e-Discovery Insights

Somebody's Gonna be in Trou-ble!!!

"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."

That's a quote from my September 4th post about the Toyota case.  This time it's not a 'case' and the parties are NBC and ALG, but the P.R. nightmare is at hand.

We have two entities arguing over the true content of an email message.  ALG claims the message they received from NBC contains a racial slur while NBC denies it.  There's no doubt that only one of the versions can be correct.  Regardless of the posturing going on, it's simple; the message headers and metadata will easily establish whose telling the truth.

If I were a betting man, I'd suspect NBC's version of the email is correct.  Why?  Because NBC is being quite forceful and citing a forensic examination.  What is ALG doing?  Claiming the message is on an office computer and they can't get to it to provide message headers until Monday.

This is a classic example of the type of posturing you might see in a real case (in fact, I have seen it), and when it's revealed which party is lying, somebody's gonna be in trou-ble!  If it turns out ALG is the culprit, they will have already scored a P.R. hit by claiming that they - a right-wing group - have been slighted by NBC (also known as 'the devil' to their followers).  The debate will continue on in cyberspace long after the truth comes out.

My hint?  I'd never heard of ALG and I suspect neither had most people until now.  Remember the adage, "No press is bad press"...

e-Discovery Insights Turns 1!

On September 24th, 2008, I launched e-Discovery Insights with a single theory in mind; who the hell would be interested in anything I have to say about this subject?

That's literally the question I asked one of the best web gurus I know, Clint Brauer, when he dogged me for two months solid to start blogging.  His 'field of dreams' answer; if you write it (and it doesn't suck), they will come.  He was right.  Of course, that doesn't mean it doesn't suck, but you came anyway.

So, on one hand I'd like to thank Clint for convincing me to give this a try; on the other, I'd like to strangle him for obligating me to come up with relevant posts about three times per week (it ain't as easy as it looks, folks).

Thank you for visiting.  In less than a year, you've made e-Discovery Insights the #1 Google search result for the terms e-discovery + California.

With the advent of the California Electronic discovery Act less than three months ago, the next twelve months will be challenging, indeed.

Mmmmmm...electronically generated ca-a-a-ke...(e-cake?)

Case Got Your Tongue? Restless Natives, Whitecaps & a 3-Hour Tour

This month's summaries produced a lot of interesting cases and also told me one thing; it's still mostly about ignorance.  Companies - and the firms that represent them - are continuing to get into hot water because they either don't know the rules, or don't comply with them when they do.

A couple of themes became apparent, so I'm using four cases (two each) to address the areas of privilege and native formats.

IT'S MY PRIVILEGE TO DEPOSE YOU

Imagine you're in the middle of a deposition and the first hint that you've inadvertently disclosed privileged information is when your opponent produces it.  What do you do?  Is that considered a waiver?  Those are the facts of Coburn Group, LLC v. Whitecap Advisors LLC, 2009 U.S. Dist. LEXIS 69188 (N.D. Ill. Aug. 7, 2009).  The first thing to assume; your opponent, if they're on the ball, will virtually always try to claim it's a waiver because that's simply good strategy. 

However, the judge didn't see it that way and took into account new rule 502(b)(1) (new as of 9/14/08) and focused on the factors of mistaken production and the reasonable steps taken to correct it.

Major Tours, Inc. v. Colorel, 2009 U.S. Dist. LEXIS 68128 (D.N.J. Aug. 4, 2009) - I don't care what document is at issue; even a litigation hold letter as in the facts in this case.  Claims of privilege and/or work product doctrine notwithstanding, if it's relevant to the proceedings it may become fair game.  Act accordingly.

THE NATIVES ARE GETTING RESTLESS

There still seems to be a lot of chatter regarding metadata.  It's an area ripe for manipulation and abuse because a lot of people don't really know what it is or how it's used.  Craig & Landreth, Inc. v. Mazda Motor of America, Inc., 2009 U.S. Dist. LEXIS 66069 (S.D. Ind. July 27, 2009) is more of a traditional case in that the metadata is being requested because it's relevant to the proceedings.  But see Covad Communications Co. v. Revonet, Inc., "Covad III", 2009 U.S. Dist. LEXIS 75325 (D.D.C. Aug. 25, 2009) which uses metadata virtually as a cross-referencing tool to address an inconsistency.

Metadata is not one of those terms I repeat often for entertainment value.  When relevant, it can make or break a case.

Be careful when you wade into those legal waters...

[Has anyone else noticed that I use a lot of metaphors that involve H2O?  What's that about???]

e-Discovery LOL: Orly got her Taitz Caught in the Wringer!

Connie Rhodes vs. Thomas D. McDonald

"Finally, in a remarkable shifting of the traditional legal burden of proof, Plaintiff unashamedly alleges that Defendant has the burden to prove his "natural born" status. Thus, Plaintiff's counsel, who champions herself as a defender of liberty and freedom, seeks to use the power of the judiciary to compel a citizen, albeit the President of the United States, to "prove his innocence" to "charges" that are based upon conjecture and speculation. Any middle school civics student would readily recognize the irony of abandoning fundamental principles upon which our Country was founded in order to purportedly "protect and preserve" those very principles."

"Plaintiff's complaint is not plausible on its face," Land concludes. "Unlike in Alice in Wonderland, simply saying something is so does not make it so."

It's Official...

I'm the only remaining person in the United States who doesn't have a Facebook account...

Aphlaetb Suop: Tihs is Waht it's all Aoubt

I cdnuolt blveiee taht I cluod aulaclty uesdnatnrd waht I was rdgnieg. The phaonmneal pweor of the hmuan mnid. Aoccdrnig to rscheearch at Cmabrigde Uinervtisy, it deosn't mttaer in waht oredr the ltteers in a wrod are,the olny iprmoatnt tihng is taht the frist and lsat ltteer be in the rghit pclae. The rset can be a taotl mses and you can sitll raed it wouthit a porbelm. Tihs is bcuseae the huamn mnid deos not raed ervey lteter by istlef, but the wrod as a wlohe. Amzanig huh? Yaeh and I awlyas thought slpeling was ipmorant!

The leading paragraph was provided through the kind permission of attorneys William E. Hoffman and Alex Lubarsky, two of my colleagues on the LPMT Executive Committee.

I attended their excellent presentation about document production Sunday morning at the State Bar annual meeting.  Two hours and 100 or so slides later, the attendees walked away with a better understanding of the challenges we face as we try to find the needle in the digital haystack - and how failing to competently undertake these practices may result in serious consequences for the lawyers, their firms and the clients.

Precision is key to what we do; this is one area upon which both lawyers and IT professionals agree.  The problem is, in the e-discovery universe, perfection may be imperfect.  Luckily, I'm one step ahead - I was never perfect.

...of course, I'd never admit that in public...

Lawyer Pays Tank! I'm Sure it was a Lovely Tank...

Note to Perry:  Coffee first, read second.

If you've been reading me for a while, you know about my love affair with coffee.  So, imagine my surprise this morning when I read the headline, "Lawyer Pays Tank".  After coffee, the headline reads, "Lawyer Pay Tanks".  Either it's lack of caffeine, dyslexia, or maybe someday I'll admit I need those reading glasses...

This post is actually about another subject; accuracy.  I probably post a lot less than some of my colleagues because I live in constant fear of making a mistake and as a result, making a fool of myself - or worse, running afoul of the State Bar rules.

It takes even longer for magazine articles because I vet everything very carefully.  After all, I can come back and edit this blog - I can't do that once an article is published.  So, take a look at this post about an attorney who was a little too revealing about her clients in her blog.  She's accused of violating her duty of confidentiality.

You wanna piece of me???

California State Bar Annual Mtg. Sept. 10-13, 2009

I'm on my way to the annual meeting in San Diego.  I don't know if I'll have an opportunity to post while I'm there, but if not, see you Monday.

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

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?

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).