This message will self-destruct: ephemeral messaging and e-Discovery

A new law review article got me thinking about an area at the vanguard of e-Discovery: ephemeral messaging.

In her article Disappearing Data in the Wisconsin Law Review, Toledo Law Professor Agnieszka McPeak considers the intersection of recent trends toward data privacy, the use of ephemeral messaging applications (e.g., Snapchat and Wickr), and the broad scope of discovery under the Federal Rules of Civil Procedure. Professor McPeak advocates for a balanced approach to the preservation of ephemeral data. Unfortunately, Professor McPeak offers little in the way of specific solution other than continuing the Federal Rules’ trend toward reducing or eliminating sanction for the good-faith deletion of ESI. Continue reading

It’s Not Data, It’s Discovery: the Digital Snitch In Your Pocket, In Your Car, and In Your Home

A few years ago, I was excitedly telling an attorney friend about the Automatic adapter I’d just purchased for my car.

“It’s amazing! It links to my phone and provides data on fuel consumption, engine health, and even maps out my trips! Just think of all the data,” I said.

“You mean ‘evidence,'” he laughed in response.

I hadn’t thought of it, but my friend was correct. The Automatic adapter is a veritable treasure trove of evidence. And it undoubtedly would be discoverable (and incredibly useful) in the right context. Continue reading

If I’m Legally Drunk, Where’s the Policy Exclusion?

A young Michigan man wrecked his motorbike one April evening after consuming a few too many drinks. (It’s unclear just what he had to drink, nor is it particularly important, but we’ll assume it was a Founder’s All Day IPA in keeping with the complaint’s filing in Grand Rapids). As a consequence, he incurred nearly $200,000 in medical bills.

When the young man submitted those medical bills to his insurer, however, he was denied coverage due to a policy exclusion for injuries “occurr[ing] as a result of a Covered Person’s illegal use of alcohol.” Perhaps the young man lost heart when he first read this exclusion. But his lawyers did not. They asked the $64,000 question: while driving under the influence is undoubtedly illegal, is it the illegal use of alcohol within the meaning of the insurance policy? Continue reading

If the Bada Bing were BYOB …

… no one ever would have known, because, until recently, New Jersey law prevented such a fact from being advertised. See N.J. Stat. Ann. ยง 2C:33-27.* Tony Soprano and his cohorts, of course, presumably would not have been dissuaded by the threat of statutory violations. The owners of an actual Atlantic City, New Jersey, adult entertainment establishment, however, were so dissuaded, and they filed a complaint for relief in the United States District Court for the District of New Jersey. Continue reading

When Insuring Your Hole-In-One Giveaway, Pay Attention to Minimum Yardage Requirements

I’ve not thought much about holes-in-one, mostly because my golf game is such that I’ve never been in any danger of making one. The charity responsible for the Greenbrier Classic golf tournament, however, must have given them some thought. Not only did it decide to award spectators a cash prize in the event of a hole-in-one on a certain hole, it purchased insurance to protect itself in the event of any pay-out. This turned out to be a smart move, because two golfers made holes-in-one resulting in nearly $200,000 in total payouts. Continue reading