Another example of closing the barn door after the horse has escaped…
Category Archives: Cases of Interest
#LTWC 2011 – Day 2: The Dancing Itos Meet the #DigitalRoachMotel
I'm sure you've noticed I'm using hash tags in my subject titles. I picked up a lot of followers on Twitter during the conference and the former tag allows others following LTWC to find my summaries easily. If you're already following me, you've seen the latter tag before. We'll get into that, below. As always, my disclaimer from my Day One post remains the same.
I am the man of steel! Ok, maybe I'm the man of aluminum! Ok, I'm thinking more along the lines of the man of caffeine. I attempted to do the impossible; attend every single session available on day two. I'm sure plenty of others do so, but I'll admit, when you do this, coupled with quick meetings prior to the commencement of the day, on every break and even afterwards, I can't speak for others, but I resembled some kind of zombie by the time I approached the parking garage (ask the person who met with me at the end of the day). You know why? Because, save for the final session, I sat in the front row (which is something I always do). For one thing, I'm live-commenting on the event via Twitter, plus, it keeps me engaged, which is important because I'm there to drink in every bit of knowledge I can – not to sit in the back and collect CLEs (not that I don't love CLEs…).
The keynote, "Trial by Sound Byte", was given by Manny Medrano. I've met Manny before and if you're from the L.A. area, you've likely seen him on local networks, covering cases like the OJ Simpson murder trial. Manny's a very personable guy and is even more so as a speaker. He contrasted his desire to cover hard news cases with the network's desire to cover celebrity cases, such as the death of Anna Nicole Smith. He focused heavily on the issue of media coverage and how it may interfere with justice rather than simply telling the story. Put simply, news reporters and networks are as apt to let the confidential cat out of the bag as social media users. He cited a few examples (some that we've covered on these pages) but what I liked was his hard-line approach to violators. He believes in harsh penalties (monetary, if possible) when there are egregious instances of juror misconduct. I agree wholeheartedly and have said so many times. Closing observation: this is probably the first time I'd heard the term, 'Dancing Itos', since 1996. A decade later, during the last criminal case I worked on for the D.A.'s office, the day the verdict came out, our sitting judge took ill, so we had a substitute. I walked into the courtroom and sitting at the bench was none other than Judge Lance Ito.
On to session one, covering "Electronic Discovery in the Cloud", with the 'legend', Tom O'Connor. He was supposed to be presenting alone, but was joined later by Brett Burney. This was an unexpected treat for me because last year, I stood in for Brett at another conference when he was stuck in Ohio and couldn't come. The whole thing was hastily arranged and I basically did it sans notes. Brett and I had never met in person, so it was great to finally put the face to the name.
This session was a perfect antithesis to the cloud presentation I attended on day one. Here, we covered all of the risks & rewards of cloud computing. In particular, the biggest bone of contention is how much control the vendor retains over the data. In some cases, a law firm that agrees to those terms may actually violate their code of ethics by turning control of confidential client information over to another without their consent. This was a more sobering – and in my opinion, more realistic – overview of what cloud computing is all about.
That's when it hit me; as far as your data is concerned, the cloud is like a digital roach motel. Your data checks in, but it may never check out. Or, for a little California emphasis, call it the Hotel California. Your data can check out any time it likes, but it can never leave…
Time for the lunch session, "A View from the Bench" which was led by two Federal Magistrates, Jay C. Ghandi and Suzanne H. Segal (no rel.). Judge Segal presented to my litigation group only two or three months ago on jurisdictional matters. I'm presenting an eDiscovery CLE to the same group in about two weeks and if I could just get the videotape from this session and play it, I'd let my attendees watch it while I sneak up and eat all of their cream-cheese desserts. It's exactly what I'm going to be saying, which is, in a nutshell:
- It's never too early in the process to bring in your technical assistance,
- You must plead with particularity regarding eDiscovery matters,
- Take as many of the decisions as possible out of our hands and you'll make us happy,
- Get your clawback agreements in place,
- You've had enough time to understand this stuff, so if you screw up, we'll sanction you!
*Sigh* The latter statement seems to be more in force in Federal jurisdictions, but I suspect that – in California's case, anyway – that's because our rules came into power in 2009, not 2006 like the Federal rules.
The judges presented us with a hypothetical scenario regarding a corporate sexual harassment case and we analyzed the mistakes that were made during the process. The gist of the issues were more focused on a paralegal performing attorney functions and making decisions that only an attorney may make, but what bugged me most was that, in a personal misconduct case, when the misconduct was reported, the paralegal contacted the subject of the accusation. This particular fact tidbit had nothing to do with their presentation and was likely just a by-product, but I would say this to you. If you become aware of that type of misconduct (which will trigger respondeat superior), here's my advice. Do not pass go. Go directly to whoever is responsible for overseeing these matters, call the accused into a meeting, have them sign a document informing them of the complaint while simultaneously arranging to collect an image of all of the person's data that you can. And do not let them access any of it until you're done.
Why? Because your job is also to protect the corporation; and the corporation may be held liable for any additional misconduct of its members. If you inform the accused perpetrator, what might they do? Go back to their office and start deleting incriminating emails? Who knows? The point is, you must issue a true litigation hold on the spot and preserve an image of all of the information you can. Think I'm being harsh? I know of organizations who do this, exactly. In fact, one of them will put the accused on leave without even informing them of the basis of the accusation. Doesn't that sound like being found guilty, until proven innocent? Yep. Welcome to Corporate America. But I digress…
Next session was "The Top 5 Ethical Concerns for Lawyers in E-Discovery", presented by Brett Burney (again, who I didn't know was going to be there). This was a nuts & bolts session and was very clear. The slides spelled out what our duties are, what the rules say (both eDiscovery and ethics), the supporting and dissenting case law and links to resources. Obviously, the longer one has occupied this space, the more one knows of these matters, but I've never thought it to be a bad thing to attend a refresher. It's very easy to forget.
Here's what I have to say about the last session. Do you recall what I wrote yesterday about the first session? Ditto. My brain was fried at this point, anyway. And so, we shall not speak of it again…
All in all, a great conference for me. See you next year!
e-Evidence Insights: From Innocuous to Probative
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-Discovery California: Deutch in Dutch with AG for Spoliation
How long does it take to shred 2.7 million documents? I guess it depends on whether 'Tax Lady' Roni Deutch used machines or simply hit the 'delete' key. Inconsequential; as we already know, destroying documents in violation of a court order will certainly lead to sanctions. However, this time, our new California Attorney General, Kamala Harris, is seeking jail time for contempt.
This is one of two high-profile cases of this type. The other involves a Houston, TX company called TaxMasters, although I'm not aware of any e-discovery-related issues with that case. However, it's no coincidence that these cases receive stepped-up coverage at tax time.
Nevertheless, I'll be following the outcome of the former case. It's not every day an AG calls you a "predator for profit".
e-Evidence Insights: Tattoo You
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…
e-Evidence Insights: 50% Zuckerberg + 50% Ceglia = 100% Speculation
What we think is not the same as what we know. I've been following the, "I own 50% of Facebook" lawsuit, but I admit, until I drilled down into the minutia, all I knew for a fact was, Plaintiff had refiled the case and included some damning email messages, and Defendant stated the emails are fake. Since the suit prominently features ESI, I wanted to better understand the issues.
No doubt about it, this is a true eDiscovery whodunit. I read a few articles and this is what I've learned. Ceglia claims he owns 50% (or more) of Facebook. Facebook claims he doesn't. That's right. That's all I know. I certainly read some fascinating excerpts, though.
However, I can point you to article after article that purports to know more, but doesn't. Don't get me wrong; unless one is writing a factual piece, there's no journalistic requirement to state only facts. I actually learned a lot of valuable factual information from the linked article (notwithstanding the reputation of the author). The problem – for me, anyway – is that law and speculation don't mix. And opinion? Expert opinion?
If this case goes to trial, Plaintiff will likely produce at least one expert who claims the ESI in question is genuine. Defendant will likely produce at least one expert who claims the ESI in question is fraudulent. Or perhaps experts on both sides can't conclude either way, due to the amount of time that has passed since the emails were exchanged. Who decides? Will it become a question of fact for the jury?
I sure would like to give you my answer, but the entire previous paragraph was pure speculation. As soon as I used the word, "If"…
Down Goes Frazier! Down Goes Frazier!
Microsoft. Google. Slugging it out over a juicy government contract for email services. In a nutshell:
The Feds awarded the contract to Microsoft. Google, unhappy about this, sued the Feds, claiming the fix was in (this really does sound like a boxing match). Microsoft claims Google is lying about the claims it's making in its lawsuit.
I don't know who "Frazier" ultimately will be, I just know that in a fight between these two heavyweights, someone may be hitting the canvas very hard.
Your Stream of Consciousness Needs a Dam
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.
Newton’s 3rd Law of eDiscovery
"For every eDiscovery action, there is an equal and opposite reaction."
— Sir Isaac Newton
As I've mentioned before, my litigation hold letter – that you see over on the right sidebar – is still the most popular link on the blog (next to the actual posts, that is…). I've also provided this template to attendees of my presentations. A question comes up regularly:
"If we send out a letter like that, our adversary will simply replace their name with ours and send it right back to us. We don't want that to happen!"
It's a good point. And as I've also mentioned before, what's good for you may also be good for your adversary. Furthermore, there's absolutely no fault in thinking about this strategically, for example, keeping your clients' advantages/disadvantages in mind when you craft your demands and responses (which, hopefully, you're doing anyway).
There are times when you want everything but the kitchen sink, but sometimes, the sink itself will do nicely. After all, if both sides produce a gargantuan amount of product, somebody's going to have to review it – and pay for it.
Be careful what you wish for in litigation; you might get it – and get nothing.
An adversary may produce reams of product, the sole purpose of which is to either make it next to impossible to find relevant needles in the document haystack, or worse, obfuscate the fact that they didn't produce relevant documents at all. Oracle's Larry Ellison knows a bit about this [In re Oracle Corp. Sec. Litig., 627 F.3d 376 (9th Cir. 2010)].
That's why my template is meant only as a guide. It may be appropriate to issue a letter that simply says, "You're on notice and we expect you to preserve relevant data." And here's the other elephant in the room to consider; are you absolutely certain that your client is completely forthcoming about their own data? If not, we already know who'll be on the hook for it.
As for attorneys who are complicit in assisting their clients with 'hiding the football'? As they said in the movie, Airplane, "…they bought their tickets, they knew what they were getting into. I say, let 'em crash!"
Huh? Wrong Newton? Don't look at me. Go back and redo your keyword & concept searches!
Twitter? Free. True Cost? $430,000 (+ Interest)!
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.