Category Archives: Criminal Liability

Cases of Interest, Criminal Liability, eDiscovery California, Sanctions, Spoliation

e-Discovery California: Deutch in Dutch with AG for Spoliation

MP900314122 How long does it take to shred 2.7 million documents?  I guess it depends on whether 'Tax Lady' Roni Deutch used machines or simply hit the 'delete' key.  Inconsequential; as we already know, destroying documents in violation of a court order will certainly lead to sanctions.  However, this time, our new California Attorney General, Kamala Harris, is seeking jail time for contempt.

This is one of two high-profile cases of this type.  The other involves a Houston, TX company called TaxMasters, although I'm not aware of any e-discovery-related issues with that case.  However, it's no coincidence that these cases receive stepped-up coverage at tax time.

Nevertheless, I'll be following the outcome of the former case.  It's not every day an AG calls you a "predator for profit".

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

e-Evidence Insights: Tattoo You

MP900442430 I'd have to twist myself like a pretzel to try to make this post about e-discovery per se.  It's more about the advice I've given before regarding thinking creatively about where evidence might be hiding – and in what form it might be hiding.  In this case, it was hiding in plain sight.

Perhaps the only thing remotely electronic about the evidence at issue is a photograph in a mug book.  Tracking suspects through their tattoos is nothing new, however, this is the only time I've ever heard of an alert detective catching a criminal because the very crime scene is detailed on his chest.

Talk about 'body' of evidence…

Backup & Recovery Systems, Cost, Criminal Liability, Disaster Recovery, Duties, Implementation, Management, Sanctions, Scope

Japan Epilogue: (Un)Safe Harbor: 10% x 50 Years = Prison?

MP900321207

We started with a premise:  A disaster has occurred.  What now? 

We segued into a limited examination:  Were we properly prepared?  Why or why not? 

Now, comes the all-too-familiar Watergate-esque finale:  What did we know; and when did we know it?

According to this comprehensive report, officials were warned that there was a 10% risk within a 50-year span of a tsunami swamping the protective barriers of the Fukushima Dai-ichi nuclear power plant – and disregarded it.  What result?

  • Human toll: incalculable
  • Environmental damage due to radiation contamination: incalculable
  • Damage to 'hard assets' (plant, equipment, etc): incalculable
  • Near-term cost to replace loss of % of daily supply of electricity to Japanese citizens: incalculable
  • Evacuation and relocation costs: incalculable
  • Current financial losses to shareholders of TEPCO: $30 billion dollars of market value
  • Errors and Omissions losses to insurance carriers: incalculable

I could go on, but you get the idea.  Now for the bad news.  That's not the worst of it.  How about:

  • Liability of executives, government officials, etc. for negligence.  I'm referring to all liabilities (i.e., not just financial issues), since some parties may enjoy sovereign immunity; but that doesn't address their political liabilities.
  • Liability of executives, government officials, etc. for criminal negligence.  Think that it isn't a distinct possibility?
  • Liability of corporate executives to their shareholders for massive losses due to lack of reasonable prudence.

You know what?  I have to stop now.  This feels ghoulish.

The point I'm making is, certainly, this is about as bad as a disaster gets, but we can all learn from it because there's only one item we need to change – scale.  Plus, the most important thing relevant to us in the real-life case study we're now seeing is what happens when we're wrong.

Worried eDiscovery clients always ask me how they're ever going to do everything right.  I tell them, there is no such thing.  It's impossible to anticipate everything, but as a rule of thumb, the fallback position is the basic negligence standard:

Knew, or should have known.

If they acted in good faith based on what they knew or should have reasonably anticipated at a given point in time – and present a defensible position as to why they acted – they'll likely preserve safe harbor.  Naturally, one can never completely account for the odd rogue judge.  The day all judges rule alike is the day I give a specific answer.  In the meantime, you do the best you can.

The key is in making sure you have the appropriate harbor pilot.

Criminal Liability, eDiscovery California

e-Discovery California: Crib Notes – Circa 2011

MP900178016 Ahhhh…the youth are our future.  No…really…they are.  We'll be seeing them in court. 

Whether we like it or not, pound-for-pound, the younger set knows way more about technology than we might like them to know.  And, as it's been said, a little knowledge is a dangerous thing.

Turning twenty-one should be about becoming an 'adult' (whatever that means, these days) and being able to have a beer at your local bar – not committing your first series of computer felonies.

The kid is caught cheating on an exam, so he breaks-in (physically, in this instance) and steals the evidence that he cheated on the exam!  How's that for ingenuity?

You've heard of the "Bling Ring"?  Well, I dub these lads the "Token Ring".

If you know what token ring is, go to the head of the class!

Criminal Liability, e-Evidence Insights, Education, Security, Technology, vDiscovery Insights

v-Discovery Insights: Everything ‘Pops’ with Pringles – Just ask the FBI…

Pop: (verb – transitive): slang.  To Arrest, e.g. "Johnny got popped selling heroin."

Courtesy of MSNBC.com, this video illustrates beautifully (if you can call it that in this context) how easily one may hack into your router – and the amount of trouble you may get into as a result.  This is what cyber-crime really looks like.  Do you want to bank on a competent law-enforcement technician believing your explanation, then doing the legwork necessary to establish that you're not a child-pornographer?

Remember when I said I was going to start posting videos on this blog?  Yeah, me either…it was that long ago that I said it, but obviously haven't done it.  Well, I'm going to do it, but in the meantime, I've been sitting on "v-Discovery Insights", which I was diligently saving for the occasion.  I've decided it would be good to use with all of my posted videos – whether they're mine or not – so that you can select them as a category.  So, there you go.  From now on, all videos posted here will have that tag.

Now comes the hard part – deciding whether I want to go back through 325 posts and tag the prior ones!