Russell Beck in Lawyers Weekly on Discovery Sanctions

A recent issue of Massachusetts Lawyers Weekly features discussion with Russell Beck in an article titled “Flouting of e-discovery orders leads to rare sanction of default.”

The article covers a federal court decision in the U.S. District of Massachusetts concerning a misappropriation-of-trade-secrets lawsuit that resulted in the entry of sanctions against the defendants. The court order notes that the defendants were given multiple prior orders to produce certain documents, and that the defendants provided affidavits that they had complied with these orders. The article was written by Lawyers Weekly reporter Kris Olson.

In Red Wolf Energy Trading, LLC v. BIA Capital Mgmt., LLC, Judge Mark L. Wolf explained that the case “generated more meritorious motions to compel and for sanctions against defendants for failure to produce documents than any other case in which this court has presided in more than 37 years.”

Massachusetts Lawyers Weekly

One issue raised by the court was that myriad relevant messages exchanged by the defendants over a Slack account were not produced in a timely fashion, and that “defendants could have used ‘a standard eDiscovery processing tool’ to search and produce Slack messages for a cost of about $10,000” three years before the court’s decision. The court further explained that “[t]he law is not a game, and, as the court told defendants, civil discovery is not a game of hide and seek.”

The article quotes Russell Beck as follows:

Boston business litigator Russell Beck said another lesson from Red Wolf is in the value of paying the $10,000 for a proper forensic vendor.

“While it may feel like a lot of money, it is well worth the expense,” Beck said.

That will be especially true in cases involving allegations of misappropriated trade secrets, which come with a lot of e-discovery that can be expensive to contend with.

“But the consequences of doing it improperly can be worse,” Beck said.

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For up-to-the-minute analysis of legal issues concerning trade secrets and noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Russell Beck’s work in this area is well recognized, and includes:

  • Over thirty working on trade secret, noncompete, and unfair competition matters
  • Assisting the Obama White House as part of a small working group to develop President Obama’s Noncompete Call to Action
  • Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (6th ed., MCLE, Inc. 2021), used by other lawyers to help them with their noncompete matters
  • Authoring the book Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE 2019), covering trade secrets nationally, with a focus on Massachusetts law
  • Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law
  • Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law
  • Founding and administering the award-winning blog, Fair Competition Law
  • Establishing and administering the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,660 and 870 members, respectively, around the world
  • Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

In addition, Russell was honored for his work in this area of law in the 2020 Chambers USA Guide, which stated that Russell Beck is “an expert in the field of trade secret and restrictive covenant law,” and is also noted for his “ability to adjust and come up with successful solutions.” Chambers noted that Russell “basically wrote the new Massachusetts statute on noncompetes” and that “he’s an expert in employee mobility and nonrestrictive covenants.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Judging iPhone Encryption: It’s Law Versus Technology in the Courtroom

 

With the release of the iPhone 6, Apple built new security features into the iOS8 operating system, measures which law enforcement officials have complained will hinder criminal investigations.

PhoneOnce a user sets a passcode for a phone using the new operating system, all of the phone’s data – including texts, e-mails, call records, and photos – is encrypted. This means that the phone’s contents are saved in coded form, and anyone accessing them would see only gibberish unless they had the encryption key that unlocks the code.

In a change from previous operating systems, the iOS8 creates a unique encryption key for each device that is partially based on the user’s self-selected passcode. Thus, Apple can no longer break the code and access the user’s data, even if ordered to turn over such information by a court. The director of the F.B.I., James B. Comey, has objected to Apple marketing a product that puts phone data outside the reach of law enforcement, citing concerns about terrorism and kidnapping cases.

The new technology also has implications for lawsuits outside the law enforcement context. A party in a civil lawsuit is typically subject to the discovery process, in which they must turn over to the opposing side all documents and materials that are relevant to the case. This disclosure increasingly includes material such as text messages, call history, and photos or e-mails stored on phones. A court can impose sanctions on a party who deletes or fails to turn over relevant information.

Screen Shot 2014-10-30 at 11.46.35 AMwon’t the same high level of encryption now available on iPhones — so impenetrable that not even the F.B.I. can gain access — also protect iPhone data during civil proceedings? Yes and no.

The new iPhone encryption ensures that a litigant who produces a password-protected iPhone to the opposing party in a lawsuit is still able to keep the contents unreadable by refusing to disclose the password. However, the absolute security of encryption may be illusory, because courts routinely order parties to disclose passcodes (in addition to electronic devices, like phones and computers) in order to produce information about cases.

LockDepending on the case, a court could order a litigant to turn over their passcode to their own attorney, the opposing attorney, or a neutral third-party for the contents of the phone to be inspected.

In analogous cases involving data stored on Facebook, courts have often ordered parties to turn over their passwords to uncover relevant posts. For example, a Virginia court in James v. Edwards, 85 Va. Cir. 139 (2012), ordered the plaintiff to turn over his Facebook password to his attorney in order to allow the defendant’s counsel to access to the relevant information. In the context of an employment dispute, a defendant in a Massachusetts case was ordered to disclose his password for encrypted files stored on his former employer’s server. Enargy Power Co. v. Xiaolong Wang, 2013 WL 6234625 (D. Mass. 2013).

And what if a litigant refuses to disclose the password to his or her encrypted iPhone despite a court order? Courts have broad authority to enforce their orders, and sanctions can include monetary penalties and even jail. In the case of Keller v. Keller, 2014 WL 4056926 (Conn. Super. Ct. 2014), a litigant was found in contempt for failing to obey an order to provide working passwords to his iPhone that was being forensically examined as part of the proceedings.

So, despite the enhanced encryption available to users of Apple’s mobile operating system, courts retain their power to compel disclosure as needed, and a litigant who elects to ignore a court order does so at his or her own peril.

Beck Reed Riden LLPis Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Stephen Riden in Massachusetts Lawyers Weekly on preserving evidence

The February 27, 2012, issue of Massachusetts Lawyers Weekly features Stephen Riden in an article about a company that was sanctioned after destroying evidence. The article is by Massachusetts Lawyers Weekly’s Managing Editor, David E. Frank.

The article focuses on a lawsuit involving dispute over the ownership and management fees of a hedge fund. While the lawsuit was pending, a Superior Court judge in the Business Litigation Session found that the CEO of the defendant company destroyed thousands of pages of evidence. The defendant company, for its part, argued that the destruction was inadvertent and, in any event, the discarded materials were either duplicative or irrelevant.

Nevertheless, the Court found that spoliation had occurred, and ordered the defendant to pay a portion of the plaintiffs’ attorneys’ fees and ruled that an adverse jury instruction would be given at the time of trial.

In the article, Stephen Riden comments that, while there are some appellate decisions in Massachusetts that define the parameters of what is a permissible sanction in this situation, the most comprehensive analysis of spoliation issues is most often found in lower court decisions.

‘By the time it gets to the appellate level, they’re looking at it from an abuse-of-discretion standard, so unless the judge has gone far afield of what an appeals court thinks is reasonable, they’re not going to issue an opinion to the contrary’ he said. ‘These are in-the-trenches discovery battles, and where you’re going to see the most well-developed analysis of the issues is in the trial court.’

Steve Riden frequently writes and speaks about commercial litigation issues, including social media and electronic discovery.

About Us

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.