Bow Tie Law 1st Anniversary

December 30, 2009 marks the first anniversary of “Bow Tie Law.” 

2009 was a watershed year of case law, with litigation hold opinions coming up weekly this summer; the mandatory exclusion of ESI for the failure to disclose or supplement discovery; and judges holding attorneys to a higher standard for electronically stored information.

Thank you everyone who has made Bow Tie Law “Year One” a success as we enter 2010.

Bad Romance e-Discovery Style: Text Messages in an Ugly Break Up

Discussion of In re C. C., 2009 Cal. App. LEXIS 1715 (Cal. App. 3d Dist. Oct. 27, 2009) at the Paraben Forensic Innovation Conference.

The case involved a bad high school break-up, where the teenage boy sent vulgar text messages venting anger to ex-girlfriend.

The Juvenile Court took words from the text messages out of contents and found texts were 1) threatening and 2) obscene.

The Court on appeal held text messages were neither threatening nor obscene.  The Court found the texts did not threaten any physical harm, as required by statute. Furthermore, the text messages in context did not qualify as obscene. As such, the case was reversed for lack of substantial evidence.

Discovery Games in Gaming Litigation

Discovery games were taking place in a gaming case in Mississippi. 

The Plaintiffs brought a motion to strike and a motion for sanctions for discovery misconduct in responding to requests for electronically stored information.  Maggette v. BL Dev. Corp., 2009 U.S. Dist. LEXIS 116789 (N.D. Miss. Nov. 24, 2009).  The Court did not grant the sanctions motion, but took a direct shot across the Defendant’s bow, stating:

This is not to say that sanctions will not ultimately be found to be warranted. The court has already imposed sanctions upon defendants for what it views as a casual, if not arrogant, rebuff to plaintiffs’ repeated efforts to obtain information which is ordinarily easily produced in litigation. Maggette at *6, fn 1.

The Court had earlier ordered the Defendants to “. . . search any available databases for responsive information and produce it to the plaintiffs.”  Maggette at *7.   

The Defendants claimed they had search for responsive ESI pursuant to the Court order, but failed to state what databases were searched, what methodology was used, what search terms were deployed or any expert report validating the position there was no responsive electronically stored information.  Maggette at *7-8.

The Court’s frustration was evident as it summarized the discovery issues at bar:

Further, the defendants have not provided any concrete reason or rationale for the numerous discrepancies within their discovery responses and the deposition testimony of their own employees. Nor has defendant articulated a satisfactory response to the court’s doubts expressed at the hearing that corporations as large and sophisticated as the defendants, which operate numerous gaming facilities across the country with various operations centers, do not have either paper files, electronic files or information or — even in light of Hurricane Katrina — backup measures and files for at least some of the information requested by plaintiffs. Maggette at *8.

Preservation Roulette: A Review

The Court noted that the Fifth Circuit Court of Appeals had not stated any standards for the preservation of electronically stored information and corresponding sanctions for the loss of ESI.  Maggette  at *8.

The Court looked to the Zubulake line of cases for guidance, citing the basic preservation obligation that the duty to preserve triggers when “the party has notice of the litigation or when it should have known that the evidence may be relevant to future litigation.” Maggette  at *8-9, citing Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216 (S.D.N.Y.2003).

Once there has been a triggering a reasonable anticipation of litigation, a party must suspend its records information management/destruction policy and enact a litigation hold.  Maggette  at *9.

Order for 3^rd Party e-Discovery Expert

The Court had a big problem: It appeared the Defendants had not met their discovery obligations; however the Court could not hold so with certainty. Maggette  at *10.  As the Courts are to find the truth of an issue, the Court declined to rule on whether “the standards for preservation of electronic evidence and disclosure of all relevant evidence have been met or not met…” Maggette  at *11.

In what some experts would call a truly magnanimous Christmas gift, the Court stated it could not make “such a determination without further review by a third-party expert in the field of electronic discovery and who has knowledge of the gaming industry.”  Maggette  at *11.

Before any skeptics yell “Bah, Humbug,” the Court has very valid points in using a third-party expert to determine electronic discovery issues. 

The Court stated the Defendants had “failed to satisfy the court’s inquiries calculated to determine the legitimacy of their searches to date or whether they have in good faith attempted to use preservation techniques reasonably available to them…” right before ordering the costs to be paid by the Defendants.  Maggette  at *11.

The Court ordered the parties to agree on an expert who not only had knowledge or electronic discovery, but also the gaming industry, to “determine whether the defendants have met the standards for preservation of electronic evidence and disclosed all relevant evidence.”  Maggette  at *11.

Bow Tie Thoughts

When I was a young associate doing construction defect litigation, I did not personally rip out windows with a crowbar for destructive testing.  We had experts who could testify in court as to industry standards and how the work performed met or fell below those standards.  The same is true for issues with electronically stored information.

There are situations with electronic discovery requiring people with knowledge of SQL databases, CCE’s for collection of electronically stored information and strategies on what search terms will be effective or not.  This is a reality of the “digital age.”  The Court in Maggette not only realized this fact, but that it was necessary to have someone knowledgeable of the gaming industry as well.

Federal Rule of Evidence 502(b): Not to be Gutted Like a Fish

Magistrate Judge Facciola addressed Federal Rule of Evidence Rule 502(b) with the inadvertent disclosure of a memorandum protected by the work product doctrine, in a case involving an officer with the DC Department of Corrections.  Amobi v. D.C. Dep’t of Corr., 2009 U.S. Dist. LEXIS 114270, 20-21 (D.D.C. Dec. 8, 2009).  The issue was whether the privileged had been waived by the inadvertent disclosure.

The inadvertently disclosed document was prepared for an arbitration hearing.  Amobi, at *16.  The Court quickly found it was prepared for litigation and contained an attorney’s mental impressions. Amobi , at *16-17.

Rule 502: Burden to Prove Waiver

Federal Rule of Evidence 502 is silent on which party has the burden of proving waiver.  Amobi, at *19.  Judge Facciola applied the pre-502 District of Columbia rule that the “the proponent of the privilege. . . [had] the burden of showing that it [had] not waived attorney-client privilege.”  Amobi, at *19, citing United Mine Workers of Am. Int’l. Union v. Arch Mineral Corp., 145 F.R.D. 3, 6 (D.D.C. 1992).

Three-Part Wavier Test

The three-part test for waiver under Federal Rule of Evidence 502(b) includes the following:

1)       Was the waiver inadvertent?

2)       Did the holder of the privilege take “reasonable steps to prevent disclosure of the privileged document”? Fed. R. Evid. 502(b)(2). 

3)       Did the holder take promptly reasonable steps to rectify the error?

FRE 502(b) does not define “inadvertent.”  Case law varies between District Courts, but the legislative intent of the Rule was to “protect privilege in the face of an innocent mistake.” Amobi, at *20-21, citing Coburn Group, LLC v. Whitecap Advisors LLC, 640 F. Supp. 2d 1032, 1038 (N.D. Ill. 2009) (citing Ltr. from Lee H. Rosenthal, Chair, Comm. on Rules of Practice and Procedure, to Hon. Patrick J. Leahy, Chairman, Comm. on the Judiciary, U.S. Senate, and Hon. Arlen Specter, Member, Comm. on the Judiciary, U.S. Senate, at 2 (Sept. 26, 2007)).

The Court followed the simple “inadvertent” test of whether the party “intended to produce a privileged document or if the production was a mistake.”  Amobi, at *20.  As one can imagine, the Defendants claimed the document was inadvertently produced. 

How to Gut “Inadvertent Productions” Like a Fish

The Plaintiffs in essence argued that if a document was disclosed by a lawyer, then the disclosure was neither mistaken nor inadvertent. Additionally, if the document was disclosed by a non-lawyer, then no reasonable steps were taken to protect the privileged information.  Amobi, at *22-23. 

Judge Facciola pointedly stated the following on the Plaintiffs’ arguments:

…to find that a document disclosed by a lawyer is never inadvertent would vitiate the entire point of Rule 502(b). Concluding that a lawyer’s mistake never qualifies as inadvertent disclosure under Rule 502(b) would gut that rule like a fish. It would essentially reinstate the strict waiver rule in cases where lawyers reviewed documents, and it would create a perverse incentive not to have attorneys review documents for privilege. Amobi, at *23-24.

Reasonable Steps to Prevent Disclosure

Judge Facciola noted that this was not an ESI case where it would have been appropriate to consider “the software that was used to discriminate between the privileged and the non-privileged” information.  Amobi, at *25.  This arguably would have put the party into a Victory Stanly type case, with search terms being evaluated, what quality assurance testing was done to ensure no privileged documents were produced, and other factors to evaluate if reasonable steps were taken to prevent disclosure.   

The Court summarized that the Defendants did not explain their methodology in conducting a privilege review.  Amobi, at *25.  Highlighting the situation that their ship was taking water fast, the Defendants did not state the number of documents they produced, which would have enabled the Court to “determine the magnitude of the error in producing this one document consisting of four pages.”  Amobi, at *25.

The Court’s displeasure with the Defendants’ privilege review is palpable throughout the opinion.   There is no real explanation of what review was conducted, other than a passive voice statement that “several” privilege review were conducted.  Amobi, at *25-26.  As the Court stated:

Indeed, one keeps searching for some statement somewhere in the defendants’ papers that speaks to what they did when they got the documents, how they segregated them so that the privileged documents were kept separate from the non-privileged, and how, despite the care they took, the privileged document was inadvertently produced. Amobi, at *25. 

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 ///

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Hence, the efforts taken are not even described, and there is no indication of what specific efforts were taken to prevent disclosure, let alone any explanation of why these efforts were, all things considered, reasonable in the context of the demands made upon the defendants.  Amobi, at *26.

The Court bluntly stated, “There can be no reasonable efforts, unless there are efforts in the first place.”  Amobi, at *26.  The Court held the Defendants failed to prove the privilege was not waived, because there was no evidence of the Defendant taking any reasonable actions to prevent disclosure. Id.

Bow Tie Lessons

Attorneys, paralegals and litigation support professionals are extremely well served by having a privilege review methodology that takes “reasonable steps to prevent disclosure of the privileged document.”  Fed. R. Evid. 502(b)(2).  This is easier said then done when the e-Discovery is in the TeraBytes.

This process could include what one could call a privilege chain of custody, which tracks how the electronically stored information is reviewed for privilege, how the ESI is sequestered if determined to be privileged and quality assurance testing that production sets do not include any privileged electronically stored information.   

Almost all litigation support products allow for issue tagging for privileges and export to Excel features for creating privilege or redaction logs.  Understanding how a firm’s litigation support software functions for production should be tested prior to any production to ensure known privileged ESI is not being inadvertently produced.  If something is inadvertently produced, these procedures most likely would need to be proven up over a battle whether the privileged was waived.

Twitter: Prohibited Jury Communications in Missouri

The pending jury instructions from the Supreme Court of Missouri address Web 2.0 and instant communications head on.  The jury instruction specifically states:

You are not permitted to communicate, use a cell phone, record, photograph, video, e-mail, blog, tweet, text, or post anything about this trial or your thoughts or opinions about any issue in this case to any other person or to the Internet, “facebook”, “myspace”, “twitter”, or any other personal or public web site during the course of this trial or at any time before the formal acceptance of your verdict by me at the end of the case.

In re Revisions to Mai-Civil, 2009 Mo. LEXIS 544, 5-6 (Mo. Nov. 23, 2009), at *5-6

The rules state that a violation of the rules “may result in a miscarriage of justice, and a new trial may be required.”  In re Revisions to Mai-Civil, at *6. 

Bow Tie Thoughts

It is only responsible for Courts to promulgate Web 2.0 rules that on devices that create instant communications.  As the rules state, Courts want to avoid any miscarriages of justice.  The realities of 21^st Century life allow prospective jurors to access news in a heartbeat.  More importantly, Courts cannot permit the justice system suffer from a juror Tweeting “God, I cannot stand this Defendant.”

Proving Conspiracies with Electronically Stored Information

There is no shortage of people utilizing technology to facilitate illicit or questionable actions.  Below are two recent examples.

Price Fixing Conspiracy

In In re Static Random Access Memory Antitrust Litigation, the Plaintiffs alleged the Defendants engaged in a ten year conspiracy to fix and maintain artificially high prices for Static Random Access Memory (SRAM).  In re Static Random Access Memory Antitrust Litig., 2009 U.S. Dist. LEXIS 110407 (N.D. Cal. Nov. 25, 2009). 

For those not familiar with SRAM, it is a memory device that cannot retain data without a power supply.  In re Static Random Access Memory Antitrust Litig., at *28.  SRAM is used in many electronic devices, including the following: 

(1) The communications market in cell phones and Voice Over Internet Protocol (VOIP) technology;

(2) The computer market in servers, mainframes, high-end computer workstations, and personal digital assistants (PDAs) and smart phones; and

(3) The networking communications market in routers, switches, proxy and gateway devices, modems, storage area networks and firewalls.

In re Static Random Access Memory Antitrust Litig., at *28. 

The Plaintiffs claimed the Defendants, who controlled sixty to seventy percent of the market share of total SRAM sales, engaged in price fixing through email, phone and in person communications.  In re Static Random Access Memory Antitrust Litig., at *28-29.

The recent opinion certified the case as a class action.  This will be an interesting case to watch for the technology involved and what emails appear as evidence supporting the Plaintiff’s claims. 

Another Text Message Helping Prove a Drug Dealing Conspiracy

In a factually protracted drug enforcement case, the Court found enough circumstantial evidence to support the Defendant’s conspiracy conviction. United States v. Alejandro, 2009 U.S. App. LEXIS 25271, 7-8 (5th Cir. Tex. Nov. 17, 2009)

One trial exhibit was a text message that stated: “Pat knows where I can find a dub?” Alejandro, at *7.

The Court went on to define “Pat” was short for Patrick, the Defendant’s first name.  Additionally, the Court explained “dub” was a code word for $200 worth of crack. Alejandro, at *7.

While there was other evidence, such as drug scales and a co-conspirator’s purse with a large amount of cocaine, the text message obviously was damaging evidence.  Alejandro, at *7.

Bow Tie Thoughts

Civil discovery and criminal prosecutions will continue to find text messages, emails or social networking status messages as the smoking gun evidence.  Lawyers must consider the broader scope of discovery that includes these highly transitory forms of electronically stored information.

Brewing Issues in Social Networking Litigation: How to Freak Out Co-Workers and Get Fired

A barista was fired from Starbucks for “inappropriate conduct and threatening violence to Starbucks and its employees.” Mai-Trang Thi Nguyen v. Starbucks Coffee Corp., 2009 U.S. Dist. LEXIS 113461 (N.D. Cal. Dec. 7, 2009). 

The Plaintiff in turn sued for sexual harassment, retaliation, religious discrimination, violations of the California Occupational Safety and Health Act, and the Fair Employment and Housing Act Section 12940(j)(1). Nguyen, at *1.

Starbucks brought a motion for summary judgment because there were “no material issues of fact sufficient” to support her claims. Nguyen, at *1-2.  Federal District Judge Charles Breyer agreed and granted Starbucks summary judgment. 

Part of the evidence that justified Starbuck’s concern for the safety of their employees was a posting the Plaintiff did on MySpace shortly before being terminated.  The posting stated:

Starbucks is in deep [Redacted] with GOD!! I am now completely disenchanted with humans n I have NO MO Energy left 2 deal w/ their negativity. I’ve worked Tirelessly 2 not cause trouble, BUT I will now have 2 to turn 2 my revenge side (GOD’S REVENGE SIDE) 2 teach da world a lesson of stepping on GOD. I thank GOD 4 pot 2 calm down my frustrations n worries or else I will go beserk n shoot everyone . . . Prepare to See Crazy Trang in public eye soon IN UR TELEVISION n other news vehicles. I don’t know when EXACTLY ’cause only GOD knows of our Exact timing in his PERFECTED-CREATED NETWORK (fate!) BUT all I know is I will fight 2 be heard beyond my death.;) N I will not be happy unless I win because I AM GOD N GOD DON’T LOSE.

            Nguyen, at *5-6.

Brewing Issues in Social Networking Litigation

The “Friend Request” of social networking litigation will only continue to brew in civil litigation and criminal law.  Lawyers, clients and experts face several issues on how to collect, preserve and review this electronically stored information.

In the above fact pattern, the easiest option would have been for the Starbucks employee who saw the MySpace post to simply print the page.  The analysis required for admitting a printed copy into evidence would parallel the requirements for authenticating a printed page from a website.  For more on admissibility and authentication of electronically stored information, please look at the CT Summation Whitepaper e-Admissibility.

A party or investigator can also print the suspect profile as a PDF.  Conversely, Adobe Professional has a webpage capture feature which would also be effective.  There are also numerous screen capture tools that can be used to preserve relevant social networking evidence.

Attorneys should be vigilant in understanding how to collect and preserve social networking ESI.  This might require the client immediately preserving the evidence, due to the highly transitory nature of actions on MySpace or Facebook.  Other situations may require a third-party who can testify to the collection methodology deployed to collect a “Tweet” or social networking profile.

Records Information Management and Electronic Discovery Best Practices with Browning Marean, Esq. and Joshua Gilliland, Esq.

D4 is pleased to announce a webinar with Browning Marean, Esq., of DLA Piper, co-author of “Electronic Discovery and Records Management Guide,” on records information management and electronic discovery best practices.  The webinar will examine records management, how to develop a records management policy, a comparison to litigation holds and Records Information Management (RIM) best practices.    We will also discuss electronic discovery best practices, current trends in the Federal and State courts, including search terms, requests for production and back-up tapes.    Please join D4 on December 15, 2009 at 12:00 pm Pacific Time and 3:00 pm Eastern Time for this webinar.  To register, click here.    

About the Presenters:    

Browning Marean, Esq., is a senior counsel in DLA Piper’s San Diego office.  He is a member of the Litigation group and is co-chair of the Electronic Discovery Readiness and Response Group.  Mr. Marean concentrates his practice in the areas of business litigation, technology matters, professional responsibility and knowledge management.  He is admitted to practice in California and Texas.  

Mr. Marean is a nationally known teacher and lecturer on various topics including electronic discovery, records retention, knowledge management and computer technology.  He is co-author of the 2008 edition of Electronic Discovery and Records Management Guide, Rules, Checklists and Forms, published by Thomson West, and Conducting Discovery in an Electronic World:  Electronic Data and Discovery, published by California Civil Discovery Practice.  He has been named a San Diego Super Lawyer.  

Mr. Marean received his law degree from the University of California, Hastings College of Law and his undergraduate degree from Stanford University.  

Joshua Gilliland, Esq., is a California attorney who focuses on electronic discovery issues for D4 LLC.  Josh has conducted over 100 e-Discovery seminars, covering all of North America, from St. Thomas to Anchorage, addressing the e-Discovery issues from the Federal Rules of Civil Procedure and Federal Rules of Evidence.  Josh is the blogger for the Bow Tie Law Blog, covering issues of identifying anonymous bloggers who commit defamation, ethical standards for electronic discovery, personal jurisdiction and other timely issues.   

Josh has also been an invited speaker at bar association events and trade shows, in addition to serving as a guest lecturer on e-Discovery at several law schools.  He effectively applies his real-world knowledge to show lawyers how they can increase their efficiency and master factual issues using litigation support technology.    

Follow Josh on Twitter @BowTieLaw

Admissibility of Email Strings and Co-Conspirator Emails

The Federal Rules of Civil Procedure are frequent superstars spotlighting requests and production of electronically stored information in case law.  Whether or not such discovery is admissible is another story. 

Park W. Radiology & Park W. Circle Realty v. Carecore Nat’l Llc, 2009 U.S. Dist. LEXIS 110282 (S.D.N.Y. Nov. 19, 2009) is an extensive opinion addressing the admissibility of email in motions in limine. 

Admissibility of Email Strings

The Plaintiff attempted to exclude an email string pursuant to the Federal Rules of Evidence 402 (Relevancy), 403 (Prejudice), 608 (Character Evidence/Witness Conduct), and 609 (Impeachment by Evidence of Conviction of a Crime). Park, at *8.

The email string contained the statement, “I was hoping that her friends would want to have sex with [sic] me after they saw the ring.”  Park, at *8. As one can imagine, the Plaintiffs argued the email was irrelevant and highly prejudicial if it somehow was relevant.  Park, at *8.

The Plaintiffs further claimed the email chain contained attorney-client communications.  Park, at *8.

The Defendants in turn argued the email was relevant in showing the bias of one of the Plaintiffs’ trial witnesses.  Park, at *8-9. 

The Court held the section of the email string that could show bias of a trial witness was relevant. However, the section stating, “I was hoping that her friends….” was so prejudicial that it outweighed any relevance it had in showing bias.  As such, that section would need to be redacted for trial.  Park, at *9.

Planning a Conspiracy on Email 

The Defendants sought preclusion of emails from a doctor as hearsay between nonparties (Federal Rule of Evidence 802).  Park, at *39. 

The Plaintiffs claimed the email chain showed a conspiracy because a doctor who was affiliated with the Defendants’ Board of Managers “suggested” to the other doctors on the email that the Defendant was “unlawfully controlling the market for imaging centers and suggesting a business decision agreeable to the conspiracy.”  Park, at *40. 

The Plaintiffs argued that the emails were not hearsay, because they were statements between co-conspirators under Federal Rule of Evidence Rule 801(d)(2)(E). Park, at *40. This provision requires the existence of a conspiracy and the participation of the declarant in furthering the conspiracy.  See, Federal Rule of Evidence Rule 801(d)(2)(E).

The Court issued a “preliminary” denial of the Defendants’ motion in limine to exclude the email messages.  Park, at *40-41.  The Court would allow the use of the email exchange, if the Plaintiffs could meet the co-conspirator requirements of Federal Rule of Evidence Rule 801(d) (2) (E).  Id.

Bow Tie Thoughts

Attorneys and vendors often get wrapped up in the production and review of electronically stored information.  This is with good reason, considering the volume of ESI that can appear in discovery.  However, litigation tends to be over the 10 or 20 key documents that prove a party’s case to the jury.  Being ready for any admissibility challenges can help avoid your case theory getting derailed by motions in limine to exclude a key email or instant message.

Attorneys can help prepare for the admissibility of electronically stored information while doing document review.  Coding fields can be set up for issues such as “Relevant,” “Authentication,” “Best Evidence,” “Hearsay” and “Probative Value vs Unfair Prejudice.”  Reviewing attorneys can consider the admissibility factors as they are performing document review, which may impact their choices on which documents to ultimately use in trial or mediation.