I presented to 45 state judges and Supreme Court Justices at the Montana Judicial Conference on e-Discovery, admissibility and the impact of ESI in litigation. It was a privilege to travel to Big Sky Country and meet judges facing electronic discovery challenges.
Once I got over the awe created by the fact I was in a room full of judges, I paid very close attention to their questions and comments. One judge asked if it would be possible for a personal injury attorney in an auto accident case to subpoena cell phone records to identify anyone who made any calls from a specific location at a given time. This obviously raises privacy concerns and the question of whether a cell phone company could provide such information but is one creative way to identify possible accident witnesses.
The judge’s answer depends on both technical and legal issues. First, is that call history in a reasonably usable form? Second, can it be retrieved without undue burden or cost? Third, is it overbroad, intrusive and an invasion of privacy to ask for all cell phone calls from a specific location and time? Forth, would this have a greater likelihood of success if the request were only for 911 calls?
It is not often you find yourself in a position to ask a judge or a Supreme Court Justice about their thoughts on an issue. I closed my presentation with the following ESI hypothetical. Several judges have already covered these issues in great detail, granting and denying different discovery requests.
Ask yourself: How would you rule the following?
Hypothetical: Record Company sues Doe defendants for copyright infringement through illegal music downloads. IP Addresses shows Doe defendants used their college Internet accounts. Which discovery requests are proper and why?
- 3rd-party subpoena to college for ISP history to specifically identify students
- 3rd-party subpoena to MySpace and Facebook to identify all users who access their sites from the college ISP address
- Request a forensic image of all school and student hard drives
- Request a forensic image of all MP3 players, cell phones, BlackBerries and other portable media devices
- Request all instant messages pertaining to music downloads, maintaining any parent- child relationship with instant messages and music files
The judges’ answers on how they would rule and more will be covered in my next blog posting.
