Category Archives: Sanctions

My Analysis of Calbar Formal Opinion 2015-193: eDiscovery & ESI? “Don’t Be Stupid”

The last three words from this short Beverly Hills Cop video clip sum up my analysis of the opinion:

I wrote public comments to COPRAC (The State Bar of California Committee on Professional Responsibility and Conduct) re their interim versions of the opinion and, in a rare step, I’m posting a verbatim excerpt because my assessment of this opinion remains unchanged.  One modification – I bolded a quote, because the Committee adopted my definition verbatim in their opinion (page three, footnote six):

“I’m seeing a very common thread in COPRAC’s reasoning that afflicts those who understand technology at a more surface-level; the tendency to think of it in physical, rather than ethereal terms.  In other words, the Committee has focused on the word evidence, instead of the word electronic.  Take water, for example.  Whether it exists in a lake, a bathtub, or a glass, it’s still water.  It’s the same with evidence.  Whether it exists as writing on a tombstone, a paper document, or in electronic form (e.g. sitting on a flash drive), it’s still evidence.  It’s the medium that should distinguish it for your purposes.  That’s the contrast missing here.

Whereas the Committee has done a better job of defining parameters such as clawbacks and laying out accurate mistakes by our hapless attorney, once again, it descends into conduct that isn’t eDiscovery-based; but competence-based.  This opinion relies too much on unrelated reasoning, such as “assumes”, “relying on that assumption” and “under the impression”.  That’s not an eDiscovery problem; that’s a general competence problem.  It’s also not what the audience needs.  If they’re attorneys licensed in California, they’ve presumably passed both a Professional Responsibility course and the MPRE exam and know – or should know – their duty of competence.  It’s not as if an attorney retains a med-mal case, then immediately “assumes” or is “under the impression” that s/he’s a doctor and can read an x-ray.  But I could intertwine those facts with this opinion and make it about medical experts.  What attorneys specifically need to know is how their actions, or lack thereof, in the procurement, assessment and handling of electronic evidence morph into a violation.  This is a highly specialized area unto itself.  See my previous example.  The x-ray is electronic evidence.  Proper acquisition is one matter; analysis, forensic or otherwise, is quite another.  That doesn’t just include the adversary’s evidence.  It also includes the Client’s evidence.  In this scenario, one is seeking to exculpate the Client through all available means – not just via the adversary.

Contradictions also exist in Footnote Six on page three that states, “This opinion does not directly address ethical obligations relating to litigation holds.”.  I respectfully submit that the opinion goes on to do exactly that.  Perhaps this is due to the criteria set forth in Footnote Six being inaccurate as defined.  In a legal setting, Attorney is charged to know what the Client does not, and this may involve issuing litigation hold instructions to their own Client; not just third parties or adversaries.  If attorney was interacting with the CIO or CTO (The “Information”/”Technology” chiefs, perhaps s/he could reasonably reply on their assessments.  But here, attorney is interacting with the CEO who likely has no intimate knowledge of what goes on in the IT department.  It should read, “A litigation hold is a directive issued to, by or on behalf of a Client.”  Otherwise, how does the competent Attorney protect a Client who, in good-faith, endeavors to do the right thing or protect themselves when a Client, in bad-faith, engages in intentional spoliation?  One of those scenarios exists on page two, when the eDiscovery expert, “tells Attorney potentially responsive ESI has been routinely deleted from the Client’s computers as part of Client’s normal document retention policy”.

Understanding these nuances and acting on them is the very definition of competence as applied to an eDiscovery attorney – or an attorney who engages the services of a third-party eDiscovery vendor.  In this arena, eDiscovery is like a game of falling dominos; once competence tips over, the rest (acts/omissions, failing to supervise, and confidentiality) will logically follow.  As they say, timing is everything.”

Conclusion:  The opinion does a good job of explaining fundamentals of the eDiscovery process, but in my opinion, doesn’t go nearly far enough.

Did Netflix CEO Violate Regulation “FB”?

MP900422415If you've already seen the headlines, you know that Reed Hastings, CEO of Netflix, has received a Wells Notice from the SEC.  They're considering taking action on a violation of Regulation FD due to an alleged 'material' disclosure on Facebook that Hastings posted to his 200,000+ subscribers back in July 2012.

The gist of the issue?  The SEC claims that those subscribers received an unfair advantage because they had access to the information in advance of the general public; and presumably traded based on that information.  Naturally, Hastings' view is contra.

Is it a violation?  I dunno.  We're going to see more of these issues arise as social media continues to wend its way into the corporate mainstream.

#eDiscovery California: AB 141: “Fresh” Approach makes Juror Texts & Tweets a Misdemeanor!

MP900442445 California is putting its money where my mouth is and is enacting AB 141, authored by Assemblyman Felipe Fuentes (D-Sylmar) and signed by Governor Brown yesterday.  It codifies the already-existing rule that juror texting or tweeting – or any other electronic communication in relation to an existing case – is a violation of duty.  But effective January 1, 2012, a juror caught doing so is chargeable with a misdemeanor.

Technically, judges could most likely do so right now under their general ‘contempt’ power, but, as we’ve seen with electronic discovery rules, this specifically targets and clarifies the rules as they apply to electronic misconduct.

I’m firmly in the camp that believes there must be harsh (or more harsh) penalties for juror mischief if we have any hope of maintaining the integrity of the legal process (some will probably say we’re too late).  This is a good start.

And for anyone who believes a judge wouldn’t dare impose such a penalty?  Any lawyer who’s spent time in a few California courtrooms will tell you plainly; you’re wrong!

Cascades: Good for Mountains, Bad for News Orgs

MP900438949 First things first.  My beloved Cubs rewarded my visit with a 13-3 loss to the Marlins, marking this as the most lopsided score over the 15+ years I’ve been making this journey.  Now, firmly ensconced in San Francisco – and with my state bar duties dispensed with for the week – we can return to more pressing matters…

How many of the execs swallowed up in the News of the World Scandal thought they’d ever be arrested in their lifetimes?  None.  In fact, a high percentage of the general public would agree with them.  But people-who-you-normally-wouldn’t-expect-to-be-arrested are arrested.  And some of them eventually go to jail.

While you watch the slow and painful erosion of the Murdoch empire – and the collateral damage causally connected to it – I hope you consider one ingredient to add to your schadenfreude; you’re watching a large-scale version of how your criminal or civil matter will unfold if you don’t deal with it when it’s manageable.

Of course, yours won’t likely be this big or this public – or this expensive – but this is how it’ll start; a molehill that, over time, grows into a mountain.  Or, in this case, a mountain range.  eDiscovery rules & regulations, litigation readiness programs and early case assessment are all designed to staunch the bleeding and, if instituted early enough, prevent the wound altogether.

You have to be willing to take the pain.  Like they always say, the first cut is the deepest.

News of the World Buries the eDiscovery Lede: Spoliation

For those who aren't familiar with the term, "burying the lede" refers to an article that fails to express the most important issue in the 1st sentence or paragraph.

Obviously, by now you've heard about the News of the World phone-hacking scandal.  If you're an eDiscovery professional, then you'll find the lede buried all the way in paragraph nineteen:

"On Saturday, the Guardian newspaper, which has led the reporting on the scandal, said Scotland Yard was investigating evidence that a News International executive may have deleted millions of internal e-mails to obstruct the phone-hacking probe. The company denies the allegation." [italics/bold added]

If the allegation turns out to be true, I only have one question.  When will they ever learn?

The 6th Amendment, the Blackstone Ratio & #eDiscovery


"Better that ten guilty persons escape than that one innocent suffer."

– William Blackstone, 1783

"’tis much more Prudence to acquit two Persons, tho’ actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent."

– Voltaire, 1749

Whether you agree with the passages above (or a similarly-stated quote by Benjamin Franklin, circa 1785), one thing is certain; they form the basis of criminal jurisprudence in the United States.  At least, they used to…I think that claim would be up for strenuous debate these days.

But that's why I wanted to bring you this particular case for our examination.  It doesn't matter what I think; what matters is, familiarize yourself with these issues because there's a high likelihood you'll see them – or something like them – in civil or criminal court.  After all, attorney-client privilege is attorney-client privilege – it just so happens the venue in this example is criminal court, and the argument is Constitutionality in theory; the 6th Amendment Right to Counsel.

One thing that distinguishes a criminal complaint from a civil one is, when the government discovers and/or seizes evidence (whether due to reasonable suspicion, probable cause or a formal warrant) in many instances, the target does not enjoy the benefit of attorney representation (hey, it might be torture for you, but I'd say my company is enjoyable…).

Such is the case with defendant.  The government seized certain computer records, and among those records were emails from defendant to his wife – which were subsequently forwarded to defendant's attorney.  Defendant was convicted, but upon appeal, it was determined that the emails were subject to attorney-client privilege and the prosecutor's review of same was deemed a violation of defendant's 6th Amendment rights.

What am I telling you?  First, you won't always have control over what data is turned over to the other side (do I hear "clawback agreements", anyone?) and second, if you find yourself in a situation like this, somebody on your side had better examine each and every shred of data in the possession of your adversary.

Again, this isn't a judgment on the validity/invalidity of overturning a conviction based on a technicality (I'll leave it to followers of the Casey Anthony trial to argue their perception of what's fair or unfair about the current judicial system).  We have a job to do, our clients depend on us and we are to zealously represent – and protect – their interests.

File this one under Segal's Ratio: "For your client's sake, where electronic evidence is concerned, endeavor to know what you don't know."

The Seven-Second Solution: You’re Suspended!

MP900175530 Folks, I know we have a sense of humor (otherwise, you'd be offended by half the posts I write), however, maybe it's just me, but I'm starting to think the general population doesn't.  Granted, these are tough economic times, we have wars going on, and yes, seriousness has its place.  But, knowing what you do about the reactions lately to 'attempted' humor, you've still got to do what I advised way back in the olden days; be your own filter.

Think it if you want to, just don't repeat it.  It's not worth it.  My Twit List has grown longer and longer with these examples, but look what happened to journalist Mark Halpirin yesterday.  He made a joke – and even warned everyone ahead of time that he was about to make it – yet, still was suspended by MSNBC.  Of course there's more detail to the story, but we don't need to hash out whether he regrets the decision to tell it out loud.

Last I checked, this was the land of free speech (I'll point out that this incident should not be confused with Constitutionally-protected speech, which commenters mistakenly do all the time), but with electronic devices come new problems.  Virtually everything you say or email and every destination you travel to is now being monitored by someone.

Remember Ari Fleischer?  "Americans need to watch what they say, what they do".  Who ever thought it'd come to this?!