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: Cases of Interest
The Skip, the Bounty Hunter & the Poke(y)
Criminals need love, too. So much so, that even after committing a crime – and jumping bail – they still can't contain themselves from looking for love on Facebook, MySpace, et al. You know how you're always hearing the warning, "That intriguing woman named Jenny you're IMing with might actually be a 13-year-old male student from Minnesota"?
Well, it also might be the last name of an anal-retentive, 28-year-old male bounty hunter who's tracking you across state lines. It also might – as it did in this case – lead to your recapture.
In a 140-character world, I hope you'll take the time to read this story, because you'll get a lot more out of it than you think. Not only do we see another convergence between the old, in the form of an 1873 Supreme Court case Taylor v. Taintor, and the new, social media, but I'd like you to focus on how much information Jenny gleans just from pouring over the skip's profiles.
If you're purely a data-tech, I understand how you may not care about any of this, but all we ever hear is how everyone wants everyone else to cooperate. In order to cooperate, it helps to understand how others do their jobs, why they do them the way they do them and what they're hoping to accomplish. Or, in simpler terms, the psychology of it.
The reality is, if people kept their mouths shut, you'd be amazed how many more cases would remain un-solved. While this is a criminal example, it applies in a civil context as well.
Loose lips do, indeed, sink ships. It's just that nowadays, the anchor is attached to social media.
e-Discovery California: ZIP-a-Dee-Doo-Dah!
The California Supreme Court says retailers may not ask credit card purchasers for their ZIP codes because it violates consumer-protections.
Chalk one up for privacy?
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.
It’s that Time of Year Again…
I'm traveling today, folks…'official' California State Bar Section meetings in San Francisco (man, that sounds important…).
It's time for the bi-yearly Gibson, Dunn & Crutcher LLP, "2010 Year-End Electronic Discovery and Information Law Update". I confess, I haven't had time to review the report to give you my highlights like I usually do, however, I wanted to make sure you knew it was published. What do I always say? When I have time…
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…
Love Birds? No, Courtney’s Tweets
I keep telling myself I'll just pick out & post only the most egregious misuses of technology to make my points. The problem is, it's pretty much becoming a daily occurrence. It's the same way with privacy. I wasn't even going to bother with this latest example, except that it has some juicy issues for lawyers – if you're interested in defamation claims, that is.
The facts are simple. Courtney Love tweeted a bunch of nasty stuff about Dawn S., who claimed Love owed her money. Love was sued for defamation by Dawn S.
In the United States, it's extremely difficult for a public figure to sue for defamation. There's this legal terminology called "actual malice" that may factor in. Naturally, a term like that gives rise to the obvious query; is there such a thing as imaginary malice? A prof of mine said to think of it as "Constitutional malice", which was a little easier to get my arms around. But I digress…
What's interesting about this case is that the arguments go to the very basis of whether Love qualifies as someone with enough influence to damage Dawn S. Should we reasonably believe – or rely on – what Love says, especially when the form of broadcast (in this case, Twitter) is at issue? So much for "The medium is the message"…
Also, I'll wager you've never heard the term, "Insanity defense for social media". Get used to it…I have a feeling we're going to be hearing it a lot in the future.
Favre’s Folly. What’s Next – ‘Peyton’ Place?
"I guess Favre – and the New York Jets – better hope she doesn't sue." Well, she hasn't – yet – but two masseuses did.
Look, I know I come dangerously close to the line with some of my posts, but I try not to be mean-spirited about it. When I 'go there', I'm trying to make a strong illustration – usually related to risk.
Sure, some of you don't need the club over the head, but just read the story as it unfolds…
In all the days of my lives, through dark shadows, I couldn't find the guiding light on the edge of night to have a Ryan's hope of creating a soap opera as good as this one. [I would have worked in 'Genital Hospital', but, 1) that joke's been made 1,000 times and 2) that would be going over the line.]
Look at some of what we've got (with the caveat that these are unproven allegations):
- Favre, a masseuse, her husband and the Jets' "Massage Coordinator" get in on the act.
- The Coordinator calls Favre a "pervert", yet castigates the husband for not keeping things quiet, suggesting some kind of covert compensation agreement might have been arranged.
- Favre admits to having "bad intentions".
If you're the Jets' attorney, how'd you like to even attempt to go to trial based on those statements? Any good defense attorney will tell you how, but you won't like the answer…
Brett Favre and several members of the New York Jets organization know that millions of fans, detractors and the press are watching their every move at all times, yet they were willing to commit these comments to writing.
They don't get it. Do you?
Does this ‘Border’ on Unconstitutional?
When you endeavor to cross a border, you give up many of your 4th Amendment protections against illegal search and seizure. To put it another way, a search at the border, absent probable cause – or even reasonable suspicion, for that matter (a lower standard) – isn't an illegal search. Lawyers are well aware of this, but what about the general public?
Two issues are triggered here. The first, privacy, I've written about before (see my International category). Also, the mere act of crossing the border with certain ESI on your device (and many paper documents, for that matter) may violate the privacy laws of the country you seek to enter (possibly criminally).
However, today's discussion is a little more nuanced than that. It's one thing to be granted the right to search a person, their luggage and their electronic devices for a bomb; but does that right extend to the contents of the device? Well, the short answer is, yes. Is that proper? Do you agree?
I suppose this might bring new meaning to the retort, "Don't touch my junk!"
Say you have a password-protected file with your personal banking, credit card and other financial information on it. Now let's go one step further. Suppose it's a company laptop, the file contains your employer's financial information and it contains evidence of a crime? Two steps further? You keep both personal and corporate information on it (does that sound like you?). What's the difference between a federal official accessing it at the border versus going into your bank, demanding the key and opening your safe-deposit box – without a warrant?
I'll tell you the difference. When you show up at the border, it's implied consent. You waive your right to protest. That's how the law stands now. However, that may – or may not – change, subject to the outcome of the latest challenge.
In the meantime, this is a cautionary tale for executives who travel internationally; oh, and don't forget your charger.