Category Archives: Duties

Backup & Recovery Systems, Disaster Recovery, Duties, Law Practice Management, Privilege, Security

Voyeurism: eDiscovery Style

MP900402022 So, my PDA was working fine this morning…then it wasn't.  A total and complete software crash.  I traced it down to an offending app, but it completely hosed (thank you, Canada) the O/S.  And of course, I'm out of town!  So, I located my carrier's nearby retail outlet and headed on over.  They couldn't repair it, even with their "push" software.  However, due to my predicament (out of town and desperate), they were able to swap me over to a new device.  Awesome!

How did I reward them for their excellent customer service?  By hounding the poor tech, first by insisting that he had to wipe my prior device clean and second, by insisting that he show me how he was going to do it, then let me watch.  The store was full, they were busy and I caught a person or two rolling their eyes at my request, but I persevered.

Quite frankly, the tech understood when I explained that as an attorney, there was confidential client info on the device and our ethics rules compel us to protect it (that, or he thought I was just making it all up so he would delete porn, or something…hey, as long as I get it done, let him imagine whatever he wants!)  But take note; I protected client information – as I'm obligated to do – and, I had a recent backup available on my laptop, so I lost virtually nothing.  Good for me; good for my clients!

Sadly, this is the eDiscovery equivalent of voyeurism.

e-Voyeurism?  Nahhhh…

Duties, eDiscovery California, Education, Privilege, Security, Technology

e-Discovery California: State Bar Opinion 2010-179: Wireless Networks

If you're an attorney – or a technician tasked with protecting attorney data, take note of important California Opinion 2010-179 on the duties of confidentiality and competence in the handling of client data (warning: opens seven-page PDF).

Or, if you're pressed for time, see this excellent treatise prepared by the firm Mayer Brown.

Cases of Interest, Cost, Criminal Liability, Duties, Judges, Sanctions, Spoliation

Victor Stanley II: The “Gang that couldn’t Spoliate Straight.”

Pony Up! Anyone remember this?  Back in December 2008, I warned that someday, eDiscovery misconduct would result in a bad actor going to jail.  Well, we've arrived at that point.  Judge Paul Grimm deemed Defendant's spoliation misconduct so serious that if he doesn't immediately pony up for Plaintiff's attorney fees and costs, he faces two years in prison.

As I mentioned last week, I've been tied up in trial, so I'm going to send you to Ralph Losey's excellent (as always) post about the case.

As someone who has personal experience with attorneys hiding the EDD football, I'm all for this ruling.

Note: I included this post in the "Criminal Liability" category because I believe it's an important read to anyone researching the subject; but this isn't a criminal sanction.  I just want to make that clear.

Cases of Interest, Duties, Privilege, Zubulake

Don’t be Afraid of the Dark – SUNY

MP900414068 I know you hate it when I do this, but I don't have a lot of spare time and Ralph Losey just did another excellent treatise on the "SUNY" case, which sheds some light on when to issue a litigation hold.

I know you want to know about this because my stats tell me that over a year after I first posted it, my sample of a litigation hold letter – which you see over on the left sidebar – is still the most popular item on this blog.

So, I highly recommend you take a look; and pay close attention to the contrast in privileges.  We need all the guidance we can get.

Cost, Duties, Implementation, Law

FinReg: The Next eDiscovery Opportunity?

MP900448202 Like it or not, Financial Reform is upon us.  If you're interested in a lengthier treatment, try this.  Both technology and legal professionals who read this blog will run the gamut of opinions as to whether the law is any good; or whether it'll accomplish a thing, for that matter.

However, we attorneys are supposed to be agnostic when it comes to analysis.  We accept that the law exists, do our best to interpret it, then help our clients understand and comply with it.

Compliance.  That's the definitive word.  According to my interpretation, FinReg will require financial firms to implement a mountain of new document management and retention policies & procedures.  In fact, I wonder how some firms will comply, absent a massive capital outlay.

Intent of the law notwithstanding, I think it may generate a ton of new business for those in the ESI arena.  Of course, that presupposes they don't ignore it…

…just sayin'…

Cases of Interest, Criminal Liability, Duties, Security

The Password is ‘P-R-I-S-O-N’

J0387776 This is my 200th post.  Thanks to all the readers out there who've kept this thing going!

This is the bizarre story of a San Francisco network engineer, working for the Department of Technology, who faces two-five years in prison for withholding passwords from the City.  I don't consider this a California story, though; this could happen anywhere.  Follow the link for details, but I'm not posting this to debate his actions or motives (which are somewhat suspect), but to pose a question for the IT people out there; could you envision a legitimate situation where a superior demands a password and you're not sure whether you should surrender it?  How about if there's litigation underway and an e-discovery attorney like myself requests access?

The reason I bring this up is, I was faced with this very scenario once, and although it may seem like the answer is easy, let me assure you, it isn't.

I was the head email consultant in Los Angeles for a world-wide conglomerate, but I reported directly to the domestic CIO, not the world-wide CIO, who was based in New York.  Our CEO & CIO were called to New York for a meeting with the world-wide group.  I received a call from my CIO's subordinate, an Executive Vice President, who informed me that our CEO was being fired, that I was not to ask any questions nor seek confirmation from anyone else, and that I was to immediately disable my CEO's password and supply it to him.

So, I'm being asked by an executive two-levels below the CEO to disable the CEO's password, on his word alone; nothing in writing.  And if it so happens there are political games going on – which occurred frequently at the company – this would result in my firing, at minimum.  "Trust me", he said.

Would you?  I made my decision purely on the good faith of what I was being told, then
hoped I hadn't made the wrong choice.  Luckily, I hadn't.

Unfortunately, the relief didn't last long.  The former CEO sued the company for $66 million shortly thereafter.  Yes, crazy things like this do happen…this is why E&O insurance exists.