Category Archives: Law

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?

Constitution, Law, Privilege, Technology

Pop! Goes Your Privacy!

Chicken-Little Remember how I went on and on about the fact that what you do and say in your personal life (particularly online, after all this is an e-discovery blog) may become relevant in a legal proceeding?  Remember how I told you that there are several cases pending that might completely change the definition of privacy?  And remember when I nagged you like your (Please fill-in-the-blank here; mother, grandmother, psychiatrist, attorney, etc.  Hey – I'm not dumb enough to actually name someone and make them mad at me!) when I implored you to stop making those inappropriate posts on Twitter/Facebook/MySpace, etc.?

Well, this headline says it all:

Judge: Buffalo Grove trustee can get Web poster's ID

For those who are pressed for time, this is the relevant portion:

"Buffalo Grove
Village Trustee Lisa Stone should be told the name of the man she
accuses of making defamatory online comments about her 15-year-old son,
a judge ruled Monday in a case being watched for its Internet privacy
implications.

Cook County Circuit Judge Jeffrey Lawrence ordered that the identity
of a person known online as Hipcheck16 be turned over to Stone."

We can debate the Constitutional implications of the ruling itself, but truly, this goes all the way back to the 'shouting fire in a crowded theater' argument.  Post-mortems don't interest me much; I deal with what is, and what will be, not what was.  To paraphrase a certain election campaign, it's about the future, stupid!

On a fairly regular basis, I'm accused of being "Chicken Little".  Perhaps my detractors are right.  Maybe it's because I was a boy scout when I was a kid (Be Prepared!) or perhaps it's from all of those years protecting my clients from what might happen, not just what I could identify as likely to happen.

If I weren't doing what I'm doing, maybe I'd have become an actuary (I'd say 'bean-counter', but for those who know this blog well, the only beans I'd be counting are coffee beans…).

It sucks being the wet blanket.  It sucks constantly warning people about risks.  But here's the thing; technology is moving much faster than our ability to understand what we're doing with it.  There used to be an admonishment; when angry, count to ten before acting.  Now, not only do we not count to ten, we immediately grab our always-within-reach Blackberry and post on Facebook!

So, here's a question for you to ponder over the weekend; do you think Hipcheck16 wishes I'd have been his wet blanket?

Backup & Recovery Systems, Cases of Interest, Criminal Liability, Law, Sanctions, Spoliation, Technology

Case Got Your Tongue? Arrest, Lies & Videotape

J0407481 Hat tip to my colleague William Hoffman…

I thought I wasn't going to find anything relevant for my usual Friday post, but Peschel v. City of Missoula, 2009 WL 3364460 (D. Mont. Oct. 15, 2009) has it all; alleged crimes, police brutality and missing video from a police cruiser.  I'm pressed for time, so I ported you over to K&L Gates for a look at the details, but here are Mr. Hoffman's comments:

"Finding
that a video of Peschel’s arrest was lost as a result of the city’s
recklessness, the court granted defendant’s motion for sanctions and
“designat[ed], for purposes of the case, that the arresting officers used
unreasonable force to effect the arrest of [defendant].”  What struck me
was the failure of the city to back up the data on its computer (particularly
the video) was determined to be reckless, thus paving the way for severe
sanctions."

From the case itself:

“The department failed to have any type of
back-up system in place to ensure the preservation of the video recordings. In
view of the importance of the video recordings, it went beyond mere negligence
for the department not to have adequate safeguards in place for protection of
the recordings.”

Have a good weekend.

Constitution, International, Law, Privilege

Run for the Border!

J0442382 For those who travel to and from the United States, I thought it would be useful to re-visit the revised DHS guidelines announced August 27, 2009.  This article from the Canadian Bar Association sums it up very well.  To quote them directly:

"U.S. Customs officers have the authority to search and detain any
device capable of storing electronic information for any reason; they
can examine the electronic device without the traveller present; they
can copy from the device or “detain” the device; and they do not need
to obtain the traveller’s consent to conduct the search. “Electronic
devices” can include computers, BlackBerrys or similar devices, cell
phones, travel drives, DVDs and CD-ROMs, cameras, music and other
electronic media players."

Two things:  1) Yes, they use two 'ls' in the word 'traveller' in Canada, and 2) I wonder how many execs at your firm know about these rules?

Admissibility, Cases of Interest, Constitution, Criminal Liability, Law, Technology

MySpace Boast Opens the Door to a Murder Conviction

J0432756 Is this e-Discovery Insights or The Darwin Awards?  It might be hard to tell today…

The Indiana Supreme Court upheld a murder conviction against a man who beat to death the two-year-old daughter of his girlfriend.  The Court stated that admitting boasts he made about the crime on MySpace into evidence at trial did not violate the rules.

His lawyer appealed the original conviction, claiming that allowing the evidence to be presented prejudiced his client.

As far as I'm concerned, this is 'Evidence 101', folks.  If you place your character at issue during a criminal trial – as defendant did here – you 'open the door' to the prosecution to rebut with their own character evidence.

Like the article says, it doesn't matter whether you boast at your local bar or on MySpace; it has no effect on the rules of evidence.

Criminal Liability, eDiscovery California, Law

e-Discovery California: I, Witness

J0434085 I'd probably file newly-signed California SB 748 under 'good intentions, questionable results'.  This new privacy law results in a misdemeanor if one posts data on the Internet that
discloses information about witnesses or their family members if the
intent is to injure them or incite violence.

Here are two notables from the article:

"The impetus behind the bill was preventative, DA's office spokeswoman
Erica Derryck said. "This is an example of our office recognizing the
way in which technology is used," she said."

…and…

"The bill also allows witnesses to submit opt-out forms to Internet
search engine providers to keep their identifying information out of
public databases. Businesses and agencies are required to take down
identifying information about a witness within two days of receiving
such an opt-out form, or face a $5,000 civil fine."

The law targets gang activity in particular, which should tell you why this isn't going to work.  Gang members who are interested in witness intimidation or worse are not going to be intimidated by a misdemeanor for posting data on the 'net.  Conversely, the idea that one can police "businesses and agencies" in this manner tells me that the D.A.'s office doesn't recognize 'the way in which technology is used'.

I guess they forgot to call me to get my opinion on this one…

Cases of Interest, Law, Metadata, Privilege, Spoliation, Strategy

Case Got Your Tongue? Restless Natives, Whitecaps & a 3-Hour Tour

 

J0437252

This month’s summaries produced a lot of interesting cases and also told me one thing; it’s still mostly about ignorance.  Companies – and the firms that represent them – are continuing to get into hot water because they either don’t know the rules, or don’t comply with them when they do.

A couple of themes became apparent, so I’m using four cases (two each) to address the areas of privilege and native formats.

IT’S MY PRIVILEGE TO DEPOSE YOU

Imagine you’re in the middle of a deposition and the first hint that you’ve inadvertently disclosed privileged information is when your opponent produces it.  What do you do?  Is that considered a waiver?  Those are the facts of Coburn Group, LLC v. Whitecap Advisors LLC, 2009 U.S. Dist. LEXIS 69188 (N.D. Ill. Aug. 7, 2009).  The first thing to assume; your opponent, if they’re on the ball, will virtually always try to claim it’s a waiver because that’s simply good strategy.

However, the judge didn’t see it that way and took into account new rule 502(b)(1) (new as of 9/14/08) and focused on the factors of mistaken production and the reasonable steps taken to correct it.

Major Tours, Inc. v. Colorel, 2009 U.S. Dist. LEXIS 68128 (D.N.J. Aug. 4, 2009) – I don’t care what document is at issue; even a litigation hold letter as in the facts in this case.  Claims of privilege and/or work product doctrine notwithstanding, if it’s relevant to the proceedings it may become fair game.  Act accordingly.

THE NATIVES ARE GETTING RESTLESS

There still seems to be a lot of chatter regarding metadata.  It’s an area ripe for manipulation and abuse because a lot of people don’t really know what it is or how it’s used.  Craig & Landreth, Inc. v. Mazda Motor of America, Inc., 2009 U.S. Dist. LEXIS 66069 (S.D. Ind. July 27, 2009) is more of a traditional case in that the metadata is being requested because it’s relevant to the proceedings.  But see Covad Communications Co. v. Revonet, Inc., “Covad III”, 2009 U.S. Dist. LEXIS 75325 (D.D.C. Aug. 25, 2009) which uses metadata virtually as a cross-referencing tool to address an inconsistency.

Metadata is not one of those terms I repeat often for entertainment value.  When relevant, it can make or break a case.

Be careful when you wade into those legal waters…

[Has anyone else noticed that I use a lot of metaphors that involve H2O?  What’s that about???]

Duties, eDiscovery California, Law, Privilege, Scope

e-Discovery California: Amended C.R.C. 3.724 “Initial” Meet & Confer & Clawbacks

J0387759 About six weeks ago, I wrote that the new e-discovery California rules didn't include provisions for meet & confer or clawback agreements.

On August 14th, 2009, the Judicial Counsel amended the California Rules of Court 3.724 Duty to Meet and Confer to include the following language:

Unless the court orders another time period, no later than 30 calendar days before the date set for the initial case management conference, the parties must meet and confer, in person or by telephone, to consider each of the issues identified in rule 3.727 and, in addition, to consider the following:

(8)    Any issues relating to the discovery of electronically stored information, including:

    (A)    Issues relating to the preservation of discoverable electronically stored information;

    (B)    The form or forms in which information will be produced;

    (C)    The time within which the information will be produced;

    (D)    The scope of discovery of the information;

    (E)    The method for asserting or preserving claims of privilege or attorney work product, including whether such claims may be asserted after production;

    (F)    The method for asserting or preserving the confidentiality, privacy, trade secrets, or proprietary status of information relating to a party or person not a party to the civil proceedings;

    (G)    How the cost of production of electronically stored information is to be allocated among the parties;

    (H)    Any other issues relating to the discovery of electronically stored information, including developing a proposed plan relating to the discovery of the information; and

(9)    Other relevant matters.

Well…that settles that!

Cases of Interest, Cost, Duties, Law, Sanctions, Spoliation

Case Got Your Tongue? Safe Harbor, Spoliation & Sanctions, Oh My!!!

Melting Pssssst!  See the attorney in the funny hat on the right?  She screwed up her e-discovery case!

A little housecleaning, if I may.  Some of you may have noticed that I didn't do this feature last month.  That's because, after reviewing all of the cases, I kept repeating the same word – Duh!  My assumption is that you, like I, have very little time to waste.

Last month's cases involved weak attorney arguments – made to cover for a mistake – that were tossed by a judge who was having none of it!  Summaries are available everywhere, but I'm looking for cases that either 1) tell us something we don't know, or 2) clarify something we do know.

KCH Services, Inc. v. Vanaire, Inc., 2009 U.S. Dist. LEXIS 62993 (W.D. Ky. July 21, 2009)

NOTICE THIS! – The issue is simple.  When is one sufficiently on notice of potential litigation?  Simple in principle, maybe, but think about it for a moment.  If you're a huge company, irate customers might be calling every day, threatening to sue.  Should you take every single one seriously and immediately issue a litigation hold letter?  In the instant case, the court ruled (in my opinion, correctly) that the person receiving the call had sufficient basis to deem the threat of litigation credible and serious and therefore, should have issued a hold in anticipation of same.

Arista Records LLC v. Usenet.com, "Usenet II", 2009 U.S. Dist. LEXIS 55237 (S.D.N.Y. June 30, 2009)

HOW SAFE IS YOUR HARBOR? – I posed this question recently in my analysis of the new e-discovery California rule.  Here's an example of how you lose it.  Shenanigans!  Is that a legal term?  Oh well…

Spieker v. Quest Cherokee, LLC, “Spieker II”, 2009 U.S. Dist. LEXIS 62073 (D. Kan. July 21, 2009)

COST-SHIFTING TURNED INSIDE/OUT – I'll give this one points for originality, but again, the fact that your IT staff has no experience complying with an e-discovery subpoena is not going to get you any sympathy from the judge.  As far as the costs themselves, I wonder if a California judge might rule differently using our "Toshiba" standard?

In a future post, I will endeavor to address this question – if I don't have to waste too much time reading the "Duh!" cases…

Duties, eDiscovery California, Judges, Law, Sanctions

e-Discovery California: How Safe is your Harbor?

J0437217 Last time, I discussed what isn't in the CEDA.  Now, let's take a look at what is in there and how it differs from the Federal rules.  First up; Safe Harbor.

I've always tried to explain law in a common-sense fashion (which may be counter-intuitive to some, but I try).  In most cases, it's the procedural aspects that make things complicated (that, and vagueness of the laws themselves), but the basics still rely on logic.  For e-discovery Safe Harbor, you can almost understand it by channeling 'Watergate + 1' – what did you know and when did you know it?  The '+1' is, how did you react?

To me, how one might reach a violation is similar to the Federal rules; how sanctions are imposed is where things go in a different direction.

You want the easiest way to avoid sanctions?  Remember the word "but".  Absent exceptional circumstances, if you fail to preserve information due to a routine, good faith procedure, you're fine, but if you knew or should have reasonably anticipated that there was an obligation to preserve discoverable information…

Get the idea?

Here's where I see the problem; the language "Absent Exceptional Circumstances".  Anybody want to take a crack at what might be "exceptional circumstances"?  What happens when nobody can nail down what that means?  You probably guessed it; the judge will decide!

Monetary sanctions will likely be harder to come by under the California Safe Harbor rules.  Unfortunately, adverse inferences and/or sanctions on counsel may be more likely.

I suppose this is where I normally make a witty closing comment like, "Don't let your case go down with the ship by striking an e-discovery iceberg."  Naaaah…too predictable…