e-Discovery Insights

Turn your Head & Cough: Digitized Health Records, Privacy & e-Discovery

With all of the discussion of government-sponsored health care these days, lost in the shuffle is a concerted push to digitize health records.  It seems like everyone's getting in on the action; providers, consultants and even the federal government.  In theory, it makes sense for a number of reasons; portability, efficiency, cross-referencing, cost-reduction, and for those who are into 'green technology', lack of paper.  In practice, however...

Let me tell you about my first experience with digitized records.  I've been with an HMO ever since I ventured out on my own.  Save for one short period of time, I've had very competent doctors.  About two - three years ago my provider migrated to digitized records.  The next time I showed up for an appointment, my doctor informed me that she was so frustrated with the new system, she was retiring!

Now, I didn't ask her how old she was (I'd guess late 50s) and as we all know, age-based resistance to new technology is certainly a factor, but there are a host of other worries, such as who's going to be responsible for protecting us from all of this?  The doctors are probably thinking the same thing.  Right or wrong, I doubt they want their records falling into the wrong hands, either.

We know the records are supposed to be confidential, but if the powers that be can't protect our credit card and banking records, how well do we think they're going to do with medical records?  I suppose from the e-discovery side, I should be licking my chops (and perhaps I would be, except that I have medical records just like everyone else!).

Let me tell you about my last experience with digitized records.  I went in for my annual physical and I always have the usual, routine labs.  Unfortunately, all did not go smoothly.  My new, very competent doctor informed me she was having trouble setting up my lab work. 

Why?

The computers were down...

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.

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.

California Lawyer: The Cost of ESI

I sincerely apologize, folks.  I've been working night & day.  I'm quickly coming up for air and 'cheating' a little bit by linking you to my brand new article for the October 09 issue of California Lawyer magazine.

You'll have to make it last - there won't be anything from me in the November 09 issue.

ABA: Are E-Discovery Fears = Less Litigation? What???

That's what the subject line of my ABA Journal Tech Report email said.  Ok, so somebody needs to go back to English 101, but it was referring to an article in the National Law Journal about a drop in litigation activity - and whether fear of e-discovery costs is the culprit.

Here's the ABA's take.  Here's the Law Journal's take.  Here's my take.  This is a severe recession - certainly the worst I've experienced in my 46 years.  As such, although there's a lot of anecdotal evidence floating around, I see more theorizing than fact.  The projections that litigation would increase in this recession were likely overzealous, especially considering how many people have been let go at BigLaw.

The logic seems to be, "litigation rises during recessions, so it will do so again during this recession".  That's great if you look backward and compare to milder recessions.  I'm forward-looking.  Here's what I see; a faux-recovery based on stimulus cash.  We are at high risk of a double-dip, and I fear the second dip may actually be worse than the first.

Yes, I know this puts me at odds with Cramer.

Boo-yah...

Case Got Your Tongue? Safe Harbor, Spoliation & Sanctions, Oh My!!!

Pssssst!  See the attorney in the funny hat on the right?  She screwed up her e-discovery case!

A little housecleaning, if I may.  Some of you may have noticed that I didn't do this feature last month.  That's because, after reviewing all of the cases, I kept repeating the same word - Duh!  My assumption is that you, like I, have very little time to waste.

Last month's cases involved weak attorney arguments - made to cover for a mistake - that were tossed by a judge who was having none of it!  Summaries are available everywhere, but I'm looking for cases that either 1) tell us something we don't know, or 2) clarify something we do know.

KCH Services, Inc. v. Vanaire, Inc., 2009 U.S. Dist. LEXIS 62993 (W.D. Ky. July 21, 2009)

NOTICE THIS! - The issue is simple.  When is one sufficiently on notice of potential litigation?  Simple in principle, maybe, but think about it for a moment.  If you're a huge company, irate customers might be calling every day, threatening to sue.  Should you take every single one seriously and immediately issue a litigation hold letter?  In the instant case, the court ruled (in my opinion, correctly) that the person receiving the call had sufficient basis to deem the threat of litigation credible and serious and therefore, should have issued a hold in anticipation of same.

Arista Records LLC v. Usenet.com, "Usenet II", 2009 U.S. Dist. LEXIS 55237 (S.D.N.Y. June 30, 2009)

ESI: Miami (LegalTech Keynote Summary)

Yes, this post is a summary of what I saw at LegalTech at the Los Angeles Convention Center on Thursday. 

No, it didn't take place in Miami.  But, if the title said ESI: Los Angeles, nobody would get the joke, would they?

Besides, I would never be able to use this catchy title unless something happened in Miami, and I can't wait that long!

First of all, I'd like to thank Monica Bay.  She's a linchpin of LegalTech, and was also nice enough to cite my blog on her own blog, The Common Scold. I had a lot of meetings scheduled, so I was only able to attend the keynote presentation and one other session.  This is my summary of the keynote.  I'm knee deep in depositions, so I hope to be able to post a summary of the other session on conducting e-discovery abroad over the weekend.  Please bear with me.  I want to take my time so I can do quality posts for you.

The moderator was Carole Basri from Corporate Lawyering Group, LLC.  She's also an Adjunct Professor at the University of Pennsylvania Law School.  Next was Tom Allman, a retired general counsel, who is the editor of The Sedona Principles (2nd Edition).  Last were two judges - and you know how much I like judges - the Hon. Dave Waxse, U.S. Magistrate, District of Kansas and the Hon. Andrew J. Peck, U.S. Magistrate, Southern District of New York.

My 1st observation - not a criticism - we're in downtown Los Angeles with AB 5 (the California Electronic Discovery Act) sitting on Gov. Schwarzenegger's desk awaiting his signature.  No California or 9th Circuit judges on the panel.  Darn!

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.

Jurors take the Law, PDAs - and e-Discovery - into their Own Hands

Coming soon to a courtroom near you; sequestering with no access to electronic devices, and all movement and correspondence monitored - for the entirety of every trial.  Got any better ideas?

On the heels of my post late last week about "Juror Jonathan", comes the following story from the New York Times about jurors ignoring their judges' admonishments and conducting their own online research during trials.

Courts have always operated on the honor system when it comes to non-sequestered juries.  We hold out hope that when a judge issues jury instructions, they will be taken seriously and followed to the letter of the law.  Unfortunately, we also know that individuals violate these rules all of the time.  Sometimes they're caught - sometimes not.

Now, virtually every PDA comes equipped with the ability to access the internet, so jurors can conveniently misbehave on their breaks!  If our system of jurisprudence can't get a handle on how to control juror misconduct, here's the next place they'll be getting a 'handle' on them:

Dancing 'Geek to Geek' - Judges' Panel Weighs in on California AB 5, 'Train Wrecks' and the 'Mayflower'

If this keeps up, I'm going to rename this site the 'Hot Potato' blog...

I've posted ad nauseam about how parties want to rid themselves of the e-discovery hot potato, but throwing it to the Judge?  Not so fast, says the Hon. Andrew J. Wistrich.  You can try, but he won't play the game!  That was one of the morsels from the Judges' Panel, which also included the Hon. Maureen Duffy-Lewis and the Hon. Carl J. West.

I like Judges.  They're always more candid than I expect, and as some of you have probably figured out from my prior writing, I like candor.  Don't beat around the bush, don't use fancy language, just tell me what you mean!  I certainly got a lot of that from this panel.  It was the best 75 minutes a person interested/involved in e-discovery could spend, because it tells us where things are headed in the minds of the Judges - and ultimately, they're the ones we are speaking to, not only our adversaries.

What was the most important concern to the panel?  Cost!

Judge West lead off the discussion and to my delight, he immediately weighed in on California AB 5, noting the pending March 3rd hearing and saying he expects the Bill to be adopted either by late this quarter or the next.  My take?  California finally reached a budget deal, so we'll see if that development facilitates the passage of AB 5.

Judge West was concerned about two seemingly-contradictory provisions in the Bill; one, which discusses imposition of sanctions, and the other, which defines Safe Harbor.  He noted there were several exceptions to Safe Harbor that might incur sanctions.  That reminded me of law school.  As my professor used to constantly warn, "Everyone knows the rule, but they'll test you on your knowledge of the exceptions to the rule".

He also mentioned that more and more, he's seeing each party provide a technology expert at hearings, and that many times it becomes an 'expert versus expert' issue.  That's when he coined the phrase, credited to another Judge, that the parties should have their respective experts 'dance geek to geek'.  I just want the Judge to know I haven't worn horn-rim glasses since grade school...

Judge Duffy-Lewis spoke next...