Ok, if Sam Champion's email is infected by a virus, we'd all better take precautions…if it can happen to Sam, it can happen to you.
I wonder if Sam would be insulted if he knew I refer to him as "Plastic Man"…
Category Archives: eMail
e-Evidence Insights: A Lesson in Context
I've repeated over & over the dangers of improper electronic communications and how they can come back to bite you. But this article from the latest edition of Inside Counsel does an outstanding job of illustrating how your – seemingly innocent – words may be used against you in a dispute.
If you don't yet have a corporate policy, portions of the article may be an excellent jumping-off point. Do I think the goal is somewhat utopian? Yes, since realistically it would be next to impossible to control the social behavior of everybody under your umbrella. But that doesn't mean a policy shouldn't be crafted and properly promoted in the employee handbook.
There's nothing wrong with a good-faith attempt; especially where ESI is concerned. Perhaps if more people are made to understand the consequences of their actions (most do not imagine sitting in a courtroom answering questions to be one of them), they'll think twice before sending.
e-Discovery California: Don’t be EVIL, Los ANGELes…
Theory is usually easier than practice. You project managers know exactly what I'm talking about. Courses like the Project Management Body of Knowledge (PMBOK) have value, but one item tends to be underestimated; the human element. Projects always look great on paper but unfortunately, they're not executed by robots. They're executed by people with varying talent, ambition, health and – dare I say it – competence levels. Add to that the other human elements; management support or lack thereof, other duties of the team (distractions), unexpected emergencies ("Hey, I need to borrow Steve for a few hours…"), predictive miscalculations and – dare I say it, part II – the competence of the project manager.
With this in mind, it comes as no surprise that Google has missed a deadline to convert the City of Los Angeles email system to the cloud due to security concerns with the L.A.P.D.'s data. Tha-a-a-a-a-t's gonna cost 'em. Worse, they beat out Microsoft for the contract.
Ultimately, the issue will be resolved, but it begs the question – what happens when L.A. requests to retrieve data? Another cautionary tale about 3rd-party vendors…
The B-Team: A Primer on Keyword Search
From an unlikely source comes an excellent example of how one might formulate a plan to search for key words and phrases in documents. This informal Bloomberg.com article about the Lehman Brothers bankruptcy gives an excellent view of the process; and it may surprise you. I especially like this excerpt:
"The search terms came out of a session where 20 lawyers at
Valukas’s firm, Chicago-based Jenner & Block LLP, were “told to
sit down and be as imaginative as you can,” said Robert Byman,
a partner at the firm who helped with work on Lehman. The terms
were changed if searches produced too many hits, he said."
Good old-fashioned brainstorming at work…
FINRA Fines Firm for Failure
I plucked this particular headline out of many as an excellent real-world illustration of the downside of failing to properly retain and archive data. In this particular instance, Piper Jaffray paid FINRA (the Financial Industry Regulatory Authority Inc.) a $700,000 fine because they were unable to produce an electronic copy of a single email message for an investigation.
Unfortunately, that's when Piper "informed" FINRA about the other 4.3 million emails they failed to retain over a period of six years. Obviously, I don't have the inside scoop as to why this occurred, but based on experience, I can tell you that $700,000 buys a lot of data protection.
As I've pontificated on many occasions, what if this involved a lawsuit or a tax issue; or a host of other issues? Does it really matter? Proper data retention and management may involve a large capital outlay, but pays for itself over and over in the long run.
If you're the person tasked with getting this done, forward this story to your bosses – or present copies at the next meeting. Eventually, someone will realize that avoiding the issue is simply penny-wise and pound-foolish.
e-Discovery California: Discovery Sanctions Lifted from Qualcomm Attys
"A federal magistrate has lifted discovery sanctions against six outside
lawyers for Qualcomm, finding insufficient evidence of bad faith."
This story, which I cited in my September 2009 article for California Lawyer magazine, is a cautionary tale…
Jobs, Jobs, Jobs!!! (No, not that kind…)
Steve Jobs. Fake Steve Jobs. Apple. iPad. There. Up until now I've been the only online source that hasn't mentioned the iPad this week. But this post isn't about that. It's about how a technology writer at Newsweek can't even figure out that when he makes a claim, someone will produce the email trail.
Daniel Lyons (who blogs as Fake Steve Jobs) stated on the CNN program Reliable Sources that when he was hired at Newsweek, Apple sent a message through a former Newsweek writer, Stephen Levy, that they wouldn't treat Newsweek too kindly due to Lyons' inhospitable treatment of Jobs in the blog.
Problem is, it wasn't true, and what probably should have been no more than idle gossip at the water cooler is now plastered all over the 'net. My favorite line?
"But naturally enough, in a story about technology reporting, there is an
electronic trail to unravel."
I'm sure Lyons thought he was just slightly embellishing a story to make it more interesting, but the result was that a relatively banal comment blew up in his face…
e-Discovery California: State & Local Governments get the “Message”
In the, "We've finally figured out that emails, texts and voice mails are in the public-domain." department, state and local governments are taking steps to limit the use of electronic devices during official sessions.
This article is of interest because such a policy is now being proposed in the heart of Silicon Valley. The California Assembly is also considering a similar rule.
Are politicians doing so out of the kindness of their hearts? Hardly. They're responding because public watchdogs are filing lawsuits seeking access to these messages under the California Public Records Act. And they're not just limiting their requests to public devices; they're going after personal PDAs and laptops as well.
One more step in the continuing game of leapfrog between the limits of individual privacy and the public's right to know…
You Can’t Fix ‘Stupid’…
…you also can't teach 'instinct'…or, is it possible? I say this because I keep reading about smart people making stupid mistakes. Look at this headline: "Law Firms Swindled Out of $500K in E-Mail Scam". Here's a PDF of the FBI notice that followed. If law firms themselves can't 'discover' these frauds, how will they ever understand electronic discovery or properly provide it to their clients?
The facts are simple. Law firms are contacted by email and sent a cashier's check for an amount larger than the proposed work. The unsuspecting law firm issues a refund of the overpayment before waiting for the check to clear the issuing institution (I assume because it's a cashier's check, and in the 'olden days' they used to say "a cashier's check is same as cash"). I think you can figure out the rest…the check is bogus and the firm is left holding the bag.
This reminds me of law school and how it operates. If you're not one who gravitates to the instinctual, they try to teach you to be that way. Most people think in terms of one "side" vs. another; and only one of them is correct. Law school tries to force you to constantly think of all sides; that's right, there may be more than two of them.
Cynicism, if you want to call it that, works for you in these situations. While one may not normally be suspicious, wouldn't it serve to lead with that attitude in mind? It doesn't have to be overt, but you should always be asking questions in your own mind. Let me give you an example of an experience I had while working retail when I was in my 20s:
I was working alone one Friday night when two nicely dressed gentlemen came in. They had an interest in some of our high-level products. I showed them one to their liking, and they asked me to give the final price, then left the store. An hour later, they returned with a cashier's check, made out correctly. Alarm bells immediately sounded in my head. Why? Two things in particular:
- I was in my 20s in the 1980s and it wasn't as common back then for banks to be open late.
- The ink used to stamp the amount on the cashier's check was brand-new – pristine, in fact.
The new ink really bothered me. Banks issue tons of these checks. What were the odds that the bank had just swapped out their ink ribbon on the machine? In my opinion, the ink should have been worn from constant use. It just looked too new. Like I said…instinct.
I called the owner and explained my suspicions, but the owner seemed to only be thinking about the sizable sale, and told me to accept the check.
You can guess what happened next…
Case Got Your Tongue? Caffeine, Voicemail & 8 is Enough
Mistakes…carelessness…sanctions. Month after month, I review a plethora of new decisions, looking for something unusual and interesting. Do I find usually find it? No. Look at this summary of nine recent cases that Kroll Ontrack has compiled and what do you see? Sleight of hand, ignorance of the rules & stall tactics.
Starbucks Corp. v. ADT Sec. Servs., Inc., 2009 WL 4730798 (W.D. Wash. Apr. 30, 2009): In a case that harkens back to the "Jerry Maguire" case I wrote about over a year ago, the court ruled that just because your emails were backed-up on a "cumbersome old system" doesn't automatically make them "not reasonably accessible". If that isn't enough, they also said, "…even if the information was ruled not reasonably accessible, good cause existed to order production." [italics added]
There are still people out there who seem to think that the federal rules themselves somehow determine what is – and isn't – reasonably accessible. In fact, someone wrote a letter claiming this very fact in response to one of the articles I wrote in California Lawyer magazine.
Dead wrong. The court decides what these parameters are, based on the facts of the instant case.
Vagenos v. LDG Fin. Servs., LLC., 2009 WL 5219021 (E.D.N.Y. Dec. 31, 2009): The quirk in this case is, defendant was awarded an adverse inference sanction over plaintiff's failure to properly preserve a voice-mail message – even though there was no evidence of bad faith on the part of the plaintiff. Negligence vs. intent…
Magaña v. Hyundai Motor Am., 220 P.3d 191 (Wash. Nov. 25, 2009): On appeal, the Supreme Court of Washington applied the three-prong default judgment test (willfulness of violation, substantial prejudice to opposing party and availability of lesser sanctions) and reinstated an $8 million default against defendant. Parties are still betting against the house; but more and more often, the house wins.