.

- 62% of all Cyber Stalking Victims are located in the United States

Source: http://www.wiredsafety.org/resources/powerpoint/cyberstalking_study.ppt

A legal blog published by Los Angeles litigation firm, Acker, Kowalick & Whipple. The blog is maintained by the firm’s attorneys’ Vanessa Case and Leslie Burnet.

Retrieval of e-mail from backup media for production in discovery may be costly and time consuming, raising the issue of whether and to what extent the demanding party must share in the expense associated with production of such information. In Toshiba America Electronic Components, Inc. v. Superior Court (2004) 124 Cal.App.4th 762, plaintiff Lexar Media demanded production of 60 categories of “documents,” which Lexar defined to include “electronic mail” and “other forms of electronically or magnetically maintained information.” Defendant TAEC claimed that email correspondence stored on its computer backup tapes was not “readily available” and that recovery of such email correspondence would entail analyzing the data contained on the tapes, identifying and restoring the files, searching the restored files for responsive items, and producing the specified data, at a cost of between $1.5 and $1.9 million. Alternatively, TAEC represented that processing a selection of 130 tapes surrounding 15 key dates would cost at least $211,250. TAEC then requested Lexar to pay some or all of the cost depending upon how many tapes Lexar wanted processed. Lexar refused, and Toshiba petitioned for a writ of mandamus, contending that the court should have applied California CCP section 2031(g)(1) and ruled in its favor. Section 2031(g)(1) states that “[a]ny documents demanded shall either be produced as they are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand. If necessary, the responding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations included in the demand into reasonably usable form.” (emphasis added)

The appellate court ruled that:

(1) California CCP Section 2031(g)(1) expressly shifted to the demanding party the cost of recovering usable information from tapes;
(2) the trial court’s failure to consider the applicability of the discovery statute was abuse of discretion; and
(3) the trial court had discretion to set the reasonable expenses of the demanding party.

Because they were raised for the first time on appeal, the appellate court did not address Lexar’s theories that 1) section 2031(g)(1) was inapplicable since its document demand sought only email communications and not the backup tapes themselves and 2) the expenses were unnecessary and resulted only from TAEC’s refusal to produce the tapes in their original form.

Consequently, in drafting discovery, consider requesting email communications themselves, rather than backup tapes, to preserve an argument that Section 2031(g)(1) is inapplicable. If a dispute arises, one option is to informally propose that the backup tapes be released to a neutral third party for data retrieval, if it appears that expenses claimed by the producing party associated with retrieval and analysis of the email communications are truly unnecessary, as claimed on appeal by Lexar.

Source: Richard L. Marcus, E-Discovery & Beyond: Toward Brave New World or 1984? 25 Rev. Litig. 633 (2006) (Citing Socha Consulting, The Socha-Gelbman 2005 Electronic Discovery Survey Results; Leigh Jones, The Surging Evolution of E-Discovery, Nat’l L. J. (August 2, 2004) (projecting 1.8 billion E-discovery costs in 2006)).

For a more detailed discussion of the proposed changes, please visit:

http://www.courtinfo.ca.gov/invitationstocomment/documents/spr06-13.pdf

* Source: Legal Technology – California E-Discovery Rule Changes on Hold (http://www.law.com/jsp/legaltechnology/pubArticleLTN.jsp?id=1167945422881&rss=ltn).

In Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L, 2006 WL 665005 (N.D. Ill., Mar. 8 2006), the defendant permitted plaintiff to inspect its electronic records but protested when plaintiff then requested that he make copies of that electronic data. Instead, defendant offerred to print out all electronic documents or, in the alternative, to convert the documents to TIFF format.  Either change to the form of the document would clean the document of metadata.

Plaintiff argued that production of the documents in their native forms was essential for the two reasons: under FRCP Rule 34, (1) he is entitled to copies of the designated electronic data, and (2) the TIFF documents created by 3B6 USA are fundamentally different from the original documents and are not documents produced as they are kept in the usual course of business. Id at 2.

Plaintiff went on to contend that:

[T]he TIFF documents are inadequate reproductions that (1) lack clarity and color, (2) lack metadata that track when a document was created or modified and whether e-mails contained attachments and to whom they were sent, (3) lack clear indications as to where each document starts and stops (i.e., the TIFF pages all run together and make it difficult to determine which pages are part of one document), (4) lack clear indications as to which documents are stored together on the original compact discs and DVDs (i.e., over sixty original compact discs and DVDs were reduced to four compact discs containing TIFF documents), and (5) make it impossible for Plaintiff to use search terms to quickly and efficiently search through the documents electronically. Id.

The court held that, in these circumstances, the data must be produced in native form:

As an initial matter, it is clear that the TIFF documents do not contain all of the relevant, nonprivileged information contained in the designated electronic media. The parties agree that, unlike the original electronic media, the TIFF documents do not contain information such as the creation and modification dates of a document, e-mail attachments and recipients, and metadata.

By contrast, the court in In re Ford Motor Co. 345 F.3d 1315 (11th Cir. 2003) found that Rule 34(a) does not permit a propounding party to perform an unrestricted, direct search of a responding party’s database compilation. That Court commented in its holding:
The Advisory Committee Notes to Rule 34(a) support this interpretation. Commenting on data compilations, the Committee stated, When the data can as a practical matter be made usable by the discovering party only through respondent’s devices, respondent may be required to use his devices to translate the data into usable form. In many instances, this means that respondent will have to supply a print-out of computer data. Fed.R.Civ.P. 34(a) advisory committee’s note (1970 amend.). Like the other discovery rules, Rule 34(a) allows the responding party to search his records to produce the required, relevant data. Rule 34(a) does not give the requesting party the right to conduct the actual search. While at times-perhaps due to improper conduct on the part of the responding party-the requesting party itself may need to check the data compilation, the district court must protect respondent with respect to preservation of his records, confidentiality of nondiscoverable matters, and costs. Id at 1317.

Notably, both of these cases took place prior to the December 1, 2006 enactment of the revised Federal E-Discovery Rules. They reflect the case-by-case approach courts must take due to the variety of data and lack of significant case law regarding E-Discovery.

The HEADER appears at the top of the message. It usually contains: (1) the sender; (2) recipient(s); (3) the Subject Line; (4) the Carbon Copy line; and (5) possibly a Blind Carbon Copy line.

The information contained in the HEADER is readily accessible by the sender of the e-mail. A recipient will be able to view all components of the HEADER, except for the Blind CC e-mail address, which does not appear in the sent message. The Subject Line may reveal whether the parties have responded to a previous e-mail from the sender (RE:) or whether the sender has forwarded an e-mail from a third party to the recipient (FWD:).
For a user-friendly guide to understanding and using e-mail, please see: www.learnthenet.com.

The first node of what would be dubbed ARPANET went live at UCLA on October 29, 1969. ARPANET was a precurser to today’s Internet.