Category Archives: Sanctions

eDiscovery 101, eMail, Sanctions

e-Discovery 101: Attorney, Heal Thyself

51321746_SadClown I hammer away at technology professionals, Hollywood actors, sports stars, business executives and the general public about inappropriate conduct that may get them into hot water – very hot water.  It would be unfair if I didn't also shine a spotlight on my own profession (ahem, that would be lawyers).

In an email exchange, an attorney called his opponent "scum sucking", for one.  Then things really got nasty – for six months.  The result?  Both were sanctioned by the Florida Supreme Court.  (Then, they got into the clown car and drove away…)

Cases of Interest, Cost, Criminal Liability, Duties, Judges, Sanctions, Spoliation

Victor Stanley II: The “Gang that couldn’t Spoliate Straight.”

Pony Up! Anyone remember this?  Back in December 2008, I warned that someday, eDiscovery misconduct would result in a bad actor going to jail.  Well, we've arrived at that point.  Judge Paul Grimm deemed Defendant's spoliation misconduct so serious that if he doesn't immediately pony up for Plaintiff's attorney fees and costs, he faces two years in prison.

As I mentioned last week, I've been tied up in trial, so I'm going to send you to Ralph Losey's excellent (as always) post about the case.

As someone who has personal experience with attorneys hiding the EDD football, I'm all for this ruling.

Note: I included this post in the "Criminal Liability" category because I believe it's an important read to anyone researching the subject; but this isn't a criminal sanction.  I just want to make that clear.

Cost, Implementation, Management, Media, Sanctions, Strategy, Technology, vDiscovery Insights

Bumper to Bumper, Part II: Steve Jobs is Wrong

Any guesses as to which guy is Steve Jobs and which guy is the customer?  Hint: Steve Jobs always wears black.

If you read Part I of this series, in closing, I asked whether the "bumper" solution was a good decision from a management standpoint.  My opinion?  Yes, but only if you look at it from a purely financial perspective.  From a customer service/relations standpoint, it's a disaster.

Let's review the progression of events, from initial customer complaints to Apple's eventual response:

  1. Denial – "There is no problem."
  2. Blame the Customer – "You're holding it wrong!"
  3. It's all in your Head – "Our s/w is erroneously telling you that you have a problem."
  4. Blame your Competitors – "Everyone else has the same problem."
  5. Denial II – "There is no problem, but we'll give you a free bumper."

What's the 1st thing that comes to mind?  This isn't indigenous to Apple.  I've heard this song before.  Where do think the joke, "That isn't a bug, it's a feature." comes from?  I just think that with Apple's dedicated user culture, they have a better chance than most to pull it off; but that doesn't make it right.

I've spoken to career Apple customers who are so incensed by what they term the arrogant attitude of the company (usually referring to Jobs, specifically) that they've finally had enough.  Apple can afford to lose them, but that's not really the point, is it?

So where's the eDiscovery tie-in?  Where do I start?  You might be in a corporate IT department.  You might be inside counsel.  You might be outside counsel.  You might be me – a consultant, positioned somewhere in-between all of them.  What are you going to do when management adopts the attitude:

  1. Denial – "We don't need to implement this."
  2. Blame the 'Customer' – "The client doesn't want it."
  3. It's all in your Head – "We don't need to comply with the rules."
  4. Blame your competitors – "Nobody else is implementing it."
  5. Denial II – "We'll take our chances.  If litigation arises, we'll look at it then."

The difference between Apple and you?  They have a public relations issue and face class-action lawsuits.  You – and/or your management are likely to face serious sanctions.  But don't worry; that's only if something goes wrong…

 

eDiscovery LOL, Judges, Rants & Raves!, Sanctions

e-Discovery LOL: A Narcissistic, Maniacal, Mental Case

MP900337277 I know what you're thinking.  Perry finally admits the truth.  I will only say this in my defense; in my line of work, those are all excellent qualities!

Maybe I'll be in a little trouble for making light of a serious issue, but it's the start of 4th of July weekend and we could all use a laugh.

No, the title doesn't describe me (unless you speak to some of the people I've worked with over the years), it's what an attorney said to a judge; resulting in sanctions.

You know that old adage; when upset, count to ten before you act.  Now, the attorney might as well count to six – that's the number of months of suspension he received.

Backup & Recovery Systems, Cost, Disaster Recovery, eMail, Sanctions, Technology

FINRA Fines Firm for Failure

J0442430 I plucked this particular headline out of many as an excellent real-world illustration of the downside of failing to properly retain and archive data.  In this particular instance, Piper Jaffray paid FINRA (the Financial Industry Regulatory Authority Inc.) a $700,000 fine because they were unable to produce an electronic copy of a single email message for an investigation.

Unfortunately, that's when Piper "informed" FINRA about the other 4.3 million emails they failed to retain over a period of six years.  Obviously, I don't have the inside scoop as to why this occurred, but based on experience, I can tell you that $700,000 buys a lot of data protection.

As I've pontificated on many occasions, what if this involved a lawsuit or a tax issue; or a host of other issues?  Does it really matter?  Proper data retention and management may involve a large capital outlay, but pays for itself over and over in the long run.

If you're the person tasked with getting this done, forward this story to your bosses – or present copies at the next meeting.  Eventually, someone will realize that avoiding the issue is simply penny-wise and pound-foolish.

Backup & Recovery Systems, California Lawyer, Disaster Recovery, Sanctions, Spoliation, Technology

CA Lawyer: IT from Mars, Lawyers from Venus

CA Lawyer May 2010

Folks, I'm going to trial Monday so forgive the sparse posts.  I wanted to point you to this article in CA Lawyer magazine from my colleague, Robert Brownstone.  He and I are both on the CA State Bar's Law Practice Management & Technology executive committee.  We were amused to discover that his article would be published this month, and my next article (on the intersection of e-discovery and privacy) is scheduled for July's issue.

We're also presenting a CLE seminar along with a third colleague (for you non-lawyers, that's "continuing legal education") at the CA State Bar annual meeting in September.

In the same issue is this blurb about e-discovery coming back in-house.  It's funny because I recently observed that more corporations are attempting to handle e-discovery internally to save costs and that lately all of my new clients are law firms.

Backup & Recovery Systems, Cases of Interest, Cost, eMail, Sanctions, Zubulake

Case Got Your Tongue? Caffeine, Voicemail & 8 is Enough

J0321217 Mistakes…carelessness…sanctions.  Month after month, I review a plethora of new decisions, looking for something unusual and interesting.  Do I find usually find it?  No.  Look at this summary of nine recent cases that Kroll Ontrack has compiled and what do you see?  Sleight of hand, ignorance of the rules & stall tactics.

Starbucks Corp. v. ADT Sec. Servs., Inc., 2009 WL 4730798 (W.D. Wash. Apr. 30, 2009):  In a case that harkens back to the "Jerry Maguire" case I wrote about over a year ago, the court ruled that just because your emails were backed-up on a "cumbersome old system" doesn't automatically make them "not reasonably accessible".  If that isn't enough, they also said, "…even if the information was ruled not reasonably accessible, good cause existed to order production." [italics added]

There are still people out there who seem to think that the federal rules themselves somehow determine what is – and isn't – reasonably accessible.  In fact, someone wrote a letter claiming this very fact in response to one of the articles I wrote in California Lawyer magazine.

Dead wrong.  The court decides what these parameters are, based on the facts of the instant case.

Vagenos v. LDG Fin. Servs., LLC., 2009 WL 5219021 (E.D.N.Y. Dec. 31, 2009):  The quirk in this case is, defendant was awarded an adverse inference sanction over plaintiff's failure to properly preserve a voice-mail message – even though there was no evidence of bad faith on the part of the plaintiff.  Negligence vs. intent…

Magaña v. Hyundai Motor Am., 220 P.3d 191 (Wash. Nov. 25, 2009):  On appeal, the Supreme Court of Washington applied the three-prong default judgment test (willfulness of violation, substantial prejudice to opposing party and availability of lesser sanctions) and reinstated an $8 million default against defendant.  Parties are still betting against the house; but more and more often, the house wins.