Category Archives: Media

Admissibility, Criminal Liability, Media

Fine’s ‘Old Ball & Chain’ May Result in a New Ball & Chain

By now, most of you are aware that the wife of assistant-basketball-coach Bernie Fine of Syracuse was recorded in what is the now-infamous, "I knew everything!" debacle.

MP900315546Didn't I just caution about the people closest to you?  Folks, the old world is over.  No matter the circumstances, you must always assume that you're being watched, recorded or tracked; even in the so-called privacy of your own home.  I've reached the point where I believe you must ask yourself, "Am I about to say/write something that could be construed as harmful?" before ever opening your mouth or sending a text or email.

It's impossible for me to get inside the head of a person to figure out what they were thinking – and if we delved into the moral aspects we'd never come to any resolution – but take this as another extreme example of what happens when private thoughts become public.

Think broadly.  This isn't just about one person.  The recording was made in 2002 and has apparently been in the possession of authorities for years.  It's Penn State all over again.

Heads will roll…and perhaps they should.

Education, Law Practice Management, Media, Strategy, Weblogs

A Perry Home Companion

MP900400186 Well, it's been a quiet week in eDiscovery Insights-Land, California, out on the edge of the prairie…the little blawg that time forgot and the decades may improve…where all the women are strong, all the men are good-looking, and all the lawyers are above average…

Anybody who's a fan of Garrison Keillor recognizes the above reference.  About the only connection I have to the original is that I grew up in the province of Alberta, which is on the Canadian prairie (yes, Canada has a prairie…)

I channeled that quote after reading this great line from Adrian Dayton in the National Law Journal:

"Social media and blogging aren't about making you famous; they are about making you a little bit famous…"

Dayton examines why major law firms are – or aren't – blogging, and why.  Take it from me, I can think of many reasons to blog and many reasons not to blog.  In this 'taken out of context' world, which also happens to be a staple of litigation strategy (as I partially examined in this post, recently) it's very easy for someone to take a snippet of information and manipulate it.

Comes with the territory.  Like it or not, we live in a sound-bite world.

On the other hand, a lot of major firms may not be blogging; but they're reading us.  I found that out when, for example, a Partner at Jones Day quoted one of my posts for an article about Twitter in the New York State Bar Association Journal.

A little bit famous…

[Thanks to Charlotte Brownstone for today's title!]

Constitution, Criminal Liability, e-Evidence Insights, International, Media

e-Evidence Insights: Social Media Doesn’t Distinguish Between Good and Bad Riots

Rockem_Sockem_Robots In the "Be careful what you wish for!" category, first we had the Arab Spring, which was considered to be a positive development for the Middle East – in the West, anyway.  Now we have the UK riots – and the reaction is entirely the opposite.

With the Arab Spring, social media was hailed as a catalyst to facilitate needed change.  And with the UK riots?  Social media is being disparaged as – you guessed it – a catalyst to facilitate anarchy.

That's the problem with revolutions; perspective is skewed based on which side of them you're on.

What's more interesting to me is the difference between the vehicles of change.  With the Arab Spring, it was Facebook, Twitter and YouTube.  With the UK riots, it's Blackberry Messenger (as if Blackberry doesn't have enough public-relations issues right now, including losing yours truly as a customer).

What's driving this decision?  Economics, for one (Blackberries are cheaper in that region) and secrecy (BBM is private).  I don't want to belabor the point – people died in both riots – but we should endeavor to understand these issues.

If this were happening in the United States, we'd be arguing whether this was a Constitutional violation of the Brandenburg standard.  And while we argued, the FBI would be accumulating electronic evidence.

You may consider yourself to be on the 'right' side of the revolution, but make no mistake; either way, someone is tracking you.  This will make a big difference if, in the end, you find yourself on the 'wrong' side.

Cases of Interest, Cost, Criminal Liability, International, Management, Media, Sanctions, Scope, Technology

Cascades: Good for Mountains, Bad for News Orgs

MP900438949 First things first.  My beloved Cubs rewarded my visit with a 13-3 loss to the Marlins, marking this as the most lopsided score over the 15+ years I’ve been making this journey.  Now, firmly ensconced in San Francisco – and with my state bar duties dispensed with for the week – we can return to more pressing matters…

How many of the execs swallowed up in the News of the World Scandal thought they’d ever be arrested in their lifetimes?  None.  In fact, a high percentage of the general public would agree with them.  But people-who-you-normally-wouldn’t-expect-to-be-arrested are arrested.  And some of them eventually go to jail.

While you watch the slow and painful erosion of the Murdoch empire – and the collateral damage causally connected to it – I hope you consider one ingredient to add to your schadenfreude; you’re watching a large-scale version of how your criminal or civil matter will unfold if you don’t deal with it when it’s manageable.

Of course, yours won’t likely be this big or this public – or this expensive – but this is how it’ll start; a molehill that, over time, grows into a mountain.  Or, in this case, a mountain range.  eDiscovery rules & regulations, litigation readiness programs and early case assessment are all designed to staunch the bleeding and, if instituted early enough, prevent the wound altogether.

You have to be willing to take the pain.  Like they always say, the first cut is the deepest.

Cost, Media, Sanctions

The Seven-Second Solution: You’re Suspended!

MP900175530 Folks, I know we have a sense of humor (otherwise, you'd be offended by half the posts I write), however, maybe it's just me, but I'm starting to think the general population doesn't.  Granted, these are tough economic times, we have wars going on, and yes, seriousness has its place.  But, knowing what you do about the reactions lately to 'attempted' humor, you've still got to do what I advised way back in the olden days; be your own filter.

Think it if you want to, just don't repeat it.  It's not worth it.  My Twit List has grown longer and longer with these examples, but look what happened to journalist Mark Halpirin yesterday.  He made a joke – and even warned everyone ahead of time that he was about to make it – yet, still was suspended by MSNBC.  Of course there's more detail to the story, but we don't need to hash out whether he regrets the decision to tell it out loud.

Last I checked, this was the land of free speech (I'll point out that this incident should not be confused with Constitutionally-protected speech, which commenters mistakenly do all the time), but with electronic devices come new problems.  Virtually everything you say or email and every destination you travel to is now being monitored by someone.

Remember Ari Fleischer?  "Americans need to watch what they say, what they do".  Who ever thought it'd come to this?!

Cost, eDiscovery LOL, Media, Miscellaneous, Sanctions, Twit List!

e-Discovery LOL? Weiner Resigns

MP900444351 Normally, this would be relegated to the 'Twit List', but I'm making an exception.  A lot of people are still laughing about this issue…but is it funny?  Let's review.  A guy initiates some sexting, takes a few raunchy photos of himself and…that's about it.  Unfortunately, this guy happens to be a U.S. Congressman, but a couple of weeks ago, that was his claim to fame.  Now, look at what's changed:

  • He's disgraced himself and embarrassed his family
  • We can only imagine what his wife is going through (and a newlywed, no less)
  • He's resigned his prestigious position
  • A novelty company has created an X-Rated doll to mock him

You know what else?  He could be you.  What's the only thing that distinguishes him?

Circumstances.

eDiscovery California, Media, Miscellaneous, Security

e-Discovery California: ‘Mari J.’ Gets Frank with Governor Brown about Privacy

CA OPP
Mari J. Frank is one of my colleagues on the California State Bar's LPMT Section Executive Committee.  She is none too pleased about the Governor's proposal to close the California Office of Privacy Protection.  Below are her comments to the media including a letter she sent to the Governor's office.  Am I the media?  Kinda…sorta.  Ultimately, I agree with her sentiments.  See her (slightly edited) comments and a link to the letter below:

Dear Members of the Media-

We are currently living in the information age, where privacy issues are at the top of the list of consumer concerns. California has been the leader in privacy protection in our country, and in promoting legislation insisting on transparency. For example, we were the first state to pass a security breach notification law, the first state to insist on the confidentiality of social security numbers, which are essentially the key to the kingdom of identity theft.

The California Office of Privacy Protection has been a great resource for consumers, businesses and even for you as journalists and media for all kinds of information privacy and identity theft information and resources.   However, new State Budget Proposals propose to completely remove funding for this small but influential office.  From my perspective it is outrageous that the Governor would even consider the huge jump backwards associated with closing a small but highly influential and necessary office for less than $500,000 savings.

I am so thankful for you, members of the press, since you are the ones who bring important issues that are often hidden (like this one) to the public.  Please read my letter and visit the California Office of Privacy Protection’s website at www.privacy.ca.gov/ to see the tremendous guidance and outreach that is provided.

Thank you for the opportunity to share with you this letter that I recently sent to Governor Brown, various California Budget Committees and the  California Senate Privacy Committee.   I hope you consider addressing this issue or at the very least excerpt a portion of my letter to share with your readership. 

Thank you so much for your consideration of this important office.

Best,

Mari Frank

eDiscovery 101, Education, Media, Security

e-Discovery 101: Assembly Required

MP900289894 I don’t have any children, but many of my friends and relatives do.  Nevertheless, several years ago, I advised the Los Angeles District Attorney’s Office on their internet privacy program called ‘Protecting Our Kids’.  It shocked them when I demonstrated how easy it would be for kids to circumvent all of their ‘watchdog’ procedures.

So, I thoroughly enjoyed reading this story in which a high school in Connecticut accessed students’ non-secure social media pages, then presented some of their findings at an assembly.

I think you can already imagine the reaction of some of the students who were featured. 

But the creators of the presentation took care only to use images that would not embarrass or offend anyone.  Had they done otherwise, that would be another story.

As it stands, my comment to the offended students – and their parents – is, sometimes, we don’t realize the favor someone is doing for us.  If those same students think twice the next time they’re about to post an item, then the school has accomplished its goal.

Besides…did the message really get through?  Here’s what some of the angry students did first:

They complained on Twitter.

Admissibility, Cases of Interest, Constitution, Media

Your Stream of Consciousness Needs a Dam

J0443661 This should probably be obvious to most of us, but in case it isn't, I give you the following advice:  If your public persona directly conflicts with your private one (e.g., you're a hypocrite), perhaps you aren't best suited for social media.  Examples?

1 – A technology-savvy priest who was carrying on an affair – with his second cousin, no less – should probably not host a TV show with 200,000 viewers where he espouses the vow of celibacy (yes, TV is an ancient form of social media…).  By the way; he reportedly ended the affair two years ago, but unfortunately, the evidence never goes away.

Irony of the day?  He also penned the books, "On Camera and Off" and "Life Full of Surprises."

Indeed.  Another reputation stained.

2 – Say you're a cop, you know, that whole, "To Protect and To Serve" mantra?  Best not to describe your occupation on Facebook as "Human Waste Disposal".  Just sayin'.

See, with our 1st example, it's more about embarrassment, but with our 2nd, it's about scuttling criminal trials.  How?

Bias, among other things.  A comment like that suggests a pre-disposition toward the public at large – and might even suggest a little instability.  Notice I used the word, 'suggest'.  I'm not saying it's true, because that doesn't matter.  Never underestimate the power of suggestion.

Unless you think about it very carefully – or experience it yourself – many people simply can't understand how off-hand comments like this can become a very big deal.  But they can – especially in a criminal proceeding where reasonable doubt is the standard.  Oh, and as a bonus, you might even receive a reprimand and/or get fired.

Contemplate it…count to ten…do whatever is necessary to check yourself.  Otherwise, you'll be saying "Dam", alright, but it'll be a homonym.