Information required to produce electronic data as kept in the usual course of business

Pass & Seymour, Inc. v. Hubbell, Inc., 2008 WL 4240490 (N.D.N.Y., September 12, 2008)

This is another case dealing with lawyers who are practicing the ancient art of steganography through steganographic discovery responses. Hubbell involved the production of 405,367 pages of documents in an electronic format that were “loosely organized” in 202 unlabeled files with no corresponding index. After the defendant objected to the production, plaintiff asserted that the electronic documents were produced as they were kept in the “usual course of business.”

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Claim of attorney work product will not support disorganized electronic data dump

Securities and Exchange Comm’n v. Collins & Aikman Corp., 2009 WL 94311 (S.D.N.Y. Jan. 13, 2008)

Did you know that the art and science of hiding messages or information within other forms of data is called is called steganography. Wikipedia describes it as “a form of security through obscurity.” In today’s digital world, it includes the concealment of electronic information within other computer files.

Many lawyers practice steganography without knowing its name. Frequently they attempt to bury critical or key documents in a voluminous document production in response to an opponent’s discovery requests. The potential for this type of “gamesmanship” has grown with the advent of ediscovery. Collins addressed and rejected several arguments commonly used to justify this type of steganographic discovery response. The Collins decision was written by District Judge Shira Scheindlin who authored the Zubulake decisions which addressed litigation-hold requirements. So on several different levels, the decision merits your attention.

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Neither trade secrets nor licensing agreements prevent production of proprietary software

Opperman v. Allstate New Jersey Ins. Co., 2008 WL 5071044 (D.N.J. Nov. 24, 2008).

Not even Dennis Haysbert could have prevented this production.

So who is Dennis Haysbert and what does he have to do with an ediscovery case involving propietary software and trade secrets you ask? Well, here is a hint; he played the vodoo practicing outfielder, Pedro Cerrano, in the movie Major League. Still haven’t figured out the connection to this case? Well continue reading because the answer is spelled out below.

Opperman is a decision about which all insurance carriers should take note. However, it has ramifications that extend beyond the insurance industry.

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