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!