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.

Facebook Faux Pas: "Drunk (and Stupid) in Florida"

At this point, I'm about ready to throw in the towel and start a "Social Networking Idiot of the Month" post.  I try not to get into the habit of using strong verbiage like this too often, but really...

A drunk-driving 17-year-old was involved in a vehicle crash that killed her 20-year-old passenger.

Quoting directly from the The Buffalo News article:

"The Buffalo News has learned that Sullivan went to Florida a month after the crash and posted a photo on her Facebook Web page captioned, "Drunk in Florida."" (italics/bold added).

The judge found this conduct troubling, sentenced her to six months in jail and stated that posting the Facebook photo was the reason.

No further comment is necessary, especially since it would contain more strong verbiage...

[As much as I don't like to overuse 'dark humor' for something as egregious as this case, nevertheless, I have to pose the question:  How many of you clued-in to my 'half-a-brain' illustration?]

You Asked for it, You Got it, Toyota! (Biller Re-Visited)

In light of the mechanical defect issues at Toyota, here are some of the other commercial slogans they probably wish they hadn't created:

The best built cars in the world.

I love what you do for me - Toyota!

And, irony fully present, my personal favorite:

Your new experience of motoring.

Ok, so maybe I'm still bitter because I tried to get Toyota to hire me as a consultant a few times last decade (they're in Torrance, which is fairly close to where I lived at the time) to no avail.  Nah, it can't be that, since I drive a Toyota now - although thankfully, not one of the models subject to recall.

Maybe there was something to the claims made by Biller, after all.  From my post September 4th, 2009:

"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."

Why do I think this is going to become a lead federal spoliation case somewhere down the road?  [Sorry, I couldn't help myself.  There had to be at least one automobile-related pun in here somewhere]  Not only that, there's the cross-over to the attorney's ethical obligations that I discussed in my prior post.

Yes, I wanted to make a catchy closing sentence, but I've already used up my one-pun allocation.

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!

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!

Privacy: There's Still Hope

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?

"A World without Anonymity"

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.

Case Got Your Tongue? Corrections, Cavalier Attitudes & Black Holes

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.

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.

MySpace Boast Opens the Door to a Murder Conviction

Is this e-Discovery Insights or The Darwin Awards?  It might be hard to tell today...

The Indiana Supreme Court upheld a murder conviction against a man who beat to death the two-year-old daughter of his girlfriend.  The Court stated that admitting boasts he made about the crime on MySpace into evidence at trial did not violate the rules.

His lawyer appealed the original conviction, claiming that allowing the evidence to be presented prejudiced his client.

As far as I'm concerned, this is 'Evidence 101', folks.  If you place your character at issue during a criminal trial - as defendant did here - you 'open the door' to the prosecution to rebut with their own character evidence.

Like the article says, it doesn't matter whether you boast at your local bar or on MySpace; it has no effect on the rules of evidence.