e-Discovery Insights

2010 Predictions? I Don't Have No Stinking Predictions!

2010 is on the horizon.  This is where all good bloggers provide their predictions for next year.  Hey - who said I was a 'good' blogger?  Besides, every e-discovery blog in sight (get it - insight?) has already done a fine job predicting what we'll see next year.  I'm going to do something else.  I'm going to give you my macro-economic view.  I'll preface this by saying I'm not an economics expert by any means.  This is my ear-to-the-ground view.  Continue reading at your own risk...

I do not hitch my wagon to those who claim the economy is improving.  Sure, it's improving - if you factor in trillions of dollars of stimulus cash and incentives - but those forces wont last forever.  And all it really accomplishes is, shifting the debt from one entity to another (the Federal government).  I see a waterfall of foreclosures coming onto the market in 2010 - and look for a disaster in CRE (commercial real estate).  The entire banking crisis we've experienced is rooted in the mortgage crisis - and not only is that crisis not over, I believe it will accelerate.  When would I consider buying real estate again?  Not until about 2013.

The last time I saw this amount of risk at the beginning of a new year was 2000.  We may get through the first quarter unscathed (some stimulus programs remain in force into Q1), but it's hard to see that happening when you consider we have new credit card regulations taking effect in February followed by tax time April 15th (yes, I know tax time falls into Q2).  How many of you have received letters from your credit card company changing your terms in advance of those new rules and raising your interest rates substantially?  And what great timing!  For the most part, they let you run up the Xmas bills first.

A lot of the numbers trotted out to make the economy appear to be on the mend are backward-looking.  Yes, housing improved, but Q3 numbers include summer months, always more robust no matter what the economy is doing.  And unemployment?  Yes, the economy is hurting, but companies still ramp up their temporary Xmas hiring.

Personally, I believe 2010 has the potential to be much worse than 2009.  I will be taking defensive positions this coming year.  I realize I'm in the minority on this, but you come to this blog to get my views - not to necessarily agree with them.

So, why am I telling you this?  Simple.  If I'm right, this will heavily affect the people and companies we rely on for revenue.  Take it from me - behemoth companies may know they need e-discovery services, but if the money isn't there, trust me, management will say "Screw it; we'll take our chances."

I'm not taking any chances in 2010...have a safe & happy new year...and let's hope I'm completely wrong!

The Verdict is In: Social Networking is a Drug, and Facebook, Twitter, et al, are Enablers

I'm rarely surprised by the things I read.  However, while reading an article on Time.com about something I've covered several times, jurors using PDAs during trials, a portion of the last paragraph floored me:

"The temptation to hop online is so great, and the habit so ingrained, that, as Keene notes, a burglar in Pennsylvania ended up getting caught because he stopped to look at his Facebook page on the victim's computer, leaving an online trail for the police to follow."

Granted, assuming the burglar wasn't an IT expert, he wouldn't know he was leaving an online trail, but you'll recall I also posted about a felon who boasted on MySpace about committing a murder.

Maybe I've been discounting the possibility that there is a positive side to social networking.  After all, we know that most people can't keep their mouths shut, and in fact, if all bad-actors simply didn't talk (the opposite of what we always see on TV, where everybody talks and talks and talks before asking for a lawyer) the reality is, a much lower percentage of crimes would be solved.

I'm curious, going forward, to see if we start experiencing a marked increase in crimes being solved through this type of evidence.  It's something to watch in 2010.

Case Got Your Tongue? Geek vs. Geek, Hyper-Activity & 'You'd Better be Dying!'

I'm sure 'yule' (pardon the pun) welcome this opportunity to suspend Xmas shopping for a moment so you can read my last summary of interesting cases for the year.  Folks, I can only say the latest crop borders on the bizarre.  I have two civil and one criminal case for you.

United States Gypsum Co. v. Lafarge North America Inc., 2009 U.S. Dist. LEXIS 99773 (N.D. Ill. Oct. 27, 2009)

"Plaintiff's computer forensics expert was allowed to testify regarding steps taken by plaintiff to protect its electronically stored trade secrets, and defendant's computer forensics expert was allowed to provide his opinion concerning "intrinsic weaknesses" he perceived in the reports of plaintiff's expert. However, both experts were barred from offering opinions as to intent of the parties in handling electronic information."

So, here's what happened.  Both Plaintiff and Defendant attempted to bar the others' expert from testifying.  Instead, the court allowed both experts to testify.  Whoops!  By the way, for the non-lawyers out there, it's entirely normal and customary - in certain instances - for experts to testify but not be allowed to express an opinion (conclusion).  Depending upon the circumstances, the court will leave that to the jury.

Wixon v. Wyndham Resort Development Corp., 2009 U.S. Dist. LEXIS 86337 (N.D. Cal. Sept. 21, 2009).

Score one for good-faith.  What attorney among us hasn't dealt with an adversary who attempts to use every technicality in the book to delay, deny, obfuscate, etc.?  Of course, if you are one of those adversaries, shame on you, but in this case, the court saw right through it and enforced the 'spirit' of the agreement made between the parties.

Zawada v. United States, 2009 U.S. Dist. LEXIS 101368 (N.D. Ind. Oct. 29, 2009).

"A request for court appointment of a computer forensics expert in a motion by a defendant seeking review of his sentence was denied because the defendant was not seeking to set aside a death sentence."

Like I said...bizarre...

Everyone, I wish you all the best!  Please, take care out there this holiday season.  Your continued support and feedback is what motivates me to keep on blogging!

Tips & Tricks: CLE Mobile for iPhone

This one is for lawyers.  There's a new free application, CLE Mobile, that allows attorneys to get their continuing legal education credits on an iPhone (and an iPod Touch).  In order to use it, you must set up an account at West LegalEdcenter.  Note, the app is free, but you must purchase the CLE programs.

I have an iPod Touch.  I also have an account at West LegalEdcenter.  Furthermore, the press release says I can get a free ethics CLE program if I download the app.  I happen to be one-hour short of my ethics CLE requirements.

Hmmm...are you thinking what I'm thinking?

e-Discovery California: The Friday Brush-Off

Forgive me for my limited time this week.  As we harken back to "Privacy Week", comes word that the Supreme Court is going to rule in the spring - for the 1st time - on texting and privacy, specifically the City of Ontario, California's appeal arising out of the 9th Circuit case, Quon v. Arch Wireless, 529 F.3d 892 (9th Cir. 2008) [Warning: Link opens 24-page PDF].

My colleague, Ralph Losey, has done a superb treatise on this subject, so I'm going to port you over if you'd like additional information.  I'm particularly fascinated by the 4th Amendment issues raised in this case (there I go again...criminal & Constitutional aspects...), plus, as a technology consultant, I've had a hand in crafting corporate policies regarding electronic communications many times in the past.

My opinion?  I'm staying with my usual view.  Texting someone using your corporate device is similar to having a conversation on the telephone from your office cube - where anyone around might hear you.  I'm not saying the content of the text (or phone conversation) isn't technically private, but by transmitting it by way of someone else's device, you're basically creating a waiver (in my mind, anyway).

What if an employee transmits child porn through their corporate device?  Is that private?  Does that not ensnare the company?  Is the company culpable for allowing child porn to be transmitted?  How would the company know unless it's allowed to monitor & review transmissions?  Just a few simple questions for you to ponder...this is your chance to emulate a Supreme Court justice.

More 'stuff' is on the way from me...as soon as I can ration the time to post it!

Facebook's 'Unfriendly' Florida

Is the car of sanity creeping into the intersection of the legal profession and social networking?  (Cut me some slack here, will ya?  I haven't posted in almost a week and this is what happens when I'm prevented from using metaphors for too long...).  This article from the Associated Press, "Fla. judges, lawyers must 'unfriend' on Facebook", suggests the answer is 'yes'. 

I've rambled on ad nauseum about people in the legal profession and social networking and I'm not going to pontificate on it again (although I suppose Sunday would be the perfect day for that...) but my reasoning is simple; you never know what the future holds.  Your legal friend today may be your legal foe tomorrow.

What else do you need to know?

Remember Me?

Hi all.  Sorry I've been away this week.  I've been in depositions.  If you've ever played any role in them (other than as an observer) you probably know how much concentration is required.  I've compiled a bunch of new information for you, so I'm going to get my house in order and you'll be seeing some (hopefully) useful posts shortly, including my monthly 'Case Got Your Tongue?'

Hold the Tiger!

I was going to refrain from commenting on the Tiger Woods fiasco, but...

If you have access to a PC, networked device, TV or radio - or if you happen to have been anywhere near a water cooler lately - you already know more than you ever wanted to about Tiger Woods' formerly-private-but-not-so-private-anymore antics.  I'm not going to bother including a link.

But, once again, we have someone essentially done in by electronic evidence; voice mail, text messages, etc.  All I keep thinking about is ten years from now, when his kids are older and will be listening to his voice mail messages, reading his text messages and being endlessly tormented at school.

Please...please...learn from his mistakes.  This is one time when you should state definitively, "I am not Tiger Woods."

California Lawyer: Not Without a Trace

Third time lucky?  Here's my latest article in California Lawyer magazine.  By mutual agreement, I'm not going to be doing these monthly anymore (time simply does not permit) so I think you might see one from me every few months.  We'll see how the schedule goes next year.