Category Archives: Privilege

Case Got Your Tongue? Mirror, Mirror & Searching the Forest

J0440920 Another interesting collection of cases crossed my desk, recently.  I'm going to refrain from writing about the "wake-up call" case because it's being cited everywhere.  Besides, if anyone hasn't noticed yet, my entire blog is about that.  Furthermore, we already know about my issues with waking up

By coincidence, two of the cases involve mirror-images of disks; however, the issues in each are completely unrelated.  Also, we have another illustration of how, when rules aren't followed to the letter, one can destroy a criminal case.

Am. Family Mut. Ins. Co. v. Gustafson, 2009 WL
641297 (D.Colo. Mar. 10, 2009)

YOU GOT IT, I TAKE IT – Plaintiff requested that the court set the protocol for the inspection of the mirror-image of Defendant's hard drive.  The court obliged, and in doing so, provided what I think is an excellent guide for anyone undertaking this process.

Forest Laboratories, Inc. v. Caraco Pharm. Laboratories, Ltd., 2009 U.S. Dist. LEXIS 31555 (E.D. Mich. Apr. 14, 2009)

ZUBULAKE – There's only one way to describe this case; Zubulake Duty applies, except when it doesn't

I can't count how many times on this blog I've referred to how
exceptions to a rule may be more dangerous than the rule itself. 
Forest illustrates that point.  This falls under the "knew, or should
have known" category.  The court is saying that if Plaintiff knew, or
should have known that ESI might be relevant to a dispute in the
future, they should have sought to preserve it – for key employee documents only – contrary to existing
company policy.  A tall order.  Talk about hindsight!

State v. Dingman, 2009 Wash. App. LEXIS 550 (Wash. Ct. App. Mar. 10, 2009)

This case also involves mirror-images of hard drives.  It should serve as a cautionary tale to anyone on the prosecutorial side of the equasion.

The State seized Defendant's computers.  Defendant wanted mirror-images of his computers' hard drives in a certain format and the State refused to provide them in that format.  The court found this to be prejudicial to Defendant and a violation of his Constitutional rights.  Defendant's conviction was overturned.

Still think the 4th, 5th & 6th Amendments don't apply to e-Discovery?

Report to the Principal’s Office!

j0316801 Here’s the tough part – you’d better be sure which Principal’s office is the correct one.  In my prior post, I discussed Principals and Agents from the perspective of both.  But this one is for attorneys; and again, I feel this is relevant in the arena of e-discovery because there will be corporations – and individual custodians – involved.

The Wall Street Journal posted this article about a case which serves as a cautionary tale of what may happen when attorneys endeavor to serve multiple masters (note: you may be required to register, but it’s free).  Ironically, it involves Broadcom (which we know has been at the hub of some very ground-breaking case law involving e-discovery sanctions).

The issue here is that executives were unsure of exactly who their attorneys were representing.  The attorneys represented the corporation, but apparently did not make it clear that they did not represent the executives as well; and I think most of you can understand the inherent conflict of interest that could potentially develop if the interests of both diverge.

This was a critical part of ethics (Professional Responsibility) class in law school and on the bar exam.  The graders wanted to make absolutely sure we knew at all times who our particular client was when representing a corporation.  As stated above, it’s the corporation, not you.  If you think you’re in jeopardy, there’s no middle ground; you must retain your own attorney to protect your interests.

Irell & Manella LLP failed to properly make this distinction clear – and the judge is making them stay after school.

Dancing ‘Geek to Geek’ – Judges’ Panel Weighs in on California AB 5, ‘Train Wrecks’ and the ‘Mayflower’

If this keeps up, I’m going to rename this site the ‘Hot Potato‘ blog…

 I’ve posted ad nauseam about how parties want to rid themselves of the e-discovery hot potato, but throwing it to the Judge?  Not so fast, says the Hon. Andrew J. Wistrich.  You can try, but he won’t play the game!  That was one of the morsels from the Judges’ Panel, which also included the Hon. Maureen Duffy-Lewis and the Hon. Carl J. West.

I like Judges.  They’re always more candid than I expect, and as some of you have probably figured out from my prior writing, I like candor.  Don’t beat around the bush, don’t use fancy language, just tell me what you mean!  I certainly got a lot of that from this panel.  It was the best 75 minutes a person interested/involved in e-discovery could spend, because it tells us where things are headed in the minds of the Judges – and ultimately, they’re the ones we are speaking to, not only our adversaries.

What was the most important concern to the panel?  Cost!

Judge West lead off the discussion and to my delight, he immediately weighed in on California AB 5, noting the pending March 3rd hearing and saying he expects the Bill to be adopted either by late this quarter or the next.  My take?  California finally reached a budget deal, so we’ll see if that development facilitates the passage of AB 5.

Judge West was concerned about two seemingly-contradictory provisions in the Bill; one, which discusses imposition of sanctions, and the other, which defines Safe Harbor.  He noted there were several exceptions to Safe Harbor that might incur sanctions.  That reminded me of law school.  As my professor used to constantly warn, “Everyone knows the rule, but they’ll test you on your knowledge of the exceptions to the rule”.

He also mentioned that more and more, he’s seeing each party provide a technology expert at hearings, and that many times it becomes an ‘expert versus expert’ issue.  That’s when he coined the phrase, credited to another Judge, that the parties should have their respective experts ‘dance geek to geek’.  I just want the Judge to know I haven’t worn horn-rim glasses since grade school…

Judge Duffy-Lewis spoke next…

She’s involved with what we refer to in California as ‘Fast Track’, but she came right out and said it; e-discovery hearings in her courtroom sometimes resemble “train wrecks”.  She said this occurs because she doesn’t see cases until they’re 90 days out and many of the lawyers wait to file motions until their case is about to be heard.

She would like to see attorneys dive right in as soon as possible and not wait.  They should begin submitting motions early related to issues of privilege, preservation and notice.

A major issue is how to handle privileged documents.  For example, I don’t want to turn over to the other side a document that contains information I’m going to use to impeach my adversary.  That’s easier when you’re talking about a paper document, but not so easy when the particular statement you need is buried in a 20-page email thread between multiple custodians that contains other relevant statements.

Judge Duffy-Lewis’ solution was to create something called an Impeachment Log.  The attorneys submit the documents to her, then she makes the determination, preserving the privilege.  Brilliant!

What does she see in the future?  Recommending a status conference will become virtually mandatory for e-discovery issues, and she predicts the appointment of special masters will become more prevalent.

Judge Wistrich completed the trifecta.  Talk about candor!  He’s a Magistrate Judge of the U.S. District Court for the Central District of California (I’m a member also) so his was the Federal view.

Judge Wistrich didn’t mince words.  He said the “rules have helped, but haven’t solved the problem.”

What problem?  The adversarial system and the natural tension created by asking parties – that by virtue are required to keep things close to the vest – to break that habit to cooperate on e-discovery issues.  He said the parties are going to have to get around that problem because in many cases, the experts are going to ask for – and be granted – access to their adversaries’ data.

He also said he’s “uncomfortable” because, “I’m not sure I know enough”, and is “concerned” that e-discovery is going to end up adding another layer – experts – to the front-end of the process, further bogging it down.

Still, like Duffy-Lewis, he says attorneys had better be prepared to take the pro-active approach.  He clearly understands his role and will not let the parties try to shift decisions to the bench that don’t belong there.

He also discussed Mancia v. Mayflower Textile Servs. Co.,
2008 WL 4595175 (D.Md. Oct. 15, 2008) and its effect on Rule 26(g).  I wasn’t surprised that Chief
Magistrate Judge Paul W. Grimm would be cited at the conference, since he’s one of the pioneers in this area.  Wistrich said that, when faced with issues of good faith, he orders the parties to videotape all further meet & confer discussions.  Strangely, he noted, their behavior improves immediately.


Obama’s CrackBerry Addiction: e-Discovery Intervention?

To My Readers:  No matter what your political leanings may be, today is an example of what’s great about the United States; the peaceful, seamless transfer of power.  So, in honor of the inauguration, I felt it appropriate to jot down some observances I’ve made lately regarding the Presidency, e-evidence, privilege…and why I think they’ve got it all wrong…

Businessman Using a Palm Pilot

e-Discovery Insights:  Keep this on the down-low.  I have it on good authority that Barack Obama’s going to be in the nation’s capitol on Tuesday.  Let’s all plan to get him in a room and confront him on this whole ‘BlackBerry‘ problem.

Readers:  What’s the big deal?  He’s a thoughtful guy.  He’s responsible.  He can control himself.  Why are all of these lawyers making such a big deal out of this?

e-Discovery Insights:  Because PDAs are subject to subpoena, that’s why.

What’s the difference between your PDA and Obama’s BlackBerry?  Absolutely nothing.  You have the same exposure he does!  At least he might be able to invoke Executive Privilege in certain circumstances; meanwhile, you’ll be hoping for ‘run-of-the-mill’ privilege.

Now comes word the White House staff has been told they may not use instant messaging (IM).  Check out this quote – contained in the above link – from Reginald Brown, a former associate White House counsel for President Bush:

“These lawyers — [incoming White House Counsel] Greg Craig in
particular — come out of a law firm environment and knows how onerous
e-discovery has been for clients
,” (italics/bold added).

I’m feeling sooooooooo cool with my career choices right now…

j0438808Seriously though, I’m actually disappointed.  In my opinion, this is exactly the opposite of the approach I would like to see them take.  Why?

Because technology is HERE, it’s not going away, and it’s time we started accepting that fact and adapting to it rather than restricting it.  This administration may prevent their aides from using IM, but someday, it’s going to be used.  Wouldn’t the better way be to educate the staff, put some trust in them, implement policy and let them use the tools that exist solely to make communication easier?

Preposterous?  Inconceivable?  Impossible?  Unattainable?

I’ll ponder that while I watch the swearing-in of the first African-American President of the United States of America.