This is a personal observation that I thought you'd find interesting. It goes directly to the heart of the problem we tech-weenies face when in a courtroom – while facing a judge from an older generation.
Some of the parties at counsel's table had laptops. The judge asked us to research a matter. During a break, I used my PDA to look up the information. When the judge returned, he remarked politely, "No cell phones allowed in the courtroom.".
Needless to say, one doesn't argue with the judge, and even if I had, I have a feeling he wouldn't have taken kindly to my, "I'm not using the cell phone feature, your Honor, I'm accessing the internet to research the question you gave us" response. It clearly illustrates the fundamental disconnect – and disadvantage – we may face on a daily basis.
My 'cell phone' is also a computer, just like my seat cushion may be used as a flotation device…we need to get to the stage where judges recognize this as well.
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.
I know what you're thinking. Perry finally admits the truth. I will only say this in my defense; in my line of work, those are all excellent qualities!
Maybe I'll be in a little trouble for making light of a serious issue, but it's the start of 4th of July weekend and we could all use a laugh.
No, the title doesn't describe me (unless you speak to some of the people I've worked with over the years), it's what an attorney said to a judge; resulting in sanctions.
You know that old adage; when upset, count to ten before you act. Now, the attorney might as well count to six – that's the number of months of suspension he received.
What do you do when you're required to be in two different courts at exactly the same time? That was the issue confronting me Monday morning. Normally, I don't use this blog to post about my day-to-day experiences, but I'll make an exception.
I posted last week that I was going to trial, however, I didn't mention there are two of them; one in civil and one in criminal court. Luckily, both courts are in downtown L.A. and are a little more than a block apart. So what happened? I went to criminal court first, where everything went smoothly. The case is moving forward. While doing a sidebar with that judge, I receive a text message from civil court that the other judge continued the case for three months…
So, a lot of people burned the midnight oil preparing for nothing. Welcome to litigation in the State of California. Hurry up and wait. On the plus side, I may now focus exclusively on the criminal case, and I can watch the Stanley Cup Playoffs (we all have to blow off steam somehow…). On the minus side, well, I don't think I have to elaborate.
I wrote about the Quon case back in December. It's a workplace-sexting-privacy case out of the 9th Circuit Court of Appeals.
If the Supreme Court upholds the 9th Circuit ruling, it would have a deleterious effect on the notion that, "As employers, we own it, so we can do what we want with it".
I'm starting a new feature called "The Bench". In keeping with the California-based theme of my blog, I want to update you on notable events occurring within the Superior Court system. I'll also keep an eye on the Federal District Court.
I recently attended a symposium in which some judges offered a very bleak outlook for the courts in the near-term. We were informed of the impending first round of cost-cutting measures that I cited in the headline, and as the article mentions, this is just the beginning.
According to additional information I've received, it's estimated that the cuts will ultimately grow to 1,800 – and at an estimated ten employees needed to support each courtroom, that means eventually 180 courtrooms could be shuttered. Maybe I should say 'shuddered', because that's how several of the attendees reacted as they exited the symposium.
The judges estimated that, by the time all of the cuts are made, civil litigation may take up to four years or more to reach trial. That's a sobering statistic; especially since the Rules of Civil Procedure don't allow for indefinite delays. And it's a non-starter in criminal cases (defendants have a constitutional right to a speedy trial).
In four years, I'd expect the litigants to forget what the original dispute was about!
I'm sure 'yule' (pardon the pun) welcome this opportunity to suspend Xmas shopping for a moment so you can read my last summary of interesting cases for the year. Folks, I can only say the latest crop borders on the bizarre. I have two civil and one criminal case for you.
"Plaintiff's computer forensics expert was allowed to testify regarding
steps taken by plaintiff to protect its electronically stored trade
secrets, and defendant's computer forensics expert was allowed to
provide his opinion concerning "intrinsic weaknesses" he perceived in
the reports of plaintiff's expert. However, both experts were barred
from offering opinions as to intent of the parties in handling
electronic information."
So, here's what happened. Both Plaintiff and Defendant attempted to bar the others' expert from testifying. Instead, the court allowed both experts to testify. Whoops! By the way, for the non-lawyers out there, it's entirely normal and customary – in certain instances – for experts to testify but not be allowed to express an opinion (conclusion). Depending upon the circumstances, the court will leave that to the jury.
Score one for good-faith. What attorney among us hasn't dealt with an adversary who attempts to use every technicality in the book to delay, deny, obfuscate, etc.? Of course, if you are one of those adversaries, shame on you, but in this case, the court saw right through it and enforced the 'spirit' of the agreement made between the parties.
"A request for court appointment of a computer forensics expert in a
motion by a defendant seeking review of his sentence was denied because
the defendant was not seeking to set aside a death sentence."
Like I said…bizarre…
Everyone, I wish you all the best! Please, take care out there this holiday season. Your continued support and feedback is what motivates me to keep on blogging!
Forgive me for my limited time this week. As we harken back to "Privacy Week", comes word that the Supreme Court is going to rule in the spring – for the 1st time – on texting and privacy, specifically the City of Ontario, California's appeal arising out of the 9th Circuit case, Quon v. Arch Wireless, 529 F.3d 892 (9th Cir. 2008) [Warning: Link opens 24-page PDF].
My colleague, Ralph Losey, has done a superb treatise on this subject, so I'm going to port you over if you'd like additional information. I'm particularly fascinated by the 4th Amendment issues raised in this case (there I go again…criminal & Constitutional aspects…), plus, as a technology consultant, I've had a hand in crafting corporate policies regarding electronic communications many times in the past.
My opinion? I'm staying with my usual view. Texting someone using your corporate device is similar to having a conversation on the telephone from your office cube – where anyone around might hear you. I'm not saying the content of the text (or phone conversation) isn't technically private, but by transmitting it by way of someone else's device, you're basically creating a waiver (in my mind, anyway).
What if an employee transmits child porn through their corporate device? Is that private? Does that not ensnare the company? Is the company culpable for allowing child porn to be transmitted? How would the company know unless it's allowed to monitor & review transmissions? Just a few simple questions for you to ponder…this is your chance to emulate a Supreme Court justice.
More 'stuff' is on the way from me…as soon as I can ration the time to post it!
Is the car of sanity creeping into the intersection of the legal profession and social networking? (Cut me some slack here, will ya? I haven't posted in almost a week and this is what happens when I'm prevented from using metaphors for too long…). This article from the Associated Press, "Fla. judges, lawyers must 'unfriend' on Facebook", suggests the answer is 'yes'.
I've rambled on ad nauseum about people in the legal profession and social networking and I'm not going to pontificate on it again (although I suppose Sunday would be the perfect day for that…) but my reasoning is simple; you never know what the future holds. Your legal friend today may be your legal foe tomorrow.
What else do you need to know?
An IT Executive Turned Privacy, Cyber Security & Litigation Attorney and Consultant Shares his Personal Insights.
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This is a personal observation that I thought you'd find interesting. It goes directly to the heart of the problem we tech-weenies face when in a courtroom – while facing a judge from an older generation.
