Category Archives: eMail

Admissibility, Cases of Interest, e-Evidence Insights, eMail, Metadata

e-Evidence Insights: 50% Zuckerberg + 50% Ceglia = 100% Speculation

MP910221032 What we think is not the same as what we know.  I've been following the, "I own 50% of Facebook" lawsuit, but I admit, until I drilled down into the minutia, all I knew for a fact was, Plaintiff had refiled the case and included some damning email messages, and Defendant stated the emails are fake.  Since the suit prominently features ESI, I wanted to better understand the issues.

No doubt about it, this is a true eDiscovery whodunit.  I read a few articles and this is what I've learned.  Ceglia claims he owns 50% (or more) of Facebook.  Facebook claims he doesn't.  That's right.  That's all I know.  I certainly read some fascinating excerpts, though.

However, I can point you to article after article that purports to know more, but doesn't.  Don't get me wrong; unless one is writing a factual piece, there's no journalistic requirement to state only facts.  I actually learned a lot of valuable factual information from the linked article (notwithstanding the reputation of the author).  The problem – for me, anyway – is that law and speculation don't mix.  And opinion?  Expert opinion?

If this case goes to trial, Plaintiff will likely produce at least one expert who claims the ESI in question is genuine.  Defendant will likely produce at least one expert who claims the ESI in question is fraudulent.  Or perhaps experts on both sides can't conclude either way, due to the amount of time that has passed since the emails were exchanged.  Who decides?  Will it become a question of fact for the jury?

I sure would like to give you my answer, but the entire previous paragraph was pure speculation.  As soon as I used the word, "If"…

Cases of Interest, eMail

Down Goes Frazier! Down Goes Frazier!

Tyson Microsoft.  Google.  Slugging it out over a juicy government contract for email services.  In a nutshell:

The Feds awarded the contract to Microsoft.  Google, unhappy about this, sued the Feds, claiming the fix was in (this really does sound like a boxing match).  Microsoft claims Google is lying about the claims it's making in its lawsuit.

I don't know who "Frazier" ultimately will be, I just know that in a fight between these two heavyweights, someone may be hitting the canvas very hard.

eMail, Miscellaneous, Security

Try the ‘Breach’ Cobbler

Here's an email I received yesterday from Kroger/Ralphs supermarkets:

Ralphs_logo

Dear Perry Segal,

Kroger wants you to know that the data base with our customers' names and email addresses has been breached by someone outside of the company. This data base contains the names and email addresses of customers who voluntarily provided their names and email addresses to Kroger. We want to assure you that the only information that was obtained was your name and email address. As a result, it is possible you may receive some spam email messages. We apologize for any inconvenience.

Kroger wants to remind you not to open emails from senders you do not know. Also, Kroger would never ask you to email personal information such as credit card numbers or social security numbers. If you receive such a request, it did not come from Kroger and should be deleted.

If you have concerns, you are welcome to call Kroger’s customer service center at 1-800-Krogers (1-800-576-4377).

Sincerely,

The Kroger Family of Stores

Backup & Recovery Systems, Disaster Recovery, eMail, Implementation

Nuthin’ but a “G” Thang

I'm probably the last to comment on the Gmail/cloud issue – and you already know my opinion of cloud computing – agnostic.

We find that almost anything in life is great…when it works. When it doesn't?

Where the mistake is usually made is in the assumption that things always work. We pick up the landline, expect the dial-tone to be there and are shocked if it's not.

If I wasn't an eDiscovery dude, I'd probably sell insurance like my grandfather. Maybe I learned something about disaster-planning by observing him.

If you're going to use the cloud, institute a backup plan and stick to it – or make sure your provider is doing so.

Oh, and don't forget to test it regularly, in order to avoid 'Chronic' problems – such as getting into a David-and-Goliath war with a 3rd-party like Google.

Admissibility, Cases of Interest, Constitution, eDiscovery California, eMail, Privilege, Security

e-Discovery California: “Elementary, My Dear Watson”…

MP900178861 Holmes v. Petrovich Development Co. (Cal. Ct. App. – Jan. 13, 2011)

In this decision from the Third Appellate District of California, the Court found that Holmes’ emails did not fall under the protection of attorney-client privilege (warning – link opens a 40-page PDF of the ruling).

Why?

Because she wrote them on a company computer with the knowledge that the company had a “we own the data” policy.

YMMV (that’s my cute way of telling you, other state laws are contra, e.g. New Jersey’s Stengart).  From that post:

“I suppose if I simply admonish you not to use your company collateral for personal purposes, you’re going to ignore me, but it’s missing the point, anyway.  You can’t un-ring the bell.  Sure, I understand that, in this case, they were forced to return the emails and there was to be a decision as to whether the law firm that read the emails could even continue in their representation, but the bottom line is, the emails were still read.”

A little fun fact?  Holmes never said, “Elementary, My Dear Watson”.

Criminal Liability, eDiscovery California, eMail, Security

e-Discovery California: How You Do It – How THEY Do It

I explained how you do it (give up your privacy) in my prior post.

How they (hackers) do it:

Using nothing more than information his victims readily provided, this hacker gained access to their email and/or Facebook accounts; with highly embarrassing results.

I've long been baffled by sites that, purportedly in the interest of better security, require users to supply highly specific information like their father's middle name or what high school they attend(ed).

Oh, and the hacker? He said he did it because it's funny…

Constitution, Criminal Liability, e-Evidence Insights, eMail

Minority Report: Brandenburg, PreCrime and e-Discovery

I’m not sure whether I can write about the shooting of a Congresswoman and nineteen others apolitically; but I’ll make an attempt to do so. Like most of you, I’ve followed the progression of the case, noting various profiles of the gunman that emerged – and the scramble of politicians to exploit one position or another for political gain. What struck me most was the public – and very prolific – profile of the gunman that has emerged. Usually, we’re dealing with a crime or civil wrong, then we go about the business of accumulating evidence after the fact. However, in this case, there was ample evidence that this person was someone who authorities should have been aware of – or have been made aware of by those who crossed paths with him. There’s just one problem:

We don’t arrest people for crimes they haven’t committed, yet.

But what can – and should – we as a society do in these situations, especially when we have the evidence? I’m not saying this tragedy could have been prevented, but at least this person should have been on a few more radar screens.

Now, as to the politicization of the event, I defer to the 1st Amendment of the Constitution. Rhetoric certainly may rise to the level of incitement. But we have the Brandenburg standard and I see a phrase missing from many of the discussions; “imminent lawless action”. Is Sarah Palin’s 'crosshair' map in the news because it’s relevant or because it pulls more eyeballs and sells more newspapers?

If I were still in law school, I suspect a professor would have posed that question. There is no honest assessment without proper context.

eDiscovery 101, eMail, Sanctions

e-Discovery 101: Attorney, Heal Thyself

51321746_SadClown I hammer away at technology professionals, Hollywood actors, sports stars, business executives and the general public about inappropriate conduct that may get them into hot water – very hot water.  It would be unfair if I didn't also shine a spotlight on my own profession (ahem, that would be lawyers).

In an email exchange, an attorney called his opponent "scum sucking", for one.  Then things really got nasty – for six months.  The result?  Both were sanctioned by the Florida Supreme Court.  (Then, they got into the clown car and drove away…)