The dust has barely settled on our post from this morning about the Twitter-user arrested for sending death threats, but now we have similar news from right here in the U.S. A Virginia man is facing felony charges after threatening to beat up a former employer. The exact charge is “posting a written threat to kill or do bodily injury to another” – in the post, he mentions “Brent and Greg” and says, “I will kick your [back side].”

Doesn’t sound particularly frightening, but the “Greg” of “Brent and Greg” told the cops that he felt it was a serious threat, so they arrested the man, a former prosecutor named Clifton Hicks. In the scheme of things, this message sounds more Paul Chalmers than @Rileyy_69, but those were in the UK. Who knows how this one will go? For more details, and a scary mugshot photo of Hicks, go to The Virginian-Pilot.

How’s this for timing? Just days after Englishman Paul Chalmers was cleared of sending menacing tweets, British police have arrested a 17-year old British man for sending malicious tweets and death threats to an Olympic diver. After local hero Tom Daley failed to make the podium in yesterday’s 10-meter synchronized platform contest, Twitter user @Rileyy_69 sent Daley a series of mocking tweets, including one saying “you let your dad down i hope you know that”. Daley’s father passed away after a brain tumor a few months ago.

After Daley publicly shamed @Rileyy_69, the user initially appeared contrite, before sending out at least two tweets threatening to drown Daley, and shoot other Twitter users who came to the diver’s defense. In a surprisingly swift move, Dorset police identified and arrested the offensive Twit early this morning. Now he’s being charged under the Malicious Communications Act of 1988, and it will be very interesting to see whether he can use the “it was clearly just a joke” defense that worked for Chalmers, or whether the lengthy tirade of abusive tweets will prevent that.

The website The Digital Report has a post detailing all of @Rileyy_69′s tweets (warning: it gets profane), and the Guardian has some useful legal analysis.

BitTorrent, Inc, scourge of the entertainment industry and friend of the college student, is trying a new project to try and get musicians compensated. It’s an ambitious idea, and it comes with the support of San Francisco’s legendary DJ Shadow, whose 1996 album ‘Endtroducing…’ is pretty much essential. Said the company’s CEO Eric Klinker:

“We believe we can make digital distribution even more viable for creators and fans. So, beginning now, we’ll be testing new ways to drive profitability for creators while delivering even more meaningful media experiences for our users.”

Another important quote, from BitTorrent’s Matt Mason, executive director of marketing: “This is the first time ever that an artist has worked directly with BitTorrent to monetize content… It is kind of a giant leap forward.”

So how does it work? The company is offering a free torrent (of course) of unreleased DJ Shadow music, along with a few software programs. For every user that installs the software, advertising money will be raised, which will then be split between BitTorrent and a featured artist. It does hinge on users installing the software, which sounds like a big “if” – one of the programs to be offered is Real Player, a widely used media center in the early 2000′s, which has been rendered somewhat obsolete by newer, smaller programs like VLC Media Player. It’s nice that BitTorrent is trying to atone for all the piracy that has taken place using its software, but it remains to be seen whether this is the best solution.

Sources: Slate / LA Times / TorrentFreak

Zane Hardin worked at Wal-Mart in California.  Mr. Hardin became unhappy with Wal-Mart back in 2008, and sued them in California state court for age discrimination, retaliation, ect.  As these kinds of cases are wont to do, his suit was removed to federal court, and was subject to a series of motions to dismiss, for summary judgment, and the like, over the span of several years.

Getting to the discovery aspects of the case, the initial scheduling order opened discovery on September 2, 2008.  After a good deal of activity in the case (and several extensions of time), non-expert discovery was scheduled to close on February 3, 2012. Then,

 On January 13, 2012, Plaintiff served Wal-Mart with Request for Production (“RFP”) No. 6. RFP 6 asked Wal-Mart to produce over eleven categories of email correspondence and electronic data spanning the ten-year history of Hardin’s employment. Further detailed in this request was Plaintiff’s first attempt to seek statistical data from Wal-Mart regarding its employees at Hardin’s Wal-Mart location as well as its other stores. Although the RFP contained a proof of service of December 31, 2011, it was initially and improperly served at an incorrect address. It was then properly served on January 13, 2012, twenty-one days before the discovery cutoff.

» Read the rest of this entry «

District Judge Browning of the District of New Mexico made clear in a recent opinion issued last week that

The train on th[e] concept [of clawback orders] has already left the station, and clawback orders are staples of modern complex commercial litigation.

What is a clawback order, you might ask, and why did Judge Browning drop this locomotive metaphor?

» Read the rest of this entry «

Read about a story over at Bow Tie Law’s Blog that reiterates a discovery 101 – if you bring a motion to compel, you need more than just a hunch that the other side didn’t do a complete search. In ADT Sec. Servs. v. Pinancle Sec., LLC, 2012 U.S. Dist. LEXIS 98948 (N.D. Ill. July 11, 2012), the plaintiff brought a motion to compel seeking a redo of the defendant’s search for responsive ESI. The primary basis for this one of disparity of productions- the plaintiff complained that the defendant didn’t turn over as much information as the plaintiff did.  Ipso facto, plaintiff argued, the defendant must have done a bad job.  This argument fell flat.

The Magistrate Judge did not find any “legitimate basis for requiring Pinnacle to re-do its extensive ESI search” based on only a general assertion that documents must be missing. ADT Sec. Servs. at *6.

A motion to compel discovery should identify the responses that are inadequate and what information is necessary to make them adequate.  ADT Sec. Servs. at *5-6. The Plaintiff only made a general assertion that the searches were inadequate and thus the motion failed in a broad court order. Id.

It is not enough to just say “well, that can’t be enough.”

Source: Bow Tie Law’s Blog

It’s turning out to be a very British day here at IT-Lex! You may not be familiar with the saga of a 27-year old man named Paul Chalmers, so let’s bring you up to speed. In January 2010, he was at Doncaster’s Robin Hood airport waiting to get on a plane to see his girlfriend. After a lengthy delay, the airport announced that it was shutting down, due to snow. In frustration, Chalmers tweeted:

“Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your s**t together otherwise I’m blowing the airport sky high!!”

A week later, the police paid him a visit and he was prosecuted under section 127(1) of the Communications Act 2003, for sending “by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character”. He was convicted in May 2010, and lost an appeal that November.

This morning, a panel of three high court judges overturned Chalmers’ conviction, saying:

“If the person or persons who receive or read it, (the message) or may reasonably be expected to receive, or read it, would brush it aside as a silly joke, or a joke in bad taste, or empty bombastic or ridiculous banter, then it would be a contradiction in terms to describe it as a message of a menacing character.”

As you might expect, Chalmers is delighted that this ordeal is over, and advocates of free speech welcomed the verdict. Britain has been pretty tough on “offensive” tweets – witness the man who was jailed for racist tweets this spring – so today’s verdict could turn out to be an important one, though it does necessitate someone to decide when it’s just a joke – as Chalmers’ post clearly was – and when there’s actual menace.

Source: The Guardian

Remember our recent post about the N.Y. State Comptroller’s office accidentally leaking information due to unchecked metadata? Well, a borough in London has gone and one-upped them! The circumstances in both instances are rather similar: again, a media outlet requested data under the Freedom of Information Act. Again, the government entity – this time the London Borough of Islington – provided the information in the form of spreadsheets that contained hidden information. And again, the spreadsheets wound up on the Internet, where people could access the confidential, hidden data easily, before the breach was discovered and the files were removed.

This time, personal information about 2,376 residents of the borough made it online, including names, marital statuses and sexual orientations. MySociety.org, the operation whose website had housed the information, released a statement, and said that the confidential data was accessed 7 times before being removed. What’s more, this was not the first time the borough of Islington had accidentally given out sensitive information. Earlier this year, “10 people facing a ban from a council estate for anti-social behaviour were given the names and addresses of the people who complained about them.” Yikes.

We’ve said it before and we’ll say it again: Check for Metadata, people!

The Apple vs. Samsung tablets trial, due to begin in San Jose next week, is going to be huge. As we’ve said before, the complexities of patent litigation are not something we’ll cover here, but there has already been an interesting eDiscovery-oriented element to the case.  As the Project Counsel blog reports:

The jury will receive an adverse inference instruction with respect to Samsung’s spoliation of evidence by failing to retain relevant messages on its corporate email server even at a time when litigation was “reasonably foreseeable”.  In essence, the jury will be told that Samsung failed to comply with its obligations to preserve evidence, and the jury may (though it need not) presume that relevant evidence that would have been favorable to Apple was destroyed.

In his ruling on this issue, Judge Paul Grewal said ”[i]n effect, Samsung kept the shredder on… This [discovery] plan fell woefully short of the mark.” This adverse inference is certainly going to be damaging to Samsung. First a British judge says their device is not cool, and now this? It’ll be fun to see how the trial goes.

The folks at Nextpoint have just released a great eDiscovery primer for solo attorneys and small firms, which is available as a free PDF download here. It includes useful information like:

• A description of the most relevant Federal Rules, and how to remain compliant,
• A list of questions to ask any potential EDD vendor,
• Useful tips for creating a workable, useful discovery plan, and
• A glossary of useful terms, for those who don’t know their PSTs from their TIFFs.

The details in the eBook may be common knowledge to many IT-Lex readers, but for people who could use an easy-to-read introduction to what can be a daunting field, this is an excellent place to start. Download it here.