Category Archives: Duties

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

I Can’t Really go to Jail over this…Can I?

As sanctions mount for those who have run afoul of the new e-discovery rules, debate is raging about criminal liability.  To some, the threat is very real.  They recommend extreme caution.  To others, it’s nothing more than a scare tactic.  They say the threat of incurring criminal liability over an e-discovery issue is slim to none.

Who is right?

I’ve neglected to link articles from both sides of the debate.  The reason; it’s not my place to criticize the writers – they make very strong arguments, for and against.  It just so happens that, in my opinion, the answer is somewhere in between.  Perhaps the reason many people think that criminal liability
is unlikely to attach flows from the possibility that they’re not thinking broadly enough.  In other words, they’re not taking into account who might be ensnared in the e-discovery net.

ca. 1990s --- Cat Staring at Goldfish --- Image by © Aaron Horowitz/CORBIS

The logic works in reverse.  The higher up in the e-discovery food chain you are, the more likely you’ll be eaten.  The small fry aren’t likely to get themselves in trouble, barring egregious conduct of some sort.  The standard of what would rise to the level of a criminal act may be high – but the liability exists.  So, who should be looking over their shoulder?

The White House (possibly violating the Federal Records Act), A former Broadcom Corporation executive (accused of obstruction of justice) and former Credit Suisse First Boston investment banker Frank Quattrone (also accused of obstruction and witness tampering) who endured a four-year ordeal for encouraging his employees to essentially ‘clean up those files’.

And the lawyers?  Six of them were referred to the State Bar of California for possible ethical violations in the Qualcomm v. Broadcom case.  A crime?  No, but facing various penalties up to and including disbarment, my guess is it feels like a crime to them.

If you reviewed the links, you’ll note that I’m not necessarily
concerned with whether the principal was convicted of – or plead guilty to –
committing a crime.  It’s scary enough just reading what actually happened – or could happen.

We’ve all heard the term, “Ignorance of the law is no excuse.”  That rule-of-thumb applies to e-discovery also.  One can commit a crime without realizing it.

j0387725If you’re a tech, and the boss tells you to delete data – and you simply follow his orders – if he instructed you in order to hide wrongdoing, he’s likely to be in trouble, but what about you?  If the facts are as stated, probably not.  But what if your company has an ESI policy, your boss’ instruction violates that policy, you know this, but you do it anyway?  Did you just become an accomplice to a crime?  Will the common explanation, “I was just following orders” get you off the hook?

Obviously, we’re not taking a crash-course on criminal law today.  There are so many hypothetical scenarios that could occur, with so many different facts that it would be impossible – and irresponsible on my part – to attempt to tackle all of them in a blawg post.

What I endeavor to do is to impress upon you that a snap decision that didn’t make you think twice in the past could burn you in the future.  ESI for it’s own sake doesn’t normally make one think of crimes.  But now, we’ve entered a new arena.  The law is involved, and if data “goes missing” in this context, your adversary – or the court – may infer that something fishy is going on.

Is it worth the time, expense, stress, loss of reputation and threat of incarceration?  The outcome is beside the point.  Even if you’re exonerated, where do you go to get your lost time, money and reputation back?

Duties, Strategy

Speaking: Lost in Translation

2 Comments

“Language is the source of misunderstandings.”
— Antoine de Saunt-Exupéry

j0438482Attorneys.  High-tech professionals.  High-tech professional attorneys.  Management.  Laymen.  Not only do they have to communicate between themselves, they have to communicate with all of the support staff that will handle an EDD issue.

Many cases also involve foreign participants – and, as logic will follow, their data.  Nothing like adding multiple languages to the mix to really complicate matters…

What we got here is a potential failure to communicate.  A potential failure of grandiose proportions.  What steps can be taken to avoid it?

Attorneys follow rules of discovery – electronic or otherwise – from state & federal civil procedure and criminal procedure law.  Procedure is the ‘road map’ of every case.  It’s the nuts & bolts of the legal system – the ‘plumbing‘, if you will..

Technology professionals are tasked with creating a ‘map’ of their hierarchy in order to identify, preserve and collect ESI.

Management has a vested interest in both groups being excellent cartographers.

Does this cover every contingency?  Who else might we – or our colleagues – be responsible for communicating with about this?

Young Businesswoman with Her Finger on Her Lips --- Image by © Royalty-Free/Corbis

Proportion is a major factor.  The larger the parties involved, the likelihood increases exponentially of laymen taking an interest (public or private shareholders, staff, reporters, etc.) who have no experience with either discipline.  The rumor mill starts grinding.  Like it or not, there may be public relations aspects to all of this.

The attorneys and technology professionals who ‘make it happen’ will not likely be directly exposed to this part of the equation, but there is one element they should be concerned about; making sure that the information flowing upward – and downward, for that matter – is accurate and concise for the benefit of those who will be directly exposed.

Credibility is key.  A mistake that initially appears to be harmless can turn into a nightmare for a professional who is held to a particular standard of duty.  These duties may involve split loyalties, and worse, there is a risk to the parties that their duties may diverge.  One may be forced to walk a tightrope.

Corporate executives may have duties to their companies, their counterparts, their shareholders (if they’re structured that way) and the public.  Attorneys – first and foremost – are Officers of the Court, and this duty supersedes all others.  Disseminating incorrect and/or misleading information – even when unintentional – may get these people in hot water.

We all must take care to assure that this doesn’t happen.  That’s our duty.

Backup & Recovery Systems, Duties, Sanctions, Technology, Zubulake

Attorneys – Get with the ‘Program’

An interesting survey appeared in the September 2008 issue of the American Bar Association Journal.  The subheading states, “Lawyers Slow to Adopt Cutting-Edge Technology“.

I took solace in the statistic that only 2% of lawyers maintain a law blog (assuming readers consider this a blawg then I’m certainly ahead of the pack) and only 8% of law firms follow suit, but as a general trend, the data is somewhat troubling.  It’s a symptom of a larger illness.

The number-one complaint against attorneys is lack of communication.  I’m not just speaking in terms of what their employees or clients say – it’s also the number-one complaint lodged against them with bar associations.

OLYMPUS DIGITAL CAMERA

It’s bad enough when the subject is one in which an attorney feels comfortable discussing.  But add complex technology to the mix and that’s a recipe for disaster.  In the “wild west” days of e-discovery – before it even had a name – one could get away with mistakes.  Now that the rules have been formalized, the path is littered with attorneys – and their clients – who have suffered greatly for their mistakes.

There’s an old saying, attributed to Confucius, which states; “He who does not know, and does not know that he does not know, is a fool”.  In the e-discovery world, the new saying is, “He who does not know, and does not know that he does not know, will be sanctioned”.

 

Core competency in this area is no longer hoped for; it is expected j0439531and presumed, both by clients and the courts.  It’s not enough for attorneys to rely on IT personnel; they must also be able to understand what their IT professionals are telling them so they can communicate this information effectively to their clients, the courts and even their adversaries. Otherwise, it’s the attorneys and their clients who will bear the consequences of mistakes.

Further hampering this process is the fact that very few IT personnel speak “English”.  Many a layman has become glassy-eyed while listening to a “techie” explain a process in “techno-speak” while not understanding a word of what was said.

Like it or not, the onus is on the legal professional to be competent and understand this process.  If something goes wrong, blaming the incident on a lack of technical knowledge and expertise is not going to fly.