Category Archives: Sanctions

Cases of Interest, Duties, Privilege, Sanctions, Spoliation

You Asked for it, You Got it, Toyota! (Biller Re-Visited)

In light of the mechanical defect issues at Toyota, here are some of the other commercial slogans they probably wish they hadn't created:

The best built cars in the world.

I love what you do for me – Toyota!

And, irony fully present, my personal favorite:

Your new experience of motoring.

Ok, so maybe I'm still bitter because I tried to get Toyota to hire me as a consultant a few times last decade (they're in Torrance, which is fairly close to where I lived at the time) to no avail.  Nah, it can't be that, since I drive a Toyota now – although thankfully, not one of the models subject to recall.

Maybe there was something to the claims made by Biller, after all.  From my post September 4th, 2009:

"We won't know more details about this for a while, but it's one to
watch.  My immediate thoughts are, 1) Plaintiff had better have some
convincing evidence to back up his claims and 2) Toyota had better hope
he doesn't."

Why do I think this is going to become a lead federal spoliation case somewhere down the road?  [Sorry, I couldn't help myself.  There had to be at least one automobile-related pun in here somewhere]  Not only that, there's the cross-over to the attorney's ethical obligations that I discussed in my prior post.

Yes, I wanted to make a catchy closing sentence, but I've already used up my one-pun allocation.

Cases of Interest, eMail, Sanctions, Spoliation

Case Got Your Tongue? Corrections, Cavalier Attitudes & Black Holes

J0309277 Our 'privacy' theme continues on…

Like it or not, you don't enjoy the level of privacy you think you do, and copping an attitude about it only makes things worse.  For example, I regularly caution my clients about their third-party agreements.  I don't care that your contract says the third-party is required to cooperate.  When litigation arises, many of those same third-parties will ignore the agreement and circle the wagons.

Take a look at Dawe v. Corrections USA, 2009 U.S. Dist. LEXIS 96461 (E.D. Cal. Oct. 1, 2009).  The third-party defendant refused to comply with plaintiff's request to inspect defendant's personal computer.  I'll make this short and sweet; defendant lost the argument.

Third-parties aside, how about non-parties?  In Thayer v. Chiczewski, 2009 U.S. Dist. LEXIS 84176 (N.D. Ill. Sept. 11, 2009):

"A non-party email service provider that displayed a "cavalier attitude"
toward defendant's subpoena seeking email deleted by plaintiff prompted
the court to order the provider to show cause why it should not be held
in contempt and to pay defendant's reasonable fees and costs in
obtaining discovery about the provider's ability to recover plaintiff's
email."

I'm including Laethem Equip. Co. v. Deere & Co., 2009 U.S. Dist. LEXIS 86109 (E.D. Mich. Aug. 31, 2009) simply for the eloquence of the judge in explaining where e-discovery has brought us:

The defendant's motion for sanctions is "a further example of how discovery has become a veritable 'black hole'
having the potential to draw in and annihilate the case itself,".

In a perfect world, cases are decided on the merits.  Instead, parties are increasingly using procedural moves as battering rams, and I think this does a disservice to us all.

Backup & Recovery Systems, Cases of Interest, Criminal Liability, Law, Sanctions, Spoliation, Technology

Case Got Your Tongue? Arrest, Lies & Videotape

J0407481 Hat tip to my colleague William Hoffman…

I thought I wasn't going to find anything relevant for my usual Friday post, but Peschel v. City of Missoula, 2009 WL 3364460 (D. Mont. Oct. 15, 2009) has it all; alleged crimes, police brutality and missing video from a police cruiser.  I'm pressed for time, so I ported you over to K&L Gates for a look at the details, but here are Mr. Hoffman's comments:

"Finding
that a video of Peschel’s arrest was lost as a result of the city’s
recklessness, the court granted defendant’s motion for sanctions and
“designat[ed], for purposes of the case, that the arresting officers used
unreasonable force to effect the arrest of [defendant].”  What struck me
was the failure of the city to back up the data on its computer (particularly
the video) was determined to be reckless, thus paving the way for severe
sanctions."

From the case itself:

“The department failed to have any type of
back-up system in place to ensure the preservation of the video recordings. In
view of the importance of the video recordings, it went beyond mere negligence
for the department not to have adequate safeguards in place for protection of
the recordings.”

Have a good weekend.

Backup & Recovery Systems, Cases of Interest, Cost, Disaster Recovery, Judges, Sanctions, Technology

Redux: Orly gets Sidekicked!

Einstein Time is Money

We're revisiting two former posts today to see how things are working out…

First, we have birther Orly Taitz.  Her frivolous filings have resulted in a $20,000 sanction from judge Clay Land.  She has a lot of supporters who I'm sure will raise the cash for her, so I don't think it'll serve as much of a deterrent.  But maybe this will; the judge has also referred his order to the State Bar of California.

If you want to read a PDF of the judge's order, click here.

Second, we have the Sidekick smartphone and all of the lost user data.  I've been following this story with interest.  Microsoft has issued a recovery tool, but it only applies to contacts, not all of the other data such as photos and notes.  As expected, class-action lawsuits are flying, but many will fizzle out if the recovery tool works.

At this point, there's no solid confirmation that users have recovered data – or what particular data has been recovered – but there's a moral to this story.  It originally hit the news wires around October 10th and the recovery tool was to be available yesterday. 

Moral #1:  Can you afford to be out of commission for two weeks?  When you trust your data to the cloud, make sure it isn't the kind made up mostly of vapor.

Moral #2:  Always, always, back up your own data whenever possible.

Admissibility, Cases of Interest, Constitution, Criminal Liability, Sanctions, Spoliation, Technology

Case Got Your Tongue? Interceptors, Drug Problems, Home Sweet Home & the Raspberry

J0321090 Ok…so I was gone a little longer than intended…let's get down to business.  We have four cases to examine this month.

United States v. Comprehensive Drug Testing,
Inc., 2009 WL 2605378 (Cal. App. 9 Dist. Aug. 26, 2009).

This is an extremely important fourth amendment case that arises out of the Major League Baseball steroid investigation.  The California 9th Circuit has established new guidelines for the search and seizure of ESI.  A must-read, in my opinion.

In re Weekley Homes, L.P., 2009 Tex. LEXIS 630 (Tex. 2009).

This is a very good case out of Texas regarding an overly broad request for ESI.  The court likened computer data to that held in file cabinets and reasoned (I think eloquently) that it is highly intrusive to expect easy access to employees' ESI when these employees are indirectly-relevant to the litigation at hand.  The court stated that the least intrusive means necessary should always be utilized.

Se. Mech. Servs., Inc. v. Brody, 2009 WL 2883057 (M.D. Fla. Aug. 31, 2009).

There have been a series of decisions from this case and I'm numbering this one "Brody IV".  As you know, I've avoided most sanction cases, however, this one resulted in an adverse inference by the court due to the defendant's intentional and deliberate wiping of BlackBerry data.  We all had to know a case like this was coming…

Gurevich v. Gurevich, 2009 N.Y. Misc. LEXIS 1045 (N.Y. Sup. Ct. 2009).

This case should send shivers down your spine, due to its greater implications regarding privacy and were it to ever be applied more broadly, such as in a business environment.

Wife used husbands password to access his email and found incriminating information to use in their divorce proceedings.  I'll let you decide for yourself what you think of the court's opinion.

Duties, eDiscovery LOL, Miscellaneous, Sanctions

Lawyer Pays Tank! I’m Sure it was a Lovely Tank…

J0406591 Note to Perry:  Coffee first, read second.

If you've been reading me for a while, you know about my love affair with coffee.  So, imagine my surprise this morning when I read the headline, "Lawyer Pays Tank".  After coffee, the headline reads, "Lawyer Pay Tanks".  Either it's lack of caffeine, dyslexia, or maybe someday I'll admit I need those reading glasses…

This post is actually about another subject; accuracy.  I probably post a lot less than some of my colleagues because I live in constant fear of making a mistake and as a result, making a fool of myself – or worse, running afoul of the State Bar rules.

It takes even longer for magazine articles because I vet everything very carefully.  After all, I can come back and edit this blog – I can't do that once an article is published.  So, take a look at this post about an attorney who was a little too revealing about her clients in her blog.  She's accused of violating her duty of confidentiality.

You wanna piece of me???

Cases of Interest, Cost, Duties, Law, Sanctions, Spoliation

Case Got Your Tongue? Safe Harbor, Spoliation & Sanctions, Oh My!!!

Melting Pssssst!  See the attorney in the funny hat on the right?  She screwed up her e-discovery case!

A little housecleaning, if I may.  Some of you may have noticed that I didn't do this feature last month.  That's because, after reviewing all of the cases, I kept repeating the same word – Duh!  My assumption is that you, like I, have very little time to waste.

Last month's cases involved weak attorney arguments – made to cover for a mistake – that were tossed by a judge who was having none of it!  Summaries are available everywhere, but I'm looking for cases that either 1) tell us something we don't know, or 2) clarify something we do know.

KCH Services, Inc. v. Vanaire, Inc., 2009 U.S. Dist. LEXIS 62993 (W.D. Ky. July 21, 2009)

NOTICE THIS! – The issue is simple.  When is one sufficiently on notice of potential litigation?  Simple in principle, maybe, but think about it for a moment.  If you're a huge company, irate customers might be calling every day, threatening to sue.  Should you take every single one seriously and immediately issue a litigation hold letter?  In the instant case, the court ruled (in my opinion, correctly) that the person receiving the call had sufficient basis to deem the threat of litigation credible and serious and therefore, should have issued a hold in anticipation of same.

Arista Records LLC v. Usenet.com, "Usenet II", 2009 U.S. Dist. LEXIS 55237 (S.D.N.Y. June 30, 2009)

HOW SAFE IS YOUR HARBOR? – I posed this question recently in my analysis of the new e-discovery California rule.  Here's an example of how you lose it.  Shenanigans!  Is that a legal term?  Oh well…

Spieker v. Quest Cherokee, LLC, “Spieker II”, 2009 U.S. Dist. LEXIS 62073 (D. Kan. July 21, 2009)

COST-SHIFTING TURNED INSIDE/OUT – I'll give this one points for originality, but again, the fact that your IT staff has no experience complying with an e-discovery subpoena is not going to get you any sympathy from the judge.  As far as the costs themselves, I wonder if a California judge might rule differently using our "Toshiba" standard?

In a future post, I will endeavor to address this question – if I don't have to waste too much time reading the "Duh!" cases…

Duties, eDiscovery California, Judges, Law, Sanctions

e-Discovery California: How Safe is your Harbor?

J0437217 Last time, I discussed what isn't in the CEDA.  Now, let's take a look at what is in there and how it differs from the Federal rules.  First up; Safe Harbor.

I've always tried to explain law in a common-sense fashion (which may be counter-intuitive to some, but I try).  In most cases, it's the procedural aspects that make things complicated (that, and vagueness of the laws themselves), but the basics still rely on logic.  For e-discovery Safe Harbor, you can almost understand it by channeling 'Watergate + 1' – what did you know and when did you know it?  The '+1' is, how did you react?

To me, how one might reach a violation is similar to the Federal rules; how sanctions are imposed is where things go in a different direction.

You want the easiest way to avoid sanctions?  Remember the word "but".  Absent exceptional circumstances, if you fail to preserve information due to a routine, good faith procedure, you're fine, but if you knew or should have reasonably anticipated that there was an obligation to preserve discoverable information…

Get the idea?

Here's where I see the problem; the language "Absent Exceptional Circumstances".  Anybody want to take a crack at what might be "exceptional circumstances"?  What happens when nobody can nail down what that means?  You probably guessed it; the judge will decide!

Monetary sanctions will likely be harder to come by under the California Safe Harbor rules.  Unfortunately, adverse inferences and/or sanctions on counsel may be more likely.

I suppose this is where I normally make a witty closing comment like, "Don't let your case go down with the ship by striking an e-discovery iceberg."  Naaaah…too predictable…

Admissibility, Cases of Interest, Constitution, Criminal Liability, Duties, Law, Privilege, Sanctions, Spoliation, Technology

State of the (e-Discovery) Union; The Sequel

Aspirin My prior post was the Reader's Digest version.  Now, get ready for the migraine version…

Gibson, Dunn & Crutcher LLP has released a comprehensive mid-year update on e-discovery.  This is simple, folks.  If the responsibility for e-discovery sits squarely on your shoulders – and if you take that responsibility seriously – you need to read this publication, no matter how long it takes or how painful it might be (I have some aspirin if you need it…it'll come into play when you read about the increase in sanctions…)

Admissibility, Criminal Liability, International, Law, Sanctions

The Most Interesting Man in the World…(at LegalTech)…

Interesting Man …wasn't playing Jai Alai…he was attorney Browning E. Marean III from DLA Piper, who deconstructed international e-discovery for 90 minutes…

Sorry for the break, folks.  The long weekend got longer and longer…and then there was Monday…

'Lotta traffic on my sites – everyone's interested in the new "Act"…but I gotta get back and finish my piece on international e-discovery from LegalTech I promised you last week.

I've had my eye on this subject for a while.  I spent half my life living outside the United States – so of course I have some perspective on it – but I don't think that matters much.  It may not happen tomorrow or the next day, but it will happen.  Some day, you'll face an issue that involves a foreign nation.  When that day comes, you've got at least three issues:

  1. Language – if you're lucky and the other country is also an English-first nation, that'll solve one big problem, eh?
  2. Laws – if you act as if you're in the United States, you could receive a big fine and face jail time.
  3. Technology – more on that later.

There I go, harping on the criminality angle again…but here's a real world example for you…

A seemingly innocent violation of the law may bring a penalty of 10,000 Euros and six months in jail.  Lesson learned: know what you're doing before you set foot on foreign soil – or hire someone who does!

But I'm getting ahead of myself.  Mr. Marean was joined on the panel by George I. Rudoy, Director of Global Practice
Technology & Information Services for Shearman & Sterling.  Also present was Michael R. Polin, Esq. from the International Law Firm
of Michael R. Polin.

Foreign nations (by the way, yes, Canada does qualify as a foreign nation for our purposes) have Blocking Statutes.  You do not want to violate them or you may face penalties as described above.

A primary issue is what to do with a foreign document when you want to 'take it back to the office'.  Many countries have strict definitions of what "taking a document out of the country" means.  Is it theoretical?  Is it physical?  These are the details you must know before you act.  It harkens back to Constitutional Law; what is a "taking"?

This of course begs the question, if you can't take it out of the country, how will you get it into evidence?  A custodian?  A notary?  An intermediary?  May a third-party testify that they're examined the document?

Another major issue; what is "privacy"?  Unlike the US, many foreign nations don't believe that privacy ends where the corporate entity begins.  They consider data generated by employees to be "personal data" and therefore subject to privacy laws.  Be ready for this.

What about technical matters?  ASCII contains 128 characters.  International documents that involve Unicode may contain thousands upon thousands of characters.  Do you have the technology in place to be able to translate these documents?

And while we're on the subject, do you have a translator?

A lot of questions that you need to answer.  Dang it!  I can't even use the catchy finish that if you don't it'll all be 'lost in translation' because I already used it a long time ago…