Category Archives: Admissibility

MySpace Boast Opens the Door to a Murder Conviction

J0432756 Is this e-Discovery Insights or The Darwin Awards?  It might be hard to tell today…

The Indiana Supreme Court upheld a murder conviction against a man who beat to death the two-year-old daughter of his girlfriend.  The Court stated that admitting boasts he made about the crime on MySpace into evidence at trial did not violate the rules.

His lawyer appealed the original conviction, claiming that allowing the evidence to be presented prejudiced his client.

As far as I'm concerned, this is 'Evidence 101', folks.  If you place your character at issue during a criminal trial – as defendant did here – you 'open the door' to the prosecution to rebut with their own character evidence.

Like the article says, it doesn't matter whether you boast at your local bar or on MySpace; it has no effect on the rules of evidence.

Case Got Your Tongue? Interceptors, Drug Problems, Home Sweet Home & the Raspberry

J0321090 Ok…so I was gone a little longer than intended…let's get down to business.  We have four cases to examine this month.

United States v. Comprehensive Drug Testing,
Inc.
, 2009 WL 2605378 (Cal. App. 9 Dist. Aug. 26, 2009).

This is an extremely important fourth amendment case that arises out of the Major League Baseball steroid investigation.  The California 9th Circuit has established new guidelines for the search and seizure of ESI.  A must-read, in my opinion.

In re Weekley Homes, L.P., 2009 Tex. LEXIS 630 (Tex. 2009).

This is a very good case out of Texas regarding an overly broad request for ESI.  The court likened computer data to that held in file cabinets and reasoned (I think eloquently) that it is highly intrusive to expect easy access to employees' ESI when these employees are indirectly-relevant to the litigation at hand.  The court stated that the least intrusive means necessary should always be utilized.

Se. Mech. Servs., Inc. v. Brody, 2009 WL 2883057 (M.D. Fla. Aug. 31, 2009).

There have been a series of decisions from this case and I'm numbering this one "Brody IV".  As you know, I've avoided most sanction cases, however, this one resulted in an adverse inference by the court due to the defendant's intentional and deliberate wiping of BlackBerry data.  We all had to know a case like this was coming…

Gurevich v. Gurevich, 2009 N.Y. Misc. LEXIS 1045 (N.Y. Sup. Ct. 2009).

This case should send shivers down your spine, due to its greater implications regarding privacy and were it to ever be applied more broadly, such as in a business environment.

Wife used husbands password to access his email and found incriminating information to use in their divorce proceedings.  I'll let you decide for yourself what you think of the court's opinion.

State of the (e-Discovery) Union; The Sequel

Aspirin My prior post was the Reader's Digest version.  Now, get ready for the migraine version…

Gibson, Dunn & Crutcher LLP has released a comprehensive mid-year update on e-discovery.  This is simple, folks.  If the responsibility for e-discovery sits squarely on your shoulders – and if you take that responsibility seriously – you need to read this publication, no matter how long it takes or how painful it might be (I have some aspirin if you need it…it'll come into play when you read about the increase in sanctions…)

The Most Interesting Man in the World…(at LegalTech)…

Interesting Man …wasn't playing Jai Alai…he was attorney Browning E. Marean III from DLA Piper, who deconstructed international e-discovery for 90 minutes…

Sorry for the break, folks.  The long weekend got longer and longer…and then there was Monday…

'Lotta traffic on my sites – everyone's interested in the new "Act"…but I gotta get back and finish my piece on international e-discovery from LegalTech I promised you last week.

I've had my eye on this subject for a while.  I spent half my life living outside the United States – so of course I have some perspective on it – but I don't think that matters much.  It may not happen tomorrow or the next day, but it will happen.  Some day, you'll face an issue that involves a foreign nation.  When that day comes, you've got at least three issues:

  1. Language – if you're lucky and the other country is also an English-first nation, that'll solve one big problem, eh?
  2. Laws – if you act as if you're in the United States, you could receive a big fine and face jail time.
  3. Technology – more on that later.

There I go, harping on the criminality angle again…but here's a real world example for you…

A seemingly innocent violation of the law may bring a penalty of 10,000 Euros and six months in jail.  Lesson learned: know what you're doing before you set foot on foreign soil – or hire someone who does!

But I'm getting ahead of myself.  Mr. Marean was joined on the panel by George I. Rudoy, Director of Global Practice
Technology & Information Services for Shearman & Sterling.  Also present was
Michael R. Polin, Esq. from the International Law Firm
of Michael R. Polin.

Foreign nations (by the way, yes, Canada does qualify as a foreign nation for our purposes) have Blocking Statutes.  You do not want to violate them or you may face penalties as described above.

A primary issue is what to do with a foreign document when you want to 'take it back to the office'.  Many countries have strict definitions of what "taking a document out of the country" means.  Is it theoretical?  Is it physical?  These are the details you must know before you act.  It harkens back to Constitutional Law; what is a "taking"?

This of course begs the question, if you can't take it out of the country, how will you get it into evidence?  A custodian?  A notary?  An intermediary?  May a third-party testify that they're examined the document?

Another major issue; what is "privacy"?  Unlike the US, many foreign nations don't believe that privacy ends where the corporate entity begins.  They consider data generated by employees to be "personal data" and therefore subject to privacy laws.  Be ready for this.

What about technical matters?  ASCII contains 128 characters.  International documents that involve Unicode may contain thousands upon thousands of characters.  Do you have the technology in place to be able to translate these documents?

And while we're on the subject, do you have a translator?

A lot of questions that you need to answer.  Dang it!  I can't even use the catchy finish that if you don't it'll all be 'lost in translation' because I already used it a long time ago…

Facebook, et al: “Evidentiary Gold Mines”

J0401177 I haven't re-visited social networking lately, but this article on Time.com is a favorite.  Their exact quote is, "Lawyers, however, love these sites, which can be evidentiary gold mines."  Then, of course, it goes on to list some of the nightmare scenarios in which Facebook posts became evidence, among other things (divorce being a very common reason, but by no means the only one).

Tip:  If a lawyer loves something, you'd better take note (unless it's you they love; in that case, demand a pre-nup…).

Let's put it this way.  Yes, Twitter may change the way we live, but not necessarily the way you expect.

**FLASH** – Late word comes in to the blog-room that Governor Schwarzenegger was seen frantically digging on Facebook looking for nuggets to address the California budget shortfall…we're going to be completely out of cash in less than 50 days

Guess I'm in a snarky mood today…did I mention I'm not a morning person?  Have a great weekend everyone.

DUI: ‘Driving’ Under the Influence: Too Much ‘Fluid’ity

A handsome Irish American man with green beer on St. Patrick's Day.  White background.

Sorry – I’m going after Twitter, MySpace & Facebook again…it seems somehow fitting a few days before St. Patrick’s Day…

Supposedly, we look at technology as a tool to make things easier for us in our daily lives.  Yeah…easier for us to make damn fools of ourselves.  Let’s do a
little ‘new’ math:

A + D + K/BP – J = T

Alcohol + Drugs + Keyboard/pad – Judgment = TROUBLE

When I was on the front lines of support, we had a great inside joke about the average ‘driver’ (in tech, we refer to the person operating the PC as the driver).  It went like this:

Tech Support Guy #1:  Great news!  We figured out what’s wrong with Bob’s PC!
Tech Support Guy #2:  Awesome!  What’s the problem?
Tech Support Guy #1:  It’s in-between the mouse and the chair…

(insert laughter and applause here)

Go back and read my two-part series on ESI.  If you get anything at all out of the review, remember one word – and one word only – relevance.  There still seems to be a disconnect with many of the people I speak with about what makes something evidence!

Let’s take a statement, for example.  What was said, who said it, where it was said, when it was said and why it was said are all factors, of course.  But what gets it in for the purposes of a legal matter is its relevance to the issue at hand.

Knowing this, why are you smoking joints and/or drinking a six-pack of beer, then running your mouth on your social network?  And why are you posting those photos of you & the gang hoisting beers with the caption, “PARTYYY!!!” underneath?

You wanna make the ‘privacy’ argument?  The law is fluid, not static.  What’s illegal today may be legal tomorrow – and vice versa – so go ahead and hang your hat on that one.  Besides, say the wrong thing in the wrong forum and you waive your right to privacy!

If this sounds like a stern lecture to the younger crowd, I assure you, it’s not (although of course by any measure, the younger crowd makes the most use of social networking by far).  But here’s the problem.  The younger crowd becomes the older crowd someday (yours truly is still young at heart).  You are making mistakes you can’t undo – not even with the ‘delete’ key.

This isn’t an argument about past mistakes or even present ones.  This is about the future.  Whether you ask yourself how an off-hand remark today can somehow be relevant five years later isn’t the point.  You don’t know what you’ll be doing five years from now, anyway.  But trust me, it will be relevant and the judge isn’t going to care that, “well, I was young and drunk at the time”.  That’s not exactly a sterling character reference.

There are a plethora of articles about the perils of social networking in relation to background checks, jobs, etc.  That’s not my area of purview.  You may not just be screwing yourselves.  You may be screwing your j0385315employers, and whenever those two worlds collide, it opens up a slew of legal, ethical and privacy arguments – and you will lose many of those arguments.

Social networking has the potential to be like that tattoo you regret getting when you were
drunk last night or the morning after, when you wake up and can’t
recall what you did the night before…

For your sake, I hope it wasn’t spent sitting between the mouse and the chair…

The ‘Missile Command Act’? No, the ‘Internet Safety Act’!

A5200_Missile_CommandI think my career is about to resemble Missile Command.  It was all the rage in the 1980s.  Atari still exists and I was surprised to see that they’re still selling it.

The name of the game is to intercept falling missiles (which have an annoying tendency to split off in multiple directions) with silos on the ground (hint; we’re the silos).

John Cornyn (R) has introduced the “Internet Stopping Adults Facilitating the Exploitation of Today’s Youth Act”, or ‘Internet Safety Act’ (for those of us who can’t fit all that in a catchy blog title).  This bill is actually a regurgitation of a bill introduced in 2006.  I think you get the gist from the bill’s title, but here’s the fine print:

“A provider of an electronic communication service or remote computing service shall retain for a period of at least two years all records or other information pertaining to the identity of a user of a temporarily assigned network address the service assigns to that user.”

Anybody besides me thinking about the storage/costs required to retain and/or restore these logs?5_Day

That’s Part I of the headache.  Part II is who would be covered under this bill; essentially anyone who serves wireless using DHCP.  That’s right – it includes that little Wi-Fi router you have at home.  Note to those who brought their wireless router home from the store and
just plugged it in; you might want to configure the security feature, lest someone nearby connect through it and start looking at child
pornography.  Starting to sweat, yet?  Maybe you will after I mention Part III; you might go to jail for up to 10 years.

Here’s the really bad news – there’s a Part IV…

Once again, all I think about is Zubulake.  The moment you’re required to retain a record for two years, it may be adjudged ‘accessible’ for Zubulake purposes – and not just the ones covered under this Act, which, as I previously mentioned, specifically targets child pornography.  Any purpose of litigation may be fair game to subpoena these logs!

You think maybe Senator Cornyn knows how to push a bill through Congress by piggybacking it on the hot-button terms that frighten all parents to death?

This Act really could be the legal equivalent to ‘Missile Command’ (or starfish, or octopus…).  The tentacles could reach virtually anywhere.  I’ll be monitoring this closely, as should you.  If it becomes law, it could be…Missile Command - The End