e-Discovery Insights

News of the World Buries the eDiscovery Lede: Spoliation

For those who aren't familiar with the term, "burying the lede" refers to an article that fails to express the most important issue in the 1st sentence or paragraph.

Obviously, by now you've heard about the News of the World phone-hacking scandal.  If you're an eDiscovery professional, then you'll find the lede buried all the way in paragraph nineteen:

"On Saturday, the Guardian newspaper, which has led the reporting on the scandal, said Scotland Yard was investigating evidence that a News International executive may have deleted millions of internal e-mails to obstruct the phone-hacking probe. The company denies the allegation." [italics/bold added]

If the allegation turns out to be true, I only have one question.  When will they ever learn?

e-Evidence Insights: A Good Senator, Spoliated.

...with deference to Mark Twain...

Recently-former-Senator John Ensign's (R-NV) affair and alleged attempts to cover it up would normally be fodder for the press - and I'd take little notice of it.  However, with the release of the Senate Ethics Committee Panel report, we find this:

"The report also accuses Ensign of deleting documents and files the committee was likely to request. The senator deleted the contents of a personal email account after the investigation was launched, it says." [italics added]

And this:

"The committee's report describes Cynthia Hampton as running up $1,000 in phone bills by texting Ensign while he was traveling in Iraq with a congressional delegation."

I want to distinguish between the first quote and the second.  The former is clearly in the realm of relevance (save for an attempted-but-likely-futile privilege argument against access to his personal email account), but the latter is an example of how 'beside-the-point' ESI becomes relevant.  The affair may be morally wrong, but texts between the two players are private - or at least they would be, except for the likelihood that access to them might lead to relevant evidence that would tend to prove or disprove a material fact.  Examples?  Did they conspire to cover up the affair through means that would be deemed improper?  Plus, who paid the phone bill?

This is how your personal cell, PDA or email account ends up in the hands of your adversaries.  You're not immune.

What do you think the odds are that Sen. Ensign knew, or should have known that destroying evidence after learning of an investigation is at best sanctionable conduct and at worst, a crime?

This is how destruction turns into obstruction.  Time to call "Aunt Judy"...or Judge Judy...

e-Discovery California: Deutch in Dutch with AG for Spoliation

How long does it take to shred 2.7 million documents?  I guess it depends on whether 'Tax Lady' Roni Deutch used machines or simply hit the 'delete' key.  Inconsequential; as we already know, destroying documents in violation of a court order will certainly lead to sanctions.  However, this time, our new California Attorney General, Kamala Harris, is seeking jail time for contempt.

This is one of two high-profile cases of this type.  The other involves a Houston, TX company called TaxMasters, although I'm not aware of any e-discovery-related issues with that case.  However, it's no coincidence that these cases receive stepped-up coverage at tax time.

Nevertheless, I'll be following the outcome of the former case.  It's not every day an AG calls you a "predator for profit".

Newton's 3rd Law of eDiscovery

"For every eDiscovery action, there is an equal and opposite reaction."

— Sir Isaac Newton

As I've mentioned before, my litigation hold letter - that you see over on the right sidebar - is still the most popular link on the blog (next to the actual posts, that is...).  I've also provided this template to attendees of my presentations.  A question comes up regularly:

"If we send out a letter like that, our adversary will simply replace their name with ours and send it right back to us.  We don't want that to happen!"

It's a good point.   And as I've also mentioned before, what's good for you may also be good for your adversary.  Furthermore, there's absolutely no fault in thinking about this strategically, for example, keeping your clients' advantages/disadvantages in mind when you craft your demands and responses (which, hopefully, you're doing anyway).

There are times when you want everything but the kitchen sink, but sometimes, the sink itself will do nicely.  After all, if both sides produce a gargantuan amount of product, somebody's going to have to review it - and pay for it.

Be careful what you wish for in litigation; you might get it - and get nothing.

An adversary may produce reams of product, the sole purpose of which is to either make it next to impossible to find relevant needles in the document haystack, or worse, obfuscate the fact that they didn't produce relevant documents at all.  Oracle's Larry Ellison knows a bit about this [In re Oracle Corp. Sec. Litig., 627 F.3d 376 (9th Cir. 2010)].

That's why my template is meant only as a guide.  It may be appropriate to issue a letter that simply says, "You're on notice and we expect you to preserve relevant data."  And here's the other elephant in the room to consider; are you absolutely certain that your client is completely forthcoming about their own data?  If not, we already know who'll be on the hook for it.

As for attorneys who are complicit in assisting their clients with 'hiding the football'?  As they said in the movie, Airplane, "...they bought their tickets, they knew what they were getting into. I say, let 'em crash!"

Huh?  Wrong Newton?  Don't look at me.  Go back and redo your keyword & concept searches!

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...

This e-Mail will Self-Destruct in...

Let's imagine for a moment...the collision between self-deleting e-Mails and a legal hold.

Mission Impossible, indeed...

The Augur Sanction

e-Discovery Santions are increasing!  e-Discovery sanctions are decreasing!  Well, one of those statements is true, but here's a better question; does it matter?

My pal Bob Ambrogi at Catalyst posted this excellent analysis showing the increase in sanctions.  Of course, when I ran into him at LTNY, we both chuckled over the fact that the latest Gibson, Dunn report states the opposite.  Bob followed-up on his own article with another excellent analysis on the discrepancy.

When it comes to this portion of the e-Discovery discipline, I prefer to look at it as simply "discovery".  I even have a nifty formula.  The number of attorneys/clients engaging in discovery misconduct is directly proportional to those engaging in e-Discovery misconduct.  The proportion then increases/decreases based upon the bad actors' knowledge of electronic forensics.  In other words, someone is more likely to engage in trickery if they think they won't get caught - and when it comes to e-Forensics, in most cases, they don't even know how we catch them.

Obviously, this doesn't make me a genius.  If anything, it's common sense.  But, betwixt and between all the debate about cooperation, I remain firmly in the "I'll believe it when I see it" category.

This is all beside the point, anyway.  As I've stated before, if you look at the total amount of sanctions, it's still an infinitesimal number when applied to the amount of cases.

Continued education of all parties regarding the process involved still augurs well for the future by keeping honest parties honest - and making dishonest parties at least think twice before acting.

Victor Stanley II: The "Gang that couldn't Spoliate Straight."

Anyone remember this?  Back in December 2008, I warned that someday, eDiscovery misconduct would result in a bad actor going to jail.  Well, we've arrived at that point.  Judge Paul Grimm deemed Defendant's spoliation misconduct so serious that if he doesn't immediately pony up for Plaintiff's attorney fees and costs, he faces two years in prison.

As I mentioned last week, I've been tied up in trial, so I'm going to send you to Ralph Losey's excellent (as always) post about the case.

As someone who has personal experience with attorneys hiding the EDD football, I'm all for this ruling.

Note: I included this post in the "Criminal Liability" category because I believe it's an important read to anyone researching the subject; but this isn't a criminal sanction.  I just want to make that clear.

CA Lawyer: IT from Mars, Lawyers from Venus

Folks, I'm going to trial Monday so forgive the sparse posts.  I wanted to point you to this article in CA Lawyer magazine from my colleague, Robert Brownstone.  He and I are both on the CA State Bar's Law Practice Management & Technology executive committee.  We were amused to discover that his article would be published this month, and my next article (on the intersection of e-discovery and privacy) is scheduled for July's issue.

We're also presenting a CLE seminar along with a third colleague (for you non-lawyers, that's "continuing legal education") at the CA State Bar annual meeting in September.

In the same issue is this blurb about e-discovery coming back in-house.  It's funny because I recently observed that more corporations are attempting to handle e-discovery internally to save costs and that lately all of my new clients are law firms.

NOAA Didn't Preserve Two of Everything

NOAA's Top Cop Ousted.

Spoliation knocks off another one.  Dale J. Jones was director of law enforcement at NOAA, aka the National Oceanic and Atmospheric Administration.  There were allegations of impropriety.  An Inspector General was appointed to look into it.  Fully aware of this - and while the investigation was underway - Jones ordered the shredding of pertinent documents.  Obviously, the most disturbing part of this story is that he was the nation's chief of police for the oceans.