Michigan v. Bryant: "The Supreme Court ruled Monday that a shooting victim's statement to the police at a crime scene may be used in court, even if the victim later dies and cannot testify at a trial."
Category Archives: Admissibility
A Little Tuesday Housekeeping
Sorry folks, I'm already running behind this week. For starters, I wanted to make a couple of quick notations:
Congratulations to the Ciaran Contrarian Super Bowl Calculator which has, once again, worked in my favor! One of these days, I may actually bet money!
There's been a settlement in the "Drowning Pool" case, or as the Wall Street Journal likes to call it, the "Facebook Firing" case. It's very short on any useful guidance. I'd place it in the "kissing your sister" category.
e-Discovery California: “Elementary, My Dear Watson”…
Holmes v. Petrovich Development Co. (Cal. Ct. App. – Jan. 13, 2011)
In this decision from the Third Appellate District of California, the Court found that Holmes’ emails did not fall under the protection of attorney-client privilege (warning – link opens a 40-page PDF of the ruling).
Why?
Because she wrote them on a company computer with the knowledge that the company had a “we own the data” policy.
YMMV (that’s my cute way of telling you, other state laws are contra, e.g. New Jersey’s Stengart). From that post:
“I suppose if I simply admonish you not to use your company collateral for personal purposes, you’re going to ignore me, but it’s missing the point, anyway. You can’t un-ring the bell. Sure, I understand that, in this case, they were forced to return the emails and there was to be a decision as to whether the law firm that read the emails could even continue in their representation, but the bottom line is, the emails were still read.”
A little fun fact? Holmes never said, “Elementary, My Dear Watson”.
e-Discovery California: ‘In Toto’, We’re not in California Anymore…
They laughed at the academy…
Do you remember when I said I maintain a password on my PDA? Do you remember how I said it sucks having a password on my PDA, but I felt it was extremely necessary? Fine – you don't remember. Here's what I said this past February:
"My PDA is password-protected. It's an incredible pain. I hate it. It makes things cumbersome. For all I know, it isn't even that effective. But you know what? At least I'm doing everything within my power to protect my client information."
Well, it just became a great decision. Why? Because the Supreme Court of California recently ruled that if arrested, the government is entitled to search your cellular device! The Court seems to be basing the opinion on the concept, misguided as it may be, that a cell phone is akin to a closed container, like a pack of cigarettes (prior 4th Amendment decisions hold that authorities may search containers under these circumstances). Meanwhile, a warrant is still required to search a briefcase!
Think about it for a moment. If this trend continues, how long do you think it'll be before this right is extended to portable devices in general? My next thought is, what if you happen to be driving your desktop PC to the local repairman at the time of your arrest?
As to the issue of password-protection, there's no case law controlling at the moment, so here's my 'ruling'; you have the right to remain silent. I don't care if I'm threatened with bodily harm – nobody will compel me to give them the password to my PDA (until the day arrives that a court of competent jurisdiction rules otherwise).
The Federal 9th Circuit already allows for warrantless tracking devices, but now this? So much for "liberal" California. Try your luck with the Ohio Supreme Court, among others, who disagree with this ruling.
But don't push your luck with the Supreme Court of the United States. With the current makeup of that body favoring government intrusion over individual protections, there's no Emerald City at the end of that yellow brick road.
Then again, a lot of powerful people carry cell phones – including Supreme Court justices. Maybe now's not the time for that vacation in wine country…
The Drowning Pool
Repeat after me. "Facebook and the water cooler are the same thing." Actually, Facebook is worse, because the water cooler doesn't take notes – it just sits there. Looks like we may have our precedent-setting case, folks. Yep, somebody got fired for mouthing-off about her boss on Facebook (or at least that's the claim she's making through the National Labor Relations Board. Shockingly, her employer cites other grounds).
Gossipping about bosses will never stop, but once again, if you post on Facebook – or include your opinions in email or text – you'd better be fine with the idea of your boss seeing them.
And while venting your spleen about your boss is technically not a fireable offense, think it through a little more. The boss is going to claim that you're insubordinate – and produce your Facebook posts to show your animosity – which isn't going to help you. Note to the recently unemployed; comparing your boss to a psychiatric patient probably isn't recommended (whether it's true or not).
But therein lies the interesting twist in this particular case. The fired employee is putting her own Facebook posts in play to show bias on behalf of her employer. I guess the court will ultimately decide whether this gambit yields results. This is one to keep an eye on.
e-Evidence Insights: ABC’s Primetime Crime: Inside the Interrogation Room
Many people have absolutely no idea what would happen to them if they were arrested. In fact, it would shock them if they knew what the police are allowed to do versus what they think the police are prohibited from doing.
Television has conditioned the average person to think like this:
- The police 'invite' me down to the station for a chat
- I speak to them without an attorney present
- I go home
Or, maybe something like this:
- They arrest me
- They read me my Miranda rights
- I ask for an attorney
If only it were that simple. If you have any interest in seeing an example of how things really might work, watch this 41-minute video from ABC's Primetime Crime (or read the article if you prefer). I found it to be an excellent – and accurate – portrayal of interrogation tactics.
Hey – I'm not asking you for a lot of heavy lifting at the start of the Labor Day weekend! Besides, forewarned is forearmed. Please be safe – and if you're traveling, don't put this post into practice by getting snagged for a DUI.
e-Discovery California: We Will…We Will…Track You!!!
Privacy took a major hit in the nine states encompassing the 9th Circuit. The court found that the police have the right to attach a tracking device to a vehicle on private property. That part isn't new. What is new is that they held it may be done without a warrant. To me, that is disturbing. Do you see any dangers here?
This is another issue where reasonable people will disagree. Some will look at it as another version of visual surveillance. I don't have a problem with using a device in this manner; I just think the government should be required to secure a warrant.
I cringe when I hear arguments like "put out a 'No Trespassing' sign and then you'll be protected". Either we possess rights or we don't. I fail to see why I should have to advertise my right to privacy if it's a vested right. Are we saying crooks don't need to be warned but the police do?
How far may the government go? Suppose a person is drunk and passed out cold on their front lawn. Should I assume the government now has the right to attach a tracking device to that person without their permission?
Another federal jurisdiction from D.C. has ruled the opposite way on a similar matter. This will likely go to the Supreme Court.
e-Evidence Insights: A Lesson in Context
I've repeated over & over the dangers of improper electronic communications and how they can come back to bite you. But this article from the latest edition of Inside Counsel does an outstanding job of illustrating how your – seemingly innocent – words may be used against you in a dispute.
If you don't yet have a corporate policy, portions of the article may be an excellent jumping-off point. Do I think the goal is somewhat utopian? Yes, since realistically it would be next to impossible to control the social behavior of everybody under your umbrella. But that doesn't mean a policy shouldn't be crafted and properly promoted in the employee handbook.
There's nothing wrong with a good-faith attempt; especially where ESI is concerned. Perhaps if more people are made to understand the consequences of their actions (most do not imagine sitting in a courtroom answering questions to be one of them), they'll think twice before sending.
Gibson Dunn Mid-Year eDiscovery Report
It's that time again. Gibson, Dunn & Crutcher LLP published their 2010 mid-year eDiscovery report. If you're interested in following trends, here's a link to their 2009 mid-year report.
Destroyed Reputations – Brought to you by Facebook/MySpace
It's nothing new for me to warn about social networking, linking you to the latest example of someone who was done in – legally speaking, of course – by their own postings. But I gotta say, I've never seen it done quite the way this L.A. Times article does it.
Here are the facts; a man and a woman were in a private residence. Another male, a bail bondsman, entered through an unlocked sliding-glass door, an argument ensued and the bondsman was shot and killed. Now, follow the progression of the article. The 'authorities', if you will, provided virtually no information. But the 'Times examined the Facebook & MySpace pages of all three individuals involved. Then, like assembling some sort of puzzle, they used excerpts from each to update the original piece.
The result? Although the article doesn't speculate, the innuendo is clear; the selected posts suggest that the woman was caught with one man by the other, resulting in his murder. But how do we know this? Where are the facts?
The story is located in a section called "L.A. Now", which is described as "the Los Angeles Times’ news blog for Southern California." In their defense, I suppose they would say that as bloggers, they're not subject to the same journalistic standards as their 'official' newspaper.
But I'll tell you, this reads like a gossip article from a supermarket tabloid. It also illustrates how three separate people, innocently posting on their social networks, had their personal lives invaded in a way none of them could have ever anticipated. Yes, I know one of them is dead, but he had two children – and possibly other family members – who will be affected by the publicity.
Shame on you, L.A. Times.