KTLitSmart

As our work force has shifted to mobile and remote working practices (a trend in place before COVID, which only accelerated during the pandemic), businesses have turned to collaborative messaging tools such as Slack and various versions of Teams to manage communications. On the positive side, by using these messaging tools, organizations are able to more efficiently discuss ideas and brainstorm solutions. However, when an organization becomes involved in a dispute and those communications are potentially relevant to the dispute and need to be preserved and collected, the process may not be as straightforward as a simple email collection.

Seeking to resolve a split among the Circuits “regarding the scope of liability under the [Computer Fraud and Abuse Act]’s “exceeds authorized access” clause, the Supreme Court granted certiorari to the appeal of Robert Van Buren, a former Georgia police sergeant whose criminal conviction for violating the act was upheld by the Eleventh Circuit in 2019. Under the "gates-up or gates-down" threshold established by the Court's opinion, the access to information relevant to the question of civil or criminal liability under the CFAA is defined by IT permissions. Specifically, the question is now what files or folders within a computer system is an authorized user allowed to access and did that user exceed that authorized access? 

Companies and organizations use social media ("SoMe") to gain market advantage, shape and model their own image, market and advertise to customers, track how effective their marketing campaigns might be, understand who their customers are, test new products or services and provide a platform through which customers can provide feedback. Every post or piece of analytics could be considered a “business record,” subjecting it to discovery in both civil and criminal litigation, internal and government investigations or audits. As a result, attorneys and their IT teams should understand the best practices for preserving, processing, reviewing, and producing data from SoMe sites to acquire valuable – and usable – evidence.

I had the recent opportunity to sit down (virtually) with Senior E-Discovery Attorney Jim Hefferan and find out more about his extremely interesting background and life. Considering his role as a member of the City Council for his town of Belmont, NC, I also thought he might have a unique perspective on how COVID-19 has changed our lives.

Atlanta, Georgia - October 1, 2019 - Kilpatrick Townsend & Stockton LLP today announced that they have been named a finalist in the Relativity Innovation Awards at Relativity Fest for Best Law Firm Solution for their LitSmart^® AutoTasker. “Being a finalist for the fifth year in a row for this prestigious and coveted honor is a true testament to Kilpatrick Townsend’s commitment to client service and innovation.”

As you recall, in December of 2015, the amended FRCP 26(b)(1) sought to address the escalating burdens associated with data preservation and production by emphasizing proportionality and defining the scope of discovery. As the latest proportionality rulings show, Rule 26(b)(1) is having an impact on limiting the scope of discovery based on the associated expense and some state courts are even following the federal courts’ lead in enforcing proportionality. Interestingly, while expense continues to be a factor in the proportionality argument, parties’ objections on the basis of proportionality have extended to nonmonetary factors as well, including privacy. As a result, some courts are now recognizing privacy as a consideration in determining whether the discovery sought is proportional to the needs of the case.