Joshua Neil Rubin, Ediscovery Counsel


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Significant EDiscovery Cases

Extensive experience in ediscovery, computer-assisted review, and digital forensics. Determine data repositories using information from the client. Manage preservation using EnCase, FTK, and Nuix. Manage ediscovery review using all major platforms.


Significant ediscovery and forensic cases:


Specht v. Netscape, 00 CIV. 4871 (S.D.N.Y. 2000-2006)

Internet privacy class action. Used Iris "packet sniffer" software to verify claim that Netscape's SmartDownload browser plugin product was secretly sending private browsing data back to Netscape. Used forensic tools (FileMon, RegMon, Regshot, Spy++, Dependency Walker, and PE Explorer) to determine what operations SmartDownload performed when it was being installed and when it was running.


Deposed Netscape's Product Manager for SmartDownload. Obtained electronic data about SmartDownload downloads from Netscape and other internet software sites.


Negotiated the electronic production of the programming source code and related files for SmartDownload. Because of the volume of source code involved, manual review would have taken thousands of hours. Using advanced search tools, we were able to review it in a fraction of that time. Used forensic tools and programming development environments (Microsoft Visual C++ and Microsoft Visual Basic 6.0) to understand SmartDownload's interaction with the Communicator browser.


In two landmark e-commerce decisions, the Southern District of New York and the Second Circuit rejected Netscape's motion to compel arbitration based on Netscape's design of its own web page, which precluded any inference that users had assented to the license agreement for SmartDownload. Those decisions also rejected Netscape's argument that the license agreement for Communicator applied to SmartDownload users based on the determination that SmartDownload was a completely separate product from Communicator.


Defeated Netscape's Motion to Dismiss, which was based on Netscape's assertion that SmartDownload did not intercept the "contents" of an electronic communication and that it therefore did not violate wiretap laws. The Court denied that motion based on the nature of the data that SmartDownload had been transmitting.


Here is a more complete summary of Specht v. Netscape.


Scott v. Bell Atlantic, No. 600591/00 (N.Y. Sup. 2000-2005)

Consumer class action. Used "Ping Plotter" software to demonstrate that Bell Atlantic's DSL service slowed down during peak usage hours.


Westinghouse Securities Litigation, No. 91-354 (W.D.Pa 1991-1999)

Securities class action.


1992: Managed a review team of 25 attorneys and paralegals in multi-million page paper document review. Used Q&A database and Excel spreadsheets to quantify agreement between reviewers, reviewer accuracy, and overall project status.


1997: Obtained court order requiring the defendants to produce portions of their electronic database. Click here for an excerpt from the ECF docket sheet including the minute entry of the Order. Click here for relevant excerpts from the transcript of the hearing on the Motion to Compel.


1998: Wrote custom document-coding software that minimized manual data entry by allowing reviewers to automatically enter data based on previously-entered data from related documents. The software also responsively eliminated fields based on reviewer input and scrubbed data as it was entered by using custom data dictionaries. Wrote custom document-retrieval software that allowed complex custom searches.


Click here for a summary of the substance of the Westinghouse case.


Northern Telecom Securities Litigation, No. 93-cv-04384 (S.D.N.Y. 1993-1999)

Securities class action.


1995: Deposed principal officer about telecom outage and customer satisfaction data in enterprise-wide databases. Worked with testifying experts and managed all submissions in support of a hotly-contested motion to compel production of that data. Here are excerpts from the ECF docket sheet including minute entries of the Orders granting and enforcing the motion to compel.


Diller + Scofidio v. Depthography, Inc., No. NY 122639/01 (N.Y. Sup. 2001-2003)

Breach of contract. Managed the collection, review, and production of 84 GB of electronic documents. Sought and obtained 55 GB of electronic documents. Prevailed at trial based on presentation of electronic evidence.


Ongoing Confidential Matter

Defamation action. Seeking an Order compelling a social networking site to produce electronic records.


Ongoing Confidential Matter

Breach of contract action. Providing electronic document review team management consulting services.


Ongoing Confidential Matter

Civil rights action. Providing preservation and review consulting services.



For other work on ediscovery and computer-assisted review, please look at the Bits in the Balance blog.


For a list of computer forensic tools I've used in my work, please click here.


For more software programming details, please click here.




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