e-Discovery Insights

Case Got Your Tongue? Caffeine, Voicemail & 8 is Enough

Mistakes...carelessness...sanctions.  Month after month, I review a plethora of new decisions, looking for something unusual and interesting.  Do I find usually find it?  No.  Look at this summary of nine recent cases that Kroll Ontrack has compiled and what do you see?  Sleight of hand, ignorance of the rules & stall tactics.

Starbucks Corp. v. ADT Sec. Servs., Inc., 2009 WL 4730798 (W.D. Wash. Apr. 30, 2009):  In a case that harkens back to the "Jerry Maguire" case I wrote about over a year ago, the court ruled that just because your emails were backed-up on a "cumbersome old system" doesn't automatically make them "not reasonably accessible".  If that isn't enough, they also said, "...even if the information was ruled not reasonably accessible, good cause existed to order production." [italics added]

There are still people out there who seem to think that the federal rules themselves somehow determine what is - and isn't - reasonably accessible.  In fact, someone wrote a letter claiming this very fact in response to one of the articles I wrote in California Lawyer magazine.

Dead wrong.  The court decides what these parameters are, based on the facts of the instant case.

Vagenos v. LDG Fin. Servs., LLC., 2009 WL 5219021 (E.D.N.Y. Dec. 31, 2009):  The quirk in this case is, defendant was awarded an adverse inference sanction over plaintiff's failure to properly preserve a voice-mail message - even though there was no evidence of bad faith on the part of the plaintiff.  Negligence vs. intent...

Magaña v. Hyundai Motor Am., 220 P.3d 191 (Wash. Nov. 25, 2009):  On appeal, the Supreme Court of Washington applied the three-prong default judgment test (willfulness of violation, substantial prejudice to opposing party and availability of lesser sanctions) and reinstated an $8 million default against defendant.  Parties are still betting against the house; but more and more often, the house wins.

Case Got Your Tongue? Arrest, Lies & Videotape

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.

Redux: Orly gets Sidekicked!

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.

Cloud BURST!

The lead paragraph from this Washington Post article says it all:

"A server meltdown over the weekend wiped out the master copies of personal data -- including address books, calendars, to-do lists and photos -- accumulated by users of T-Mobile's formerly popular Sidekick smartphone."

It's a little out of our element, but I touched briefly on the risks of cloud computing back in April.  Well, T-Mobile users are getting a front-row seat to what happens when those entrusted with your data don't endeavor to properly protect it.  And this isn't just any old vendor - this is Microsoft subsidiary Danger, Inc.

There isn't really much to add, except that had this happened to one of my clients under my watch, I would have been fired!

Baby? Meet Bathwater...

Not that I want to pick on Computerworld, but...

I was reading their article, "Why IT should start throwing data away" and, while it's a great document with a lot of astute information, it still made my blood boil.  Why?

This is a classic example of a terrific thought process that only considers one side of the equasion.  The perspective is, 'Let's do what we can to eliminate as much data as legally possible to limit the strain on our resources, thwart adversarial e-discovery and lower costs'.

But here's the thing.  Some of that data may exculpate the company and you may really regret deleting it.  Sure, I've talked to many attorneys who operate under the philosophy that the least amount of data available, the better, and you know what?  I don't agree.  At least not without a case-by-case assessment, anyway.

Sauce for the goose is good for the gander.  Don't be so efficient in your data sweeps that you have a defensible legal hold, but leave yourself with no line of defense.

I'm Good Enough, I'm Smart Enough & Doggonit, People Like Me...

...and eventually, I'll write an in-depth analysis of California AB 5 and contrast it with the Federal Rules.  But, take a look at this fine analysis from Law.com regarding how California will deal with Zubulake 'accessible vs. inaccessible' ESI and how it contrasts with the Federal rules.

Finished reading?  Great.  Now let me tell you why nothing in the analysis rattles me.  You should have been treating your ESI as accessible all along.  Here's why:

The law is all about exceptions.  Everyone knows the general rule, but ultimately the facts dictate whether an exception is in order.  At Sony Pictures in 1997, we successfully fought off a request for ESI in a California court because we made the case that it was accessible, but at punitive cost because we'd long since retired that particular backup system and complying would have required a $250,000 outlay (there was no product like Index Engines around in 1997).

I had a very smart professor in law school.  His advice was to always assume the worst-case scenario, then work backwards.  It's actually a very logical approach.  Yes, the flood may be that bad, yes, the stock market may fall that much and yes, your adversary may make a persuasive argument to the judge.

Be an actuary.  They look at everything as 'cost vs. risk'.  Which will likely cost more, paying to protect or paying after the fact?  A young PC user asked me the other day, "Why do I need a firewall?  What are the chances that I will be the one that will be hacked?"  My answer was, "If you want to gamble, that's your call, but here's a short list of things that could happen if you're the unlucky one."

Gamble if you like; but be prepared to face the consequences.

Observations on Off-Site, On-Site, Outsourcing & Ownership

Seems to me there are a lot of companies selling data & e-discovery services with the attitude of, "Place your data responsibilities with us, then sleep well at night".  Hardware and software are offered in-house, SaaS, appliance, off-site...anything you want can be provided.

My personal opinion; before you start relinquishing responsibility to others, keep one thing in mind - it won't matter.  You'll ultimately be responsible in the eyes of the law.

I blogged about this before in my 'Hot Potato' post, among others.  The instinctive thing to do - especially with the added complexity of the e-discovery rules hanging over you - is to contract out and make it someone else's problem.  Heck, I get that.  I'm a Contractor!  Only thing is, in this case...it won't work.  Good-faith won't be enough.

I'm not living in a fantasy world.  Some companies have so much data - including ones I've consulted with - it would be virtually impossible to manage in-house.  If I said "Don't do it!" I would expect you to laugh me out of the room (which would be difficult, since none of you know where my 'room' is, exactly).  All I'm suggesting is, before you consider outsourcing data management; whether it be on-site, off-site or a combination of both - or even if you've already done so - think about all the risks, especially in these difficult economic times.  Do you have a contingency plan in place?

These are the items I'd be including in a checklist (order of preference is up to you):

The 'Missile Command Act'? No, the 'Internet Safety Act'!

I think my career is about to resemble 'Missile Command'.  It was all the rage in the 1980s.  Atari still exists and I was surprised to see that they're still selling it.

The name of the game is to intercept falling missiles (which have an annoying tendency to split off in multiple directions) with silos on the ground (hint; we're the silos).

John Cornyn (R) has introduced the "Internet Stopping Adults Facilitating the Exploitation of Today's Youth Act", or 'Internet Safety Act' (for those of us who can't fit all that in a catchy blog title).  This bill is actually a regurgitation of a bill introduced in 2006.  I think you get the gist from the bill's title, but here's the fine print:

"A provider of an electronic communication service or remote computing service shall retain for a period of at least two years all records or other information pertaining to the identity of a user of a temporarily assigned network address the service assigns to that user."

Anybody besides me thinking about the storage/costs required to retain and/or restore these logs?

That's Part I of the headache.  Part II is who would be covered under this bill; essentially anyone who serves wireless using DHCP.  That's right - it includes that little Wi-Fi router you have at home.  Note to those who brought their wireless router home from the store and just plugged it in; you might want to configure the security feature, lest someone nearby connect through it and start looking at child pornography.  Starting to sweat, yet?  Maybe you will after I mention Part III; you might go to jail for up to 10 years.

Here's the really bad news - there's a Part IV...

I Have some Good News & some Bad News...

*** My n/w and phones are out, so I'm coming to you live from the Redondo Beach Public Library, courtesy of their free wireless service...THANK YOU!!! ***

Why did the goose cross the road?  Let's take a gander...

I.T. to the Attorneys and Management:  "Great news!  We can leverage our existing ESI backup and/or disaster recovery systems to solve many of our e-discovery challenges and simultaneously cut costs!"

The Attorneys to I.T. and Management:  "Terrible news!  You can leverage your existing ESI backup and/or disaster recovery systems to solve many of your e-discovery challenges and simultaneously cut costs!"

Why both?  Sauce for the goose is good for the gander - anything that makes it easier for you to access ESI, also makes it easier for your adversary.  But is it that simple?

Key phrases to keep in mind; 'accessible', 'not reasonably accessible', 'inaccessible' and 'cost-shifting'.  The Federal rule states:

“A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C).” Fed.R.Civ.P. 26(b)(2)(B), italics added.

Testing 1-2-3...Are you 'Really' Ready for a Litigation Request?

Part II of a two-part series.  Part I appeared 11/24/08.

PART II - ESI COLLECTION

I read a lot of of excellent articles, white papers and documents (as do you) which present reasonable, astute and prescient approaches to getting a handle on your company's ESI (electronically stored information).

However, in virtually all of the materials I see, one important element is missing:

TESTING.

Buildings run fire drills. Do you run data recovery drills?

Sounds counterintuitive, doesn't it?  Common sense would tell you that if you're backing up your data, it should be relatively easy to recover it on demand.  After all, the software "tells" you in your morning report that last night's run went fine.  But did it?  Is that all that matters?