e-Discovery Insights

...After the Horse has Escaped. #PDA and the #5thAmendment

 

I closed my last post with this line; "Now comes the more difficult argument; explaining how a password is exactly the same as a key..."

In my view, the law is a password.  For example, right or wrong, a police officer may perform a search because he or she believes the law permits it.  A judge is another interface who decides whether to grant or deny access to information.  There's one major difference between a police officer, a judge and a computer, of course.  An officer or judge will make decisions based on several factors, whereas a computer - in proper working order - will decide based on pass/fail.  Nevertheless, like our friend, Maxwell Smart, the law is just another door in a series that parties must pass through.

So, what if we have a person under arrest who has password-protected their PDA and refuses to divulge it to the government?  Do they have 5th Amendment protection?  For starters, here's an excellent, big-picture view of the issue and emerging case law (I linked to this on Twitter a few days ago).

I think I get a bad rap sometimes.  My views may appear to be pro-defense versus pro-government.  However, if you've read my bio, you know that I've worked with the District Attorneys office.  I've also served as criminal defense counsel (this is not an unusual situation, by any means).  For me, the issues are simple.  Individuals on either side of the law have rights and responsibilities and it's important to know what they are (assuming any one of us can keep up with the rapid changes).

Also, the game has changed in another major way.  I understand that a lot of criminals use cellular devices to facilitate their behavior, but a majority of law-abiding citizens do not.  If one such citizen is arrested for, say, disturbing the peace, should the government have a right to search through all of the data on that person's Blackberry?  What if he or she is the Vice President of a major corporation and the device is issued by said corporation - and contains privileged communications?

Do I have the answer?  At the moment, it depends on what jurisdiction I happen to be standing in when you ask me. 

Which do you think is a better scenario from an individual-rights standpoint: 1) Spending time and funds (possibly while defendant is incarcerated) arguing that a search was illegal, or 2) Preventing the search from occurring in the first place?

I tweeted another story that produced this quote from a University criminal law professor:

"We're seeing a whole generation for whom privacy is not important."

I can't say that I agree with that assessment.  In most cases, people still don't grasp the concept that what they post online can be seen by anyone.  They only figure it out when their privacy has already been breached and it's too late to do anything about it.

You know what they say; nobody likes a cop until they need one...

The Truth about Truth as a Defense

You can be held liable for telling the truth.  That's right.  As counter-intuitive as it sounds, it's (for lack of a better word) true.  I mention this because, once again, I'm hearing that someone - a blogger, in this case - was held liable for reporting the truth - and everyone gets into a lather.  How can this be?  It's a travesty of justice!

Well, technically, they're right.  The pure definition of defamation includes a false something.  But this sometimes clashes with other laws, such as the right to privacy, also referred to as "the right to be let alone".  After all, some truths are private.

We could argue all day about a court's right/wrong decisions, but taking the above case as an example, they seemed to be looking at the totality of the conduct of the defendant - and the results of that conduct.

Ultimately, as the post's author explains, this case came down to contract law.  They got the defendant on tortious interference.  We'll see what happens on appeal.

Something to think about prior to that next gossip session at the water cooler.

Braking Bad: #Amazon Stops CA Taxman with Deft Maneuvers

Well...that was the week that was; a shortened holiday week in which I didn't get any opportunities to write (I guess that's what Twitter is for at times...).  I did Tweet about Amazon's fight with the State of California over collecting Sales (Use) taxes.  However, a deal has now been reached.  Why italics?  Because it's not much of a deal.  In my opinion, the winner - at least in the short term - is Amazon, and they accomplished that win through sophisticated use of the political system.

Elevator description: The state passed a law requiring Internet retailers to collect sales (use) taxes beginning July 1st.  Not surprisingly, Amazon wasn't fond of this idea.  They embarked on a course to get a Proposition repealing the law on the upcoming June 2012 ballot.  California wasn't fond of this idea.

What's the deal?  Kick the can.  Everybody stands down for a year.  Anyone else notice that very little is being resolved at the state and federal level?

Why do I feel that Amazon's the short-term winner?  Had they qualified to get the Proposition on the ballot - and with their resources, that wasn't likely to be a problem - the law would have automatically been suspended, pending the outcome of the ballot fight.  So, California agreed to do what would have inevitably occurred on its own.

Thing is, we're still mired in the Great Recession, budgets are upside-down and this gives lawmakers cover to capture more revenue - or at least make the attempt.  We'll see what Governor Brown does next.

As for the long term?  Ask me in a year.  These days, that's considered the long term.

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!

Cascades: Good for Mountains, Bad for News Orgs

First things first.  My beloved Cubs rewarded my visit with a 13-3 loss to the Marlins, marking this as the most lopsided score over the 15+ years I've been making this journey.  Now, firmly ensconced in San Francisco - and with my state bar duties dispensed with for the week - we can return to more pressing matters...

How many of the execs swallowed up in the News of the World Scandal thought they'd ever be arrested in their lifetimes?  None.  In fact, a high percentage of the general public would agree with them.  But people-who-you-normally-wouldn't-expect-to-be-arrested are arrested.  And some of them eventually go to jail.

While you watch the slow and painful erosion of the Murdoch empire - and the collateral damage causally connected to it - I hope you consider one ingredient to add to your schadenfreude; you're watching a large-scale version of how your criminal or civil matter will unfold if you don't deal with it when it's manageable.

Of course, yours won't likely be this big or this public - or this expensive - but this is how it'll start; a molehill that, over time, grows into a mountain.  Or, in this case, a mountain range.  eDiscovery rules & regulations, litigation readiness programs and early case assessment are all designed to staunch the bleeding and, if instituted early enough, prevent the wound altogether.

You have to be willing to take the pain.  Like they always say, the first cut is the deepest.

The Seven-Second Solution: You're Suspended!

Folks, I know we have a sense of humor (otherwise, you'd be offended by half the posts I write), however, maybe it's just me, but I'm starting to think the general population doesn't.  Granted, these are tough economic times, we have wars going on, and yes, seriousness has its place.  But, knowing what you do about the reactions lately to 'attempted' humor, you've still got to do what I advised way back in the olden days; be your own filter.

Think it if you want to, just don't repeat it.  It's not worth it.  My Twit List has grown longer and longer with these examples, but look what happened to journalist Mark Halpirin yesterday.  He made a joke - and even warned everyone ahead of time that he was about to make it - yet, still was suspended by MSNBC.  Of course there's more detail to the story, but we don't need to hash out whether he regrets the decision to tell it out loud.

Last I checked, this was the land of free speech (I'll point out that this incident should not be confused with Constitutionally-protected speech, which commenters mistakenly do all the time), but with electronic devices come new problems.  Virtually everything you say or email and every destination you travel to is now being monitored by someone.

Remember Ari Fleischer?  "Americans need to watch what they say, what they do".  Who ever thought it'd come to this?!

#CalBar Solo & Small Firm Summit Recap

Yeah, I know.  The summit ended Saturday at noon.  It's been a busy week for me, but better late than never.  I had to skip the Thursday sessions, but arrived early Friday morning.  I was backing up another one of my LPMT colleagues in the tech lab, so between his presentations and mine, I didn't get to attend anyone else's sessions, which was a shame, because there were some good ones.  I did catch the bulk of Stephen Fairley's morning keynote on marketing and SEO.  I can only say this; the man is right on about what he was saying.  It was similar to the advice I received from my web guru, Clint Brauer.  Bottom line; if you're going to make a serious attempt at creating an online presence, you need to understand how your information will propagate to the 'web before you develop web sites, create accounts, etc.

I didn't know what to expect for my labs on disaster planning, but for both sessions (I did the identical presentation back-to-back) I had full houses.  The attendees asked a lot of good questions - which is the first indication they're not bored - and although we had some technical difficulties, I was able to illustrate how, in some cases, a few minutes is all it takes to create a basic backup strategy.

Day three, Saturday, I took in the morning keynote on "Multitasking Gone Mad", or, how the more we multitask, the less we accomplish.  Now, this was Irwin Karp presenting - who also preceded me on the LPMT committee - but I'll tell you, the idea of doing one thing at a time is something to strive for, but awfully hard to accomplish.

The second session should really make the eDiscovery people excited.  It covered hearsay (civil, for the most part), but guess what the starring attraction of most of the examples was?  Electronic evidence!  For example, the presenter showed a slide from a traffic camera of a car colliding with a truck at an intersection.  Another was a photo of a simple bar code (not a QR code, like the one you see on my right sidebar).  In both instances, the question was, is this hearsay?  As usual, the answer was, it depends on your jurisdiction.

The third session was one that eDiscovery professionals most likely wouldn't be attending.  It covered the activity up to and including the arrest of a client.  As you know, I also handle criminal cases, so again, this was a good refresher for me.

So, basically a quick in-and-out, and barring any changes to the schedule, my next presentation will be at Calbar's annual meeting in September.

In the #Navy...You Can Sail the Seven Sins

In the navy / No, you can't put your mind at ease.

I beat (not disco, usually) the privacy drum a lot because many times, the invasion is subtle.  I experienced it again with my new Droid.  The way Google would like us to sync contacts is to - among other methods - use Google Sync, sending our private information to their cloud, then delivering it to the device.  EarthLink tried to get at my contacts in a similar manner - by claiming I had to upload my address book in order to enable their custom spam filter.

My answer to both was the same - "Ain't gonna happen".  My EarthLink issue is old news; as far as the Droid is concerned, with a little time and research, I was able to sync via USB directly from the database on my local PC.

It's all about control.

I'm quite well aware that some of you think I go overboard (no pun intended, based on today's headline), but read this story from the Washington Post about the increase in Navy commanding-officer firings - and how technology is literally destroying the ranks from the inside-out - then tell me I'm overreacting.  I'm not going to pontificate.  For those who don't read the article, I'll let the following two quotes do it for me:

From the reporter, describing part of his conversation with Admiral Gary Roughead (chief of naval operations):  "He attributed the rise in part to the revolution in communications and technology, which has made it easier for sailors and their families to snoop on one another and then instantly spread the word — even from once-isolated ships at sea." (italics/bold added)

And from Adm. Roughead, himself:  “The divide between our private and professional lives is essentially gone". (italics/bold added)

Maybe that's what they meant by "Learn science technology"...

e-Discovery LOL? Weiner Resigns

Normally, this would be relegated to the 'Twit List', but I'm making an exception.  A lot of people are still laughing about this issue...but is it funny?  Let's review.  A guy initiates some sexting, takes a few raunchy photos of himself and...that's about it.  Unfortunately, this guy happens to be a U.S. Congressman, but a couple of weeks ago, that was his claim to fame.  Now, look at what's changed:

• He's disgraced himself and embarrassed his family
• We can only imagine what his wife is going through (and a newlywed, no less)
• He's resigned his prestigious position
• A novelty company has created an X-Rated doll to mock him

You know what else?  He could be you.  What's the only thing that distinguishes him?

Circumstances.

The Bench: The Last Cut is the Deepest

 

What picture did you expect?  I'm in California, after all...

Following a $200 million cut in the California State Court system, another $150 million cut is proposed by Governor Brown's office.  If you're interested in the details - and what the Chief Justice of the California Supreme Court has to say...