Third time lucky? Here's my latest article in California Lawyer magazine. By mutual agreement, I'm not going to be doing these monthly anymore (time simply does not permit) so I think you might see one from me every few months. We'll see how the schedule goes next year.
Category Archives: Metadata
N-B-C…(See Ya Real Soon…). A-L-G…
…gee, ya think maybe you overplayed your hand? It wouldn’t be fair for me to make a prediction about the NBC/ALG spat without returning to tell you how it’s progressing so far (of course, had it not gone the way I expected, I probably wouldn’t return to tell you how it’s progressing so far).
As you’ll recall, I predicted that NBC’s version of the email message was probably the legitimate one, based on the behavior of the parties. Since then, ALG has claimed to have a voice mail message of the offending NBC employee that bolsters their version of events.
Did ALG release the message headers of the email? No. Did they release the voice mail message? No. Do they plan to release either? No.
Here are two posts on the subject; the first from Politico.com and the second from Scott W. Graves. What do you think?
This event is a product of society’s attitude, “If it comports to my point of view, I accept it as gospel truth without vetting it.” For the attorneys out there, I channel Ronald Reagan; “Trust, but verify.”
Somebody’s Gonna be in Trou-ble!!!
“This one is a little quirky because, based on my research, I’m somewhat uncomfortable with the plaintiff, however, it does well to illustrate
how a case can become a P.R. nightmare even before the defendant files an answer.”
That’s a quote from my September 4th post about the Toyota case. This time it’s not a ‘case’ and the parties are NBC and ALG, but the P.R. nightmare is at hand.
We have two entities arguing over the true content of an email message. ALG claims the message they received from NBC contains a racial slur while NBC denies it. There’s no doubt that only one of the versions can be correct. Regardless of the posturing going on, it’s simple; the message headers and metadata will easily establish whose telling the truth.
If I were a betting man, I’d suspect NBC’s version of the email is correct. Why? Because NBC is being quite forceful and citing a forensic examination. What is ALG doing? Claiming the message is on an office computer and they can’t get to it to provide message headers until Monday.
This is a classic example of the type of posturing you might see in a real case (in fact, I have seen it), and when it’s revealed which party is lying, somebody’s gonna be in trou-ble! If it turns out ALG is the culprit, they will have already scored a P.R. hit by claiming that they – a right-wing group – have been slighted by NBC (also known as ‘the devil’ to their followers). The debate will continue on in cyberspace long after the truth comes out.
My hint? I’d never heard of ALG and I suspect neither had most people until now. Remember the adage, “No press is bad press”…
Case Got Your Tongue? Restless Natives, Whitecaps & a 3-Hour Tour
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
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
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???]
Case Got Your Tongue? “Don’t Tase Me, Bro!!!”
Here I go with my latest summary of lead cases I think are of interest. When it comes to electronic devices that might be subject to e-discovery, I thought I'd thought of everything. I was wrong…
Ford Motor Co. v. Edgewood Properties, 2009 U.S. Dist. LEXIS 42001 (D.N.J. May 18, 2009)
USE IT OR LOSE IT – This is a classic example of where technical minds weren't properly involved from the outset of litigation and that lack of involvement resulted in a waiver. The Defendant properly sought production of documents in native format with metadata intact. The problem is, Plaintiff complied by delivering the documents in TIFF format. Plaintiff waited six months to request the data again in native format and another two months to make a motion before the court. The court deemed eight months too long and as a result, ruled Defendant waived its right to receive the documents in native format.
I admit I'm inserting my opinion here, but let's face it; the incoming data should have gone straight to a technical mind for immediate analysis. A cursory review would have discovered the issue and Defendant could have addressed it within a reasonable time. On the other hand, if Defendant knew about the issue and was simply tardy in addressing it, shame on them.
McGarry v. Becher, 2009 U.S. Dist. LEXIS 40879 (S.D. Ind. May 13, 2009)
"DON'T TASE ME, BRO!!!" – This potential class-action criminal case may be summed up in one sentence. The court ruled that memory from tasers is both discoverable and not burdensome on the Defendant. Add tasers to your list of electronic devices!
1100 West v. Red Spot Paint and Varnish Co., 1:05-cv-1670-LJM-JMS (S.D. Ill. June 5, 2009)
KHARMA CHAMELEON – Don't waste any more time here. Go directly to Ralph Losey's blog, e-Discovery Team (do not pass go and do not collect $200) and read his treatise on this case; the best post about attorney ethics – or lack thereof – I've seen in a long time!
2009 ABA Legal Technology: Our Survey Says!
The American Bar Association recently published the first two volumes of their annual Legal Tech Survey (Disclosure: I'm a prior member of the ABA, but have no current interest). I've had a look at some excerpts and they tell a very interesting story:
Don't get me wrong – I'm as big a fan of MACs as anyone; in fact, in the 90s I was a MAC networking specialist at Hughes Space and Communications and Universal Music Group (don't get me started on Appletalk!). But, this doesn't change reality. Only 4% reported MAC OS as the operating system on their primary computer.
For anyone who is tasked with advance-planning, this information is invaluable because it guides us to where the enterprise is moving over the next few years. I just hope we can keep up!
Case Got Your Tongue? Bray, the SEC goes ‘Bad’ & Brodie gets the ‘News’
Sorry 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!