e-Discovery Insights

e-Discovery 101: YMMV

From LeClairRyan's e-Discovery 4-1-1 Newsletter:

"CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE AND DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE"

I'm forced to use disclaimers a lot during my presentations.  Of course, this applies to many other areas of law practice, however, with the dizzying speed in which contradictory case rulings are being decided in eDiscovery specifically, I think their disclaimer is far more eloquent than what I usually say:

"It depends..."

From the Vault: e-Discovery 101: Twitter MySpace Away on Facebook

[This is the 1st time I've retrieved a post from the archives.  It was my 28th, from February 4th, 2009.  The reason I'm doing so is, this seems to be the most popular article I've written, in terms of republishing, anyway.  Maybe people just like the title.  I recently granted permission for it to be reprinted for an attorney malpractice CLE course in New Jersey April 26th, and it occurred to me; I didn't really have any subscribers back then, so it's likely almost none of you have ever seen it.]

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I've been looking at Twitter, MySpace and Facebook recently...

"I hate my job!"  "I don't want to do this anymore!"  "I pay my staff too much!"

Who wrote this?  Attorneys!  I'm picking on attorneys because they should know better, but my point is simple; live your life online and it'll come back to haunt you, someday.  Hello???  You do know this stuff may be discoverable, right?

Since it's fast approaching, here's a President's Day story for you...

An underling wrote to a General - who would go on to be President of the United States - regarding an act of treason.  The underling was profligate, rambling on and on about the facts of the case, anecdotal details et al, until finally getting to the point; the request for the General to sign-off on an executive order of execution.

The General was not amused.  In his order authorizing the execution, he decided to 'send a message' when he sent the message.  His order contained two words:

"So do."

The underling got the message.  Upon execution of the order, he sent a follow-up to the General:

"Done."

In the above story, the names were changed to protect the innocent (which means I couldn't find a link to provide, even though I know the story - in some variation - actually occurred.  My recollection is that the missive was sent to General Washington during the American Revolutionary War).

Are you getting the message?

e-Discovery 101: Assembly Required

I don't have any children, but many of my friends and relatives do.  Nevertheless, several years ago, I advised the Los Angeles District Attorney's Office on their internet privacy program called 'Protecting Our Kids'.  It shocked them when I demonstrated how easy it would be for kids to circumvent all of their 'watchdog' procedures.

So, I thoroughly enjoyed reading this story in which a high school in Connecticut accessed students' non-secure social media pages, then presented some of their findings at an assembly.

I think you can already imagine the reaction of some of the students who were featured. 

But the creators of the presentation took care only to use images that would not embarrass or offend anyone.  Had they done otherwise, that would be another story.

As it stands, my comment to the offended students - and their parents - is, sometimes, we don't realize the favor someone is doing for us.  If those same students think twice the next time they're about to post an item, then the school has accomplished its goal.

Besides...did the message really get through?  Here's what some of the angry students did first:

They complained on Twitter.

e-Discovery 101: Back to School

I tells ya...I don't get no respect...no respect...

I swore after surviving law school - and the California Bar Exam - that I'd never attempt to learn anything again; nor ever consider taking another bar exam.  I'm pretty sure almost everyone feels that way after running the gauntlet.

But darn it, Ralph Losey talked me into trying out his new online e-Discovery Team Training program, and I'm going to give it a go.  I just want to be clear - I'm not doing this for myself, I'm doing it for you (that's just the kind of altruist I am).  That's what I'll keep telling myself...

I agree with those who believe eDiscovery should be a mandatory course in law schools, so I'm curious to see the program Ralph and his team have put together.  Then, I'll report my findings to you.

One thing - my schedule is a bit hectic these days, so this may take awhile.  For example, it took me about six weeks to get around to signing up!  Now, where did I put my pencil...

e-Discovery 101: Too Clever by Half

The headline says it all: "Half of used cell phones still hold personal data".

e-Discovery 101: I See Two-Thirds of you Breaching Security

I wouldn't write about it if you weren't doing it.  What's "it"?  Taking a lackadaisical approach to data protection.  The reality, as this study establishes, is that 66% of you aren't taking proper precautions; and your employers/clients are the ones who will suffer.

Obviously you will, too, but I don't think I need to point that out.

It's not surprising to me.  It's exactly what I've observed over my many years in corporate environments.

You Willingly Give Up your Privacy every Day

Show of hands...how many of you noted when I posted remotely (by reading the line "Sent from my Verizon Wireless Blackberry" at the conclusion of my posts)? How many of you thought to yourself that it's a bad thing?

You should have thought so.

I allowed it to post as an illustration of how we give up tidbits about ourselves all the time; and how scouring technology accumulates these tidbits to create a profile of us.

I was testing one of the apps that auto-answers messages while I'm driving (pun intended). Awesome tool, really, but all I could think about was how short-sighted it is as designed. Is that the only time I need to auto-answer texts and emails? Why isn't it designed to be used any time I choose?

Technically, it can - if you pay for it. The generic version allows me to modify the outgoing message to say 'I'm unavailable' rather than 'I'm driving', but it adds a tag for Chrysler, then says 'Drive Safely'. Kinda doesn't take much to figure out what I'm doing, does it?

So, with these two benign examples, assuming I used the default settings, what might you know about me?       

• You know I have a Blackberry (and the type of personal identifier that's paired with my device)
• You know my service provider is Verizon (hack away!)
• You know when I'm driving (e.g. I'm not home)

In law, the term 'preponderance of the evidence' is used a lot. The individual parts may not matter, but the sum of them might.

Don't idly (pun intended) let these little pieces of evidence (that's exactly what they are) complete the puzzle for those who might do you harm.

Re my signature...hmmm...was that information accurate? I'm not sure...

Sent from my PDA

e-Discovery 101: Attorney, Heal Thyself

I hammer away at technology professionals, Hollywood actors, sports stars, business executives and the general public about inappropriate conduct that may get them into hot water - very hot water.  It would be unfair if I didn't also shine a spotlight on my own profession (ahem, that would be lawyers).

In an email exchange, an attorney called his opponent "scum sucking", for one.  Then things really got nasty - for six months.  The result?  Both were sanctioned by the Florida Supreme Court.  (Then, they got into the clown car and drove away...)

e-Discovery 101: Well, my kilt will fly up, but I'll try.

Mel Gibson. 

Telephone recordings.  Abusive language.  Racist slurs. Threats to commit murder.  Folks at home, you're no different than Mel.  Anything you say or do may end up as an electronic record - and part of a civil or criminal proceeding.

Hey, I never promised you a rose garden...

e-Discovery 101: A Three-Hour Boor

Jurors were texting, making cell phone calls and discussing the case with a bailiff during deliberations; and if that wasn't enough, a prosecutor posted a poem on Facebook with details about the case which was intended to be sung to the theme song from Gilligan's Island.

Some of these shenanigans resulted in a mistrial.

This is a criminal trial, folks.  Somebody's liberty is at stake!  I'm by no means a bleeding-heart (after all, I clerked at the L.A. District Attorney's Office during law school), but place yourself in the position of the defendant.  This isn't a trial - it's a three-ring circus!

It also begs the question; who lost control of this situation?