Category Archives: Constitution

Admissibility, Constitution, Criminal Liability, e-Evidence Insights, Education, Strategy

e-Evidence Insights: ABC’s Primetime Crime: Inside the Interrogation Room

MP900448352 Many people have absolutely no idea what would happen to them if they were arrested.  In fact, it would shock them if they knew what the police are allowed to do versus what they think the police are prohibited from doing.

Television has conditioned the average person to think like this:

  1. The police 'invite' me down to the station for a chat
  2. I speak to them without an attorney present
  3. I go home

Or, maybe something like this:

  1. They arrest me
  2. They read me my Miranda rights
  3. I ask for an attorney

If only it were that simple.  If you have any interest in seeing an example of how things really might work, watch this 41-minute video from ABC's Primetime Crime (or read the article if you prefer).  I found it to be an excellent – and accurate – portrayal of interrogation tactics.

Hey – I'm not asking you for a lot of heavy lifting at the start of the Labor Day weekend!  Besides, forewarned is forearmed.  Please be safe – and if you're traveling, don't put this post into practice by getting snagged for a DUI.

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…

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.

Cases of Interest, Constitution, eDiscovery California, Law, Scope

e-Discovery California: Reasonable Search: SCOTUS Decides Quon Case

MP900443158 We've been waiting for the decision on Quon to clarify Constitutional issues of employee privacy while using an employer-supplied electronic device.  Bottom line: by unanimous decision, the Supreme Court ruled that, under the facts of this case, the search was reasonable and Quon had no 4th Amendment expectation of privacy.  I say "under the facts of this case" because the Court ruled on narrow grounds.

Justice Anthony Kennedy stated quite eloquently, "Because the search was motivated by a legitimate work related purpose,
and because it was not excessive in scope, the search was reasonable."

In my opinion, that's a beautiful sentence.

Constitution, Cost, Judges, The Bench

The Bench: CA Superior Court Lays Off 329

J0403716 I'm starting a new feature called "The Bench".  In keeping with the California-based theme of my blog, I want to update you on notable events occurring within the Superior Court system.  I'll also keep an eye on the Federal District Court.

I recently attended a symposium in which some judges offered a very bleak outlook for the courts in the near-term.  We were informed of the impending first round of cost-cutting measures that I cited in the headline, and as the article mentions, this is just the beginning.

According to additional information I've received, it's estimated that the cuts will ultimately grow to 1,800 – and at an estimated ten employees needed to support each courtroom, that means eventually 180 courtrooms could be shuttered.  Maybe I should say 'shuddered', because that's how several of the attendees reacted as they exited the symposium.

The judges estimated that, by the time all of the cuts are made, civil litigation may take up to four years or more to reach trial.  That's a sobering statistic; especially since the Rules of Civil Procedure don't allow for indefinite delays.  And it's a non-starter in criminal cases (defendants have a constitutional right to a speedy trial).

In four years, I'd expect the litigants to forget what the original dispute was about!

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?