Category Archives: Privilege

Turn your Head & Cough: Digitized Health Records, Privacy & e-Discovery

J0402701 With all of the discussion of government-sponsored health care these days, lost in the shuffle is a concerted push to digitize health records.  It seems like everyone's getting in on the action; providers, consultants and even the federal government.  In theory, it makes sense for a number of reasons; portability, efficiency, cross-referencing, cost-reduction, and for those who are into 'green technology', lack of paper.  In practice, however…

Let me tell you about my first experience with digitized records.  I've been with an HMO ever since I ventured out on my own.  Save for one short period of time, I've had very competent doctors.  About two – three years ago my provider migrated to digitized records.  The next time I showed up for an appointment, my doctor informed me that she was so frustrated with the new system, she was retiring!

Now, I didn't ask her how old she was (I'd guess late 50s) and as we all know, age-based resistance to new technology is certainly a factor, but there are a host of other worries, such as who's going to be responsible for protecting us from all of this?  The doctors are probably thinking the same thing.  Right or wrong, I doubt they want their records falling into the wrong hands, either.

We know the records are supposed to be confidential, but if the powers that be can't protect our credit card and banking records, how well do we think they're going to do with medical records?  I suppose from the e-discovery side, I should be licking my chops (and perhaps I would be, except that I have medical records just like everyone else!).

Let me tell you about my last experience with digitized records.  I went in for my annual physical and I always have the usual, routine labs.  Unfortunately, all did not go smoothly.  My new, very competent doctor informed me she was having trouble setting up my lab work. 


The computers were down…

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.

Pop! Goes Your Privacy!

Chicken-Little Remember how I went on and on about the fact that what you do and say in your personal life (particularly online, after all this is an e-discovery blog) may become relevant in a legal proceeding?  Remember how I told you that there are several cases pending that might completely change the definition of privacy?  And remember when I nagged you like your (Please fill-in-the-blank here; mother, grandmother, psychiatrist, attorney, etc.  Hey – I'm not dumb enough to actually name someone and make them mad at me!) when I implored you to stop making those inappropriate posts on Twitter/Facebook/MySpace, etc.?

Well, this headline says it all:

Judge: Buffalo Grove trustee can get Web poster's ID

For those who are pressed for time, this is the relevant portion:

"Buffalo Grove
Village Trustee Lisa Stone should be told the name of the man she
accuses of making defamatory online comments about her 15-year-old son,
a judge ruled Monday in a case being watched for its Internet privacy

Cook County Circuit Judge Jeffrey Lawrence ordered that the identity
of a person known online as Hipcheck16 be turned over to Stone."

We can debate the Constitutional implications of the ruling itself, but truly, this goes all the way back to the 'shouting fire in a crowded theater' argument.  Post-mortems don't interest me much; I deal with what is, and what will be, not what was.  To paraphrase a certain election campaign, it's about the future, stupid!

On a fairly regular basis, I'm accused of being "Chicken Little".  Perhaps my detractors are right.  Maybe it's because I was a boy scout when I was a kid (Be Prepared!) or perhaps it's from all of those years protecting my clients from what might happen, not just what I could identify as likely to happen.

If I weren't doing what I'm doing, maybe I'd have become an actuary (I'd say 'bean-counter', but for those who know this blog well, the only beans I'd be counting are coffee beans…).

It sucks being the wet blanket.  It sucks constantly warning people about risks.  But here's the thing; technology is moving much faster than our ability to understand what we're doing with it.  There used to be an admonishment; when angry, count to ten before acting.  Now, not only do we not count to ten, we immediately grab our always-within-reach Blackberry and post on Facebook!

So, here's a question for you to ponder over the weekend; do you think Hipcheck16 wishes I'd have been his wet blanket?

Run for the Border!

J0442382 For those who travel to and from the United States, I thought it would be useful to re-visit the revised DHS guidelines announced August 27, 2009.  This article from the Canadian Bar Association sums it up very well.  To quote them directly:

"U.S. Customs officers have the authority to search and detain any
device capable of storing electronic information for any reason; they
can examine the electronic device without the traveller present; they
can copy from the device or “detain” the device; and they do not need
to obtain the traveller’s consent to conduct the search. “Electronic
devices” can include computers, BlackBerrys or similar devices, cell
phones, travel drives, DVDs and CD-ROMs, cameras, music and other
electronic media players."

Two things:  1) Yes, they use two 'ls' in the word 'traveller' in Canada, and 2) I wonder how many execs at your firm know about these rules?

e-Discovery California: Amended C.R.C. 3.724 “Initial” Meet & Confer & Clawbacks

J0387759 About six weeks ago, I wrote that the new e-discovery California rules didn't include provisions for meet & confer or clawback agreements.

On August 14th, 2009, the Judicial Counsel amended the California Rules of Court 3.724 Duty to Meet and Confer to include the following language:

Unless the court orders another time period, no later than 30 calendar days before the date set for the initial case management conference, the parties must meet and confer, in person or by telephone, to consider each of the issues identified in rule 3.727 and, in addition, to consider the following:

(8)    Any issues relating to the discovery of electronically stored information, including:

    (A)    Issues relating to the preservation of discoverable electronically stored information;

    (B)    The form or forms in which information will be produced;

    (C)    The time within which the information will be produced;

    (D)    The scope of discovery of the information;

    (E)    The method for asserting or preserving claims of privilege or attorney work product, including whether such claims may be asserted after production;

    (F)    The method for asserting or preserving the confidentiality, privacy, trade secrets, or proprietary status of information relating to a party or person not a party to the civil proceedings;

    (G)    How the cost of production of electronically stored information is to be allocated among the parties;

    (H)    Any other issues relating to the discovery of electronically stored information, including developing a proposed plan relating to the discovery of the information; and

(9)    Other relevant matters.

Well…that settles that!

Spoliation Spoils the Broth at Toyota?

J0438712 This one is a little quirky because, based on my research, I'm somewhat uncomfortable with the plaintiff, however, it does well to illustrate how a case can become a P.R. nightmare even before the defendant files an answer.

In Biller v. Toyota Motor Corp., 2:09-cv-5429, U.S.
District Court, Central District of California (Los Angeles) (warning: link opens a 117-page pdf), plaintiff Biller (formerly an attorney for Toyota) asserts that defendant Toyota concealed and destroyed evidence critical to hundreds of rollover cases.  Toyota has motioned to seal the case, citing violation of attorney/client privilege.

Oh boy.  I hated these hypothetical questions in law school.  When may an attorney in a position of confidentiality, break privilege to expose wrongdoing?  What about his corporate duties?  Not easy to discern when attorney and manager are one-and-the-same.  It depends what jurisdiction you're in and which code must be followed.  We used to call it the "climb-the-ladder" obligation.  Bring your concerns to the appropriate executives and hope they'll do the right thing.  You also have to look to who is being damaged and the level and extent of that damage.

Who, exactly, may an attorney speak with when the very act of revealing information – even within the company itself and ostensibly for a proper purpose – may still violate privilege?

This is the kind of issue that could result in a treatise that goes on for page after page, but to distill it down to basics, attorneys are officers of the court first – not the client; their duty of loyalty is clear.  What's not so clear; when does a violation cross the threshold that allows the attorney to go outside of privilege?

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.

Two things are clear.  Even if the claims are proven false, Toyota is already the loser, and as sure as I'm sitting here, this will appear as a question on the California Bar exam in 2012 (just kidding; I assume my position on the Executive Committee in about 10 days, so I don't want anyone jumping to the conclusion that I would ever know what will be on the exams).

First there is a Mountain, then there is no Mountain, then there is…

J0407504 For our purposes, substitute the word "e-mail" where you see the word "mountain".  I was reviewing an appellate decision from two months ago, Stengart v. Loving Care Agency, Inc., 2009 N.J. Super. LEXIS 143 (App.Div. June 26, 2009).

The facts are simple.  The court ruled that password-protected emails from a personal account that were accessed on a company computer were not necessarily fair game for the employer.  The particular emails involved the employee corresponding with her attorney; privileged communication.

I suppose if I simply admonish you not to use your company collateral for personal purposes, you're going to ignore me, but it's missing the point, anyway.  You can't un-ring the bell.  Sure, I understand that, in this case, they were forced to return the emails and there was to be a decision as to whether the law firm that read the emails could even continue in their representation, but the bottom line is, the emails were still read.

This is purely a "Perry L. Segal" approach – and you may not agree with me – but my view is this; don't wait for someone else to do your job for you.  Don't wait for your lawyer to make an argument, don't wait for a judge to rule in your favor, don't wait at all!  Don't do the conduct with the attitude that you are the one that won't get caught or your rights won't be violated.  Gambling is great – if you're in Atlantic City.

There was a case going back 30 years or so in which hackers got into a secure computer system.  They were brought to trial and were acquitted.  Why?  Because after they hacked through the first line of defense, the screen they arrived at said, "Welcome".  The judge ruled that this was the same as an invitation to proceed…

I rest my case…

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…)

ESI: Miami (LegalTech Keynote Summary)

CSI MiamiYes, this post is a summary of what I saw at LegalTech at the Los Angeles Convention Center on Thursday. 

No, it didn't take place in Miami.  But, if the title said ESI: Los Angeles, nobody would get the joke, would they?

Besides, I would never be able to use this catchy title unless something happened in Miami, and I can't wait that long!

First of all, I'd like to thank Monica Bay.  She's a linchpin of LegalTech, and was also nice enough to cite my blog on her own blog, The Common Scold. I had a lot of meetings scheduled, so I was only able to attend the keynote presentation and one other session.  This is my summary of the keynote.  I'm knee deep in depositions, so I hope to be able to post a summary of the other session on conducting e-discovery abroad over the weekend.  Please bear with me.  I want to take my time so I can do quality posts for you.

The moderator was Carole Basri from Corporate Lawyering Group, LLC.  She's also an Adjunct Professor at the University of Pennsylvania Law School.  Next was Tom Allman, a retired general counsel, who is the editor of The Sedona Principles (2nd Edition).  Last were two judges – and you know how much I like judges – the Hon. Dave Waxse, U.S. Magistrate, District of Kansas and the Hon. Andrew J. Peck, U.S. Magistrate, Southern District of New York.

My 1st observation – not a criticism – we're in downtown Los Angeles with AB 5 (the California Electronic Discovery Act) sitting on Gov. Schwarzenegger's desk awaiting his signature.  No California or 9th Circuit judges on the panel.  Darn!

There was one word that all on the panel agreed was the mantra; cooperation.  I've spoken about this before, especially because attorneys are used to the adversarial system, but the judges want the parties to get together and resolve issues between them – not argue everything in court.  All this does is bog the process down further.  They expect that each party will involve an expert early on in the process, not wait for a disaster before calling one in.

Judge Peck went right into Rule 26(f) (meet & confer).  He says most attorneys think they'll only have to have a single meeting, but he sees it as a repetitive process throughout the litigation as the parties cull their issues.  He doesn't see how one meeting can accomplish this.  Furthermore, he estimates that only 50% of ESI will be revealed through any automated process, meaning the human element cannot be avoided.

He says he's tired of attorneys attempting to do a "drive-by meet & confer", which as you can imagine, results in a lot of problems later.

He briefly addressed some cost issues.  To him, it's a "proportionality" argument.  There's no point in running up unconscienable costs that will outstrip any award that a party might receive.

He also briefly addressed the issue of international rule conflicts.  He summed it up in one word; minefield.

Mr. Allman provided a contrarian voice.  He's completely against the cooperation argument.  But he has a point, and that is that judges must remember there isn't a single side to any conflict, but two sides.  He also said that the idea that a corporation can have a single retention policy is "ludicrous" (that word was used a lot by all of the panel members yesterday).  He said the idea behind policy is to ensure that "no relevant info is lost", and this requires a discussion case-by-case, department-by-department, to understand what – and for how long – data must be retained or destroyed.  This vindicates the view I stated in my post "Baby?  Meet Bathwater…" last month.

Mr. Allman harped on something I think a lot of people don't consider; that there will be "structured" (predictable) data that is easier to identify and control, but there will also be "unstructured" (email, memos, 'informally-produced') data that is much harder to manage.

He is a true-believer, though.  He says the entire reason companies should implement these policies is that they will "save costs" in the long run, not increase them.  He'll get no argument from me.

Last, he said that based on his observations, even with all of the attention to e-discovery, "awareness is very low".

Judge Waxse scared me.  The first thing he said was, taking into account all jurisdictions, there are over 14,000 laws that apply to document retention.  He was also less optimistic than Judge Peck in that he believes automatic document review results in only a 20-40% success rate.  He attributes this to inexperience of the people tasked to do these searches.  They don't interview the principles involved, so they're unaware of the proper search criteria, such as aliases, nicknames, codewords, etc.

Judge Waxse attempts to take some of the confusion out of 26(f) by providing the attorneys with his own comprehensive list.

He also has zero tolerance for attorneys who mislead him.  He summed it up in one word; he wants "truthfulness".  He says as far as he's concerned, an attorney will get into a lot less hot water if he or she simply admits "We don't know where the data is" rather than obfuscates.  Sounds obvious, but he said attorneys lie to him all the time.

On this note, the panel addressed this area in-depth, saying that they would like to see a "culture of ethics" in the handling of e-discovery matters.  Some discussion of Rule 502 resulted, in particular, issues such as inadvertent production.

The way the judges see it, issues such as this, confidentiality, producing metadata and clawback agreements should be discussed and agreed-upon by the parties at the outset of litigation.  Generally, if a good-fatih inadvertent production has occurred, there's no 502(e) waiver, however, what do you do if it was advertent?

In closing, Judge Waxse explained why he, like many other judges, instructs the attorneys to videotape their meet & confers:

"Lawyers are like particles of physics.  They change when observed."