Category Archives: Constitution

Constitution, Law, Privilege, Technology

Pop! Goes Your Privacy!

Chicken-Little Remember how I went on and on about the fact that what you do and say in your personal life (particularly online, after all this is an e-discovery blog) may become relevant in a legal proceeding?  Remember how I told you that there are several cases pending that might completely change the definition of privacy?  And remember when I nagged you like your (Please fill-in-the-blank here; mother, grandmother, psychiatrist, attorney, etc.  Hey – I'm not dumb enough to actually name someone and make them mad at me!) when I implored you to stop making those inappropriate posts on Twitter/Facebook/MySpace, etc.?

Well, this headline says it all:

Judge: Buffalo Grove trustee can get Web poster's ID

For those who are pressed for time, this is the relevant portion:

"Buffalo Grove
Village Trustee Lisa Stone should be told the name of the man she
accuses of making defamatory online comments about her 15-year-old son,
a judge ruled Monday in a case being watched for its Internet privacy
implications.

Cook County Circuit Judge Jeffrey Lawrence ordered that the identity
of a person known online as Hipcheck16 be turned over to Stone."

We can debate the Constitutional implications of the ruling itself, but truly, this goes all the way back to the 'shouting fire in a crowded theater' argument.  Post-mortems don't interest me much; I deal with what is, and what will be, not what was.  To paraphrase a certain election campaign, it's about the future, stupid!

On a fairly regular basis, I'm accused of being "Chicken Little".  Perhaps my detractors are right.  Maybe it's because I was a boy scout when I was a kid (Be Prepared!) or perhaps it's from all of those years protecting my clients from what might happen, not just what I could identify as likely to happen.

If I weren't doing what I'm doing, maybe I'd have become an actuary (I'd say 'bean-counter', but for those who know this blog well, the only beans I'd be counting are coffee beans…).

It sucks being the wet blanket.  It sucks constantly warning people about risks.  But here's the thing; technology is moving much faster than our ability to understand what we're doing with it.  There used to be an admonishment; when angry, count to ten before acting.  Now, not only do we not count to ten, we immediately grab our always-within-reach Blackberry and post on Facebook!

So, here's a question for you to ponder over the weekend; do you think Hipcheck16 wishes I'd have been his wet blanket?

Constitution, International, Law, Privilege

Run for the Border!

J0442382 For those who travel to and from the United States, I thought it would be useful to re-visit the revised DHS guidelines announced August 27, 2009.  This article from the Canadian Bar Association sums it up very well.  To quote them directly:

"U.S. Customs officers have the authority to search and detain any
device capable of storing electronic information for any reason; they
can examine the electronic device without the traveller present; they
can copy from the device or “detain” the device; and they do not need
to obtain the traveller’s consent to conduct the search. “Electronic
devices” can include computers, BlackBerrys or similar devices, cell
phones, travel drives, DVDs and CD-ROMs, cameras, music and other
electronic media players."

Two things:  1) Yes, they use two 'ls' in the word 'traveller' in Canada, and 2) I wonder how many execs at your firm know about these rules?

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.

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, 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."
Admissibility, Cases of Interest, Constitution, Criminal Liability, Duties, Law, Privilege, Sanctions, Spoliation, Technology

State of the (e-Discovery) Union; The Sequel

Aspirin My prior post was the Reader's Digest version.  Now, get ready for the migraine version…

Gibson, Dunn & Crutcher LLP has released a comprehensive mid-year update on e-discovery.  This is simple, folks.  If the responsibility for e-discovery sits squarely on your shoulders – and if you take that responsibility seriously – you need to read this publication, no matter how long it takes or how painful it might be (I have some aspirin if you need it…it'll come into play when you read about the increase in sanctions…)