Category Archives: Cases of Interest

Cases of Interest, Constitution, Judges, Technology

Scotus, meet Ohio; Ohio, meet Scotus

MP900302920 Bravo to Justice Stephen Breyer!  Why?  Because I respect anyone who is willing to admit they don't know or understand something (in this case, Facebook).  Seems it's one of the toughest things for some people to do.  Haven't you been in a meeting where it's obvious the speaker doesn't know something, but rather than admit it, they 'fake' it?

The Canadians made up a whole program around it, "This Hour has 22 Minutes".  The premise is that if they approach someone and question them on any subject – including ones they make up out of thin air – the person will attempt to speak intelligently instead of admitting they know nothing about it.  Lesson learned:

Beware of the Canadians…

Let's hope the Judges in Ohio understand Facebook better than you do…

I've always taken the opposite track.  If I don't know something, I'll state it then and there; "I don't know, but I'll find out the answer and get back to you."  That position is even more accute as an attorney, where mistakes can be deadly to the client.  Some see it as a sign of weakness, but I don't – nor have I ever experienced any negative reaction from a client.

What Breyer is really saying is that, at 72 years of age, he's still open to learning.  I've used a consistent approach since I've been doing this line of work; know what you don't know.  All it really means is, understand where your limits are, then seek out the resources necessary.  Don't fake it and hope to be right later.

I guess it surprised me that Roberts and Scalia had no qualms establishing that neither one of them had a clue to life about how texting works – this while hearing a case about…texting (Quon).  Gentlemen, the answers we were looking for were "router", "gateway" and/or "server".

Indulge me for a moment.  In a case regarding privacy, where waiver might be at issue, do you think it might be of some import for the judges to understand that if a message passes through other devices on its way to its final destination – and any one of those devices may retain a copy of the message – and, stay with me, a party knew that these messages pass through other devices, this knowledge might create a waiver?

I'm not theorizing about Quon specifically, by the way, I'm simply making a point.  Kind of reminds you of that old saying, "Out of the facts, the law arises", not the other way around.

How in the world are we going to solve this problem!?!?!? 

I don't know, but I'll find out the answer and get back to you…

Cases of Interest, Constitution, Criminal Liability, Judges, Technology

Exponential & X-Rated (F**k the Judge!)

MP900302829 Before anyone is offended by my use of the word "f**k", this is in a legal context and I'll explain at the conclusion of this post.

I've written a few posts about jurors ignoring their oaths and researching trials via the Internet or commenting on them via social media (heck I just wrote about it a week ago), but I hadn't seen any hard numbers to illustrate how pervasive the problem is; until now…

"The data show that since 1999, at least 90 verdicts have been the subject of challenges because of alleged Internet-related juror misconduct. More than half of the cases occurred in the last two years." [Bold & italics added]

Yes, I'm well aware of the ratio of 90 verdicts to the total amount of verdicts in any given year, but there are two things that concern me:

  1. If we, as attorneys, truly believe in the right to a fair trial under the 6th Amendment (criminal cases) – never mind the right to a fair trial in civil matters as well – we should be offended by the statistic, even if it happens only once (unrealistic, I know, but that's not the point).
  2. Look at the exponential growth – more than 50% of the challenges occurred in the past two years.

The illness is spreading.  The courts are addressing the issue by fine-tuning jury instructions, but if a juror is inclined to break the rules in the first place, I don't think an instruction will have much value unless it's followed up by punitive measures when the rules are violated.

Now, to the headline.  One of the things that was shocking to me when I was in law school was how specific case language can be.  It's not that I'm sensitive to those things, just that I didn't expect it.  This story reminded me of such a 1st Amendment case (anyone remember Cohen v. California?), but I was slightly amazed to read about a juror who was so out to lunch that he openly flouted the rules by posting "F**k the judge." on his Facebook page – about the judge overseeing the very case he was currently sitting on!

Wait a minute.  I sat on juries myself and have tried both civil and criminal cases.  I'm not that amazed…

Cases of Interest, Constitution, Criminal Liability, Judges, Technology

The Sheppard, the Fugitive & The Twitter Defense!

MP900442461 If you’re a lawyer, you’ve probably come across “The Twinkie Defense” at some point in your studies.  But what about “The Twitter Defense”?

I suppose it was inevitable, but defense attorneys in a heinous Cheshire, Ct. rape and murder trial intend to argue on appeal that – among other issues – the jury succumbed to the undue influence of over 140,000 inflammatory tweets about the case that were publicly available.

If you’re me (which I am), the entire premise is fascinating because of where the issues take us.  How often do you think you’ll hear a Supreme Court decision from 1966 (specifically, Sheppard v. Maxwell) cited in support of a claim incorporating Twitter in 2010?

To me, it boils down to whether one believes that the tail is wagging the dog or vice versa.  Does the use of “new media” such as Twitter require new court rules?  Will the judges who consider the appeal even know what Twitter is or how it functions?

That’s ok; I guess they’ll just ask their young associates…

Admissibility, Cases of Interest, Strategy, Technology

The Drowning Pool

Drowning 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.

Cases of Interest, Judges, Law, Technology

Federal Judge turns LimeWire into Lime-A-Way

Lime-A-Way Following in the footsteps of Napster, Grokster, et al, a federal judge has issued an injunction forcing LimeWire to stop distributing its file-sharing software.  What does this really solve?  It's kinda like a game of whack-a-mole, isn't it?  For each service the authorities shut down, there are several more ready to take its place.

I'm not saying they shouldn't try; just that technology will always be one step ahead unless the law finds a way to respond more rapidly.

Don't hold your breath…

Cases of Interest, Cost, Criminal Liability, Duties, Judges, Sanctions, Spoliation

Victor Stanley II: The “Gang that couldn’t Spoliate Straight.”

Pony Up! Anyone remember this?  Back in December 2008, I warned that someday, eDiscovery misconduct would result in a bad actor going to jail.  Well, we've arrived at that point.  Judge Paul Grimm deemed Defendant's spoliation misconduct so serious that if he doesn't immediately pony up for Plaintiff's attorney fees and costs, he faces two years in prison.

As I mentioned last week, I've been tied up in trial, so I'm going to send you to Ralph Losey's excellent (as always) post about the case.

As someone who has personal experience with attorneys hiding the EDD football, I'm all for this ruling.

Note: I included this post in the "Criminal Liability" category because I believe it's an important read to anyone researching the subject; but this isn't a criminal sanction.  I just want to make that clear.

Cases of Interest, Constitution, Criminal Liability, e-Evidence Insights

e-Evidence Insights: Paris Las Vegas

MP900433045 I'm making this another category.  First of all, let me tell you that personally, I found evidence – whether civil or criminal – to be one of the most fascinating subjects in law school.  It was also one of the most complex.  As much as I wanted to get my JD and become an attorney, the problem was that I was in my 40s by the time I took evidence class.  That means, I'd had 40 years to think like a layman; re-programming to think like a lawyer was no mean feat.

But, as eDiscovery professionals, I can't think of anything more important to our clients than how we handle evidence.  It's the basis of everything we do, and not just the collection and processing of it.  There's chain-of-custody, authentication, contamination, etc.  I'm not just referring to physically handling the stuff, I'm referring to how the appropriate professionals should have in their mind a methodology for handling it even before it exists.  One false move and this opens the door to impeachment.

So, it is with great fanfare that I reveal that Paris Hilton has finally made it; to this blog, that is!  Why?  Because of how, as a layman, she handled her arrest for cocaine possession.  Not since OJ Simpson and his "ugly-ass" Bruno Magli shoes has someone – figuratively, this time – put their foot so firmly in their mouth; and in doing so, provided us with another outstanding example of how a bunch of seemingly-unrelated statements, photos and social networking posts may ultimately do her in.

Paris claimed – initially – that the Chanel purse wasn't hers.  What contrary evidence is out there?  Her Twitter post with a snapshot of the identical Chanel purse, exclaiming how happy she is with "my" new purse.  Does this definitively prove it's the same purse?  No; when it comes to criminal proceedings, nothing is that simple – nor should it be when someone's liberty is at stake.  However, if she's convicted, Twitter, TMZ and Radar Online may deserve the lion's
share of the credit.

[This story changes by the minute, but the latest appears to be that Paris now admits it was her purse, but the coke wasn't.  Oy…]

Don't ever tell me that "all publicity is good publicity" and expect me to agree with you…I defer to Miranda and the 5th Amendment.  I – and I suspect Ms. Hilton's criminal defense attorney – wish people would exercise their right to silence more often…

Cases of Interest, Duties, Privilege, Zubulake

Don’t be Afraid of the Dark – SUNY

MP900414068 I know you hate it when I do this, but I don't have a lot of spare time and Ralph Losey just did another excellent treatise on the "SUNY" case, which sheds some light on when to issue a litigation hold.

I know you want to know about this because my stats tell me that over a year after I first posted it, my sample of a litigation hold letter – which you see over on the left sidebar – is still the most popular item on this blog.

So, I highly recommend you take a look; and pay close attention to the contrast in privileges.  We need all the guidance we can get.

Admissibility, Cases of Interest, Constitution, Criminal Liability, eDiscovery California, Law

e-Discovery California: We Will…We Will…Track You!!!

MP900433086 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.