Category Archives: Admissibility

e-Evidence Insights: A Good Senator, Spoliated.

…with deference to Mark Twain…

MP900400181 Recently-former-Senator John Ensign's (R-NV) affair and alleged attempts to cover it up would normally be fodder for the press – and I'd take little notice of it.  However, with the release of the Senate Ethics Committee Panel report, we find this:

"The report also accuses Ensign of deleting documents and files the committee was likely to request. The senator deleted the contents of a personal email account after the investigation was launched, it says." [italics added]

And this:

"The committee's report describes Cynthia Hampton as running up $1,000 in phone bills by texting Ensign while he was traveling in Iraq with a congressional delegation."

I want to distinguish between the first quote and the second.  The former is clearly in the realm of relevance (save for an attempted-but-likely-futile privilege argument against access to his personal email account), but the latter is an example of how 'beside-the-point' ESI becomes relevant.  The affair may be morally wrong, but texts between the two players are private – or at least they would be, except for the likelihood that access to them might lead to relevant evidence that would tend to prove or disprove a material fact.  Examples?  Did they conspire to cover up the affair through means that would be deemed improper?  Plus, who paid the phone bill?

This is how your personal cell, PDA or email account ends up in the hands of your adversaries.  You're not immune.

What do you think the odds are that Sen. Ensign knew, or should have known that destroying evidence after learning of an investigation is at best sanctionable conduct and at worst, a crime?

This is how destruction turns into obstruction.  Time to call "Aunt Judy"…or Judge Judy…

e-Evidence Insights: From Innocuous to Probative

MP900401435 If you'll forgive me my lack of time today,  I'd like to link you to a New York Times examination of the case, Skyhook Wireless v. Google (or as I like to call it, the "Jabbar" case).  The reason I'm singling this out is, if you follow the story, you'll see a great example of how seemingly innocuous statements contained in email messages, laid end-to-end, balloon into something much bigger.

Oh, and if somebody sends you an email – and you feel it would be more appropriate to continue the discussion off-line – walk by their office (if possible) or pick up the phone.  Don't email them back, "PLEASE DO NOT! Thread-kill and talk to me off-line with any questions".

If I saw that in document review, where do you think I'd start digging?

e-Evidence Insights: The Manchurian Blawgger

MP900439375 I've just been informed – by someone who I refuse to reveal – that Donald Trump has dispatched a team of private detectives to California to examine my birth records.  Worse, I'm told he can't believe what he's finding!  So, even I know when the jig is up.  It's time for me to come clean.  I'm a Canadian-based plant, sent here to infiltrate your society.  The election going on up North yesterday?  I did that (I also pre-determined the outcome).  You're a fan of bacon, maple syrup and you say 'eh?' a little too much?  It's not Vermont – and you're not hard of hearing.  It's me. 

I know I've told you I'm an American citizen, but how can that be possible under the following facts?

  1. I was born in Northern California.
  2. Both, not just one, of my parents is/was a citizen of Canada and neither is/was a dual-citizen.
  3. The first three digits of my social security number were issued from a state in which I've neither set foot, nor ever had a mailing address.
  4. Furthermore, I wasn't even living in the United States when I legally-procured my social security number.
  5. I didn't have a copy of my birth certificate, so I wrote to the State of California to request one – and was sent a short-form "Certified Abstract of Birth", which I then used to request my social security number.
  6. No religion or hospital information is listed on the short-form.

Yet, these are the additional facts:  I am an American citizen.  I have a valid social security number.  And – what makes my mother most proud – I can be President of the United States; notwithstanding the pesky requirement that I must somehow convince people to vote for me.

Why do I bring this up?  Because the juror at your next trial might be a birther or a truther.  And before anybody takes offense, I'm using those terms in their broad sense; just as many people were willing to believe that George W. Bush had advance knowledge of the 9/11 attacks.  Quite an interesting time to be discussing it with the recent death of bin Laden.

This is a mindset; conclusion-based thinking.  Like it or not, pre-conceived bias affects judgment.  "I've decided what I want to believe, now I'll allow in all facts in support of that belief while filtering out all those that oppose it".

Do you think that might be why, in a jury trial, attorneys concentrate on demonizing an opponent through hearsay and innuendo?  Oh sure, the opposition objects, but once the jury has heard it, it's too late.  They're already deciding whether it's plausible.  The attorney knows that if he or she succeeds, they've accomplished the following goal:

Filter / On

At least that's what somebody told me…

e-Evidence Insights: Tattoo You

MP900442430 I'd have to twist myself like a pretzel to try to make this post about e-discovery per se.  It's more about the advice I've given before regarding thinking creatively about where evidence might be hiding – and in what form it might be hiding.  In this case, it was hiding in plain sight.

Perhaps the only thing remotely electronic about the evidence at issue is a photograph in a mug book.  Tracking suspects through their tattoos is nothing new, however, this is the only time I've ever heard of an alert detective catching a criminal because the very crime scene is detailed on his chest.

Talk about 'body' of evidence…

From the Vault: e-Discovery 101: Twitter MySpace Away on Facebook

[This is the 1st time I've retrieved a post from the archives.  It was my 28th, from February 4th, 2009.  The reason I'm doing so is, this seems to be the most popular article I've written, in terms of republishing, anyway.  Maybe people just like the title.  I recently granted permission for it to be reprinted for an attorney malpractice CLE course in New Jersey April 26th, and it occurred to me; I didn't really have any subscribers back then, so it's likely almost none of you have ever seen it.]

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I've been looking at Twitter, MySpace and Facebook recently…

"I hate my job!"  "I don't want to do this anymore!"  "I pay my staff too much!"

Who wrote this?  Attorneys!  I'm picking on attorneys because they should know better, but my point is simple; live your life online and it'll come back to haunt you, someday.  Hello???  You do know this stuff may be discoverable, right?

Since it's fast approaching, here's a President's Day story for you…

An underling wrote to a General – who would go on to be President of the United States – regarding an act of treason.  The underling was profligate, rambling on and on about the facts of the case, anecdotal details et al, until finally getting to the point; the request for the General to sign-off on an executive order of execution.

The General was not amused.  In his order authorizing the execution, he decided to 'send a message' when he sent the message.  His order contained two words:

"So do."

The underling got the message.  Upon execution of the order, he sent a follow-up to the General:

"Done."

In the above story, the names were changed to protect the innocent (which means I couldn't find a link to provide, even though I know the story – in some variation – actually occurred.  My recollection is that the missive was sent to General Washington during the American Revolutionary War).

Are you getting the message?

J0439332

Everybody's seen this on TV – the Miranda warnings.  I'm adopting two of the four Miranda rights as our new e-discovery mantra:

You have the right to remain silent.  Anything you say can and will be used against you in a court of law.

You may be dealing with an adversary who has deep pockets.  What do you think happens the moment a dispute – or threat of one – occurs?  In the old days, they'd hire a private investigator to gather data on the principals, their attorneys, their contacts, heck, even their pets! 

Now, they just do a web search.

There's an old saying; if we could be convicted for what we're thinking, we'd all be in jail!  Forget about 'conviction' for a moment.  Anything you say, no matter when you said it, may be fair game in court to show bias, prior inconsistent statement or a host of other possibilities.  You are creating a record – possibly permanently – of your thoughts.  If you think that deleting them makes them go away, it doesn't.  They can still be recovered in many cases – by someone like me.

If you are operating under the notion that this is personal – and professional litigation is separate – think again.  Anything that can be used to create a profile of how you might carry out your professional duties may be fair game.

Paranoid?  You should be.  You have to be your own filter.  Before you post, ask yourself whether you're OK with the concept that anyone on earth might see it – forever.  If the answer is yes, go ahead.  Post it.  Otherwise, keep it to yourself.

This is e-discovery 101.  Common sense.  We all possess it; we just have to execute.

Your Stream of Consciousness Needs a Dam

J0443661 This should probably be obvious to most of us, but in case it isn't, I give you the following advice:  If your public persona directly conflicts with your private one (e.g., you're a hypocrite), perhaps you aren't best suited for social media.  Examples?

1 – A technology-savvy priest who was carrying on an affair – with his second cousin, no less – should probably not host a TV show with 200,000 viewers where he espouses the vow of celibacy (yes, TV is an ancient form of social media…).  By the way; he reportedly ended the affair two years ago, but unfortunately, the evidence never goes away.

Irony of the day?  He also penned the books, "On Camera and Off" and "Life Full of Surprises."

Indeed.  Another reputation stained.

2 – Say you're a cop, you know, that whole, "To Protect and To Serve" mantra?  Best not to describe your occupation on Facebook as "Human Waste Disposal".  Just sayin'.

See, with our 1st example, it's more about embarrassment, but with our 2nd, it's about scuttling criminal trials.  How?

Bias, among other things.  A comment like that suggests a pre-disposition toward the public at large – and might even suggest a little instability.  Notice I used the word, 'suggest'.  I'm not saying it's true, because that doesn't matter.  Never underestimate the power of suggestion.

Unless you think about it very carefully – or experience it yourself – many people simply can't understand how off-hand comments like this can become a very big deal.  But they can – especially in a criminal proceeding where reasonable doubt is the standard.  Oh, and as a bonus, you might even receive a reprimand and/or get fired.

Contemplate it…count to ten…do whatever is necessary to check yourself.  Otherwise, you'll be saying "Dam", alright, but it'll be a homonym.

Twitter? Free. True Cost? $430,000 (+ Interest)!

MP900313815 Love don't cost a thing…love means never having to say you're sorry…stop me when you've heard enough…

Just after the new year, I posted about a defamation suit filed against Courtney Love.  Well, that suit has been settled by Love for $430,000 plus interest, as noted in the headline.

Think about this for a moment, folks.  Love creates a free account on a service that didn't exist a few years ago.  She proceeds to use it to defame (according to the plaintiff, anyway) and ends up settling for what most of us would consider to be a very painful sum.

It used to be if you were angry at someone, they'd tell you to go home and punch your pillow.  Heck, there was always Primal Scream therapy.  No matter how foolish it may have been for Love to take to Twitter with her rampage, I doubt it ever crossed her mind that this would be the end result.

Technology has provided no shortage of outlets.  What we need are a few more inlets.