e-Discovery Insights

Don't Blow Sunshine Up My (Ad)Dress!

I've kvetched about cloud computing, as you well know, but underlying it all is my concern about maintaining security and privacy.  You lawyers out there are particularly vulnerable to client privacy issues. 

I was reading this really interesting article about alleged misuse of people's address books by a site called Reunion.com and the hubbub that ensued (no, really, they even say "hubbub" in the article...).  You've seen these solicitations, haven't you?  You sign up for a free email account and they tell you the great news; if you would be so kind as to upload your address book, they're only too happy to manage it for you, find your contacts on the web and generally make life easy for you.

What is my response?  No.  Every single time, no - even when it might benefit me considerably.  For example, I use Earthlink services, and if I upload my address book to them, I can use their tools to control incoming spam with a lot more efficiency.

Do I do so?  No.

Here's an idea.  Why don't you just leave your PDA on a restaurant counter somewhere?  What's the difference?  You're trusting your most prized possession to strangers and it's only as safe as the stranger's attention to security.

My PDA is password-protected.  It's an incredible pain.  I hate it.  It makes things cumbersome.  For all I know, it isn't even that effective.  But you know what?  At least I'm doing everything within my power to protect my client information.  At the very least, it will slow down a hacker while I call up my service-provider and get them to send a signal that wipes out the data (yes, they can do that).

I think my clients deserve nothing less.  How about yours?

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.

Lawyer Pays Tank! I'm Sure it was a Lovely Tank...

Note to Perry:  Coffee first, read second.

If you've been reading me for a while, you know about my love affair with coffee.  So, imagine my surprise this morning when I read the headline, "Lawyer Pays Tank".  After coffee, the headline reads, "Lawyer Pay Tanks".  Either it's lack of caffeine, dyslexia, or maybe someday I'll admit I need those reading glasses...

This post is actually about another subject; accuracy.  I probably post a lot less than some of my colleagues because I live in constant fear of making a mistake and as a result, making a fool of myself - or worse, running afoul of the State Bar rules.

It takes even longer for magazine articles because I vet everything very carefully.  After all, I can come back and edit this blog - I can't do that once an article is published.  So, take a look at this post about an attorney who was a little too revealing about her clients in her blog.  She's accused of violating her duty of confidentiality.

You wanna piece of me???

e-Discovery California: Amended C.R.C. 3.724 "Initial" Meet & Confer & Clawbacks

About six weeks ago, I wrote that the new e-discovery California rules didn't include provisions for meet & confer or clawback agreements.

On August 14th, 2009, the Judicial Counsel amended the California Rules of Court 3.724 Duty to Meet and Confer to include the following language:

Unless the court orders another time period, no later than 30 calendar days before the date set for the initial case management conference, the parties must meet and confer, in person or by telephone, to consider each of the issues identified in rule 3.727 and, in addition, to consider the following:

(8)    Any issues relating to the discovery of electronically stored information, including:

    (A)    Issues relating to the preservation of discoverable electronically stored information;

    (B)    The form or forms in which information will be produced;

    (C)    The time within which the information will be produced;

    (D)    The scope of discovery of the information;

    (E)    The method for asserting or preserving claims of privilege or attorney work product, including whether such claims may be asserted after production;

    (F)    The method for asserting or preserving the confidentiality, privacy, trade secrets, or proprietary status of information relating to a party or person not a party to the civil proceedings;

    (G)    How the cost of production of electronically stored information is to be allocated among the parties;

    (H)    Any other issues relating to the discovery of electronically stored information, including developing a proposed plan relating to the discovery of the information; and

(9)    Other relevant matters.

Well...that settles that!

Spoliation Spoils the Broth at Toyota?

This one is a little quirky because, based on my research, I'm somewhat uncomfortable with the plaintiff, however, it does well to illustrate how a case can become a P.R. nightmare even before the defendant files an answer.

In Biller v. Toyota Motor Corp., 2:09-cv-5429, U.S. District Court, Central District of California (Los Angeles) (warning: link opens a 117-page pdf), plaintiff Biller (formerly an attorney for Toyota) asserts that defendant Toyota concealed and destroyed evidence critical to hundreds of rollover cases.  Toyota has motioned to seal the case, citing violation of attorney/client privilege.

Oh boy.  I hated these hypothetical questions in law school.  When may an attorney in a position of confidentiality, break privilege to expose wrongdoing?  What about his corporate duties?  Not easy to discern when attorney and manager are one-and-the-same.  It depends what jurisdiction you're in and which code must be followed.  We used to call it the "climb-the-ladder" obligation.  Bring your concerns to the appropriate executives and hope they'll do the right thing.  You also have to look to who is being damaged and the level and extent of that damage.

Who, exactly, may an attorney speak with when the very act of revealing information - even within the company itself and ostensibly for a proper purpose - may still violate privilege?

This is the kind of issue that could result in a treatise that goes on for page after page, but to distill it down to basics, attorneys are officers of the court first - not the client; their duty of loyalty is clear.  What's not so clear; when does a violation cross the threshold that allows the attorney to go outside of privilege?

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.

Two things are clear.  Even if the claims are proven false, Toyota is already the loser, and as sure as I'm sitting here, this will appear as a question on the California Bar exam in 2012 (just kidding; I assume my position on the Executive Committee in about 10 days, so I don't want anyone jumping to the conclusion that I would ever know what will be on the exams).

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)

e-Discovery California: How Safe is your Harbor?

Last time, I discussed what isn't in the CEDA.  Now, let's take a look at what is in there and how it differs from the Federal rules.  First up; Safe Harbor.

I've always tried to explain law in a common-sense fashion (which may be counter-intuitive to some, but I try).  In most cases, it's the procedural aspects that make things complicated (that, and vagueness of the laws themselves), but the basics still rely on logic.  For e-discovery Safe Harbor, you can almost understand it by channeling 'Watergate + 1' - what did you know and when did you know it?  The '+1' is, how did you react?

To me, how one might reach a violation is similar to the Federal rules; how sanctions are imposed is where things go in a different direction.

You want the easiest way to avoid sanctions?  Remember the word "but".  Absent exceptional circumstances, if you fail to preserve information due to a routine, good faith procedure, you're fine, but if you knew or should have reasonably anticipated that there was an obligation to preserve discoverable information...

Get the idea?

Here's where I see the problem; the language "Absent Exceptional Circumstances".  Anybody want to take a crack at what might be "exceptional circumstances"?  What happens when nobody can nail down what that means?  You probably guessed it; the judge will decide!

Monetary sanctions will likely be harder to come by under the California Safe Harbor rules.  Unfortunately, adverse inferences and/or sanctions on counsel may be more likely.

I suppose this is where I normally make a witty closing comment like, "Don't let your case go down with the ship by striking an e-discovery iceberg."  Naaaah...too predictable...

State of the (e-Discovery) Union; The Sequel

My prior post was the Reader's Digest version.  Now, get ready for the migraine version...

Gibson, Dunn & Crutcher LLP has released a comprehensive mid-year update on e-discovery.  This is simple, folks.  If the responsibility for e-discovery sits squarely on your shoulders - and if you take that responsibility seriously - you need to read this publication, no matter how long it takes or how painful it might be (I have some aspirin if you need it...it'll come into play when you read about the increase in sanctions...)

1st Things 1st: The Litigation Hold Letter

Wow...this is my 100th post!  Who knew I could pontificate this long?

In analyzing the new California Electronic Discovery Act (I'm going to start calling it "CEDA" for short), I might as well start at the beginning.

The first thing that will occur if litigation arises?  There'll be a bunch of litigation hold letters going around.  I say a bunch because it could manifest several ways; outside counsel to your adversary, outside counsel to inside counsel, inside counsel to the enterprise, the CIO/CTO to the IT department, the CEO to the CIO/CTO...you get the idea.  In some cases, as illustrated above, the letter may not even be coming from an attorney.

What might the letter look like?  Here's an example of a litigation hold letter theoretically issued from outside counsel to an adversary (in PDF format).  The names were changed to protect the innocent (and the guilty, for that matter).

This is only a sample to give you an idea of what a letter of this kind might look like.  The purpose is to illustrate items you may or may not have thought about.  Like snowflakes, no two letters will ever be exactly the same.  Only a professional with personal knowledge of your specific requirements should ever create and/or issue a litigation hold letter.

Enough disclaimers?  Ok then...chew on this for a Monday and my next post will cover what didn't make it into the CEDA.  It might surprise you.

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!