In the United States, privacy is sometimes described in legal circles as, "The Right to be Let Alone". Of course, if you're a public figure, among other criteria, that right is seriously curtailed. In Europe, they're charting their own course where privacy is concerned. They refer to it as, "The Right to be Forgotten". The major difference is, they're much more strict about enforcing the concept.
Category Archives: Law
#eDiscovery California: AB 141: “Fresh” Approach makes Juror Texts & Tweets a Misdemeanor!
California is putting its money where my mouth is and is enacting AB 141, authored by Assemblyman Felipe Fuentes (D-Sylmar) and signed by Governor Brown yesterday. It codifies the already-existing rule that juror texting or tweeting – or any other electronic communication in relation to an existing case – is a violation of duty. But effective January 1, 2012, a juror caught doing so is chargeable with a misdemeanor.
Technically, judges could most likely do so right now under their general ‘contempt’ power, but, as we’ve seen with electronic discovery rules, this specifically targets and clarifies the rules as they apply to electronic misconduct.
I’m firmly in the camp that believes there must be harsh (or more harsh) penalties for juror mischief if we have any hope of maintaining the integrity of the legal process (some will probably say we’re too late). This is a good start.
And for anyone who believes a judge wouldn’t dare impose such a penalty? Any lawyer who’s spent time in a few California courtrooms will tell you plainly; you’re wrong!
One & Dunn!
Hi All. I returned from my trip Tuesday and have been digging out from under ever since, but I wanted to quickly remind you that the Gibson Dunn 2011 Mid-Year e-Discovery Update was released a few days ago. I hope to get back on my regular schedule shortly so be on the lookout for my usual updates and original content!
The 6th Amendment, the Blackstone Ratio & #eDiscovery
"Better that ten guilty persons escape than that one innocent suffer."
– William Blackstone, 1783
"’tis much more Prudence to acquit two Persons, tho’ actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent."
– Voltaire, 1749
Whether you agree with the passages above (or a similarly-stated quote by Benjamin Franklin, circa 1785), one thing is certain; they form the basis of criminal jurisprudence in the United States. At least, they used to…I think that claim would be up for strenuous debate these days.
But that's why I wanted to bring you this particular case for our examination. It doesn't matter what I think; what matters is, familiarize yourself with these issues because there's a high likelihood you'll see them – or something like them – in civil or criminal court. After all, attorney-client privilege is attorney-client privilege – it just so happens the venue in this example is criminal court, and the argument is Constitutionality in theory; the 6th Amendment Right to Counsel.
One thing that distinguishes a criminal complaint from a civil one is, when the government discovers and/or seizes evidence (whether due to reasonable suspicion, probable cause or a formal warrant) in many instances, the target does not enjoy the benefit of attorney representation (hey, it might be torture for you, but I'd say my company is enjoyable…).
Such is the case with defendant. The government seized certain computer records, and among those records were emails from defendant to his wife – which were subsequently forwarded to defendant's attorney. Defendant was convicted, but upon appeal, it was determined that the emails were subject to attorney-client privilege and the prosecutor's review of same was deemed a violation of defendant's 6th Amendment rights.
What am I telling you? First, you won't always have control over what data is turned over to the other side (do I hear "clawback agreements", anyone?) and second, if you find yourself in a situation like this, somebody on your side had better examine each and every shred of data in the possession of your adversary.
Again, this isn't a judgment on the validity/invalidity of overturning a conviction based on a technicality (I'll leave it to followers of the Casey Anthony trial to argue their perception of what's fair or unfair about the current judicial system). We have a job to do, our clients depend on us and we are to zealously represent – and protect – their interests.
File this one under Segal's Ratio: "For your client's sake, where electronic evidence is concerned, endeavor to know what you don't know."
We the Twitter of the United Facebook, in Order to Form a More Perfect YouTube…
Anyone who still doubts the power of social media should take note of this story. Iceland is re-writing its Constitution, which would be a big enough deal on its own, however, they're inviting public comment on Facebook, Twitter and YouTube. Think about the implications of this for a moment. A process normally reserved for the elites of society, accessible to the general public.
Now, if I can just find a way around the 140-character requirement…
e-Discovery California: The ‘Leno’ Show Seeks to Overturn Diaz: SB 914
If you're not familiar with Diaz, begin here. In a nutshell, the Supreme Court of California ruled that if arrested, the government may search your cellular device – without a warrant. Now the California legislature is getting in on the act.
State Senator Mark Leno (D-SF) has introduced SB 914 (which has already passed in the senate), seeking to overturn that decision and require the government to do things the old-fashioned way; procure a warrant based on probable cause.
I've previously said that the current ruling has the potential to lead us down a dangerous path. As far as the state of California is concerned, this is a very important piece of 4th Amendment legislation.
Regardless of how this turns out, you already know my advice; set a password for your PDA – and keep it!
The Bench: The Last Cut is the Deepest
What picture did you expect? I'm in California, after all…
Following a $200 million cut in the California State Court system, another $150 million cut is proposed by Governor Brown's office. If you're interested in the details – and what the Chief Justice of the California Supreme Court has to say…
e-Discovery Insights Turns Bi(Coastal) to Examine Teen Sexting
By (no pun intended) coincidence, both the states of California and New York are addressing sexting issues by students and/or teens. The California Senate has already passed their version, while New York has only reached the proposal stage of their version. New Jersey is ahead of both states and has already passed a bill.
California's approach is more in the discipline arena, spelling out how students may be punished for sexting where the misconduct falls under the jurisdiction of a school. New York's is more broad and is geared toward a diversion program for first-time young offenders.
We've seen many jurisdictions take a very hard line where sexting by and between minors is concerned. For example, children have been charged with distributing child pornography – even for sexting photos of themselves. These are serious felonies that could result in jail time as well as the perpetrator being forced to register as a sex offender.
Furthermore, we get into a sticky area of protected classes, which are rules designed to protect the target class of an offense. In other words, if a statutory rape charge is designed to protect a young female against the advances of a young male, and both are caught having sex, the rule prevents prosecuting the female because she's in the class the offense is designed to protect. I refer to it as the "Groucho Marx" Rule (you know, "I wouldn't join any club that would have me as a member"?) The relevance here is that in many sexting cases, minors are being charged via underage rules that were designed to protect – you guessed it – minors.
I like to preface all child-related discussions with the fact that I don't have any children, so I'm not pretending to be the most qualified in the area, however, my approach is to ask current parents what they think they might have done if they'd had access to all of this amazing technology when they were young and – most likely – didn't consider the consequences of their actions? Do they think they might have done ill-advised, accidental or – dare I say – stupid things? Most of them would probably admit they might have; or did. Would they want their lives – and possibly their entire futures – destroyed due to one moment of poor decision-making? Remember, the only difference between now and then is, Twitter, Facebook and the Internet didn't exist to capture it all in real-time.
Normally, I wouldn't 'go there', but since this just happened a couple of hours ago, what do you think Anthony Weiner (D-NY) is thinking about right now?
We have to look very carefully at the facts. If the incident was truly devoid of the intent to do harm, I have to say, I like New York's approach.
Besides, dammit, if the Internet existed when I was young, I'd be a famous rock star instead of a lawyer!
I Order You Not to Read this Story!
Another example of closing the barn door after the horse has escaped…
#LTWC 2011 – Day 2: The Dancing Itos Meet the #DigitalRoachMotel
I'm sure you've noticed I'm using hash tags in my subject titles. I picked up a lot of followers on Twitter during the conference and the former tag allows others following LTWC to find my summaries easily. If you're already following me, you've seen the latter tag before. We'll get into that, below. As always, my disclaimer from my Day One post remains the same.
I am the man of steel! Ok, maybe I'm the man of aluminum! Ok, I'm thinking more along the lines of the man of caffeine. I attempted to do the impossible; attend every single session available on day two. I'm sure plenty of others do so, but I'll admit, when you do this, coupled with quick meetings prior to the commencement of the day, on every break and even afterwards, I can't speak for others, but I resembled some kind of zombie by the time I approached the parking garage (ask the person who met with me at the end of the day). You know why? Because, save for the final session, I sat in the front row (which is something I always do). For one thing, I'm live-commenting on the event via Twitter, plus, it keeps me engaged, which is important because I'm there to drink in every bit of knowledge I can – not to sit in the back and collect CLEs (not that I don't love CLEs…).
The keynote, "Trial by Sound Byte", was given by Manny Medrano. I've met Manny before and if you're from the L.A. area, you've likely seen him on local networks, covering cases like the OJ Simpson murder trial. Manny's a very personable guy and is even more so as a speaker. He contrasted his desire to cover hard news cases with the network's desire to cover celebrity cases, such as the death of Anna Nicole Smith. He focused heavily on the issue of media coverage and how it may interfere with justice rather than simply telling the story. Put simply, news reporters and networks are as apt to let the confidential cat out of the bag as social media users. He cited a few examples (some that we've covered on these pages) but what I liked was his hard-line approach to violators. He believes in harsh penalties (monetary, if possible) when there are egregious instances of juror misconduct. I agree wholeheartedly and have said so many times. Closing observation: this is probably the first time I'd heard the term, 'Dancing Itos', since 1996. A decade later, during the last criminal case I worked on for the D.A.'s office, the day the verdict came out, our sitting judge took ill, so we had a substitute. I walked into the courtroom and sitting at the bench was none other than Judge Lance Ito.
On to session one, covering "Electronic Discovery in the Cloud", with the 'legend', Tom O'Connor. He was supposed to be presenting alone, but was joined later by Brett Burney. This was an unexpected treat for me because last year, I stood in for Brett at another conference when he was stuck in Ohio and couldn't come. The whole thing was hastily arranged and I basically did it sans notes. Brett and I had never met in person, so it was great to finally put the face to the name.
This session was a perfect antithesis to the cloud presentation I attended on day one. Here, we covered all of the risks & rewards of cloud computing. In particular, the biggest bone of contention is how much control the vendor retains over the data. In some cases, a law firm that agrees to those terms may actually violate their code of ethics by turning control of confidential client information over to another without their consent. This was a more sobering – and in my opinion, more realistic – overview of what cloud computing is all about.
That's when it hit me; as far as your data is concerned, the cloud is like a digital roach motel. Your data checks in, but it may never check out. Or, for a little California emphasis, call it the Hotel California. Your data can check out any time it likes, but it can never leave…
Time for the lunch session, "A View from the Bench" which was led by two Federal Magistrates, Jay C. Ghandi and Suzanne H. Segal (no rel.). Judge Segal presented to my litigation group only two or three months ago on jurisdictional matters. I'm presenting an eDiscovery CLE to the same group in about two weeks and if I could just get the videotape from this session and play it, I'd let my attendees watch it while I sneak up and eat all of their cream-cheese desserts. It's exactly what I'm going to be saying, which is, in a nutshell:
- It's never too early in the process to bring in your technical assistance,
- You must plead with particularity regarding eDiscovery matters,
- Take as many of the decisions as possible out of our hands and you'll make us happy,
- Get your clawback agreements in place,
- You've had enough time to understand this stuff, so if you screw up, we'll sanction you!
*Sigh* The latter statement seems to be more in force in Federal jurisdictions, but I suspect that – in California's case, anyway – that's because our rules came into power in 2009, not 2006 like the Federal rules.
The judges presented us with a hypothetical scenario regarding a corporate sexual harassment case and we analyzed the mistakes that were made during the process. The gist of the issues were more focused on a paralegal performing attorney functions and making decisions that only an attorney may make, but what bugged me most was that, in a personal misconduct case, when the misconduct was reported, the paralegal contacted the subject of the accusation. This particular fact tidbit had nothing to do with their presentation and was likely just a by-product, but I would say this to you. If you become aware of that type of misconduct (which will trigger respondeat superior), here's my advice. Do not pass go. Go directly to whoever is responsible for overseeing these matters, call the accused into a meeting, have them sign a document informing them of the complaint while simultaneously arranging to collect an image of all of the person's data that you can. And do not let them access any of it until you're done.
Why? Because your job is also to protect the corporation; and the corporation may be held liable for any additional misconduct of its members. If you inform the accused perpetrator, what might they do? Go back to their office and start deleting incriminating emails? Who knows? The point is, you must issue a true litigation hold on the spot and preserve an image of all of the information you can. Think I'm being harsh? I know of organizations who do this, exactly. In fact, one of them will put the accused on leave without even informing them of the basis of the accusation. Doesn't that sound like being found guilty, until proven innocent? Yep. Welcome to Corporate America. But I digress…
Next session was "The Top 5 Ethical Concerns for Lawyers in E-Discovery", presented by Brett Burney (again, who I didn't know was going to be there). This was a nuts & bolts session and was very clear. The slides spelled out what our duties are, what the rules say (both eDiscovery and ethics), the supporting and dissenting case law and links to resources. Obviously, the longer one has occupied this space, the more one knows of these matters, but I've never thought it to be a bad thing to attend a refresher. It's very easy to forget.
Here's what I have to say about the last session. Do you recall what I wrote yesterday about the first session? Ditto. My brain was fried at this point, anyway. And so, we shall not speak of it again…
All in all, a great conference for me. See you next year!