ISPs can not be forced to give out electronic data on their customers

In Re: Subpoena Duces Tecum to AOL LLC, 550 F.Supp 2nd 606 (E.Va. 2008) – In this case, the Court for the Eastern District of Virginia confirmed that electronic data maintained by an internet service provider may not, as a general rule, be produced in response to a third party’s discovery request. Relying on the Electronic Communications Privacy Act, 18 U.S.C. §§2701-2703, the District Court for the Eastern District of Virginia noted that internet service providers are obligated to protect their customers’ information from public disclosure. Since the Electronic Communications Privacy Act does not exclude from its coverage disclosures made pursuant to a subpoena, the disclosure of these materials may not be compelled and may in fact be prohibited.

Privilege can be waived by inadvertent disclosure

Victor Stanley Inc. v. Creative Pipe Inc. et al., 250 F.R.D. 251 (D.Md. 2008) – In this case, the Maryland District Court held that an attorney’s inadvertent disclosure of privileged materials was not forgiven even though disclosure occurred in connection with the production of thousands of pages of electronic discovery. The District Court noted that the parties’ failure to negotiate a claw back agreement (an agreement whereby the parties agree that inadvertently produced privileged materials will be returned) militated against permitting counsel to undo its mistake. Additionally, the Court noted that counsel failed to sufficiently safeguard against the inadvertent disclosure of privileged materials. Significantly, the District Court laid out various factors that should be considered in order to determine whether or not electronic production is properly screened in order to protect against the inadvertent disclosure of privileged materials. The Court further noted that the burden of proving the sufficiency of these screening procedures is upon the producing party. This ruling illustrates the importance of ensuring that electronic discovery is carefully screened before production. This ruling also illustrates the need for parties to a suit which is likely to involve electronic discovery to confer about how production will be completed and how the inadvertent disclosure of privileged materials will be resolved.