Category Archives: Criminal Liability

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.

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.

e-Discovery California: I, Witness

J0434085 I'd probably file newly-signed California SB 748 under 'good intentions, questionable results'.  This new privacy law results in a misdemeanor if one posts data on the Internet that
discloses information about witnesses or their family members if the
intent is to injure them or incite violence.

Here are two notables from the article:

"The impetus behind the bill was preventative, DA's office spokeswoman
Erica Derryck said. "This is an example of our office recognizing the
way in which technology is used," she said."

…and…

"The bill also allows witnesses to submit opt-out forms to Internet
search engine providers to keep their identifying information out of
public databases. Businesses and agencies are required to take down
identifying information about a witness within two days of receiving
such an opt-out form, or face a $5,000 civil fine."

The law targets gang activity in particular, which should tell you why this isn't going to work.  Gang members who are interested in witness intimidation or worse are not going to be intimidated by a misdemeanor for posting data on the 'net.  Conversely, the idea that one can police "businesses and agencies" in this manner tells me that the D.A.'s office doesn't recognize 'the way in which technology is used'.

I guess they forgot to call me to get my opinion on this one…

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.

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…)

The Most Interesting Man in the World…(at LegalTech)…

Interesting Man …wasn't playing Jai Alai…he was attorney Browning E. Marean III from DLA Piper, who deconstructed international e-discovery for 90 minutes…

Sorry for the break, folks.  The long weekend got longer and longer…and then there was Monday…

'Lotta traffic on my sites – everyone's interested in the new "Act"…but I gotta get back and finish my piece on international e-discovery from LegalTech I promised you last week.

I've had my eye on this subject for a while.  I spent half my life living outside the United States – so of course I have some perspective on it – but I don't think that matters much.  It may not happen tomorrow or the next day, but it will happen.  Some day, you'll face an issue that involves a foreign nation.  When that day comes, you've got at least three issues:

  1. Language – if you're lucky and the other country is also an English-first nation, that'll solve one big problem, eh?
  2. Laws – if you act as if you're in the United States, you could receive a big fine and face jail time.
  3. Technology – more on that later.

There I go, harping on the criminality angle again…but here's a real world example for you…

A seemingly innocent violation of the law may bring a penalty of 10,000 Euros and six months in jail.  Lesson learned: know what you're doing before you set foot on foreign soil – or hire someone who does!

But I'm getting ahead of myself.  Mr. Marean was joined on the panel by George I. Rudoy, Director of Global Practice
Technology & Information Services for Shearman & Sterling.  Also present was
Michael R. Polin, Esq. from the International Law Firm
of Michael R. Polin.

Foreign nations (by the way, yes, Canada does qualify as a foreign nation for our purposes) have Blocking Statutes.  You do not want to violate them or you may face penalties as described above.

A primary issue is what to do with a foreign document when you want to 'take it back to the office'.  Many countries have strict definitions of what "taking a document out of the country" means.  Is it theoretical?  Is it physical?  These are the details you must know before you act.  It harkens back to Constitutional Law; what is a "taking"?

This of course begs the question, if you can't take it out of the country, how will you get it into evidence?  A custodian?  A notary?  An intermediary?  May a third-party testify that they're examined the document?

Another major issue; what is "privacy"?  Unlike the US, many foreign nations don't believe that privacy ends where the corporate entity begins.  They consider data generated by employees to be "personal data" and therefore subject to privacy laws.  Be ready for this.

What about technical matters?  ASCII contains 128 characters.  International documents that involve Unicode may contain thousands upon thousands of characters.  Do you have the technology in place to be able to translate these documents?

And while we're on the subject, do you have a translator?

A lot of questions that you need to answer.  Dang it!  I can't even use the catchy finish that if you don't it'll all be 'lost in translation' because I already used it a long time ago…

Case Got Your Tongue? Mirror, Mirror & Searching the Forest

J0440920 Another interesting collection of cases crossed my desk, recently.  I'm going to refrain from writing about the "wake-up call" case because it's being cited everywhere.  Besides, if anyone hasn't noticed yet, my entire blog is about that.  Furthermore, we already know about my issues with waking up

By coincidence, two of the cases involve mirror-images of disks; however, the issues in each are completely unrelated.  Also, we have another illustration of how, when rules aren't followed to the letter, one can destroy a criminal case.

Am. Family Mut. Ins. Co. v. Gustafson, 2009 WL
641297 (D.Colo. Mar. 10, 2009)

YOU GOT IT, I TAKE IT – Plaintiff requested that the court set the protocol for the inspection of the mirror-image of Defendant's hard drive.  The court obliged, and in doing so, provided what I think is an excellent guide for anyone undertaking this process.

Forest Laboratories, Inc. v. Caraco Pharm. Laboratories, Ltd., 2009 U.S. Dist. LEXIS 31555 (E.D. Mich. Apr. 14, 2009)

ZUBULAKE – There's only one way to describe this case; Zubulake Duty applies, except when it doesn't

I can't count how many times on this blog I've referred to how
exceptions to a rule may be more dangerous than the rule itself. 
Forest illustrates that point.  This falls under the "knew, or should
have known" category.  The court is saying that if Plaintiff knew, or
should have known that ESI might be relevant to a dispute in the
future, they should have sought to preserve it – for key employee documents only – contrary to existing
company policy.  A tall order.  Talk about hindsight!

State v. Dingman, 2009 Wash. App. LEXIS 550 (Wash. Ct. App. Mar. 10, 2009)

This case also involves mirror-images of hard drives.  It should serve as a cautionary tale to anyone on the prosecutorial side of the equasion.

The State seized Defendant's computers.  Defendant wanted mirror-images of his computers' hard drives in a certain format and the State refused to provide them in that format.  The court found this to be prejudicial to Defendant and a violation of his Constitutional rights.  Defendant's conviction was overturned.

Still think the 4th, 5th & 6th Amendments don't apply to e-Discovery?

e-Discovery Creates a Moral Dilemma

J0422326 Every once in a while, life throws you a curve-ball…

One of the things that surprised me when I was in law school was the graphic detail in many of the cases we studied.  To put it mildly, they don't mince words.  Everything is described specifically and deliberately, down to the smallest detail.  Honestly, it's not for the faint of heart.

When I clerked at the Los Angeles County District Attorney's Office during law school, I worked on one case for three years.  It involved the kidnapping and gang-rape of two women by some very unsavory characters.  How unsavory?  Well, the Defendant in my particular case was sentenced to something akin to 500 years in prison (whenever I tell the story, I always follow up with the quip, "Don't worry – he's up for parole in 325 years…")

My boss gave the case to me because I was much older than the other law clerks and they were having trouble dealing with the graphic testimony.  It was difficult for me as well, but I managed.

Now comes another element to e-Discovery that I hadn't considered.  As you know from my writing, I'm firmly concentrating in the area of corporate law.  You might say that criminal law is a hobby – but I don't think one can ever use that term when someone's liberty is at stake.  The fascinating thing about criminal law is the 'mens rea' (guilty mind) aspect.  How do you crack open somebody's mind and show what they were thinking?  Besides, with these cases, even if criminality is ever in question, we're talking 'white-collar' crime, here.  How bad could it be?

And then I was approached regarding a completely different kind of case…

…a child-porn case, to be exact.  On the defensive side.  Might even entail expert testimony.

The attorney emailed me the new Tecklenburg case (warning: link opens 28-page pdf) from Westlaw that is at issue.  When I saw the words "children & pornography" in the search results in the body of the email, I had a visceral reaction – as I think most of us would.  I didn't even want to discuss the case using email, lest some spam filter – or worse – detect those words in my correspondences.

And therein lies the dilemma.  Attorneys aren't obligated to take a particular case; and certainly consultants aren't, either.  But here, a fundamental principle of our Constitution is at stake – Defendant is innocent until proven guilty.

What would you do?

I'm still thinking…

DUI: ‘Driving’ Under the Influence: Too Much ‘Fluid’ity

A handsome Irish American man with green beer on St. Patrick's Day.  White background.

Sorry – I’m going after Twitter, MySpace & Facebook again…it seems somehow fitting a few days before St. Patrick’s Day…

Supposedly, we look at technology as a tool to make things easier for us in our daily lives.  Yeah…easier for us to make damn fools of ourselves.  Let’s do a
little ‘new’ math:

A + D + K/BP – J = T

Alcohol + Drugs + Keyboard/pad – Judgment = TROUBLE

When I was on the front lines of support, we had a great inside joke about the average ‘driver’ (in tech, we refer to the person operating the PC as the driver).  It went like this:

Tech Support Guy #1:  Great news!  We figured out what’s wrong with Bob’s PC!
Tech Support Guy #2:  Awesome!  What’s the problem?
Tech Support Guy #1:  It’s in-between the mouse and the chair…

(insert laughter and applause here)

Go back and read my two-part series on ESI.  If you get anything at all out of the review, remember one word – and one word only – relevance.  There still seems to be a disconnect with many of the people I speak with about what makes something evidence!

Let’s take a statement, for example.  What was said, who said it, where it was said, when it was said and why it was said are all factors, of course.  But what gets it in for the purposes of a legal matter is its relevance to the issue at hand.

Knowing this, why are you smoking joints and/or drinking a six-pack of beer, then running your mouth on your social network?  And why are you posting those photos of you & the gang hoisting beers with the caption, “PARTYYY!!!” underneath?

You wanna make the ‘privacy’ argument?  The law is fluid, not static.  What’s illegal today may be legal tomorrow – and vice versa – so go ahead and hang your hat on that one.  Besides, say the wrong thing in the wrong forum and you waive your right to privacy!

If this sounds like a stern lecture to the younger crowd, I assure you, it’s not (although of course by any measure, the younger crowd makes the most use of social networking by far).  But here’s the problem.  The younger crowd becomes the older crowd someday (yours truly is still young at heart).  You are making mistakes you can’t undo – not even with the ‘delete’ key.

This isn’t an argument about past mistakes or even present ones.  This is about the future.  Whether you ask yourself how an off-hand remark today can somehow be relevant five years later isn’t the point.  You don’t know what you’ll be doing five years from now, anyway.  But trust me, it will be relevant and the judge isn’t going to care that, “well, I was young and drunk at the time”.  That’s not exactly a sterling character reference.

There are a plethora of articles about the perils of social networking in relation to background checks, jobs, etc.  That’s not my area of purview.  You may not just be screwing yourselves.  You may be screwing your j0385315employers, and whenever those two worlds collide, it opens up a slew of legal, ethical and privacy arguments – and you will lose many of those arguments.

Social networking has the potential to be like that tattoo you regret getting when you were
drunk last night or the morning after, when you wake up and can’t
recall what you did the night before…

For your sake, I hope it wasn’t spent sitting between the mouse and the chair…