Category Archives: Law

eDiscovery California, Law

e-Discovery California: AB 5: Pass! To Consent Calendar

J0427752 This will probably never happen again.  I was actually up early and sitting at the PC when my latest update on California AB 5 arrived in my inbox.

Yes, that actually is yours truly on the left – hey; I told you I'm not a morning person…

The bill passed its first reading in the senate yesterday (you'll recall I posted on this hearing earlier), will have its second reading today, then it's on to the consent calendar for the third and final reading (explanation here).

Will the third time be a charm?  Stay tuned!

Cases of Interest, Criminal Liability, Duties, Law, Privilege, Spoliation, Zubulake

Case Got Your Tongue? Mirror, Mirror & Searching the Forest

J0440920 Another interesting collection of cases crossed my desk, recently.  I'm going to refrain from writing about the "wake-up call" case because it's being cited everywhere.  Besides, if anyone hasn't noticed yet, my entire blog is about that.  Furthermore, we already know about my issues with waking up…

By coincidence, two of the cases involve mirror-images of disks; however, the issues in each are completely unrelated.  Also, we have another illustration of how, when rules aren't followed to the letter, one can destroy a criminal case.

Am. Family Mut. Ins. Co. v. Gustafson, 2009 WL
641297 (D.Colo. Mar. 10, 2009)

YOU GOT IT, I TAKE IT – Plaintiff requested that the court set the protocol for the inspection of the mirror-image of Defendant's hard drive.  The court obliged, and in doing so, provided what I think is an excellent guide for anyone undertaking this process.

Forest Laboratories, Inc. v. Caraco Pharm. Laboratories, Ltd., 2009 U.S. Dist. LEXIS 31555 (E.D. Mich. Apr. 14, 2009)

ZUBULAKE – There's only one way to describe this case; Zubulake Duty applies, except when it doesn't…

I can't count how many times on this blog I've referred to how
exceptions to a rule may be more dangerous than the rule itself. 
Forest illustrates that point.  This falls under the "knew, or should
have known" category.  The court is saying that if Plaintiff knew, or
should have known that ESI might be relevant to a dispute in the
future, they should have sought to preserve it – for key employee documents only – contrary to existing
company policy.  A tall order.  Talk about hindsight!

State v. Dingman, 2009 Wash. App. LEXIS 550 (Wash. Ct. App. Mar. 10, 2009)

This case also involves mirror-images of hard drives.  It should serve as a cautionary tale to anyone on the prosecutorial side of the equasion.

The State seized Defendant's computers.  Defendant wanted mirror-images of his computers' hard drives in a certain format and the State refused to provide them in that format.  The court found this to be prejudicial to Defendant and a violation of his Constitutional rights.  Defendant's conviction was overturned.

Still think the 4th, 5th & 6th Amendments don't apply to e-Discovery?

eDiscovery California, Law

e-Discovery California: AB 5: Do You Hear what I Hear?

J0385319 We're inching closer to a resolution on California AB 5.  The Senate has set a hearing date for June 9.

Talk about a collision course!  Our special election is underway today and polls still indicate that the five propositions relevant to the budget are failing badly.  I'll be posting later tonight or early tomorrow about that.

But since the Governor has championed all of these ballot measures, methinks he's not going to be in a very good mood…

I've seen the Governor's movies.  When he gets angry, something always gets broken.  Let's hope this time we don't have to play Humpty Dumpty and put AB 5 back together again.

eDiscovery California, Law

e-Discovery California: AB 5 on the Move

J0433281 I must confess – I'm not a morning person.  This causes numerous problems for me because, as my friends will tell you, I'm not an afternoon nor evening person, either.  Basically, I have two stages in any given 24-hour period; coffee and the rest of the day.

So, it is with great pain that once again, I crawl out of bed after receiving another – as my uncle used to quip – 'crap-of-dawn' notice from the California legislature regarding AB 5 so I can bring you the news as soon as possible.  Is that dedication, or what?

On April 30th, the Bill was referred to the committee on the judiciary.

Now, where's the !@#$%^ Splenda?!?!?!?

Cases of Interest, Criminal Liability, Law, Metadata, Privilege, Sanctions

Case Got Your Tongue? Bray, the SEC goes ‘Bad’ & Brodie gets the ‘News’

PH03099ISorry I’ve been missing in action the past few days.  It’s good and bad.  The good?  I’m really busy.  The bad?  I have less time to post.

I’ve decided to start another periodical series on lead e-discovery cases.  We all have access to these resources, but what I’m endeavoring to do is pick out what I think are the ones you need to know.  As well, I’m going to focus on some of the cases with criminal implications because, 1) it’s an area of interest to me, and 2) I continue to expect there’ll be more cases that induce criminal liability – both for the clients and the attorneys – and I want you to avoid this minefield.  Yeah, I know, once again it’s my theory – but I’m sticking to it!

Also, this will make me a better lawyer because it forces me to take more time reviewing the plethora of cases I receive weekly.  So, in the end, we all benefit.

From now on, whenever you see “Case Got Your Tongue?”, it’ll be another summary.  I hope you find them helpful.  Let’s get started…

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 U.S. Dist. (M.D. Fla. Mar. 4, 2009)

SANCTIONS – Your adversaries are getting more sophisticated, folks.  You can try to bury them with paper and hope that you’ll slip by without complying properly with the subpoena – and you can lie about it if you want to, but make no mistake; more of you are getting caught.

SEC v. Badian, 2009 U.S. Dist. (S.D.N.Y. Jan. 26, 2009)

CLAWBACK – This is a back-door way to criminal liability.  The mistake started at the beginning…

Improper and/or lazy review caused inadvertent production of possibly incriminating documents.  Lesson learned:  Get it right the first time.  An attorney’s letter stating that you retain “clawback rights” doesn’t mean that you do just because you make the claim.

The example I often use is, you can put a sign on your property that says, “Trespassers will be Shot”, but that doesn’t create the unlimited license to shoot people.  Depending on the facts, you may still be charged with murder – or any lesser offense – warning or not.

Independent Newspapers, Inc. v. Brodie, 2009 Md. (Md. Feb. 27, 2009)

INTERNET ANONYMITY – This is a real lawyer’s case and should send shivers up the spine of anyone who thinks they can say whatever they want in internet forums and retain their privacy and 1st Amendment protections.  I’ve warned about this before – anything you say or do on the internet may come back to haunt you someday – and may be discoverable.  Well, Maryland’s Court of Appeals agrees.

I’m not sure how often I’m going to do this series.  Of course, it’ll depend on the cases that come across my desk.  If they simply affirm rules we already know, I’m not as inclined to post.  Let’s see what the next few weeks have in store for us…

Oh, and it’s good to be back!

eDiscovery California, Law

e-Discovery California: Action on AB 5???

Man Scratching Head --- Image by © Royalty-Free/CorbisWell, this is embarrassing…

I received an automated update that there had been action on California AB 5, but after trying all day, I can’t confirm that anything has happened.

So, herein lies the dilemma.  Do I post this even though I don’t seem to have news or do I refrain and risk looking like a fool if, in fact, something has occurred?

I voted for posting.  All I can tell you is that I received notice at 5:32am today that action had occurred yesterday.  Either I’ll let you know – or maybe you’ll let me know…

Cases of Interest, Duties, Law, Privilege, Sanctions

Report to the Principal’s Office!

j0316801 Here’s the tough part – you’d better be sure which Principal’s office is the correct one.  In my prior post, I discussed Principals and Agents from the perspective of both.  But this one is for attorneys; and again, I feel this is relevant in the arena of e-discovery because there will be corporations – and individual custodians – involved.

The Wall Street Journal posted this article about a case which serves as a cautionary tale of what may happen when attorneys endeavor to serve multiple masters (note: you may be required to register, but it’s free).  Ironically, it involves Broadcom (which we know has been at the hub of some very ground-breaking case law involving e-discovery sanctions).

The issue here is that executives were unsure of exactly who their attorneys were representing.  The attorneys represented the corporation, but apparently did not make it clear that they did not represent the executives as well; and I think most of you can understand the inherent conflict of interest that could potentially develop if the interests of both diverge.

This was a critical part of ethics (Professional Responsibility) class in law school and on the bar exam.  The graders wanted to make absolutely sure we knew at all times who our particular client was when representing a corporation.  As stated above, it’s the corporation, not you.  If you think you’re in jeopardy, there’s no middle ground; you must retain your own attorney to protect your interests.

Irell & Manella LLP failed to properly make this distinction clear – and the judge is making them stay after school.

Duties, Law, Miscellaneous, Sanctions

Agent and Principal – Any Interest?

j0433130 Well, I’m back.  It was a fascinating week and as always, I learned something.  I didn’t have time to post, but this article about a case involving Principals and Agents caught my eye.  At first blush, it may seem like this is for lawyers only, but actually this is just as relevant to those who provide e-discovery services.

Agency and Partnership (as they call the subject in law school) covers the various representative relationships – legal and otherwise – that developed from common law and eventually formed the basis of the business structures we see today.  Even though this concept has existed for hundreds of years, California didn’t begin testing the subject until the July 2007 Bar Exam (I was one of the Guinea Pigs).

For our purposes, it’s a great review of the responsibilities between Principals and Agents.  The most obvious relationship is lawyer to client, but this also applies to those who provide e-discovery services to clients.  The reason I think it’s important is that, with sanctions being a very real possibility in these cases, it’s a good idea to be reminded that this is not a game.  What we do – and how we do it – has serious consequences.