Category Archives: Sanctions

e-Discovery LOL? Weiner Resigns

MP900444351 Normally, this would be relegated to the 'Twit List', but I'm making an exception.  A lot of people are still laughing about this issue…but is it funny?  Let's review.  A guy initiates some sexting, takes a few raunchy photos of himself and…that's about it.  Unfortunately, this guy happens to be a U.S. Congressman, but a couple of weeks ago, that was his claim to fame.  Now, look at what's changed:

  • He's disgraced himself and embarrassed his family
  • We can only imagine what his wife is going through (and a newlywed, no less)
  • He's resigned his prestigious position
  • A novelty company has created an X-Rated doll to mock him

You know what else?  He could be you.  What's the only thing that distinguishes him?


#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!

e-Evidence Insights: A Good Senator, Spoliated.

…with deference to Mark Twain…

MP900400181 Recently-former-Senator John Ensign's (R-NV) affair and alleged attempts to cover it up would normally be fodder for the press – and I'd take little notice of it.  However, with the release of the Senate Ethics Committee Panel report, we find this:

"The report also accuses Ensign of deleting documents and files the committee was likely to request. The senator deleted the contents of a personal email account after the investigation was launched, it says." [italics added]

And this:

"The committee's report describes Cynthia Hampton as running up $1,000 in phone bills by texting Ensign while he was traveling in Iraq with a congressional delegation."

I want to distinguish between the first quote and the second.  The former is clearly in the realm of relevance (save for an attempted-but-likely-futile privilege argument against access to his personal email account), but the latter is an example of how 'beside-the-point' ESI becomes relevant.  The affair may be morally wrong, but texts between the two players are private – or at least they would be, except for the likelihood that access to them might lead to relevant evidence that would tend to prove or disprove a material fact.  Examples?  Did they conspire to cover up the affair through means that would be deemed improper?  Plus, who paid the phone bill?

This is how your personal cell, PDA or email account ends up in the hands of your adversaries.  You're not immune.

What do you think the odds are that Sen. Ensign knew, or should have known that destroying evidence after learning of an investigation is at best sanctionable conduct and at worst, a crime?

This is how destruction turns into obstruction.  Time to call "Aunt Judy"…or Judge Judy…

e-Discovery California: Deutch in Dutch with AG for Spoliation

MP900314122 How long does it take to shred 2.7 million documents?  I guess it depends on whether 'Tax Lady' Roni Deutch used machines or simply hit the 'delete' key.  Inconsequential; as we already know, destroying documents in violation of a court order will certainly lead to sanctions.  However, this time, our new California Attorney General, Kamala Harris, is seeking jail time for contempt.

This is one of two high-profile cases of this type.  The other involves a Houston, TX company called TaxMasters, although I'm not aware of any e-discovery-related issues with that case.  However, it's no coincidence that these cases receive stepped-up coverage at tax time.

Nevertheless, I'll be following the outcome of the former case.  It's not every day an AG calls you a "predator for profit".

Newton’s 3rd Law of eDiscovery

"For every eDiscovery action, there is an equal and opposite reaction."

— Sir Isaac Newton


As I've mentioned before, my litigation hold letter – that you see over on the right sidebar – is still the most popular link on the blog (next to the actual posts, that is…).  I've also provided this template to attendees of my presentations.  A question comes up regularly:

"If we send out a letter like that, our adversary will simply replace their name with ours and send it right back to us.  We don't want that to happen!"

It's a good point.   And as I've also mentioned before, what's good for you may also be good for your adversary.  Furthermore, there's absolutely no fault in thinking about this strategically, for example, keeping your clients' advantages/disadvantages in mind when you craft your demands and responses (which, hopefully, you're doing anyway).

There are times when you want everything but the kitchen sink, but sometimes, the sink itself will do nicely.  After all, if both sides produce a gargantuan amount of product, somebody's going to have to review it – and pay for it.

Be careful what you wish for in litigation; you might get it – and get nothing.

An adversary may produce reams of product, the sole purpose of which is to either make it next to impossible to find relevant needles in the document haystack, or worse, obfuscate the fact that they didn't produce relevant documents at all.  Oracle's Larry Ellison knows a bit about this [In re Oracle Corp. Sec. Litig., 627 F.3d 376 (9th Cir. 2010)].

That's why my template is meant only as a guide.  It may be appropriate to issue a letter that simply says, "You're on notice and we expect you to preserve relevant data."  And here's the other elephant in the room to consider; are you absolutely certain that your client is completely forthcoming about their own data?  If not, we already know who'll be on the hook for it.

As for attorneys who are complicit in assisting their clients with 'hiding the football'?  As they said in the movie, Airplane, "…they bought their tickets, they knew what they were getting into. I say, let 'em crash!"

Huh?  Wrong Newton?  Don't look at me.  Go back and redo your keyword & concept searches!


Japan Epilogue: (Un)Safe Harbor: 10% x 50 Years = Prison?


We started with a premise:  A disaster has occurred.  What now

We segued into a limited examination:  Were we properly prepared?  Why or why not

Now, comes the all-too-familiar Watergate-esque finale:  What did we know; and when did we know it?

According to this comprehensive report, officials were warned that there was a 10% risk within a 50-year span of a tsunami swamping the protective barriers of the Fukushima Dai-ichi nuclear power plant – and disregarded it.  What result?

  • Human toll: incalculable
  • Environmental damage due to radiation contamination: incalculable
  • Damage to 'hard assets' (plant, equipment, etc): incalculable
  • Near-term cost to replace loss of % of daily supply of electricity to Japanese citizens: incalculable
  • Evacuation and relocation costs: incalculable
  • Current financial losses to shareholders of TEPCO: $30 billion dollars of market value
  • Errors and Omissions losses to insurance carriers: incalculable

I could go on, but you get the idea.  Now for the bad news.  That's not the worst of it.  How about:

  • Liability of executives, government officials, etc. for negligence.  I'm referring to all liabilities (i.e., not just financial issues), since some parties may enjoy sovereign immunity; but that doesn't address their political liabilities.
  • Liability of executives, government officials, etc. for criminal negligence.  Think that it isn't a distinct possibility?
  • Liability of corporate executives to their shareholders for massive losses due to lack of reasonable prudence.

You know what?  I have to stop now.  This feels ghoulish.

The point I'm making is, certainly, this is about as bad as a disaster gets, but we can all learn from it because there's only one item we need to change – scale.  Plus, the most important thing relevant to us in the real-life case study we're now seeing is what happens when we're wrong.

Worried eDiscovery clients always ask me how they're ever going to do everything right.  I tell them, there is no such thing.  It's impossible to anticipate everything, but as a rule of thumb, the fallback position is the basic negligence standard:

Knew, or should have known.

If they acted in good faith based on what they knew or should have reasonably anticipated at a given point in time – and present a defensible position as to why they acted – they'll likely preserve safe harbor.  Naturally, one can never completely account for the odd rogue judge.  The day all judges rule alike is the day I give a specific answer.  In the meantime, you do the best you can.

The key is in making sure you have the appropriate harbor pilot.

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.

It’s that Time of Year Again…



I'm traveling today, folks…'official' California State Bar Section meetings in San Francisco (man, that sounds important…).

It's time for the bi-yearly Gibson, Dunn & Crutcher LLP, "2010 Year-End Electronic Discovery and Information Law Update".  I confess, I haven't had time to review the report to give you my highlights like I usually do, however, I wanted to make sure you knew it was published.  What do I always say?  When I have time…