Exclusion of MySpace Evidence in Gang Related Murder Trial

A Defendant in a gang related murder and assault case sought to introduce evidence of the victim’s sister’s MySpace page to show the victim’s violent nature toward a rival gang; a propensity for violence; and that the victim started the fight that ended in his death.  People v. Williams, 2010 Cal. App. Unpub. LEXIS 1251, at *23 (Cal. App. 2d Dist. Feb. 23, 2010). 

The Court excluded the MySpace profile as evidence. 

The Sister’s MySpace Profile

The victims were brother and sister.  The brother was killed in a gun fight with the Defendants. 

The sister’s Myspace profile contained a series of photos (or video, the opinion is not clear) of the siblings dressed as rival gang members.  The MySpace evidence depicted the brother pretending to punch the sister and her falling to the ground.  Williams, at *23. 

The MySpace evidence was described as a videotape of the profile.  Id.  This implies that a video camera was set to record the profile.  It is also highly possible the profile contained video and it was collected as a video file. 

One of the Defendants tried to use the video to show the victim was violent toward members of the rival gang.  Williams, at *23.  The State objected to the video evidence on both foundational and relevancy grounds.  Id.

The victim’s sister testified on cross-examination that the MySpace profile only contained “a picture of me and my brother, not us taking it as being a gang picture.” Williams, at *23-24. 

The Trial Court excluded the MySpace evidence pursuant to California Rule of Evidence Code section 352 (The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury, Cal Evid Code § 352 (2010)).  Williams, at *24.

The Trial Court explained the evidence did not show any crime taking place.  The Trial Court stated: 

 ”[T]his is playacting. It is no different than Marlon Brando shooting the Godfather or something. Would that show a propensity to commit violence? No. So I am not going to allow it. I think it is irrelevant.”

Williams, at *24.

Appealing the MySpace Ruling

The Defendant claimed the exclusion of the MySpace evidence violated his Federal Due Process rights.  Williams, at *24.

The Court of Appeals held that the Trial Court did not abuse its discretion or violate any Constitutional rights in excluding the MySpace evidence.  Williams, at *25.

The Court of Appeals explained the videotape would have been repetitive of testimony and other evidence.  Williams, at *25.  As such, excluding the MySpace evidence of the victim playacting did not violate the Defendant’s Constitutional rights.  Id.

Bow Tie Thoughts

This unreported opinion leaves interesting web-collection questions that are not explored or fully explained in the decision.  While the Prosecutor did question foundational issues in the “videotape” of the MySpace profile, the exact collection methodology is not described.   

It is possible the Defendant actually used a video camera to record someone examining the profile.  It is also highly possible a screen capture tool was used to record the MySpace profile.  This would make sense if there was an embedded video on the profile, thus creating a video exhibit.  The resulting video capture might have then simply been called a “videotape” by the Court, instead of a MPEG file or other digital video file format.

The opinion also illustrates how social networking profiles can find themselves in litigation.  In this case, the Defendant attempted to use the profile as a defense.  There are situations where a social networking profile could be offered for impeachment, party admissions or non-party witness statements.

Attorneys should be aware social networking sites might contain relevant evidence supporting a claim or defense.  If there is relevant evidence, the party offering the evidence needs to address the basic admissibility requirements to authenticate the social networking evidence. 

Conversely, a party cannot simply mine social networking profiles in the hopes of making an opposing party look bad.   Evidence must to be relevant to be admissible.

Putting the “E” in Expedited e-Discovery

In the race to develop a web “tablet,” former business partners Interserve, Inc. dba TechCrunch and CrunchPad, Inc. and Fusion Garage PTE, Ltd., duel over whether to expedite discovery.  Interserve, Inc. v. Fusion Garage PTE, Ltd., 2010 U.S. Dist. LEXIS 6395 (N.D. Cal. Jan. 7, 2010).

Prior to the litigation, the companies had the mutual goal to develop an affordable, touch screen notebook computer. Interserve, Inc., at *2. 

After 15 months of development, the parties were going to launch the CrunchPad. However, the Defendant suddenly left the project THREE DAYS before the launch date.  Interserve, Inc., at *2.

The Defendant told the Plaintiff via email they owned the intellectual property rights to the product and that they would launch their own product.  Interserve, Inc., at *2.

The Defendant launched their own digital tablet 20 days later (ironically on Pearl Harbor Day).  Interserve, Inc., at *2. 

The Plaintiff argued it was “inconceivable” that the Defendant could have developed a market ready product and found a manufacture in the 20 days between severing their relationship and the product release.  Interserve, Inc., at *3.  Adding a red flag to the Defendant’s conduct, they registered the domain name for their product 8 days before ending their relationship with the Plaintiff.  Interserve, Inc., at *3.

The Plaintiff’s further argued:

 (1) Fusion Garage has begun accepting “pre-orders” for the JooJoo tablet and promised delivery within 8-10 weeks;

(2) Customers may pay for the JooJoo tablet using Pay Pal;

(3) Fusion Garage is liable to plaintiff for a share of the profits;

(4) Fusion Garage is concealing its previous public statements regarding the prior collaboration between the parties; and

5) Fusion Garage is a Singapore-based company which may abscond with the proceeds abroad.

Interserve, Inc., at *3.

The Defendant claimed expedited discovery was improper, because the Plaintiff did not demonstrate any specific harm they would suffer; claimed there were defects with the Complaint; and the unavailability of counsel.  The Defendant also claimed the need to collect discovery abroad went against expediting discovery.  Interserve, Inc., at *3-4.

Rules for the Express Lane

In order to expedite discovery, a party must show “good cause.”  Interserve, Inc., at *4. 

Case law states:

“Good cause may be found where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party.” Interserve, Inc., at *4-5, Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002).

“It should be noted that courts have recognized that good cause is frequently found in cases involving claims of infringement and unfair competition.” Interserve, Inc., at *5, Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002).

The Judicial Green Light on Expedited Discovery

The Court saw the warning signs very clearly that there was “good cause” to give the green light on expedited discovery by 8 weeks for the Plaintiff to determine possible injunctive relief.  Interserve, Inc., at *5-7.   

The Court justified the finding of good cause for expedited discovery based on the following facts:

The extremely short passage of time between the Defendant ending their business relationship and releasing their sole product.  Interserve, Inc., at *5-6. 

The fear was the Defendants taking the profits to Singapore, making any recovery extremely difficult.  Interserve, Inc., at *6.

The Defendant’s registering a product domain name 8 days before ending their partnership.  Interserve, Inc., at *6.

The joint product blog suddenly going dark after the domain name registration.  Interserve, Inc., at *6.

The Court held the administration of justice outweighed any prejudice to the Defendant.  As to the unavailability of counsel argument because the defense lawyer was on vacation, the Court stated other attorneys within the firm could respond to the discovery. Interserve, Inc., at *6-7.    

Bow Tie Thoughts

Electronically stored information can be created in the blink of an eye; it can also be lost in a heartbeat.  Given the transitory nature of RAM data, text messages and other ESI that can disappear into the ethos, expedited discovery orders will likely become more frequent.

Michael Arkfeld on Litigation Holds Webinar: Understanding Judge Scheindlin’s Pension Committee Decision

United States District Court Judge Shira Scheindlin set the gold standard for litigation holds six years ago with the Zubulake decisions.  Judge Scheindlin recently raised the bar again in the landmark Pension Committee of Montreal v. Banc of America Securities decision.

D4 and Legal Hold Pro are pleased to welcome Michael Arkfeld, Esq., author of the Arkfeld on Electronic Discovery and Evidence and Arkfeld’s Best Practices Guide for Litigation Readiness and Hold, for a discussion of the impact of Judge Scheindlin’s most recent opinion on February 26, 2010 at 10am Pacific Time.   To register, click here.

The webinar will address:

• How the failure to issue a written litigation hold amounts to gross negligence
• The propriety of custodian identification of responsive electronically stored information
• Key best practices for issuing a litigation hold

Please join us on February 26, 2010 at 10am Pacific Time and 1pm Eastern Time for this video webinar.  There is no charge to participate in this event.  To register, click here.    

About Michael Arkfeld, Esq.   

Michael R. Arkfeld, is considered one of the leading experts in the field of electronic document retention, discovery, production and admissibility of electronic information.  Michael is the author of multiple books on law and electronic evidence, including Arkfeld on Electronic Discovery and Evidence, eDiscovery Best Practices Guides and The Digital Practice of Law, along with numerous articles on technology and the practice of law.  Michael was a trial litigator for over 30 years and has been a primary organizer for many law related technology conferences in the United States and a presenter at over 200 conferences, seminars and training sessions.

Where Eagles Fly: Personal Jurisdiction for Web-Businesses

The trademark infringement case Eagle Coffee Co. v. Eagle Coffee Int’l, Inc., addressed whether a web-based vendor could be subject to personal jurisdiction in any state they had customers.  Eagle Coffee Co. v. Eagle Coffee Int’l, Inc., 2010 U.S. Dist. LEXIS 9642 (D. Md. Feb. 4, 2010). 

The short answer: No. 

Flight of the Eagles

Eagle Coffee Company, the Plaintiff, had been in business since 1921 in Baltimore.  The Defendant, Eagle Coffee International, had been in business based in Carmel, New York, since 1983.  Eagle, at *2-4.  The Defendant’s business model was for customers to purchase products from their website.

The Plaintiff argued in Federal Court in Baltimore that the Defendant had violated the Plaintiff’s trademark with the Defendant’s online retail store services.  Eagle, at *4. 

The Defendants claimed jurisdiction in Maryland was improper. 

Eagle Down: Plaintiff’s Arguments Supporting Personal Jurisdiction

The Plaintiff argued that the Defendant was subject to jurisdiction in Maryland because of “ongoing business with Marylanders, as evidenced by its seven Maryland customers and its use of the phrase ‘please come again’ in confirmatory emails following each purchase.” Eagle, at *4. 

The Plaintiff further claimed that the Defendant made one phone call to a Maryland customer after the customer placed an online order. Eagle, at *4.

Finally, the Plaintiff claimed the Defendant purposely availed itself to the laws of Maryland by delivering products to seven customers in the forum state. Eagle, at *5. 

The Talons of Personal Jurisdiction

It is a Constitutional “given” that jurisdiction of a nonresident defendant must first satisfy Due Process, requiring the defendant to have “minimum contacts” with the forum state, so that a defendant can reasonably anticipate being involved in litigation in the forum state.  Eagle, at *6, International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945). 

A Court must consider the following in determining whether there is specific personal jurisdiction over a nonresident defendant: 

(1) The extent to which the defendant has purposefully availed itself of the privilege of conducting activities in the state;

(2) Whether the plaintiff’s claims arise out of those activities directed at the state; and  

(3) Whether the exercise of personal jurisdiction would be constitutionally ’reasonable.’”

Eagle, at *7-8, citations omitted.

The Court must also evaluate the quality of the forum state contacts, not just the quantity of the contacts.  Eagle, at *8.

The Eagle Has Landed: The Court’s Decision

The Court held that the Defendant was not subject to personal jurisdiction in Maryland, because it had not purposefully directed activities to Maryland residents.  Eagle, at *12.

The Court explained nothing on the Defendant’s website demonstrated any targeted intent at Maryland residents more so than any other state.  The fact the Defendant conducted online sales did not “demonstrate that [it] took actions purposefully directed toward Maryland specifically.”  Eagle, at *12, citations omitted. 

The Court explained that the message “please come again,” plus one phone call and using a nationwide delivery service over a 25 year period to service seven customers were isolated occurrences that did not show “significant activities” or “continuing obligations” within the state of Maryland.  Eagle, at *13.

The Court further ruled that the “isolated” instances of selling products to seven Maryland consumers did not show any directed activity towards Maryland residents.  Eagle, at *12.

Bow Tie Thoughts

Personal jurisdiction cases will continue to haunt lawyers well beyond their first year Civil Procedure finals.  The interconnectivity of online relationships and business requires attorneys to review where there is proper personal jurisdiction and venue for cases originating from online disputes.

Piercing the Work Product Doctrine: Gamesmanship with Locked PDF’s

The Plaintiffs in Mack v. HH Gregg, Inc. sued the Defendants for breach of contract over the alleged failed installation of dryers.

The parties agreed the Defendants would produce a “summary of its dryer installation invoices that would include the state of the sale, date of purchase, amount paid for delivery and installation, and the make and model of dryer purchased.”  Mack v. HH Gregg, Inc., 2010 U.S. Dist. LEXIS 8281 (S.D. Ind. Jan. 29, 2010).

The Defendants in turned produced an 11,757 page “locked” PDF summary for the Plaintiffs. Mack, at *2.

The Plaintiffs were understandably upset (hence the motion to compel) about getting a giant PDF that they could not edit or manage without re-typing the entire file. 

The Plaintiffs wanted the ability to “re-group” the data.  Mack, at *3.  In the litigation support profession, this would be the re-unitization of the scanned paper or ESI converted to static images, either based on logically grouping documents or simply at document breaks, in a litigation support review platform.  For example, if you had a medical file, the reviewing attorney would have the doctor’s handwritten notes, x-rays and the pathology report as separate documents, instead of viewing the file as one giant document. 

The Plaintiffs requested the Defendants produce the PDF in its original file format.  The Defendants refused, claiming the following objections:

(1) The PDF was protected from discovery by the work product doctrine;

(2) The Defendant was not required because the parties never agreed to the format in which the information would be produced, and

(3) Production would be unduly burdensome. 

            Mack, at *3.

A Case Study in Watching the Court Sink Your Arguments

The “Free Ride”

The Defendant’s argued the Plaintiffs would get a “free ride” on the Defendants’ work if the Plaintiffs could have the PDF in an “unlocked” form. Mack, at *4.

First, the Defendants agreed to produce the responsive information as a summary instead of producing the actual information.  Secondly, the Defendants voluntarily produced the PDF as a summary of the Plaintiffs’ requested information.  Mack, at *3-4. 

The Court stated whether the PDF was unlocked and editable or locked and uneditable had “no bearing on its status as work product.” Mack, at *3. 

The Court held there was no substantive difference between the locked PDF verse the PDF in its original file format.  Mack, at *4.  Thusly, the argument that the Plaintiffs would somehow get a “free ride” if the Plaintiffs could manipulate the data fell flat.

The Form of Production

The Defendants claimed that since no form of production was specified by the Plaintiffs, the Defendants could produce a locked PDF.  Mack, at *5.

The Court’s holding: No.

Federal Rules of Civil Procedure Rule Fed. R. Civ. P. 34(b)(2)(E)(ii) states:

 “…if a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Mack, at *5.

The Court explained the PDF summary was a data compilation that should have been produced in a reasonably usable form.  Mack, at *5.  However, the Defendants chose to produce the 11,757 page PDF that contained around 600,000 individual sales of dryer installations in a locked form.  Mack, at *5-6.  Any attempt to logically unitize the data would have required the Plaintiffs to retype the entire document.  Mack, at *6.  This is not a “reasonably usable form.”

The Court noted that the Plaintiffs in earlier discovery requested all electronically stored information be produced in a form that a “less convenient format.” 

The Court found the Defendants’ form of production arguments to be meritless. 

Undue Burden

The Court was “skeptical” of the Defendants’ undue burden arguments, because that would mean the Defendants themselves did not keep a reasonably usable unlocked file for themselves to use. Mack, at *6-7.

The Court opined that if the Defendants did not keep an unlocked version of the PDF, “…the only plausible motive for rendering the document useless to itself was to set up the very problem that has now arisen, allowing it to plead burdensomeness. If that is the case, [the Defendants] consciously and purposefully created its burden.” Mack, at *7.

In a not-so-shocking order considering the above, the Court granted the Plaintiffs’ motion to compel production of the summary document in its original format. 

Bow Tie Thoughts

Non-Searchable PDF’s

Working with a single non-searchable PDF that is 11,000 pages long is not my idea of a good time.  I helped a friend on a case where the opposing party produced thirteen non-searchable PDF’s each with 1,000 to 2,000 pages (the production was from scanned paper).  We had the service provider logically re-unitize the pages based on document breaks, run optical character recognition over the files and AL Coder for auto-coding.  The newly converted TIFFS with searchable OCR were then loaded into CT Summation iBlaze for review. 

Production Games

Courts frown on gamesmanship. Moreover, Judges scowl at those who take reasonably usable electronically stored information and convert it to a non-usable form without proper objections, perhaps for redactions.  Even then, a producing party would be hard pressed to not produce an un-redacted static image without extracted text and the redacted static image without searchable OCR, minus the redacted sections of the converted ESI. 

The consistent answer across case law from the last five years is that productions should be in a reasonably usable form. Those who eliminate the searchable features do so at their own peril.

What Does a TRO Look Like to Preserve & Produce ESI?

The Federal Trade Commission filed for a permanent injunction and temporary restraining order against the Defendants for violation of the Federal Trade Commission Act.  The FTC sought the preservation of the Defendants’ “…assets and an accounting of assets, preserving and producing business records and computers…” FTC v. Real Wealth, 2010 U.S. Dist. LEXIS 5884 (W.D. Mo. Jan. 26, 2010).

The Court granted the TRO and Ordered the Defendants comply with the following:

IT IS FURTHER ORDERED that, to the extent they have possession, custody, or control of Documents described above, Defendants shall produce the Documents as they are kept in the usual course of business. Defendants, to the extent they have possession, custody, or control of computer equipment or electronically-stored information described above, shall provide Plaintiff with any necessary means of access to the computer equipment or electronically-stored information, including, but not limited to, computer access codes and passwords.

IT IS FURTHER ORDERED that, Defendants shall, within forty-eight (48) hours of service of this Order, complete and serve on counsel for the FTC the “FTC’s Electronically Stored Information Statement.” Attachment D (Doc. No. 3-5)

Real Wealth, 15-16, emphases added. 

The Defendants were ordered to preserve electronically stored information and enjoined from the following: 

Destroying, erasing, mutilating, concealing, altering, transferring, or otherwise disposing of, in any manner, directly or indirectly, any documents or records that relate to the business practices, or business or personal finances, of Defendants, or other entity directly or indirectly under the control of Defendants, including but not limited to: any and all computer data and storage media (including, but not limited to, hard drives, DVDs, CD-ROMS, zip disks, floppy disks, punch cards, magnetic tape, backup tapes, and computer chips) and other documents or records of any kind that relate to the business practices or business or personal finances of the Corporate Defendants or Individual Defendants;

Real Wealth, 16.

Bow Tie Thoughts

The FTC and the Court were not messing around.  Seeing the Court order the Defendants to provide direct access to computer systems and passwords sounds like the FTC was going in to do immediate forensic collection of hard drives, email servers or anything with an “On” button.

I’d like to see how detailed the FTC was in Attachment D, the “FTC’s Electronically Stored Information Statement.”  I imagine they were very specific, including SmartPhones, removable media and work from home policies.

It will be standard practice for all parties to face electronic discovery issues as early as possible in litigation. While the FTC seeking a temporary restraining order might be extreme in civil litigation, parties need to consider transitory ESI like RAM data, text messages or data that can be lost as soon as a computer is re-started, and whether a preservation order is needed.

Don’t Tell the Court “Keine Rechtsprechung”

In Accessdata Corp. v. Alste Techs. Gmbh, 2010 U.S. Dist. LEXIS 4566 (D. Utah Jan. 21, 2010), a United States based company entered into a contract with a German company to sell electronic discovery forensic software in Germany.  Litigation followed after the German Defendant failed to pay the Plaintiff for software sales.  The Defendant objected to producing electronic discovery of third parties based on German law and the Hague Convention.  

Given the gamesmanship of producing native files as scanned PDF’s as I discussed in the The Form of Production Battle of the Bulge: Scanned PDF’s Not a Reasonably Useable Form, the outcome was no surprise. 

The German e-Discovery Straßensperre

The Court quickly defeated the Defendant’s objections based on German law and the Hauge Convention, citing the US Supreme Court case Societe Nationale Industrielle Aerospatiale v. United States District Court, 482 U.S. 522, 544 (1987).

Blocking statutes “…do not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even though the act of production may violate that statute.” Accessdata Corp. at *6, citing Societe Nationale Industrielle Aerospatiale at 544 n.29.

Further citing the United States Supreme Court, the Court relied upon the American Law Institute Restatement on blocking statutes and discovery, which stated:

“[W]hen a state has jurisdiction to prescribe and its courts have jurisdiction to adjudicate, adjudication should (subject to generally applicable rules of evidence) take place on the basis of the best information available . . . . [Blocking] statutes that frustrate this goal need not be given the same deference by courts of the United States as substantive rules of law at variance with the law of the United States.”

 Accessdata Corp. at *6, citing Societe Nationale Industrielle Aerospatiale quoting the Restatement of Foreign Relations Law of the United States (Revised) § 437, Reporter’s Note 5 (1986)).

Bow Tie Thoughts

The lesson to take away is United States Courts do not like being told “No, you have no power over us.” 

More importantly, conducting discovery in a way that frustrates the legal system (printing ESI as paper and then scanning it as TIFFs when the plaintiff actually makes e-Discovery software) is a sure-fire way to ensure that any objections you muster get shot down.

e-Discovery Civil Procedure: Three Email Messages Do Not Establish Personal Jurisdiction

Pelowski v. Pipe, 2010 Cal. App. Unpub. LEXIS 549, 14-15 (Cal. App. 1st Dist. Jan. 26, 2010) is case where the Plaintiff’s appealed the judgment of dismissal of a Defendant based on the lack of personal jurisdiction.

The Plaintiffs argued that both general and personal jurisdiction in California were properly established, because the Defendant “communicated regularly” with people in California.  Pelowski , at *22-23.

The Plaintiffs offered an email string and another email setting up a meeting in New York as proof of these communications.  These email messages were over several years.  Other evidence was offered, but this article will only focus on the email arguments. 

The Court of Appeals disagreed and found that the Plaintiffs failed to show by a preponderance of evidence facts establishing personal jurisdiction. 

Plaintiff’s Evidence for General Jurisdiction

The Plaintiff offered the following evidence to support their claims of jurisdiction over the Defendant:

(1) An email string where the Defendant was a recipient of a message regarding the terms of a lease in California;

(2) An email string where the Defendant was a recipient of a message from the vice-president of a company based in California; and

(3) An email string where a message was sent to the Defendant requesting her advice “on the best approach . . . on a deal structure” with another company whose location was not stated.

Pelowski , at *22.

General Jurisdiction Requirements

A Defendant must have sufficient contacts with a forum state to establish personal jurisdiction of an out-of-state Defendant not physically in the forum state. These contacts include such communications as mail, telephone and electronic communications.  Pelowski , at *23. 

As the Supreme Court explained in Burger King v. Rudzewicz, “”it is an inescapable fact of modern commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence within a State in which business is conducted.” Pelowski , at *23, citing Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 476.

Holding on General Jurisdiction

The Court held that the email evidence did not establish that the Defendant made contact with people in California (two of the email messages were sent to her and she forwarded two of them on to others who were based in New York).  Pelowski , at *24-25.  There was also no evidence she ever made contact with the vice president of a California company after getting an email from him.  Pelowski , at *25.  The Court stated even if the Defendant had the one contact it alone would not have proven she had “communicated regularly with persons in California via email.”  Pelowski , at *25.

The Court found the Defendant did not have sufficient minimum contacts with California to establish general jurisdiction over her. The email messages and other contacts were not “so wide-ranging that they take the place of physical presence in the forum as a basis for jurisdiction.” Pelowski , at *27-28, citations omitted. 

Resolution of Specific Jurisdiction

Specific jurisdiction exists where there is expressly aimed conduct at a forum state. Pelowski , at *35-36.

The Court’s analysis of Specific Jurisdiction was more detailed, but reached the same conclusion:  There was no evidence that the recipients of the Defendant’s messages were in fact located in California or that the Defendant knew they were located in California.  Pelowski , at *33.  In fact, two of the recipients were located in New York.  Id.

The Court held the vague emails were not sufficient to show directed conduct at the state of California.  Pelowski , at *34-35. Moreover, one email to someone in New York that the Defendant would contact someone in California was not evidence there were “continuing relationships and obligations with citizens of [California].” Pelowski , at *36. 

Bow Tie Thoughts

Personal Jurisdiction Redux

Courts will continue to “drive through” Burger King and the personal jurisdiction cases from the last 150 years with the explosion of iPhones, iPads, BlackBerries, Social Networking sites and whatever else is about to hit the market better connecting people. 

Consider this…

Can being “Friends” with someone on Facebook who lives in a different state be enough to establish jurisidiction in their state if there is a dispute? 

Can venue be established by text messages? 

These issues might just be Civil Procedure exam questions, but they will one day be litigated. 

e-Discovery is the Practice of Law

Understanding e-Discovery is now a requirement to practice law.

The substantive elents of electronic discovery are more than just the form of production, data reduction and document review.  Attorneys may find themselves running searches in a litigation support review application for smoking gun emails to establish minimum contacts for personal jurisdiction.   

We are taught in law school to analyze facts and apply them to the law.  Analyzing “The Facts” requires knowing what “The Facts” are. Today’s “Facts” are contained in email messages, Word documents, Excel files, social networking sites and text messages. 

In the above case, “the Facts” were email messages to show sufficient minimum contacts for personal jurisdiction.  In your case it might be an anticipatory breach of contract or insider trading.  Regardless, you need to be aware that traditional principles of law and electronic discovery go hand in hand.

5150 Texting, Drinking & Guns Don’t Match

A man was prohibited from owning fire arms and appealed the decision.  The road leading up to the gun ban started on November 2, 2008…after fighting and texting with his girlfriend.  People v. Akers, 2010 Cal. App. Unpub. LEXIS 102 (Cal. App. 4th Dist. Jan. 7, 2010).

The Petitioner, while drinking and having a history of bipolar disorder, sent his girlfriend text messages where he threatened to kill himself. 

The girlfriend called the police after getting the text messages.  Akers, at *1.

The Police found the Petitioner walking the streets very late at night with a loaded .40-caliber handgun.  Akers, at *1-2. 

The Petitioner was held over night in a  psychiatric hospital pursuant to the California “5150” statute, which allows the police to take someone into custody who is a danger to himself or others for up to 72 hours at a state approved mental hospital.  Akers, at *2. (For the 1980s music fans, the statute inspired the title to the first Van Halen album with Sammy Hagar).

The police confiscated the Petitioner’s handgun…along with three other guns in his apartment. 

Johnny Get Your Guns

The Petitioner moved the court to return his guns, six weeks after being detained, claiming he was on his bipolar medication and his text messages were an “error of judgment” to get attention from his girlfriend.  Akers, at *4. 

The Trial Court did not agree.  The Trial Court found the petition to return the Moving Party’s guns, being only weeks after the 5150 texting episode, as being premature to determine if it was safe for him to have four guns.  Akers, at *5. 

The Court of Appeals upheld the Trial Court’s findings.  The Court of Appeals found that just not enough time had passed since the  Petitioner’s texts threatening suicide, him walking the streets armed with a load gun while intoxicated and the ending of his stressful relationship.  Akers, at *6-8. 

To put it bluntly, six weeks was not enough time to give him back four guns.

Bow Tie Thoughts

The key evidence alerting the Petitioner’s former girlfriend and police that the Petitioner was possibly a danger to himself were his text messages.  While the opinion is silent on how the text messages were collected, it most likely was with a device seizure tool or produced by the cell phone provider. 

More importantly, the Court of Appeals did not simply refer to the text messages as text messages, but as “communications.”  Akers, at *7.  Seeing a Court recognize the data not merely as electronically stored information but as a communication continues the judicial recognition of our society’s digital evolution.

Load Files and Then Some…

Special Guest Blogger Pete Coons, VP of D4.

This is part two of a discussion that attempts to explain some of the often used and often misunderstood eDiscovery terms.

Last week I discussed DeNIST’ing and now we will tackle “Load Files”.  I am also going to squeeze in “Processing”.

Load Files

The Sedona Conference Glossary (great reference document) defines a Load File as:

“Load file:  A file that relates to a set of scanned images or electronically processed files, and indicates where individual pages or files belong together as documents, to include attachments, and where each document begins and ends. A load file may also contain data relevant to the individual documents, such as metadata, coded data, text, and the like. Load files must be obtained and provided in prearranged formats to ensure transfer of accurate and usable images and data.”

That pretty much covers it.  Now let’s take a step back and attempt to break down exactly where a Load File fits into a typical eDiscovery process.

Let’s say Company XYZ is being sued by a former employee for discrimination.  Company XYZ must now identify and preserve documents that may be relevant to the claim.   Data is identified and collected by a qualified individual within the organization or by a third party eDiscovery/Forensic service provider.  Typically, the collected data is then processed (another confusing term) so it can be placed into a database for review and eventual production to the opposing party. 

Processing

The Sedona Conference Glossary defines Processing as:

“Image Processing: To capture an image or representation, usually from electronic data in native format, enter it in a computer system and process and manipulate it.”

Processing data usually involves ingesting the file or e-mail into eDiscovery software.  The software then catalogs the file and extracts all available text.  This text is usually placed into a separate text file and it’s associated with the native file or e-mail.  The processing process also extracts various metadata elements from the file and stores that information in a database. 

Let’s take a Word Document that contains the text “Hello World”.  After ingesting into the eDiscovery software a record is created in the database.  That record will contain metadata elements about the file such as: Author, Date Created, Date Modified, and Date Last Printed. 

As stated previously, the software will also create and store an accompanying text file that will have the text “Hello World” in addition to saving the original native file. 

We know that no case involves just one document so let’s pretend we have 10,000 Word documents and 10,000 e-mails.  It really doesn’t matter because the process is basically the same.  

This is a very simple explanation of the processing process and there are other steps that occur, like indexing or tiffing (imaging), but for all intents and purposes our data is now processed and it can now be prepared to be loaded into a review database.  This is where the Load File comes into play.

We have to get the data OUT so we can put it back IN somewhere.

Load files are usually simple text files (some are a bit more complex).  Meaning they can be opened and viewed with Notepad or WordPad in Windows.  To the uninitiated they may look daunting but after seeing a few they begin to look the same. 

Think of a load file as transport file that is used to facilitate the transfer of data and its associated metadata from one database to another.  We have to LOAD the data into one database from another. The load file contains information about each and every record (file) that was processed. 

That information can include the original file name, the author, date created, beginning ID number, the number of attachment that exist in an e-mail, the parent ID of the attachment, etc.  There are potentially dozens of metadata objects that can be provided in a load file (usually agreed upon by both parties prior to its creation).  The load file will also contain a link to the native file and the accompanying extracted text file. 

The load file along with the native file (or tiff) and its extracted text is the complete package for loading into another database. 

And that’s processing and load files!