e-Discovery Insights

e-Evidence Insights: 50% Zuckerberg + 50% Ceglia = 100% Speculation

What we think is not the same as what we know.  I've been following the, "I own 50% of Facebook" lawsuit, but I admit, until I drilled down into the minutia, all I knew for a fact was, Plaintiff had refiled the case and included some damning email messages, and Defendant stated the emails are fake.  Since the suit prominently features ESI, I wanted to better understand the issues.

No doubt about it, this is a true eDiscovery whodunit.  I read a few articles and this is what I've learned.  Ceglia claims he owns 50% (or more) of Facebook.  Facebook claims he doesn't.  That's right.  That's all I know.  I certainly read some fascinating excerpts, though.

However, I can point you to article after article that purports to know more, but doesn't.  Don't get me wrong; unless one is writing a factual piece, there's no journalistic requirement to state only facts.  I actually learned a lot of valuable factual information from the linked article (notwithstanding the reputation of the author).  The problem - for me, anyway - is that law and speculation don't mix.  And opinion?  Expert opinion?

If this case goes to trial, Plaintiff will likely produce at least one expert who claims the ESI in question is genuine.  Defendant will likely produce at least one expert who claims the ESI in question is fraudulent.  Or perhaps experts on both sides can't conclude either way, due to the amount of time that has passed since the emails were exchanged.  Who decides?  Will it become a question of fact for the jury?

I sure would like to give you my answer, but the entire previous paragraph was pure speculation.  As soon as I used the word, "If"...

e-Evidence Insights: There's a 'Party', but Nobody Came

There's a dispute.  There are parties.  There are third-parties.  There are relevant non-parties.  There's discovery.  There's e-Discovery.  There are requests for admissions.  There are interrogatories.  There are witnesses.  There are depositions.  There are responses and 'non-responses'.  Rinse.  Repeat.  Fast-forward: The RFAs have been answered (or not), the Rogs have been addressed (or not), depositions are complete (or not), discovery is closing...and your client is telling you (or you suspect) that your adversary, et al, has not disclosed all of the relevant information.

I'm not talking about the usual gamesmanship (and I shudder to refer to it as such) that occurs in heavy litigation.  There's always a certain 'cat & mouse' feel to the process, for want of a better term.  I'm also not talking about the more obvious example; when the client says something like, "This email from Tom?  I'm sure this isn't the entire thread.  Some of the conversation is missing."  That is something the client knows.  I'm talking about something that can't be taught, but is more instinctual.

Sometimes, things just don't add up.  The evidence is telling you that you're not getting the whole story.  Maybe you caught a tiny phrase in a depo that contradicted something you thought you'd seen in a document.  Maybe a witness referred to something in the wrong tense, which suggests to you that an incident occurred earlier or later than what was originally claimed.  Maybe you just look at the overall litigation puzzle and a piece is missing.  Maybe - and here's where it gets really tricky - something just doesn't feel right.  Now what!?!?!?

Remember when I said, "Know what you don't know?"

The problem is, attorneys are not allowed to go on 'fishing expeditions'.  A suspicion that evidence has been withheld isn't a reasonable basis to support a demand for more evidence.  So, what do you do?  Well, for starters, you can ask yourself if there are any other independent sources available (keeping in mind a subpoena may be required) where you might search.  After all, you may find the answer through the same documents you received as part of the litigation process.  Why?  Because perhaps what didn't feel right was that the documents you received were, 1) too new, too old or the wrong version, 2) altered in some way, 3) out of order or have pages added or missing, etc.

You'd be amazed what a simple internet search turns up...

Remember; what you discover independently may be the smoking-gun that forms the reasonable basis to go back at a party.

Sanctions, anyone?  How do you think people are caught?

You've seen a lot of discussion about electronic documents in native format?  Well, this is one - among plenty of other reasons - why you would want to receive them that way.  However, while the metadata will hopefully tell you what you need to know, it might not.  You may have a document that matches up properly with its metadata, but how is this going to guide you if you've been given the 'wrong' document - or no document at all?

I could go on and on at length, but the problem is, if you're in this position, you don't necessarily know what you're looking for; you just know something isn't right.  So, you have to trust your instincts and act on them - subject to the buy-in and resources of your client, of course.  Following your instincts isn't necessarily a cheap undertaking.

Ronald Reagan said, "Trust, but verify."  Bill Maher said, "Be more cynical."  I agree with both.  After all, you'll tell me the truth, but you'll probably disappoint me...

2010 ABA Legal Technology Survey

Nothing like a Friday afternoon to examine six volumes of law & technology statistics from the ABA.  I was somewhat amused when I accessed their page and discovered that they'd received an endorsement - from yours truly.  Somebody apparently liked something I said about last year's survey and quoted me.

The ABA provided me with some excerpts, so I reviewed them and picked out a few that I thought would be of interest.

E-READERS

Ten percent of survey respondents report the availability of e-book readers at their firms. Solo respondents are most likely to report their availability (16%), while large firm respondents are least likely (4%).

WINDOWS 7 vs. VISTA

Usage of newly released Windows 7 (9%) has already surpassed that of Vista (8%, compared with 9% in 2009 and 4% in 2008) as the second most frequently reported operating system on respondents’ primary computers.

METADATA

Metadata removal software is available at 59% of respondents’ firms, up from 46% in the 2009 survey. Large firm respondents report the highest availability (92%, up from 86% in the 2009 survey), followed by respondents from firms of 10-49 attorneys (64%, up from 51% in the 2009 survey). This increase in availability in metadata removal software is likely due to the numerous ethics opinions addressing sender’s responsibility regarding metadata exposure.

VIRTUAL OFFICE

When asked whether they have a virtual law office/virtual law practice (i.e., do not typically meet with clients in person, and primarily interact with clients using Internet-based software and other electronic communications software), fourteen percent of respondents responded affirmatively. Of counsel and solo respondents were most likely to report having a virtual law office/virtual law practice (27% and 19% respectively).

SOCIAL NETWORKS

When asked whether they personally maintain a presence in an online community/social network such as Facebook, LinkedIn, LawLink, or Legal OnRamp, overall, 56% of respondents answered affirmatively, compared with 43% in the 2009 survey and 15% in the 2008 survey.

WESTLAW vs. LEXISNEXIS

Eighty percent of respondents (compared with 88% in 2009) report using fee-based online resources to conduct legal research. Fifty-four percent of respondents report using Westlaw most often (compared with 61% in the 2009 survey), followed by LexisNexis (32%, compared with 28% in 2009).

California Lawyer: Not Without a Trace

Third time lucky?  Here's my latest article in California Lawyer magazine.  By mutual agreement, I'm not going to be doing these monthly anymore (time simply does not permit) so I think you might see one from me every few months.  We'll see how the schedule goes next year.

N-B-C...(See Ya Real Soon...). A-L-G...

...gee, ya think maybe you overplayed your hand?  It wouldn't be fair for me to make a prediction about the NBC/ALG spat without returning to tell you how it's progressing so far (of course, had it not gone the way I expected, I probably wouldn't return to tell you how it's progressing so far).

As you'll recall, I predicted that NBC's version of the email message was probably the legitimate one, based on the behavior of the parties.  Since then, ALG has claimed to have a voice mail message of the offending NBC employee that bolsters their version of events.

Did ALG release the message headers of the email?  No.  Did they release the voice mail message?  No.  Do they plan to release either?  No.

Here are two posts on the subject; the first from Politico.com and the second from Scott W. Graves.  What do you think?

This event is a product of society's attitude, "If it comports to my point of view, I accept it as gospel truth without vetting it."  For the attorneys out there, I channel Ronald Reagan; "Trust, but verify."

Somebody's Gonna be in Trou-ble!!!

"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."

That's a quote from my September 4th post about the Toyota case.  This time it's not a 'case' and the parties are NBC and ALG, but the P.R. nightmare is at hand.

We have two entities arguing over the true content of an email message.  ALG claims the message they received from NBC contains a racial slur while NBC denies it.  There's no doubt that only one of the versions can be correct.  Regardless of the posturing going on, it's simple; the message headers and metadata will easily establish whose telling the truth.

If I were a betting man, I'd suspect NBC's version of the email is correct.  Why?  Because NBC is being quite forceful and citing a forensic examination.  What is ALG doing?  Claiming the message is on an office computer and they can't get to it to provide message headers until Monday.

This is a classic example of the type of posturing you might see in a real case (in fact, I have seen it), and when it's revealed which party is lying, somebody's gonna be in trou-ble!  If it turns out ALG is the culprit, they will have already scored a P.R. hit by claiming that they - a right-wing group - have been slighted by NBC (also known as 'the devil' to their followers).  The debate will continue on in cyberspace long after the truth comes out.

My hint?  I'd never heard of ALG and I suspect neither had most people until now.  Remember the adage, "No press is bad press"...

Case Got Your Tongue? Restless Natives, Whitecaps & a 3-Hour Tour

This month's summaries produced a lot of interesting cases and also told me one thing; it's still mostly about ignorance.  Companies - and the firms that represent them - are continuing to get into hot water because they either don't know the rules, or don't comply with them when they do.

A couple of themes became apparent, so I'm using four cases (two each) to address the areas of privilege and native formats.

IT'S MY PRIVILEGE TO DEPOSE YOU

Imagine you're in the middle of a deposition and the first hint that you've inadvertently disclosed privileged information is when your opponent produces it.  What do you do?  Is that considered a waiver?  Those are the facts of Coburn Group, LLC v. Whitecap Advisors LLC, 2009 U.S. Dist. LEXIS 69188 (N.D. Ill. Aug. 7, 2009).  The first thing to assume; your opponent, if they're on the ball, will virtually always try to claim it's a waiver because that's simply good strategy. 

However, the judge didn't see it that way and took into account new rule 502(b)(1) (new as of 9/14/08) and focused on the factors of mistaken production and the reasonable steps taken to correct it.

Major Tours, Inc. v. Colorel, 2009 U.S. Dist. LEXIS 68128 (D.N.J. Aug. 4, 2009) - I don't care what document is at issue; even a litigation hold letter as in the facts in this case.  Claims of privilege and/or work product doctrine notwithstanding, if it's relevant to the proceedings it may become fair game.  Act accordingly.

THE NATIVES ARE GETTING RESTLESS

There still seems to be a lot of chatter regarding metadata.  It's an area ripe for manipulation and abuse because a lot of people don't really know what it is or how it's used.  Craig & Landreth, Inc. v. Mazda Motor of America, Inc., 2009 U.S. Dist. LEXIS 66069 (S.D. Ind. July 27, 2009) is more of a traditional case in that the metadata is being requested because it's relevant to the proceedings.  But see Covad Communications Co. v. Revonet, Inc., "Covad III", 2009 U.S. Dist. LEXIS 75325 (D.D.C. Aug. 25, 2009) which uses metadata virtually as a cross-referencing tool to address an inconsistency.

Metadata is not one of those terms I repeat often for entertainment value.  When relevant, it can make or break a case.

Be careful when you wade into those legal waters...

[Has anyone else noticed that I use a lot of metaphors that involve H2O?  What's that about???]

Case Got Your Tongue? "Don't Tase Me, Bro!!!"

Here I go with my latest summary of lead cases I think are of interest.  When it comes to electronic devices that might be subject to e-discovery, I thought I'd thought of everything.  I was wrong...

Ford Motor Co. v. Edgewood Properties, 2009 U.S. Dist. LEXIS 42001 (D.N.J. May 18, 2009)

USE IT OR LOSE IT - This is a classic example of where technical minds weren't properly involved from the outset of litigation and that lack of involvement resulted in a waiver.  The Defendant properly sought production of documents in native format with metadata intact.  The problem is, Plaintiff complied by delivering the documents in TIFF format.  Plaintiff waited six months to request the data again in native format and another two months to make a motion before the court.  The court deemed eight months too long and as a result, ruled Defendant waived its right to receive the documents in native format.

I admit I'm inserting my opinion here, but let's face it; the incoming data should have gone straight to a technical mind for immediate analysis.  A cursory review would have discovered the issue and Defendant could have addressed it within a reasonable time.  On the other hand, if Defendant knew about the issue and was simply tardy in addressing it, shame on them.

McGarry v. Becher, 2009 U.S. Dist. LEXIS 40879 (S.D. Ind. May 13, 2009)

"DON'T TASE ME, BRO!!!" - This potential class-action criminal case may be summed up in one sentence.  The court ruled that memory from tasers is both discoverable and not burdensome on the Defendant.  Add tasers to your list of electronic devices!

1100 West v. Red Spot Paint and Varnish Co., 1:05-cv-1670-LJM-JMS (S.D. Ill. June 5, 2009)

KHARMA CHAMELEON - Don't waste any more time here.  Go directly to Ralph Losey's blog, e-Discovery Team (do not pass go and do not collect $200) and read his treatise on this case; the best post about attorney ethics - or lack thereof - I've seen in a long time!

2009 ABA Legal Technology: Our Survey Says!

Sorry for not posting as often, folks.  Not to be a broken record, but I'm busy these days...

The American Bar Association recently published the first two volumes of their annual Legal Tech Survey (Disclosure:  I'm a prior member of the ABA, but have no current interest).  I've had a look at some excerpts and they tell a very interesting story:

METADATA

46% of those who responded to their survey report that they use Metadata removal software.  Adobe Acrobat was at the top of the list.  This won't be surprising, but the highest percentage, 86%, are large firms and only 27% are solo firms.  I would assume cost would be a major factor, but also, large firms are more likely to have an IT group that would push use of these products out to the enterprise.

PDAs

Get this.  A whopping 77% reported that they use some form of PDA, with BlackBerry leading the way at 64%.  When drafting your "litigation hold" letters, this is a big one to keep in mind.

MAC ISN'T BIG

Case Got Your Tongue? Bray, the SEC goes 'Bad' & Brodie gets the 'News'

Sorry I've been missing in action the past few days.  It's good and bad.  The good?  I'm really busy.  The bad?  I have less time to post.

I've decided to start another periodical series on lead e-discovery cases.  We all have access to these resources, but what I'm endeavoring to do is pick out what I think are the ones you need to know.  As well, I'm going to focus on some of the cases with criminal implications because, 1) it's an area of interest to me, and 2) I continue to expect there'll be more cases that induce criminal liability - both for the clients and the attorneys - and I want you to avoid this minefield.  Yeah, I know, once again it's my theory - but I'm sticking to it!

Also, this will make me a better lawyer because it forces me to take more time reviewing the plethora of cases I receive weekly.  So, in the end, we all benefit.

From now on, whenever you see "Case Got Your Tongue?", it'll be another summary.  I hope you find them helpful.  Let's get started...

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 U.S. Dist. (M.D. Fla. Mar. 4, 2009)

SANCTIONS - Your adversaries are getting more sophisticated, folks.  You can try to bury them with paper and hope that you'll slip by without complying properly with the subpoena - and you can lie about it if you want to, but make no mistake; more of you are getting caught.

SEC v. Badian, 2009 U.S. Dist. (S.D.N.Y. Jan. 26, 2009)

CLAWBACK - This is a back-door way to criminal liability.  The mistake started at the beginning...