Category Archives: Judges

The Bench: Goodbye, 4th Amendment…We Hardly Knew Ye…


I shared this article with my Twitter followers, but upon reflection, I wanted you all to see it.  It's penned by the Chief Justice of the Federal Ninth Circuit, Alex Kozinski – and his law clerk (I mention this because you'll see the relevance in the article).  The subject speaks for itself…enjoy the read.

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!

#LTWC 2011 – Day 2: The Dancing Itos Meet the #DigitalRoachMotel

Dancing Itos I'm sure you've noticed I'm using hash tags in my subject titles.  I picked up a lot of followers on Twitter during the conference and the former tag allows others following LTWC to find my summaries easily.  If you're already following me, you've seen the latter tag before.  We'll get into that, below.  As always, my disclaimer from my Day One post remains the same.

I am the man of steel!  Ok, maybe I'm the man of aluminum!  Ok, I'm thinking more along the lines of the man of caffeine.  I attempted to do the impossible; attend every single session available on day two.  I'm sure plenty of others do so, but I'll admit, when you do this, coupled with quick meetings prior to the commencement of the day, on every break and even afterwards, I can't speak for others, but I resembled some kind of zombie by the time I approached the parking garage (ask the person who met with me at the end of the day).  You know why?  Because, save for the final session, I sat in the front row (which is something I always do).  For one thing, I'm live-commenting on the event via Twitter, plus, it keeps me engaged, which is important because I'm there to drink in every bit of knowledge I can – not to sit in the back and collect CLEs (not that I don't love CLEs…).

The keynote, "Trial by Sound Byte", was given by Manny Medrano.  I've met Manny before and if you're from the L.A. area, you've likely seen him on local networks, covering cases like the OJ Simpson murder trial.  Manny's a very personable guy and is even more so as a speaker.  He contrasted his desire to cover hard news cases with the network's desire to cover celebrity cases, such as the death of Anna Nicole Smith.  He focused heavily on the issue of media coverage and how it may interfere with justice rather than simply telling the story.  Put simply, news reporters and networks are as apt to let the confidential cat out of the bag as social media users.  He cited a few examples (some that we've covered on these pages) but what I liked was his hard-line approach to violators.  He believes in harsh penalties (monetary, if possible) when there are egregious instances of juror misconduct.  I agree wholeheartedly and have said so many times.  Closing observation: this is probably the first time I'd heard the term, 'Dancing Itos', since 1996.  A decade later, during the last criminal case I worked on for the D.A.'s office, the day the verdict came out, our sitting judge took ill, so we had a substitute.  I walked into the courtroom and sitting at the bench was none other than Judge Lance Ito.

On to session one, covering "Electronic Discovery in the Cloud", with the 'legend', Tom O'Connor.  He was supposed to be presenting alone, but was joined later by Brett Burney.  This was an unexpected treat for me because last year, I stood in for Brett at another conference when he was stuck in Ohio and couldn't come.  The whole thing was hastily arranged and I basically did it sans notes.  Brett and I had never met in person, so it was great to finally put the face to the name.

This session was a perfect antithesis to the cloud presentation I attended on day one.  Here, we covered all of the risks & rewards of cloud computing.  In particular, the biggest bone of contention is how much control the vendor retains over the data.  In some cases, a law firm that agrees to those terms may actually violate their code of ethics by turning control of confidential client information over to another without their consent.  This was a more sobering – and in my opinion, more realistic – overview of what cloud computing is all about.

That's when it hit me; as far as your data is concerned, the cloud is like a digital roach motel.  Your data checks in, but it may never check out.  Or, for a little California emphasis, call it the Hotel California.  Your data can check out any time it likes, but it can never leave…

Time for the lunch session, "A View from the Bench" which was led by two Federal Magistrates, Jay C. Ghandi and Suzanne H. Segal (no rel.).  Judge Segal presented to my litigation group only two or three months ago on jurisdictional matters.  I'm presenting an eDiscovery CLE to the same group in about two weeks and if I could just get the videotape from this session and play it, I'd let my attendees watch it while I sneak up and eat all of their cream-cheese desserts.  It's exactly what I'm going to be saying, which is, in a nutshell:

  • It's never too early in the process to bring in your technical assistance,
  • You must plead with particularity regarding eDiscovery matters,
  • Take as many of the decisions as possible out of our hands and you'll make us happy,
  • Get your clawback agreements in place,
  • You've had enough time to understand this stuff, so if you screw up, we'll sanction you!

*Sigh*  The latter statement seems to be more in force in Federal jurisdictions, but I suspect that – in California's case, anyway – that's because our rules came into power in 2009, not 2006 like the Federal rules.

The judges presented us with a hypothetical scenario regarding a corporate sexual harassment case and we analyzed the mistakes that were made during the process.  The gist of the issues were more focused on a paralegal performing attorney functions and making decisions that only an attorney may make, but what bugged me most was that, in a personal misconduct case, when the misconduct was reported, the paralegal contacted the subject of the accusation.  This particular fact tidbit had nothing to do with their presentation and was likely just a by-product, but I would say this to you.  If you become aware of that type of misconduct (which will trigger respondeat superior), here's my advice.  Do not pass go.  Go directly to whoever is responsible for overseeing these matters, call the accused into a meeting, have them sign a document informing them of the complaint while simultaneously arranging to collect an image of all of the person's data that you can.  And do not let them access any of it until you're done.

Why?  Because your job is also to protect the corporation; and the corporation may be held liable for any additional misconduct of its members.  If you inform the accused perpetrator, what might they do?  Go back to their office and start deleting incriminating emails?  Who knows?  The point is, you must issue a true litigation hold on the spot and preserve an image of all of the information you can.  Think I'm being harsh?  I know of organizations who do this, exactly.  In fact, one of them will put the accused on leave without even informing them of the basis of the accusation.  Doesn't that sound like being found guilty, until proven innocent?  Yep.  Welcome to Corporate America.  But I digress…

Next session was "The Top 5 Ethical Concerns for Lawyers in E-Discovery", presented by Brett Burney (again, who I didn't know was going to be there).  This was a nuts & bolts session and was very clear.  The slides spelled out what our duties are, what the rules say (both eDiscovery and ethics), the supporting and dissenting case law and links to resources.  Obviously, the longer one has occupied this space, the more one knows of these matters, but I've never thought it to be a bad thing to attend a refresher.  It's very easy to forget.

Here's what I have to say about the last session.  Do you recall what I wrote yesterday about the first session?  Ditto.  My brain was fried at this point, anyway.  And so, we shall not speak of it again…

All in all, a great conference for me.  See you next year!

The Augur Sanction

MP900442519 e-Discovery Santions are increasing!  e-Discovery sanctions are decreasing!  Well, one of those statements is true, but here’s a better question; does it matter?

My pal Bob Ambrogi at Catalyst posted this excellent analysis showing the increase in sanctions.  Of course, when I ran into him at LTNY, we both chuckled over the fact that the latest Gibson, Dunn report states the opposite.  Bob followed-up on his own article with another excellent analysis on the discrepancy.

When it comes to this portion of the e-Discovery discipline, I prefer to look at it as simply “discovery”.  I even have a nifty formula.  The number of attorneys/clients engaging in discovery misconduct is directly proportional to those engaging in e-Discovery misconduct.  The proportion then increases/decreases based upon the bad actors’ knowledge of electronic forensics.  In other words, someone is more likely to engage in trickery if they think they won’t get caught – and when it comes to e-Forensics, in most cases, they don’t even know how we catch them.

Obviously, this doesn’t make me a genius.  If anything, it’s common sense.  But, betwixt and between all the debate about cooperation, I remain firmly in the “I’ll believe it when I see it” category.

This is all beside the point, anyway.  As I’ve stated before, if you look at the total amount of sanctions, it’s still an infinitesimal number when applied to the amount of cases.

Continued education of all parties regarding the process involved still augurs well for the future by keeping honest parties honest – and making dishonest parties at least think twice before acting.

“Welcome to what feels like the 17th Day of LegalTech”

MP900432728 If you were following my tweets from LTNY, I posted that quote from Jason Baron Tuesday afternoon.  But no, it wasn't day 17, it was day two – or for Logan's Run fans, last-day for me since I had to catch an early flight home Wednesday.  And that leads me to my first comment.  Drat!  Yeah, it's a word.  There was a "government" track on day three, but I couldn't stay to attend.  Worse, one session was on the contrast in ediscovery rules between civil and criminal investigations – right up my alley.  But, we make choices, and I couldn't be in two places at once, so let me settle for giving you my summary of day two…

As mentioned prior, by the time I got to my hotel room Monday night, I'd been awake about 35 hours.  The Tuesday keynote involved United Nations war crimes investigations with Gonzalo de Cesare.  I was fortunate enough to be attending the Zylab reception for Mr. de Cesare at the close of the day, so I elected to catch up on some zzz's and skip the keynote.

I started my 1st session back on the international track with 75 minutes on Multinational Discovery.  It was great.  Unlike the "overview" feel to all of my Monday sessions, this was loaded with in-depth information. 

In terms of looking at a map, North Americans tend to think of borders vertically (Canada, down to the United States, down to Mexico), but in Europe, thinking horizontally or vertically, one may hop in their car and cross several borders in a single day – and violate privacy laws in each and every one along the way.  The speakers handled this smartly.  They understood that the bulk of the audience were americans (or US-based), so they illustrated the risks both from the standpoint of moving data between EU countries, among others, but also from the standpoint of moving it to/from the United States.  Considering the limited time, they accomplished the goal.

* * * * * * * * * * * *

I stopped in to see my friends at Iron Mountain, then caught the last half of the federal judges session on the federal rules and where things are headed.  Whether you're in technology or law, I urge you to learn as much from judges as you can.  People question judges about ediscovery issues, but a lot of times the answer is, "It depends on the particular facts."  That's the problem.  A snapshot today will serve as a guide, but ediscovery law is a rapidly-changing discipline.  I like to 'get inside the heads' of the judges to try to understand what they're thinking about the future.

* * * * * * * * * * * *

Later, I moved on to a Kroll session on Data Breach & Security (something I may have written about once or twice).  The problem with a successful lecture of this type is, you learn a lot, but you leave with a knot in your stomach because they made you think about what you don't want to think about; all the security risks you haven't thought about.

As I've stated before, the goal is to be proactive in the interest of avoiding having to be reactive.  This session certainly covered the former, but what was fascinating is that they really got into the latter; how do you react once a breach (perceived or actual) has occurred?  The answers aren't as simple as they appear, and here's why:

  1. Should we call an outside source (e.g. if the CEO is informed, is he outside the breach parameters, or does he become a part of the breach?)
  2. Is the breach as serious as we think it is?
  3. Who within the company should we tell?
  4. Who outside the company should we tell?
  5. Who outside the company are we obligated to tell (customers?)
  6. Who should we not tell?

You get the idea.  Regarding points four through six, there are conflicting laws in this area, so doing what you perceive to be the right thing may – by law – be the wrong thing.

* * * * * * * * * * * *

Ralph Losey: "So…Predictive Coding…for or against?"  Having run into Mr. Losey a couple of hours prior to his late afternoon session on the subject, I faced that question.  For the answer, stay tuned for my 3rd and final LTNY post.