e-Discovery Insights

A Rare (Your)Honor

2009-11-06T09:16:15-08:00

So, there I was Wednesday evening at my monthly L.A. County Bar Association Litigation Inn of Court gathering. I'm standing in the buffet line and who ends up standing next to me? The Honorable Carl J. West! For those of you who have followed this blog since its inception (that would be all of you, right?), you may recall I wrote about judge West's panel at Legalworks.

Of course, I did the only thing one would do in a situation like this; I forced him to talk to me and give me a few tidbits for you! Judge West graciously obliged, and told me he was a bit surprised at how he became known as one of the "e-discovery judges". He said it really all started with his involvement with The Sedona Conference, but admitted "I think I know five percent more about technology than most other judges".

I pointed out to Judge West that the extra five percent automatically makes him an expert by virtue of knowing more and we had good chuckle over that. He also surprised me when he mentioned that his larger concerns were with attorneys who come before him. He said many times it's obvious that they have no idea what e-discovery is or what they're supposed to do about it. He said, "They really don't know that they don't know, and I usually end up advising them to get technology experts."

My signature line has always been, "Know what you don't know." Great. Did I 'steal' it from judge West or did he 'steal' it from me? I think I'm covered. We both stole it from Confucius!

e-Discovery LOL: Ode to Discovery

2009-11-02T07:40:02-08:00

A poem for a Monday morning (author unknown)...

Say it with candy,

Say it flowers,

Say it with gloves or with mink.

Say it with diamonds,

Say it with pearls,

But never say it in ink.

Case Got Your Tongue? Arrest, Lies & Videotape

2009-10-30T18:03:57-07:00

Hat tip to my colleague William Hoffman...

I thought I wasn't going to find anything relevant for my usual Friday post, but Peschel v. City of Missoula, 2009 WL 3364460 (D. Mont. Oct. 15, 2009) has it all; alleged crimes, police brutality and missing video from a police cruiser. I'm pressed for time, so I ported you over to K&L Gates for a look at the details, but here are Mr. Hoffman's comments:

"Finding that a video of Peschel’s arrest was lost as a result of the city’s recklessness, the court granted defendant’s motion for sanctions and “designat[ed], for purposes of the case, that the arresting officers used unreasonable force to effect the arrest of [defendant].” What struck me was the failure of the city to back up the data on its computer (particularly the video) was determined to be reckless, thus paving the way for severe sanctions."

From the case itself:

“The department failed to have any type of back-up system in place to ensure the preservation of the video recordings. In view of the importance of the video recordings, it went beyond mere negligence for the department not to have adequate safeguards in place for protection of the recordings.”

Have a good weekend.

Run for the Border!

2009-10-28T09:15:19-07:00

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?

Check this Blog Hourly Unless in Court, in Tunnel or Asleep!!!

2009-10-26T06:19:00-07:00

Like it or not, our employers expect us to be 'available' at all hours, as this article indicates. A junior associate was chastised for not reading his email after-hours and missing an instruction from a senior partner.

This won't be a popular view, but I agree with the senior partner. This is not an attorney-specific issue. When I was in IT, we were on-call 7x24. In fact, in some of the companies I supported, all of our systems were automated, so if a system was down for more than five minutes, it paged us; morning, noon or night (unfortunately, it was usually the middle of the night).

A nurse friend of mine, while observing my activities one evening receiving - and responding to - pages, remarked that my schedule was worse than that of a Doctor!

I place this firmly under the "it's not the old world anymore" department. In my world, there's no such thing as an eight-hour day, and I suspect that doesn't exist in your world, either. Believe me, I understand the work/life balance (after months of rarely sleeping through the night due to multiple outage pages, I considered leaving one job). Like it or not, the world is connected and no matter what time it is, somebody is awake somewhere - and wants to talk to you.

Sure, maybe requiring someone to check e-mail on the hour, every hour is a bit excessive, depending upon the circumstances. But I certainly make it a practice whenever possible to check my e-mail before retiring for the evening.

Maybe the problem was, the junior associate was too busy on Facebook...

MySpace Boast Opens the Door to a Murder Conviction

2009-10-23T06:32:00-07:00

Is this e-Discovery Insights or The Darwin Awards? It might be hard to tell today...

The Indiana Supreme Court upheld a murder conviction against a man who beat to death the two-year-old daughter of his girlfriend. The Court stated that admitting boasts he made about the crime on MySpace into evidence at trial did not violate the rules.

His lawyer appealed the original conviction, claiming that allowing the evidence to be presented prejudiced his client.

As far as I'm concerned, this is 'Evidence 101', folks. If you place your character at issue during a criminal trial - as defendant did here - you 'open the door' to the prosecution to rebut with their own character evidence.

Like the article says, it doesn't matter whether you boast at your local bar or on MySpace; it has no effect on the rules of evidence.

e-Discovery California: I, Witness

2009-10-22T06:22:00-07:00

I'd probably file newly-signed California SB 748 under 'good intentions, questionable results'. This new privacy law results in a misdemeanor if one posts data on the Internet that discloses information about witnesses or their family members if the intent is to injure them or incite violence.

Here are two notables from the article:

"The impetus behind the bill was preventative, DA's office spokeswoman Erica Derryck said. "This is an example of our office recognizing the way in which technology is used," she said."

...and...

"The bill also allows witnesses to submit opt-out forms to Internet search engine providers to keep their identifying information out of public databases. Businesses and agencies are required to take down identifying information about a witness within two days of receiving such an opt-out form, or face a $5,000 civil fine."

The law targets gang activity in particular, which should tell you why this isn't going to work. Gang members who are interested in witness intimidation or worse are not going to be intimidated by a misdemeanor for posting data on the 'net. Conversely, the idea that one can police "businesses and agencies" in this manner tells me that the D.A.'s office doesn't recognize 'the way in which technology is used'.

I guess they forgot to call me to get my opinion on this one...

Tips & Tricks: Bloomberg Law

2009-10-21T09:35:44-07:00

Look out Westlaw and LexisNexis. Bloomberg is launching what they refer to as their "all-in-one legal research platform", Bloomberg Law, at the end of the month. For a sneak-peek, click here.

e-Discovery LOL: We Will...We Will...Mock You!!!

2009-10-21T09:15:01-07:00

I just gotta give props to BoingBoing for their creative response to a frivolous (in my opinion) threat of a lawsuit.

Oh, and please don't sue me...

Redux: Orly gets Sidekicked!

2009-10-21T08:47:26-07:00

We're revisiting two former posts today to see how things are working out...

First, we have birther Orly Taitz. Her frivolous filings have resulted in a $20,000 sanction from judge Clay Land. She has a lot of supporters who I'm sure will raise the cash for her, so I don't think it'll serve as much of a deterrent. But maybe this will; the judge has also referred his order to the State Bar of California.

If you want to read a PDF of the judge's order, click here.

Second, we have the Sidekick smartphone and all of the lost user data. I've been following this story with interest. Microsoft has issued a recovery tool, but it only applies to contacts, not all of the other data such as photos and notes. As expected, class-action lawsuits are flying, but many will fizzle out if the recovery tool works.

At this point, there's no solid confirmation that users have recovered data - or what particular data has been recovered - but there's a moral to this story. It originally hit the news wires around October 10th and the recovery tool was to be available yesterday.

Moral #1: Can you afford to be out of commission for two weeks? When you trust your data to the cloud, make sure it isn't the kind made up mostly of vapor.

Moral #2: Always, always, back up your own data whenever possible.