Category Archives: Cases of Interest

Cases of Interest, Constitution, eDiscovery California, Judges, Law, Technology

e-Discovery California: The Friday Brush-Off

J0403056 Forgive me for my limited time this week.  As we harken back to "Privacy Week", comes word that the Supreme Court is going to rule in the spring – for the 1st time – on texting and privacy, specifically the City of Ontario, California's appeal arising out of the 9th Circuit case, Quon v. Arch Wireless, 529 F.3d 892 (9th Cir. 2008) [Warning: Link opens 24-page PDF].

My colleague, Ralph Losey, has done a superb treatise on this subject, so I'm going to port you over if you'd like additional information.  I'm particularly fascinated by the 4th Amendment issues raised in this case (there I go again…criminal & Constitutional aspects…), plus, as a technology consultant, I've had a hand in crafting corporate policies regarding electronic communications many times in the past.

My opinion?  I'm staying with my usual view.  Texting someone using your corporate device is similar to having a conversation on the telephone from your office cube – where anyone around might hear you.  I'm not saying the content of the text (or phone conversation) isn't technically private, but by transmitting it by way of someone else's device, you're basically creating a waiver (in my mind, anyway).

What if an employee transmits child porn through their corporate device?  Is that private?  Does that not ensnare the company?  Is the company culpable for allowing child porn to be transmitted?  How would the company know unless it's allowed to monitor & review transmissions?  Just a few simple questions for you to ponder…this is your chance to emulate a Supreme Court justice.

More 'stuff' is on the way from me…as soon as I can ration the time to post it!

Cases of Interest, Constitution, eMail, Law, Technology

Privacy: There’s Still Hope

J0398947 Wow.  Four posts in a row on privacy?  I think that's a record…

But I have to be fair.  The Wall Street Journal published this dissenting view on where the trend is headed.  In fact, they cite a case I covered for you back in August to support their claim.  To be honest, when I speak of privacy I'm usually referring to using company products to conduct company business (unless you use your personal PC for that purpose).

However, the bottom line is this; it's still a crap-shoot.  If you're going to perform non-business-related duties on a company PC, you run the risk that someone is going to see it.  Going forward, the question will be, what can they do with it?

Cases of Interest, Miscellaneous, Technology

“A World without Anonymity”

J0387752 In this summary of five recent cases, CNN Tech asks, "Can the Law Keep Up with Technology?".  Yeah, I know…I'm harping on privacy again…what can I say?  Good things come in threes…

My only other two comments are, 1) you're not supposed to start a sentence with the word 'can', and, 2) the answer to the question is 'no'.  There.  Solved.

The law will never be able to keep up with technology.  The day the law keeps up with technology is the day Congress is replaced by Deep Blue.

In the meantime, CNN's summary is worth a look.

Cases of Interest, eMail, Sanctions, Spoliation

Case Got Your Tongue? Corrections, Cavalier Attitudes & Black Holes

J0309277 Our 'privacy' theme continues on…

Like it or not, you don't enjoy the level of privacy you think you do, and copping an attitude about it only makes things worse.  For example, I regularly caution my clients about their third-party agreements.  I don't care that your contract says the third-party is required to cooperate.  When litigation arises, many of those same third-parties will ignore the agreement and circle the wagons.

Take a look at Dawe v. Corrections USA, 2009 U.S. Dist. LEXIS 96461 (E.D. Cal. Oct. 1, 2009).  The third-party defendant refused to comply with plaintiff's request to inspect defendant's personal computer.  I'll make this short and sweet; defendant lost the argument.

Third-parties aside, how about non-parties?  In Thayer v. Chiczewski, 2009 U.S. Dist. LEXIS 84176 (N.D. Ill. Sept. 11, 2009):

"A non-party email service provider that displayed a "cavalier attitude"
toward defendant's subpoena seeking email deleted by plaintiff prompted
the court to order the provider to show cause why it should not be held
in contempt and to pay defendant's reasonable fees and costs in
obtaining discovery about the provider's ability to recover plaintiff's
email."

I'm including Laethem Equip. Co. v. Deere & Co., 2009 U.S. Dist. LEXIS 86109 (E.D. Mich. Aug. 31, 2009) simply for the eloquence of the judge in explaining where e-discovery has brought us:

The defendant's motion for sanctions is "a further example of how discovery has become a veritable 'black hole'
having the potential to draw in and annihilate the case itself,".

In a perfect world, cases are decided on the merits.  Instead, parties are increasingly using procedural moves as battering rams, and I think this does a disservice to us all.

Backup & Recovery Systems, Cases of Interest, Criminal Liability, Law, Sanctions, Spoliation, Technology

Case Got Your Tongue? Arrest, Lies & Videotape

J0407481 Hat tip to my colleague William Hoffman…

I thought I wasn't going to find anything relevant for my usual Friday post, but Peschel v. City of Missoula, 2009 WL 3364460 (D. Mont. Oct. 15, 2009) has it all; alleged crimes, police brutality and missing video from a police cruiser.  I'm pressed for time, so I ported you over to K&L Gates for a look at the details, but here are Mr. Hoffman's comments:

"Finding
that a video of Peschel’s arrest was lost as a result of the city’s
recklessness, the court granted defendant’s motion for sanctions and
“designat[ed], for purposes of the case, that the arresting officers used
unreasonable force to effect the arrest of [defendant].”  What struck me
was the failure of the city to back up the data on its computer (particularly
the video) was determined to be reckless, thus paving the way for severe
sanctions."

From the case itself:

“The department failed to have any type of
back-up system in place to ensure the preservation of the video recordings. In
view of the importance of the video recordings, it went beyond mere negligence
for the department not to have adequate safeguards in place for protection of
the recordings.”

Have a good weekend.

Admissibility, Cases of Interest, Constitution, Criminal Liability, Law, Technology

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.

Backup & Recovery Systems, Cases of Interest, Cost, Disaster Recovery, Judges, Sanctions, Technology

Redux: Orly gets Sidekicked!

Einstein Time is Money

We're revisiting two former posts today to see how things are working out…

First, we have birther Orly Taitz.  Her frivolous filings have resulted in a $20,000 sanction from judge Clay Land.  She has a lot of supporters who I'm sure will raise the cash for her, so I don't think it'll serve as much of a deterrent.  But maybe this will; the judge has also referred his order to the State Bar of California.

If you want to read a PDF of the judge's order, click here.

Second, we have the Sidekick smartphone and all of the lost user data.  I've been following this story with interest.  Microsoft has issued a recovery tool, but it only applies to contacts, not all of the other data such as photos and notes.  As expected, class-action lawsuits are flying, but many will fizzle out if the recovery tool works.

At this point, there's no solid confirmation that users have recovered data – or what particular data has been recovered – but there's a moral to this story.  It originally hit the news wires around October 10th and the recovery tool was to be available yesterday. 

Moral #1:  Can you afford to be out of commission for two weeks?  When you trust your data to the cloud, make sure it isn't the kind made up mostly of vapor.

Moral #2:  Always, always, back up your own data whenever possible.

Admissibility, Cases of Interest, Constitution, Criminal Liability, Sanctions, Spoliation, Technology

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.

Cases of Interest, Law, Metadata, Privilege, Spoliation, Strategy

Case Got Your Tongue? Restless Natives, Whitecaps & a 3-Hour Tour

 

J0437252

This month’s summaries produced a lot of interesting cases and also told me one thing; it’s still mostly about ignorance.  Companies – and the firms that represent them – are continuing to get into hot water because they either don’t know the rules, or don’t comply with them when they do.

A couple of themes became apparent, so I’m using four cases (two each) to address the areas of privilege and native formats.

IT’S MY PRIVILEGE TO DEPOSE YOU

Imagine you’re in the middle of a deposition and the first hint that you’ve inadvertently disclosed privileged information is when your opponent produces it.  What do you do?  Is that considered a waiver?  Those are the facts of Coburn Group, LLC v. Whitecap Advisors LLC, 2009 U.S. Dist. LEXIS 69188 (N.D. Ill. Aug. 7, 2009).  The first thing to assume; your opponent, if they’re on the ball, will virtually always try to claim it’s a waiver because that’s simply good strategy.

However, the judge didn’t see it that way and took into account new rule 502(b)(1) (new as of 9/14/08) and focused on the factors of mistaken production and the reasonable steps taken to correct it.

Major Tours, Inc. v. Colorel, 2009 U.S. Dist. LEXIS 68128 (D.N.J. Aug. 4, 2009) – I don’t care what document is at issue; even a litigation hold letter as in the facts in this case.  Claims of privilege and/or work product doctrine notwithstanding, if it’s relevant to the proceedings it may become fair game.  Act accordingly.

THE NATIVES ARE GETTING RESTLESS

There still seems to be a lot of chatter regarding metadata.  It’s an area ripe for manipulation and abuse because a lot of people don’t really know what it is or how it’s used.  Craig & Landreth, Inc. v. Mazda Motor of America, Inc., 2009 U.S. Dist. LEXIS 66069 (S.D. Ind. July 27, 2009) is more of a traditional case in that the metadata is being requested because it’s relevant to the proceedings.  But see Covad Communications Co. v. Revonet, Inc., “Covad III”, 2009 U.S. Dist. LEXIS 75325 (D.D.C. Aug. 25, 2009) which uses metadata virtually as a cross-referencing tool to address an inconsistency.

Metadata is not one of those terms I repeat often for entertainment value.  When relevant, it can make or break a case.

Be careful when you wade into those legal waters…

[Has anyone else noticed that I use a lot of metaphors that involve H2O?  What’s that about???]

Cases of Interest, Constitution, eDiscovery LOL, Judges, Miscellaneous

e-Discovery LOL: Orly got her Taitz Caught in the Wringer!

1 Comment
"Finally, in a remarkable shifting of the traditional legal burden of
proof, Plaintiff unashamedly alleges that Defendant has the burden to
prove his "natural born" status. Thus, Plaintiff's counsel, who
champions herself as a defender of liberty and freedom, seeks to use
the power of the judiciary to compel a citizen, albeit the President of
the United States, to "prove his innocence" to "charges" that are based
upon conjecture and speculation. Any middle school civics student would
readily recognize the irony of abandoning fundamental principles upon
which our Country was founded in order to purportedly "protect and
preserve" those very principles."
"Plaintiff's complaint is not plausible on its face," Land concludes. "Unlike in Alice in Wonderland, simply saying something is so does not make it so."