Category Archives: eMail

Cases of Interest, Constitution, eMail, Law, Technology

Privacy: There’s Still Hope

J0398947 Wow.  Four posts in a row on privacy?  I think that's a record…

But I have to be fair.  The Wall Street Journal published this dissenting view on where the trend is headed.  In fact, they cite a case I covered for you back in August to support their claim.  To be honest, when I speak of privacy I'm usually referring to using company products to conduct company business (unless you use your personal PC for that purpose).

However, the bottom line is this; it's still a crap-shoot.  If you're going to perform non-business-related duties on a company PC, you run the risk that someone is going to see it.  Going forward, the question will be, what can they do with it?

Cases of Interest, eMail, Sanctions, Spoliation

Case Got Your Tongue? Corrections, Cavalier Attitudes & Black Holes

J0309277 Our 'privacy' theme continues on…

Like it or not, you don't enjoy the level of privacy you think you do, and copping an attitude about it only makes things worse.  For example, I regularly caution my clients about their third-party agreements.  I don't care that your contract says the third-party is required to cooperate.  When litigation arises, many of those same third-parties will ignore the agreement and circle the wagons.

Take a look at Dawe v. Corrections USA, 2009 U.S. Dist. LEXIS 96461 (E.D. Cal. Oct. 1, 2009).  The third-party defendant refused to comply with plaintiff's request to inspect defendant's personal computer.  I'll make this short and sweet; defendant lost the argument.

Third-parties aside, how about non-parties?  In Thayer v. Chiczewski, 2009 U.S. Dist. LEXIS 84176 (N.D. Ill. Sept. 11, 2009):

"A non-party email service provider that displayed a "cavalier attitude"
toward defendant's subpoena seeking email deleted by plaintiff prompted
the court to order the provider to show cause why it should not be held
in contempt and to pay defendant's reasonable fees and costs in
obtaining discovery about the provider's ability to recover plaintiff's
email."

I'm including Laethem Equip. Co. v. Deere & Co., 2009 U.S. Dist. LEXIS 86109 (E.D. Mich. Aug. 31, 2009) simply for the eloquence of the judge in explaining where e-discovery has brought us:

The defendant's motion for sanctions is "a further example of how discovery has become a veritable 'black hole'
having the potential to draw in and annihilate the case itself,".

In a perfect world, cases are decided on the merits.  Instead, parties are increasingly using procedural moves as battering rams, and I think this does a disservice to us all.

eMail, Management

Check this Blog Hourly Unless in Court, in Tunnel or Asleep!!!

J0403717 Like it or not, our employers expect us to be 'available' at all hours, as this article indicates.  A junior associate was chastised for not reading his email after-hours and missing an instruction from a senior partner.

This won't be a popular view, but I agree with the senior partner.  This is not an attorney-specific issue.  When I was in IT, we were on-call 7×24.  In fact, in some of the companies I supported, all of our systems were automated, so if a system was down for more than five minutes, it paged us; morning, noon or night (unfortunately, it was usually the middle of the night).

A nurse friend of mine, while observing my activities one evening receiving – and responding to – pages, remarked that my schedule was worse than that of a Doctor!

I place this firmly under the "it's not the old world anymore" department.  In my world, there's no such thing as an eight-hour day, and I suspect that doesn't exist in your world, either.  Believe me, I understand the work/life balance (after months of rarely sleeping through the night due to multiple outage pages, I considered leaving one job).  Like it or not, the world is connected and no matter what time it is, somebody is awake somewhere – and wants to talk to you.

Sure, maybe requiring someone to check e-mail on the hour, every hour is a bit excessive, depending upon the circumstances.  But I certainly make it a practice whenever possible to check my e-mail before retiring for the evening.

Maybe the problem was, the junior associate was too busy on Facebook…

eMail, Media, Metadata, Technology

N-B-C…(See Ya Real Soon…). A-L-G…

MM …gee, ya think maybe you overplayed your hand?  It wouldn’t be fair for me to make a prediction about the NBC/ALG spat without returning to tell you how it’s progressing so far (of course, had it not gone the way I expected, I probably wouldn’t return to tell you how it’s progressing so far).

As you’ll recall, I predicted that NBC’s version of the email message was probably the legitimate one, based on the behavior of the parties.  Since then, ALG has claimed to have a voice mail message of the offending NBC employee that bolsters their version of events.

Did ALG release the message headers of the email?  No.  Did they release the voice mail message?  No.  Do they plan to release either?  No.

Here are two posts on the subject; the first from Politico.com and the second from Scott W. Graves.  What do you think?

This event is a product of society’s attitude, “If it comports to my point of view, I accept it as gospel truth without vetting it.”  For the attorneys out there, I channel Ronald Reagan; “Trust, but verify.”

 

eMail, Media, Metadata, Technology

Somebody’s Gonna be in Trou-ble!!!

J0442223“This one is a little quirky because, based on my research, I’m somewhat uncomfortable with the plaintiff, however, it does well to illustrate
how a case can become a P.R. nightmare even before the defendant files an answer.”

That’s a quote from my September 4th post about the Toyota case.  This time it’s not a ‘case’ and the parties are NBC and ALG, but the P.R. nightmare is at hand.

We have two entities arguing over the true content of an email message.  ALG claims the message they received from NBC contains a racial slur while NBC denies it.  There’s no doubt that only one of the versions can be correct.  Regardless of the posturing going on, it’s simple; the message headers and metadata will easily establish whose telling the truth.

If I were a betting man, I’d suspect NBC’s version of the email is correct.  Why?  Because NBC is being quite forceful and citing a forensic examination.  What is ALG doing?  Claiming the message is on an office computer and they can’t get to it to provide message headers until Monday.

This is a classic example of the type of posturing you might see in a real case (in fact, I have seen it), and when it’s revealed which party is lying, somebody’s gonna be in trou-ble!  If it turns out ALG is the culprit, they will have already scored a P.R. hit by claiming that they – a right-wing group – have been slighted by NBC (also known as ‘the devil’ to their followers).  The debate will continue on in cyberspace long after the truth comes out.

My hint?  I’d never heard of ALG and I suspect neither had most people until now.  Remember the adage, “No press is bad press”…

Cases of Interest, eMail, Privilege

First there is a Mountain, then there is no Mountain, then there is…

J0407504 For our purposes, substitute the word "e-mail" where you see the word "mountain".  I was reviewing an appellate decision from two months ago, Stengart v. Loving Care Agency, Inc., 2009 N.J. Super. LEXIS 143 (App.Div. June 26, 2009).

The facts are simple.  The court ruled that password-protected emails from a personal account that were accessed on a company computer were not necessarily fair game for the employer.  The particular emails involved the employee corresponding with her attorney; privileged communication.

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.

This is purely a "Perry L. Segal" approach – and you may not agree with me – but my view is this; don't wait for someone else to do your job for you.  Don't wait for your lawyer to make an argument, don't wait for a judge to rule in your favor, don't wait at all!  Don't do the conduct with the attitude that you are the one that won't get caught or your rights won't be violated.  Gambling is great – if you're in Atlantic City.

There was a case going back 30 years or so in which hackers got into a secure computer system.  They were brought to trial and were acquitted.  Why?  Because after they hacked through the first line of defense, the screen they arrived at said, "Welcome".  The judge ruled that this was the same as an invitation to proceed…

I rest my case…

Admissibility, Backup & Recovery Systems, Cost, Criminal Liability, eMail, Law, Zubulake

The ‘Missile Command Act’? No, the ‘Internet Safety Act’!

A5200_Missile_CommandI think my career is about to resemble Missile Command.  It was all the rage in the 1980s.  Atari still exists and I was surprised to see that they’re still selling it.

The name of the game is to intercept falling missiles (which have an annoying tendency to split off in multiple directions) with silos on the ground (hint; we’re the silos).

John Cornyn (R) has introduced the “Internet Stopping Adults Facilitating the Exploitation of Today’s Youth Act”, or ‘Internet Safety Act’ (for those of us who can’t fit all that in a catchy blog title).  This bill is actually a regurgitation of a bill introduced in 2006.  I think you get the gist from the bill’s title, but here’s the fine print:

“A provider of an electronic communication service or remote computing service shall retain for a period of at least two years all records or other information pertaining to the identity of a user of a temporarily assigned network address the service assigns to that user.”

Anybody besides me thinking about the storage/costs required to retain and/or restore these logs?5_Day

That’s Part I of the headache.  Part II is who would be covered under this bill; essentially anyone who serves wireless using DHCP.  That’s right – it includes that little Wi-Fi router you have at home.  Note to those who brought their wireless router home from the store and
just plugged it in; you might want to configure the security feature, lest someone nearby connect through it and start looking at child
pornography.  Starting to sweat, yet?  Maybe you will after I mention Part III; you might go to jail for up to 10 years.

Here’s the really bad news – there’s a Part IV…

Once again, all I think about is Zubulake.  The moment you’re required to retain a record for two years, it may be adjudged ‘accessible’ for Zubulake purposes – and not just the ones covered under this Act, which, as I previously mentioned, specifically targets child pornography.  Any purpose of litigation may be fair game to subpoena these logs!

You think maybe Senator Cornyn knows how to push a bill through Congress by piggybacking it on the hot-button terms that frighten all parents to death?

This Act really could be the legal equivalent to ‘Missile Command’ (or starfish, or octopus…).  The tentacles could reach virtually anywhere.  I’ll be monitoring this closely, as should you.  If it becomes law, it could be…Missile Command - The End

eDiscovery 101, eMail, Miscellaneous

e(rotic)-Discovery Insights: Thoughts on Valentine’s Day ‘Sexting’

Schleprockj0438796…something to think about while you plunk down twice the usual price for dinner and a dozen red roses…

Although I run the risk of being designated the official ‘Schleprock’ of Valentine’s Day, this seems like the perfect time to remind you that those steamy ‘sexts‘ you intend to exchange with your wife/husband, or girlfriend/boyfriend, or significant other – or your wife/husband, your girlfriend/boyfriend and your significant other – may become public (I admit, that did kinda make me sound like a wet blanket…it’s the heavy burden I carry trying to keep you out of trouble).

And please…get a room!

eMail, Law, Privilege, Technology

Obama’s CrackBerry Addiction: e-Discovery Intervention?

To My Readers:  No matter what your political leanings may be, today is an example of what’s great about the United States; the peaceful, seamless transfer of power.  So, in honor of the inauguration, I felt it appropriate to jot down some observances I’ve made lately regarding the Presidency, e-evidence, privilege…and why I think they’ve got it all wrong…

Businessman Using a Palm Pilot

e-Discovery Insights:  Keep this on the down-low.  I have it on good authority that Barack Obama’s going to be in the nation’s capitol on Tuesday.  Let’s all plan to get him in a room and confront him on this whole ‘BlackBerry‘ problem.

Readers:  What’s the big deal?  He’s a thoughtful guy.  He’s responsible.  He can control himself.  Why are all of these lawyers making such a big deal out of this?

e-Discovery Insights:  Because PDAs are subject to subpoena, that’s why.

What’s the difference between your PDA and Obama’s BlackBerry?  Absolutely nothing.  You have the same exposure he does!  At least he might be able to invoke Executive Privilege in certain circumstances; meanwhile, you’ll be hoping for ‘run-of-the-mill’ privilege.

Now comes word the White House staff has been told they may not use instant messaging (IM).  Check out this quote – contained in the above link – from Reginald Brown, a former associate White House counsel for President Bush:

“These lawyers — [incoming White House Counsel] Greg Craig in
particular — come out of a law firm environment and knows how onerous
e-discovery has been for clients,” (italics/bold added).

I’m feeling sooooooooo cool with my career choices right now…

j0438808Seriously though, I’m actually disappointed.  In my opinion, this is exactly the opposite of the approach I would like to see them take.  Why?

Because technology is HERE, it’s not going away, and it’s time we started accepting that fact and adapting to it rather than restricting it.  This administration may prevent their aides from using IM, but someday, it’s going to be used.  Wouldn’t the better way be to educate the staff, put some trust in them, implement policy and let them use the tools that exist solely to make communication easier?

Preposterous?  Inconceivable?  Impossible?  Unattainable?

I’ll ponder that while I watch the swearing-in of the first African-American President of the United States of America.