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« October 2009 | Main | December 2009 »
Shoulda, coulda, woulda...
Although we aspire to arrive at an area of cooperation between parties in the e-discovery realm, I personally haven't seen much evidence that we're heading in that direction - yet.
However, that doesn't mean we should fault anyone for trying. This article from the ABA Journal give us a glimpse into what possible reforms might look like. Will we ever get there?
Welcome back...
Fresh on the heels of my post about Bloomberg Law comes Google Scholar. Now, the actual 'Scholar' has been around since 2004, but about a week ago they added the ability to access Federal and State legal opinions.
How will this service compare to paid services? There's only one way to find out. Try it and see for yourself. That's what I'm going to do.
It may be Wednesday, but for most of you it might as well be Friday since I'm sure everyone has Thanksgiving on their minds. I've been travelling (I don't care if my spell-checker says 'traveling' has one 'l', I'm spelling it with two) and haven't had much free time this week, so to wish you all a happy & safe holiday I've resorted to the old stand-by...animals!
My dog Jasper says Happy Thanksgiving!
Wow. Four posts in a row on privacy? I think that's a record...
But I have to be fair. The Wall Street Journal published this dissenting view on where the trend is headed. In fact, they cite a case I covered for you back in August to support their claim. To be honest, when I speak of privacy I'm usually referring to using company products to conduct company business (unless you use your personal PC for that purpose).
However, the bottom line is this; it's still a crap-shoot. If you're going to perform non-business-related duties on a company PC, you run the risk that someone is going to see it. Going forward, the question will be, what can they do with it?
In this summary of five recent cases, CNN Tech asks, "Can the Law Keep Up with Technology?". Yeah, I know...I'm harping on privacy again...what can I say? Good things come in threes...
My only other two comments are, 1) you're not supposed to start a sentence with the word 'can', and, 2) the answer to the question is 'no'. There. Solved.
The law will never be able to keep up with technology. The day the law keeps up with technology is the day Congress is replaced by Deep Blue.
In the meantime, CNN's summary is worth a look.
Our 'privacy' theme continues on...
Like it or not, you don't enjoy the level of privacy you think you do, and copping an attitude about it only makes things worse. For example, I regularly caution my clients about their third-party agreements. I don't care that your contract says the third-party is required to cooperate. When litigation arises, many of those same third-parties will ignore the agreement and circle the wagons.
Take a look at Dawe v. Corrections USA, 2009 U.S. Dist. LEXIS 96461 (E.D. Cal. Oct. 1, 2009). The third-party defendant refused to comply with plaintiff's request to inspect defendant's personal computer. I'll make this short and sweet; defendant lost the argument.
Third-parties aside, how about non-parties? In Thayer v. Chiczewski, 2009 U.S. Dist. LEXIS 84176 (N.D. Ill. Sept. 11, 2009):
"A non-party email service provider that displayed a "cavalier attitude" toward defendant's subpoena seeking email deleted by plaintiff prompted the court to order the provider to show cause why it should not be held in contempt and to pay defendant's reasonable fees and costs in obtaining discovery about the provider's ability to recover plaintiff's email."
I'm including Laethem Equip. Co. v. Deere & Co., 2009 U.S. Dist. LEXIS 86109 (E.D. Mich. Aug. 31, 2009) simply for the eloquence of the judge in explaining where e-discovery has brought us:
The defendant's motion for sanctions is "a further example of how discovery has become a veritable 'black hole' having the potential to draw in and annihilate the case itself,".
In a perfect world, cases are decided on the merits. Instead, parties are increasingly using procedural moves as battering rams, and I think this does a disservice to us all.
Remember how I went on and on about the fact that what you do and say in your personal life (particularly online, after all this is an e-discovery blog) may become relevant in a legal proceeding? Remember how I told you that there are several cases pending that might completely change the definition of privacy? And remember when I nagged you like your (Please fill-in-the-blank here; mother, grandmother, psychiatrist, attorney, etc. Hey - I'm not dumb enough to actually name someone and make them mad at me!) when I implored you to stop making those inappropriate posts on Twitter/Facebook/MySpace, etc.?
Well, this headline says it all:
For those who are pressed for time, this is the relevant portion:
"Buffalo Grove Village Trustee Lisa Stone should be told the name of the man she accuses of making defamatory online comments about her 15-year-old son, a judge ruled Monday in a case being watched for its Internet privacy implications.
Cook County Circuit Judge Jeffrey Lawrence ordered that the identity of a person known online as Hipcheck16 be turned over to Stone."
We can debate the Constitutional implications of the ruling itself, but truly, this goes all the way back to the 'shouting fire in a crowded theater' argument. Post-mortems don't interest me much; I deal with what is, and what will be, not what was. To paraphrase a certain election campaign, it's about the future, stupid!
On a fairly regular basis, I'm accused of being "Chicken Little". Perhaps my detractors are right. Maybe it's because I was a boy scout when I was a kid (Be Prepared!) or perhaps it's from all of those years protecting my clients from what might happen, not just what I could identify as likely to happen.
If I weren't doing what I'm doing, maybe I'd have become an actuary (I'd say 'bean-counter', but for those who know this blog well, the only beans I'd be counting are coffee beans...).
It sucks being the wet blanket. It sucks constantly warning people about risks. But here's the thing; technology is moving much faster than our ability to understand what we're doing with it. There used to be an admonishment; when angry, count to ten before acting. Now, not only do we not count to ten, we immediately grab our always-within-reach Blackberry and post on Facebook!
So, here's a question for you to ponder over the weekend; do you think Hipcheck16 wishes I'd have been his wet blanket?
...to the point that I didn't even want to come up with a catchy title. Just read the lead-in to this story from the Associated Press:
"Of all the sinister things that Internet viruses do, this might be the worst: They can make you an unsuspecting collector of child pornography."
Look, I'm not naive. The 'I didn't do it' defense is as common as apple pie. That's not the point. The point is, sometimes it's true. I touched briefly on child porn issues a couple of times and I'm the first to admit; I don't even want to discuss it. [Note to the attorneys out there - especially if you're dealing with the state of California - I recommend you familiarize yourself with the Tecklenberg case (warning: link opens 28-page pdf).]
But this story is a cautionary tale about several things that directly affect us, not the least of which is, clicking on unfamiliar sites and/or looking at adult porn (legal, but this is how a child-porn virus may be planted on your PC). People do this every day - at the office.
What about on the 'detection' side of things (proper virus software, proper firewall software and/or hardware)? Are you aware it's estimated that 70% of corporate PCs contain pornography? Are you aware that someone in the IT department can look at a report of every Internet location any PC visits? What happens if porn is detected on a company PC? What happens if child-porn is detected on a company PC? What happens if that PC is yours?
How are you going to prove, "I didn't do it?"
One of my favorite movies is, WarGames. It's a favorite because of a two-sentence conclusion delivered near the end of the film by the talking computer, Joshua: "A strange game. The only winning move is not to play."
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!
A poem for a Monday morning (author unknown)...
Say it with candy,
Say it with flowers,
Say it with gloves or with mink.
Say it with diamonds,
Say it with pearls,
But never say it in ink.
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