All over the country, courts are struggling with how best to prevent juror communications and/or research on the Internet, including on social media such as Facebook. What’s the solution? Thus far, there is no clear answer, as evidenced by a recent New Jersey case in which a juror dodged sanctions for contempt after researching a child sex-crime case involving a former pastor on the Internet — even after being instructed to refrain from such Internet research.

In the New Jersey case, not only did the juror research certain legal terms on Wikipedia, but he also distributed handouts to his fellow jurors several days into the deliberations — despite several precautions in place. For example, during voir dire, the court advised that the jurors should not consider facts outside of trial testimony and exhibits and similarly should not read about the case in the media. The judge also read the model jury charge each day of the trial. It reiterated that deliberations could only be based on what was presented during trial and cautioned jurors not to read about or research the case "in print, on the Internet or on any blog."

After the trial judge declared a mistrial, Bergen County Assignment Judge Peter Doyne issued an order to show cause why the juror should not be held in contempt. Judge Doyne ultimately found that a contempt sanction was not warranted because the error appeared to be a "genuine, though perhaps reckless, mistake," adding that while the conduct was contemptuous, it was not willful beyond a reasonable doubt. Judge Doyne suggested, however, that NJ’s Model Jury Charges be amended "to make unquestionably clear that the prohibition on juror research and outside materials is absolute."

These steps may be necessary, as this is not the first time that jurors have engaged in improper electronic communications or research in New Jersey. In previous matters, a juror was dismissed after attempting to “friend” a defendant on Facebook and a court reversed manslaughter convictions after a juror conducted Internet research.

Recently, in addition to proposing revisions to jury instructions, other jurisdictions have attempted to employ creative means of preventing jurors from outside communications or research and/or punishing them if they disobey. For example:

• In the Southern District of New York, Shira Scheindlin, U.S.D.J., contemplated requiring jurors to sign a pledge, promising that they would not use the Internet to research the case or be subject to perjury;
• In California, jurors could now be exposed to civil penalties and/or jail time if they willfully disobey jury instructions prohibiting them from engaging in electronic or wireless communications or conducting Internet research about the trial pursuant to Assembly Bill No. 141, which amends the Code of Civil Procedure and Penal Code;
• In Michigan, a juror was removed from a jury, fined $ 250 and ordered to write an essay on the Sixth Amendment for posting a comment about the case on Facebook that she was “actually excited for jury duty tomorrow. It’s gonna be fun to tell the defendant they’re GUILTY. . . .”;
• In England, a juror was sentenced to eight months in jail after friending a defendant in a drug trial;  
• In New Jersey, the Supreme Court recently proposed guidelines to limit the use of electronic devices in the courtroom, which do not directly address juror misconduct on the Internet, but might stem the tide of such misconduct.

Unfortunately, there is probably no cure-all solution to stop this growing problem. A recent report issued by the Federal Judicial Center last month, reinforces that challenge. At the end of the day, it is incumbent upon judges and attorneys to remain vigilant in educating jurors on what constitutes prohibited research and communications (in the traditional and cyberspace forms). Jurors should also be advised of the consequences of violating such directives.

Mara E. Zazzali-Hogan is a Director on the Gibbons E-Discovery Task Force.

Background:

Ooops, They Did it Again — Jurors Continue to Improperly Use the Internet, and Courts Struggle with Solutions
Source: original article
Author: Mara E. Zazzali-Hogan
Categories: Electronic discovery, e-discovery, ediscovery

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Cloud based solutions are coming to the forefront of the eDiscovery market, bringing about mixed reactions. The discomfort around cloud based solutions comes from security issues and knowing where your data is owned/who owns it. Despite these concerns, organizations are surprisingly ready for the change and predict that they will move their eDiscovery projects to a cloud based solution in the near future.

In a recent webinar with Barry Murphy, Co-Founder of the eDiscovery Journal, he pointed out that typically the legal communities tend to be a few years behind the rest of the technology community. Barry recently conducted a survey, and his studies prove this to be false. In fact, the legal community is right now ahead in the cloud computing market.

In the eDiscovery Journal survey, Barry identified that 70% of organizations plan to rely on using the cloud or a hybrid cloud/on-premise solution for their eDiscovery projects. This large percentage may be due to:

Lower cost

In this economy everyone is looking for a way to lower costs. The cloud will allow users to receive lower cost tools because a software provider is able to spread some of the biggest costs of the software across multiple clients. This allows the SaaS-model to be a lower cost model, and could be representative of a “monthly pay as you go” plan.

Speed

Easy access to data is a tremendous benefit for eDiscovery in the cloud. Not having to utilize multiple applications to pull up data, and not having to deploy an application in your machine makes for an easier process. With the cloud you can do what you need to do, and do it quickly.

Infinite Scalability

SaaS promises infinite scalability which makes it so attractive in the legal market. It gives you “another security blanket” to know that the software can process any sized data set, and you don’t have to take out your entire data center to be able to process it and get it ready for review.

Barry Murphy, Co-Founder of the eDiscovery Journal, and Colby Dyess of Digital Reef, thoroughly examine the Software as a Service (SaaS) model and eDiscovery in the cloud in a Digital Reef webinar. If you missed this webinar please visit our webinar page to listen to a recording, view a transcript or to view slides from the presentation.

Background:

eDiscovery and the Adoption of Cloud Based Solutions
Source: original article
Author: Kate Slattery
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

This week Clearwell Systems, Inc. announced that Constellation Energy, a provider of energy products and services to wholesale and retail electric and natural gas customers, is expanding the use of the Clearwell E-Discovery Platform. Constellation Energy owns a diversified fleet of generating units located in the United States and Canada, totaling approximately 7,100 megawatts of generating capacity, and is among the leaders pursuing the development of new nuclear plants in the United States.

Background:

Constellation Energy and Clearwell Systems–Real World Solutions
Source: original article
Author:
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

These tips may be useful to attorneys in family law cases where email, text messages, or FaceBook communications may be an issue, but often the parties don’t have much money. As family law attorneys know, money spent on e-discovery means less money available to pay the attorney’s fees.  Thus, attorneys on both sides may have an incentive to spend less money fighting over e-discovery and work out e-discovery issues in a less expensive manner.

If you have any other tips regarding inexpensive e-discovery, please add them to the conversation. Read the conversation here: Cheap E-Discovery: Inexpensive E-Discovery Tips.

What is Electronic Discovery Software?

Attorneys, paralegals, and IT staff use e-discovery software to assist in the electronic discovery process. Many e-discovery service providers use their own proprietary software to do e-discovery. If you choose to do it yourself, you have a number of software options to consider.

Software for Various E-Discovery Stages

One of the initial questions is, what stage in the e-discovery process do you need software for? You have a number of options:

• Information/records management prior to litigation
• Identification of electronically stored information (ESI)
• Preservation and collection of ESI
• Processing/filtering and review of ESI
• Production of ESI

No e-discovery software application can handle all e-discovery tasks because that would result in a gigantic, bloated application. Rather, e-discovery software providers offer various tools to assist with each e-discovery phase or task.

E-Discovery Tools

The next question is, what types of tools do you need? E-discovery software can be used for a variety of tasks. For example, electronic discovery software can be used to

• Search for relevant data and emails on a network, Microsoft Exchange Server, or PC
• Recover deleted or lost data (including email) on a PC, network, or other media
• Collect data in a forensically sound manner to preserve file system and file meta data
• Review and mark ESI as relevant, privileged, confidential, or other categories (ESI may include documents, email, spreadsheets, sound, or video)
• Destroy and erase data after litigation is completely over

E-Discovery Software Companies
Some of the largest electronic discovery software and service providers include Kroll Ontrack, Fios, Electronic Evidence Discovery, Renew Data, Zantaz, and Applied Discovery. There are also many small shops that provide e-discovery services.

Electronic Discovery Software Advice

1. Buying e-discovery software is not simple. Courts will not tolerate attorneys with an incompetent e-discovery process that results in missed data or spoliation. The consequences of doing e-discovery wrong has included monetary sanctions, spoliation inferences, and more.

2. If you do your own e-discovery, be sure you know what you are doing. First, the person using the e-discovery software should understand the hardware and software technology where the ESI may reside. Second, the the person using the e-discovery software should understand the court rules governing electronic evidence discovery.

3. Know when to get help. If you don’t have experience doing e-discovery, hire someone who does, such as an e-discovery vendor. If you do e-discovery frequently, it may be worth training someone on your staff to do the work and buying the software tools that are necessary. (Even then, you may outsource some of the complex e-discovery tasks.) If you rarely do e-discovery, hire an e-discovery vendor to do the work for you, which will be substantially cheaper and will ensure the work is done right.