e-Discovery Insights

#SCOTUS Grants Cert in #Cheney v. #Bush, #Powell, #Rice, #Rumsfeld, #Tenet, et al. (2011)

An old Jewish proverb:  Put two Jews in a room and you'll get three opinions...

Word came down this morning that the Supreme Court of the United States has agreed to review Cheney v. Bush, et al.  I can't say I'm surprised; but I wonder how they're ever going to discern the facts, based upon all of the conflicting testimony.

To briefly review (for those who may be unfamiliar with the details), in August 2011, Cheney testified to a series of events that took place In His Time.  He placed himself at the center of both terms of the Bush (hereinafter referred to as "W") administration. 

Colin Powell, the Secretary of State in W's first term, filed suit in response.  Deposition being held on Face the Nation, Powell contradicted Cheney's testimony and in fact, testified to an entirely different series of events, likening Cheney's account to that of a 'supermarket tabloid'.

This was just the beginning. 

Cheney, apparently unaware of - or unwilling to - abide by the Decision Points testified to by W himself in 2010, also contradicted the former President's account.

In tears, Condoleezza Rice came into my office and told me that I had been right; then made known her intention to join on the side of Powell.  Aside from stating that there was No Higher Honor than serving in W's administration, she's remained mum up to this point.

Her deposition is scheduled for November.

Sources also predict Tenet will enter the fray.  Reached this past weekend At the Center of the Storm [Irene], he said it was a Slam Dunk that a cross-complaint against Cheney was imminent. 

Rumsfeld was queried about his intentions.  He responded, "I know that I know what I'm going to do, but I don't yet know all that I could know, and on advice of counsel, I'll wait until all unknowns are known before you'll, ah, know."

The moral of this story?  These are some of the most powerful individuals in the world, yet even they can't agree on a critical series of events.  Of course, some of this is by design and clearly self-serving - and some is not - but that's the point, isn't it?

Welcome to the wonderful world of litigation...

e-Discovery California: How am I Behaving? Text 800-IM-DRUNK

A bunch of people get together on a Saturday night.  They drink beer.  They drink more beer.  At last call, wanting to keep the buzz going, they order two more beers - and guzzle them.  Somebody looks at somebody else sideways and a fight breaks out.  And so it goes at the local pub?

Yes, but so it also goes at the local baseball diamond, etc.  "I went to the fights and a hockey game broke out!"

Now, California Assemblyman Mike Gatto (D-L.A.) wants to establish a new law that would beef up penalties for fan misbehavior at sporting events.  It would also fund a reward-based program to encourage fans to report other fans.  Here's why I think this is a misguided idea:

1. Ever heard of Crime Stoppers, et al?  Mechanisms already exist for reporting crimes.
2. Why is this venue singled out?  Because it's on the news?

A more reasonable approach, among others, is the method adopted by some teams that enables fans to text information about incidents directly to security personnel.

The minute one introduces pay-for-play to the mix, the potential for abuse increases.

Heck...next you'll tell me they're gonna pay kids to go to school!

I Need Jobs

I want to do something different.  The problem is, I'm not having much luck being hired.  I'm temperamental, moody, stubborn, and definitely march to the beat of my own drum.

I'm also euphemistic...

When I know I'm right, I stick to my guns - even at the risk of being wrong - which, I'm not embarrassed to say, I have been.  I wish people would just do what I say and stop questioning me so much!

I've pissed off so many people at work that - I like to joke - H.R. has a chair with my name embroidered on it!  It's gotten me fired, too.

People don't understand how my mind works - they just know that somehow, it works.  My spectacular failures are only bested by my even-more-spectacular successes.

My education's a little thin.  My mind was too restless to sit in a classroom, so I didn't finish college.  But I'm telling you, I've got some killer ideas and I can make them into reality; whoever I work with will make a lot of money.

I'm going to interview at this really cool tech company.  I think I can do great things for them.  It's on my calendar for Monday.  I'm just wondering one thing...

Do you think Apple Inc. will hire me?

e-Discovery California: Upcoming Presentations, Activities & #LPMT Free Offer EXTENDED!

Is it just me, or are these officially the dog days of summer?  Maybe I feel that way because while visiting my mom, the temperature hit 115 - not fit for man, beast...or lawyer!

The California State Bar Annual Meeting is rapidly approaching, so I thought I'd issue this friendly reminder.  I'm presenting CLE #144 on Sunday, September 18th from 8:30 - 9:30am with my colleague on the Law Practice Management & Technology Section Executive Committee, Derick Roselli, called "Truth or Consequences: e-Discovery Facts and Fallacies".  Here's the synopsis I came up with this time:

"Often, attorneys and their clients lack an understanding of technology, and are unclear about e-discovery rules and the risk of sanctions. This presentation provides an in-depth understanding of the process and how to stay on the right side of ethical lines."

That's a bit better than the ones I came up with at the last minute.  For attorneys, one-half-hour of the presentation qualifies for the coveted ethics credit.  So, do what I'm going to do; get up early, drink as much coffee as you need, then join us for some very useful information!

And while we're talking about credit:

You still have time to take advantage of free LPMT Section membership through the rest of 2011.  The deadline has been extended and is now Tuesday, September 27th.  All you need to do is send an email to lpmt@calbar.ca.gov and include your California State Bar number (if you have one).  That's it!

But wait!  There's more!  This offer isn't just for attorneys - or even California-licensed attorneys.  Out of state attorneys, paralegals, anyone who would like to test-drive the section may join!  You still have time.  Email us before the deadline!

Before I go, if you're attending the annual meeting, just thought I'd mention, if you want to meet, I'm going to be there every day from Thursday through Sunday.  I do have a ton of meetings and activities scheduled, but I'll always make myself available.  Also, I encourage you to partake of the many other high-quality CLEs presented by the LPMT Section.  Check the guide for details. 

Now, where did I put my lemonade?

e-Discovery California: Predictive Policing or e-Profiling?

Please note; I didn't say racial profiling...

I was some kind of Twitter-maniac this weekend.  Normally, I don't tweet a lot of articles because I don't think it's the best use of the discipline, but it seemed like every time I turned around, I was reading interesting pieces about technology, security, evidence, law or the economy (as it pertains to us) that I thought would be of interest.  If you're one of my followers (how creepy-sounding is that?!), I hope you'll check them out.

This article begs further examination, however.  The police force in Santa Cruz, California is experimenting with using mathematics to predict where crime hots spots will occur - then deploying resources to those likely hot spots.

I wrote about this back in January.  It kind of takes on the pathology of the movie, Minority Report.  At the time, I said, "We don’t arrest people for crimes they haven’t committed, yet."  We still don't; but it sure would be convenient to be in the vicinity waiting for them when they do.

In theory, it seems like a great tool - using history of prior crimes to predict future ones; but it was the following comment by a patrol officer that raised my eyebrow (just one, mind you):

"[The program] doesn't give me legal reason to arrest somebody just for being in my hot spot, but it gives me good reason to stop and ask what they are doing,"

My question in response to that statement is, "No, it doesn't give you legal reason to arrest somebody, but does it give you reasonable suspicion?"

It's a rhetorical question because, absent any additional facts, we can't really answer.  However, I know one person who would definitely be asking it; a good defense attorney.

#EDRM Seeks Public Comment on their MCoC

EDRM has posted their proposed Model Code of Conduct and they're asking us to weigh in.  The comment period is open through September 30th, 2011.

Never mind Predictive Coding; what is Predictive Policing?  The answer is coming up in my next post.  Have a great weekend, everybody!

Don't Have a Cow, Man!

Barely a week after I posted about riots, the use of social media and the Brandenburg Standard, we get San Francisco riots (or should I say, "protests"), BART's attempts to prevent the use of social media and an acrimonious debate about the Brandenburg Standard.

But I'm a lawyer and as such, I look at the facts on the ground.  Is social media being used as a vehicle to incite imminent lawless action (not the peaceful variety, after all, one may break the law in a peaceful manner)?  Does the "state" have a compelling interest to protect the public?  Is jamming cell signals within the limited range of the stations a reasonable response to a perceived imminent threat?  Is there a private/public argument to be made?

We argue; judges decide.

Here's one I didn't see discussed; the authorities may have done the rioters a favor - in a backwards capacity.  After all, in the process of preventing communication between potential wrong-doers, they may have prevented themselves from collecting electronic evidence that might have ultimately led to identifying and prosecuting those same wrong-doers.

If only it were that simple.  This assumes, for example, that outgoing text messages timed out.  Depending on the device - and the network it communicates with - if the user reconnected to the network before that happened...

A Perry Home Companion

Well, it's been a quiet week in eDiscovery Insights-Land, California, out on the edge of the prairie...the little blawg that time forgot and the decades may improve...where all the women are strong, all the men are good-looking, and all the lawyers are above average...

Anybody who's a fan of Garrison Keillor recognizes the above reference.  About the only connection I have to the original is that I grew up in the province of Alberta, which is on the Canadian prairie (yes, Canada has a prairie...)

I channeled that quote after reading this great line from Adrian Dayton in the National Law Journal:

"Social media and blogging aren't about making you famous; they are about making you a little bit famous..."

Dayton examines why major law firms are - or aren't - blogging, and why.  Take it from me, I can think of many reasons to blog and many reasons not to blog.  In this 'taken out of context' world, which also happens to be a staple of litigation strategy (as I partially examined in this post, recently) it's very easy for someone to take a snippet of information and manipulate it.

Comes with the territory.  Like it or not, we live in a sound-bite world.

On the other hand, a lot of major firms may not be blogging; but they're reading us.  I found that out when, for example, a Partner at Jones Day quoted one of my posts for an article about Twitter in the New York State Bar Association Journal.

A little bit famous...

[Thanks to Charlotte Brownstone for today's title!]

"My Receipt? I Left it in my Other PDA."

Receipts are going digital.  Great.  Now I can lose them electronically instead of accidentally throwing them into a physical trash bin.  But seriously folks...

The upside?  No more wasting paper (which not only makes the 'green' folks happy, but also lowers costs), ease of organization, tracking, recall and portability.  The longer the item is warranted, the more useful this is, of course (unless you enjoy digging up that receipt nine-years after a device warranted for ten-years goes on the fritz).  And has anyone noticed that when they go back through those older heat-created receipts, some of them have faded to the point of being completely unreadable?

The downside?  Privacy.  In order to get the receipt, the sender needs your information such as an e-mail address (although there are ways around that, if you wish, but some of them are clunky).  One way to retain privacy would be for the retailer to project your receipt on a screen as a Bar or Q-code.  Then you could scan it onto your PDA with the appropriate app.

Just spit-ballin' here, but eventually, this will be the standard way of doing things.

The Right to be Forgotten...

In the United States, privacy is sometimes described in legal circles as, "The Right to be Let Alone".  Of course, if you're a public figure, among other criteria, that right is seriously curtailed.  In Europe, they're charting their own course where privacy is concerned.  They refer to it as, "The Right to be Forgotten".  The major difference is, they're much more strict about enforcing the concept.