In Case You Missed It (June 16 – June 22, 2008)

News stories from the week of June 16, 2008 that piqued our interest:

Authenticating Emails at Summary Judgment
Spam Notes, June 16, 2008

As we’ve mentioned in previous posts, it’s astonishing to see how many legal experts aren’t fully up-to-speed on the e-discovery process. According to this article, some lawyers assume that an e-mail can be turned in with a “to” and “from” line and expect it to be allowed into evidence. As this piece explains, authenticating e-mails at summary judgment is not that easy.

The depth and complexity of authentication varies with each summary judgment situation. Depending upon whether you’re in favor of or against summary judgment, who the documents are produced by and other questions, authentication standards differ. Whatever the case, unless you are exempt under the business records rule, there are some thoughts you should keep in mind when authenticating e-mails for summary judgment.

• “Do you need a declaration from the IT person/records custodian or a declaration from the author of the e-mails?

• Who are the e-mails being obtained from – are they forwarded from individual recipients and senders to the person gathering them, or are they accessed from a central location?

• Are the e-mail addresses visible or obscured (how about other similar information - title/contact information)?

• Are the e-mails altered in any way?”

Regardless of the situation, it’s prudent to always play it safe and assume your records need to be authenticated and litigation ready. Failing to do so may lead to a long and costly trial.

E-Discovery Leads to Arrest of Bear Stearns Hedge Funds Managers
Wall Street and Technology, June 19, 2008

If we haven’t convinced you that e-discovery is of paramount importance, maybe this news story will change your mind. Two former Bear Stearns employees have been accused of being involved in the collapse of two hedge funds that triggered the sub-prime mortgage crisis…all thanks to a simple e-mail.

An e-mail allegedly sent by Matthew Tannin, COO at Bear Stearns, to Ralph Cioffi, a senior portfolio manager of the two funds, is at the center of the controversy. The communication allegedly said that Tannin was "afraid that the market for bond securities they had invested in was 'toast,’” and suggested shutting the funds, according to the Wall Street Journal. Ironically enough, the two men told investors four days later that they were comfortable with their holdings.

This high-profile case is raising concerns about e-mail monitoring at financial firms all over the country. More often financial experts are finding themselves in hot water for comments made electronically.

“’We see on a regular basis high-profile individuals finding themselves at the center of a scandal because of communications via electronic means,’ says Marie-Charlotte Patterson, VP of market strategy for AXS-One, a provider of high-performance records compliance management solutions.”

Should financial experts be kept under watch in order to protect the safety of their clients? If you were to ask those affected by the Bear Stearns Hedge Funds managers, the answer would be simple: Yes.

Most Physicians Aren’t Using Electronic Medical Records
MedHeadlines, June 22, 2008

While we’ve historically blogged about medical facilities turning to electronic medical records, this article suggests that there are a number of doctors who still have not embraced electronic records. According to survey results published in The New England Journal of Medicine, only one in five U.S. doctors use electronic health records. According to the article, the most common reason for avoiding the change is its price tag.

“The initial cost of upgrading office personal computers, buying new software and obtaining technical support to make the shift is $15,000 to $20,000 per doctor,” says the publication.

While it’s an expensive transition, those who have done it have been satisfied with the benefits. According to the article, electronic medical records increase efficiently, thus improving the quality of patient care. Although this research suggests that electronic medical records are slow to catch on, we’re hopeful that they’ll become a common amenity in medical offices in the future.

Posted by Jennifer on June 24, 2008 at 09:44 AM
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