Category Archives: Scope

Admissibility, Constitution, Criminal Liability, Implementation, Scope

The Star(t) Chamber


 

Take note; the FBI has given itself expanded powers to potentially examine information such as databases or your household trash; based on flimsy – or non-existent – evidence.  This is more of a "be aware" notice as some jurisdictions have been doing this already.

But it reminded me of the movie, The Star Chamber, because there was a scene in which evidence was tossed due to agents searching a suspect's trash and the court later finding that this required a warrant; because at the time of the search, the trash was deemed not to be in the public domain.  Based on several higher-court decisions, it's unlikely one would obtain that ruling today.

So here's my question.  What're they going to do when they're searching someone's computer trash folder?  Will it depend on the location of the machine?  Are discarded electronic files the same as discarded physical trash?  Will I be making this argument in a future court hearing, someday?

At first glance, this may seem specious, but I know many people who never empty their trash folder.

Backup & Recovery Systems, Cost, Criminal Liability, Disaster Recovery, Education, Implementation, Law Practice Management, Scope, Strategy

#CalBar Solo & Small Firm Summit Recap

MP900439382 Yeah, I know.  The summit ended Saturday at noon.  It's been a busy week for me, but better late than never.  I had to skip the Thursday sessions, but arrived early Friday morning.  I was backing up another one of my LPMT colleagues in the tech lab, so between his presentations and mine, I didn't get to attend anyone else's sessions, which was a shame, because there were some good ones.  I did catch the bulk of Stephen Fairley's morning keynote on marketing and SEO.  I can only say this; the man is right on about what he was saying.  It was similar to the advice I received from my web guru, Clint Brauer.  Bottom line; if you're going to make a serious attempt at creating an online presence, you need to understand how your information will propagate to the 'web before you develop web sites, create accounts, etc.

I didn't know what to expect for my labs on disaster planning, but for both sessions (I did the identical presentation back-to-back) I had full houses.  The attendees asked a lot of good questions – which is the first indication they're not bored – and although we had some technical difficulties, I was able to illustrate how, in some cases, a few minutes is all it takes to create a basic backup strategy.

Day three, Saturday, I took in the morning keynote on "Multitasking Gone Mad", or, how the more we multitask, the less we accomplish.  Now, this was Irwin Karp presenting – who also preceded me on the LPMT committee – but I'll tell you, the idea of doing one thing at a time is something to strive for, but awfully hard to accomplish.

The second session should really make the eDiscovery people excited.  It covered hearsay (civil, for the most part), but guess what the starring attraction of most of the examples was?  Electronic evidence!  For example, the presenter showed a slide from a traffic camera of a car colliding with a truck at an intersection.  Another was a photo of a simple bar code (not a QR code, like the one you see on my right sidebar).  In both instances, the question was, is this hearsay?  As usual, the answer was, it depends on your jurisdiction.

The third session was one that eDiscovery professionals most likely wouldn't be attending.  It covered the activity up to and including the arrest of a client.  As you know, I also handle criminal cases, so again, this was a good refresher for me.

So, basically a quick in-and-out, and barring any changes to the schedule, my next presentation will be at Calbar's annual meeting in September.

Admissibility, Cases of Interest, Constitution, Criminal Liability, eDiscovery California, Judges, Law, Privilege, Scope

e-Discovery California: The ‘Leno’ Show Seeks to Overturn Diaz: SB 914

MP900443017 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!

eDiscovery California, Law Practice Management, Scope, Technology

e-Discovery California: You Heard it Here Last! (SPR11-26)

Attorneys; hopefully, this isn't the first time you're hearing about the Judicial Council of California's Invitation to Comment on a proposed new Subpoena Duces Tecum, item number SPR11-26 (warning: link opens 12-page pdf).  Why is this important to you?  Because it addresses the special needs of requesting production of ESI.

The deadline for comment is 5:00 p.m., June 20th, 2011.

Admissibility, Criminal Liability, e-Evidence Insights, eMail, Law, Privilege, Sanctions, Scope, Spoliation

e-Evidence Insights: A Good Senator, Spoliated.

…with deference to Mark Twain…

MP900400181 Recently-former-Senator John Ensign's (R-NV) affair and alleged attempts to cover it up would normally be fodder for the press – and I'd take little notice of it.  However, with the release of the Senate Ethics Committee Panel report, we find this:

"The report also accuses Ensign of deleting documents and files the committee was likely to request. The senator deleted the contents of a personal email account after the investigation was launched, it says." [italics added]

And this:

"The committee's report describes Cynthia Hampton as running up $1,000 in phone bills by texting Ensign while he was traveling in Iraq with a congressional delegation."

I want to distinguish between the first quote and the second.  The former is clearly in the realm of relevance (save for an attempted-but-likely-futile privilege argument against access to his personal email account), but the latter is an example of how 'beside-the-point' ESI becomes relevant.  The affair may be morally wrong, but texts between the two players are private – or at least they would be, except for the likelihood that access to them might lead to relevant evidence that would tend to prove or disprove a material fact.  Examples?  Did they conspire to cover up the affair through means that would be deemed improper?  Plus, who paid the phone bill?

This is how your personal cell, PDA or email account ends up in the hands of your adversaries.  You're not immune.

What do you think the odds are that Sen. Ensign knew, or should have known that destroying evidence after learning of an investigation is at best sanctionable conduct and at worst, a crime?

This is how destruction turns into obstruction.  Time to call "Aunt Judy"…or Judge Judy…

Admissibility, Cases of Interest, e-Evidence Insights, Education, eMail, Scope

e-Evidence Insights: From Innocuous to Probative

MP900401435 If you'll forgive me my lack of time today,  I'd like to link you to a New York Times examination of the case, Skyhook Wireless v. Google (or as I like to call it, the "Jabbar" case).  The reason I'm singling this out is, if you follow the story, you'll see a great example of how seemingly innocuous statements contained in email messages, laid end-to-end, balloon into something much bigger.

Oh, and if somebody sends you an email – and you feel it would be more appropriate to continue the discussion off-line – walk by their office (if possible) or pick up the phone.  Don't email them back, "PLEASE DO NOT! Thread-kill and talk to me off-line with any questions".

If I saw that in document review, where do you think I'd start digging?

eMail, Scope, Security, Technology

White House Correspondence: Private v. Public or Paper v. Plastic?

MP900385809 The other day, I caught this article from Politico regarding House Oversight and Government Reform Committee Chairman (R-Calif.) Darrell Issa's desire to get his committee's hands on White-House-generated emails, Facebook posts and Tweets.  Nothing unusual about that, we would agree.  But therein lies the rub; he wants personal emails, Facebook posts and Tweets.

Let's put Issa's political motivations aside for a moment and look at this objectively.  I've certainly mentioned several times that the line between public and private is becoming more blurred by the day.  None of us helps the cause, do we?  We send public email from private accounts and private email from public accounts.  Many people use Facebook for both private and public purposes with no separation whatsoever.  Same with Twitter.

Hey, even in the accounting department, they know about the rules against commingling!  The problem is, it's so easy to circumvent what would be normal auditing protocols, isn't it?  And who wants to log into – and check – multiple accounts, anyway?  Besides, as an example, you can use your Facebook account to log in to other resources, so why not?  I could even do so to write this blog – if I had a Facebook account, that is…

That's what my headline means:  It matters little whether you choose paper or plastic; either way, you're still transporting groceries…

Cases of Interest, Cost, Duties, Implementation, Sanctions, Scope, Spoliation, Strategy

Newton’s 3rd Law of eDiscovery

"For every eDiscovery action, there is an equal and opposite reaction."

— Sir Isaac Newton

W_newton

As I've mentioned before, my litigation hold letter – that you see over on the right sidebar – is still the most popular link on the blog (next to the actual posts, that is…).  I've also provided this template to attendees of my presentations.  A question comes up regularly:

"If we send out a letter like that, our adversary will simply replace their name with ours and send it right back to us.  We don't want that to happen!"

It's a good point.   And as I've also mentioned before, what's good for you may also be good for your adversary.  Furthermore, there's absolutely no fault in thinking about this strategically, for example, keeping your clients' advantages/disadvantages in mind when you craft your demands and responses (which, hopefully, you're doing anyway).

There are times when you want everything but the kitchen sink, but sometimes, the sink itself will do nicely.  After all, if both sides produce a gargantuan amount of product, somebody's going to have to review it – and pay for it.

Be careful what you wish for in litigation; you might get it – and get nothing.

An adversary may produce reams of product, the sole purpose of which is to either make it next to impossible to find relevant needles in the document haystack, or worse, obfuscate the fact that they didn't produce relevant documents at all.  Oracle's Larry Ellison knows a bit about this [In re Oracle Corp. Sec. Litig., 627 F.3d 376 (9th Cir. 2010)].

That's why my template is meant only as a guide.  It may be appropriate to issue a letter that simply says, "You're on notice and we expect you to preserve relevant data."  And here's the other elephant in the room to consider; are you absolutely certain that your client is completely forthcoming about their own data?  If not, we already know who'll be on the hook for it.

As for attorneys who are complicit in assisting their clients with 'hiding the football'?  As they said in the movie, Airplane, "…they bought their tickets, they knew what they were getting into. I say, let 'em crash!"

Huh?  Wrong Newton?  Don't look at me.  Go back and redo your keyword & concept searches!

Fig_newton

Backup & Recovery Systems, Cost, Criminal Liability, Disaster Recovery, Duties, Implementation, Management, Sanctions, Scope

Japan Epilogue: (Un)Safe Harbor: 10% x 50 Years = Prison?

MP900321207

We started with a premise:  A disaster has occurred.  What now? 

We segued into a limited examination:  Were we properly prepared?  Why or why not? 

Now, comes the all-too-familiar Watergate-esque finale:  What did we know; and when did we know it?

According to this comprehensive report, officials were warned that there was a 10% risk within a 50-year span of a tsunami swamping the protective barriers of the Fukushima Dai-ichi nuclear power plant – and disregarded it.  What result?

  • Human toll: incalculable
  • Environmental damage due to radiation contamination: incalculable
  • Damage to 'hard assets' (plant, equipment, etc): incalculable
  • Near-term cost to replace loss of % of daily supply of electricity to Japanese citizens: incalculable
  • Evacuation and relocation costs: incalculable
  • Current financial losses to shareholders of TEPCO: $30 billion dollars of market value
  • Errors and Omissions losses to insurance carriers: incalculable

I could go on, but you get the idea.  Now for the bad news.  That's not the worst of it.  How about:

  • Liability of executives, government officials, etc. for negligence.  I'm referring to all liabilities (i.e., not just financial issues), since some parties may enjoy sovereign immunity; but that doesn't address their political liabilities.
  • Liability of executives, government officials, etc. for criminal negligence.  Think that it isn't a distinct possibility?
  • Liability of corporate executives to their shareholders for massive losses due to lack of reasonable prudence.

You know what?  I have to stop now.  This feels ghoulish.

The point I'm making is, certainly, this is about as bad as a disaster gets, but we can all learn from it because there's only one item we need to change – scale.  Plus, the most important thing relevant to us in the real-life case study we're now seeing is what happens when we're wrong.

Worried eDiscovery clients always ask me how they're ever going to do everything right.  I tell them, there is no such thing.  It's impossible to anticipate everything, but as a rule of thumb, the fallback position is the basic negligence standard:

Knew, or should have known.

If they acted in good faith based on what they knew or should have reasonably anticipated at a given point in time – and present a defensible position as to why they acted – they'll likely preserve safe harbor.  Naturally, one can never completely account for the odd rogue judge.  The day all judges rule alike is the day I give a specific answer.  In the meantime, you do the best you can.

The key is in making sure you have the appropriate harbor pilot.