Don’t Argue Imaginary ESI Production Problems

In re NetBank, Inc., 2009 U.S. Dist. LEXIS 69031 (N.D. Ga. Aug. 7, 2009) has form of production arguments that illustrate the need to understand the processing abilities of electronically stored information applications and review in litigation support software. 

The Request for Production

In this class certification case, the Plaintiff sought production of electronically stored information in native format.  In re NetBank, Inc.,71-72. 

The Defendants refused, claiming the Federal Rules of Civil Procedure only require production in a reasonably useable form.  Thus, the Defendants were going to produce ESI as TIFFs with searchable OCR (Note, not extracted text, but optical character recognition, which is a process applied to the TIFF images to create searchable text, opposed to using the already searchable extracted metadata from ESI processing).  In re NetBank, Inc.,71. 

The Plaintiff argued against a TIFF production of the ESI, claiming that the reduced search features would cause an “inability” to:

(1) Determine the identity of the author and editors of the documents;

(2) Determine the creation and modification dates of the documents;

(3) Determine whether the documents have attachments; and

(4) Identify, sort, search or filter documents.

In re NetBank, Inc.,71-72. 

Descending into Obstructionism? 

The Defendant (Producing Party) argued they were only required to produce ESI in a reasonably useable form, not the form specified by the Plaintiff (Requesting Party).  In re NetBank, Inc.,72. 

The Producing Party’s arguments took a turn for the bizarre, stating native file review “allows the alteration of documents produced and creates difficulties in authenticating and tracking documents produced.”  In re NetBank, Inc.,72. 

This argument ignores all the products on the market that allow for reviewing native files, defensible collection practices, MD5 Hash Values for authentication, maintaining an authenticating file of the native files, or simply checking metadata for spoliation. 

The Defendants next argued that the production needed to be in TIFF format, because native files cannot be “Bates” labeled for pagination and that “[a]nother potential drawback with native format production is that one or more of the parties may lack access to the software program or application required to read the native file.”   In re NetBank, Inc.,72.

The Defendants’ final proposal was to perform optical character recognition on 16,483 of the 17,958 documents, plus produce spreadsheets as native files.  In re NetBank, Inc., 72-73. 

There is one giant problem with this logic: Native files are already searchable.  In the processing of ESI, the searchable text can be extracted, such as metadata fields for “To,” “Subject,” “Date Sent” and the body of an email.  There is no need for a producing party to perform OCR on TIFFs if they have the original native files, because the searchable text can be extracted in processing. 

Federal Rule of Civil Procedure Rule 34

Federal Rule of Civil Procedure 34(b)(1)(C) allows a requesting party to “specify the form or forms in which electronically stored information is to be produced.” In re NetBank, Inc., 73, citing Rule 34. If there is a dispute and a motion to compel, a Court is not limited to ordering the form of production the requesting party stated to resolve the dispute.  In re NetBank, Inc., 73-74.

Don’t Argue Imaginary Problems

The Court stated that all of the “problems” the Producing Party argued were all hypothetical, not actual problems the parties were litigating.  In re NetBank, Inc.,74. 

There was no evidence that the Plaintiff were altering native files or that both parties lacked the software to review native files.  In re NetBank, Inc.,74.  Moreover, if native files were going to be trial exhibits, the Court was “confident that the precision of record citations can be appropriately dealt with…”  Id.

On the other hand, the Requesting Party was able to show the increased difficulty of reviewing native files as TIFFs. The elimination the searchable fields made “review and analysis much more difficult and expensive,” and likewise “conceals (by omission) any metadata known to the Defendants.” In re NetBank, Inc.,74.

The Court ordered the production of native files, because the Producing Party gave “no good reason why they should not produce…in native format.”  In re NetBank, Inc., 74-75.

Bow Tie Thoughts

This case is either an example of a party either not understanding electronically stored information or just engaging in gamesmanship to obstruct their opponents in discovery. 

A party can produce ESI as TIFFs (or PDF’s) and make use of processing software to extract metadata to produce searchable text.  However, parties may not exchange in “data dumps” on an opposing party to frustrate and drive up the costs of document review.

Attorney Client Text Messages or Texting & Depositions Don’t Mix

A child was injured at an Old Navy store (a subsidiary of the Gap) on a clothing rack, and naturally, a lawsuit followed in Federal Court based on Diversity Jurisdiction. Wei Ngai v. Old Navy, 2009 U.S. Dist. LEXIS 67117 (D.N.J. July 31, 2009).

The Plaintiffs deposed the Gap’s General Liability Claims Manager via video deposition on the chain of custody of the clothing rack. Ngai, 2.

The witness was in Sacramento, California, Defense attorneys in Fort Lee, New Jersey and Pro Hac Vice in Southfield, Michigan.  Ngai, 2.

The deponent and their Pro Hac Vice attorney were only visible from the chest up and their hands were not visible.  Ngai, 2.

However, the Pro Hac Vice attorney and the deponent had very busy hands texting each other.  Before the deposition, the two sent 11 text messages between themselves.  Ngai, 4.

During the one hour and twelve minute deposition, the attorney and client exchanged 5 more text messages.  Ngai, 3.  Below is the timing of the messages: 

FROM	TO	TIME
PHV counsel	Deponent	3:05:26 PM
PHV counsel	Deponent	3:24:18 PM
PHV counsel	Deponent	3:26:30 PM
Deponent	PHV counsel	3:28:38 PM
Deponent	PHV counsel	3:28:54 PM

Ngai, 4.

Then there was perhaps one of the worst sending errors text message history: The Pro Hac Vice attorney sent a text to the PLAINTIFF attorney saying, “[you] [are] doing fine.”  Ngai, 2. 

The Plaintiff’s attorney suspected shenanigans, requested the defending attorney preserve his text messages from the deposition.  Ngai, 2.

As one would expect, the Pro Hac Vice attorney claimed the text messages were all sent during a break.  However, the Court stated the record showed that only one break was taken, at an unknown time.  Ngai, 5.  Moreover, the NJ attorneys reported that the deponent was visible the entire deposition, minus the deponent and NJ attorneys going off camera to phone the Pro Hac Vice attorney.  Ngai, 5.

The Fallout Begins…

Pro Hac Vice attorney informed the court by letter of the text message incident and claimed the text messages were protected by the attorney-client privilege.  Ngai, 6.  Deciding to fall on his own sword, the Pro Hac Vice attorney attempted to withdraw from representing the Defendant.  Ngai, 6.

The Plaintiff opposed the Pro Hac Vice attorney’s withdrawal, claiming the withdrawal would delay the trial. Ngai, 6.  The Plaintiff requested all non-attorney-client privileged documents that supported the Pro Hac Vice attorney’s withdrawal.  Ngai, 6. 

The Court granted the withdrawal and ordered the Defendant to either produce the text message attachment provided to the Court or explain why the Attorney-Client privilege should not be pierced.  Ngai, 6-7.

Privileged Text Messages?

 The Defendant argued against producing the transcript of the text messages because:

(1) The communications are protected by the attorney-client privilege and work product rule;

(2) The crime fraud exception does not apply because the communications were not in furtherance of a crime;

(3) The “at issue” exception does not apply because the communications do not refer to the client’s state of mind or any other relevant issue in the case;

(4) There is no Rule of Professional Responsibility that compels this discovery; (5) the communications have no effect on the case; and

(6) The court rules provide that inadvertent disclosures must be returned to the sender. Ngai, 7.

The Plaintiff in turned argued that the text messages were not protected by the Attorney-Client Privilege.  Ngai, 7-8.

New Jersey Attorney-Client Privilege Standards

The attorney-client privilege statute states “communications between lawyer and his client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege (a) to refuse to disclose any such communication, and (b) to prevent his lawyer from disclosing it . . . .” Ngai, 8-9, citing N.J.S.A. 2A:84A-20.

One key test for sending an Attorney-Client communication is between the attorney and their client for legal advice with the expectation that its content remain confidential.” Ngai, 9-10, citations omitted.

The disclosure of these communications “to or in the presence of third-parties destroys the confidential nature of the communication and therefore such communications are not privileged.” Ngai, 10, referencing Aysseh v. Lawn, 186 N.J. Super. 218, 222, 452 A.2d 213 (Ch. Div. 1982).

Just When Were the Communications Made?

The Court held the text messages made BEFORE the deposition were privileged, which the possible exception of the last message, which the Court did not explain in depth.  Ngai, 11-12.

The Court explained the pre-deposition text messages related to the upcoming deposition, including “words of encouragement,” that attorney and client would have before a legal proceeding.  The Court characterized these text messages as furthering the client’s legal interest and were thusly protected.  Ngai, 11-12.

Texting During the Deposition or “No Note Passing”

The text messages sent during the deposition were not privileged.  Ngai, 12.

Federal Rule of Civil Procedure Rule 30(c) states that “depositions are to be conducted in the same manner as trial examination.”  Ngai, 12.

Rule 30 does not allow a lawyer and witness to have a discussion during trial or deposition testimony because, “once a deposition begins, the right to counsel is somewhat tempered by the underlying goal of our discovery rules: getting to the truth.”  Ngai, 13. 

The Court stated, “The goal of obtaining the facts of a case is defeated when the lawyer and not the witness is answering questions or influencing the answers to them.”  Ngai, 13. 

During a deposition if there is an “off-the record” discussion other than discussing the assertion of a privilege, the exchange is not privileged and “deposing attorney is [] entitled to inquire about the content thereof.”  Ngai, 13. 

The Court stated the Pro Hac Vice attorney violated Federal Rule of Civil Procedure Rule 30 by texting during the deposition.  Ngai, 14.  The Court equated the conduct with passing notes to the client that included instructions “intended to influence the fact finding goal of the deposition process.” Ngai, 15.

The Court found no “it was on a break” defense for the text messages.  Ngai, 15-16.  A deposing attorney may question a deponent to determine if any witness coaching occurred.  Ngai, 16.  Additionally, Rule 30 only allows discussions pertaining to privileged issues.  Ngai, 16.  Finally, there was no evidence the text messages were actually sent during a break.  Ngai, 16.

Bow Tie Thoughts

If it had not been for the Pro Hac Vice attorney sending a text to the Plaintiff’s attorney, no one would have known of this impermissible (and ethically questionable for arguably witness coaching) conduct.  It will be a sad day for our system if deposing attorneys need to include a “no texting” provision to deposition admonitions.

Discovery is Not a Video Game: There are No Cheat Codes around Discovery Deadlines

Hochstein v. Microsoft Corp., involves litigation over the Xbox video game system.  The Court issued an Order for discovery to close on October 31, 2008.  Hochstein v. Microsoft Corp., 2009 U.S. Dist. LEXIS 44879, 3 (E.D. Mich. May 21, 2009).  This obviously required production of any documents or ESI the parties intended to use at trial by the discovery cutoff date. 

Microsoft tried a “cheat code” around the discovery deadline by producing additional documents through the deposition of their expert witness and related reports.  Microsoft also produced over 140,000 marketing documents, two months before trial, without an index.  Hochstein, 4.

Federal Rule of Civil Procedure Rule 26 does not allow gamesmanship.  The Court cited a Court of Appeals decision, which stated:

This case aptly demonstrates the pitfalls of playing fast and loose with rules of discovery. Conclusory expert reports, eleventh hour disclosures, and attempts to proffer expert testimony without compliance with Rule 26 violate both the rules and principles of discovery, and the obligations lawyers have to the court. Exclusion and forfeiture are appropriate consequences to avoid repeated occurrences of such manipulation of the litigation process. Hochstein, 3-4, citing Innogenetics v. Abbot Laboratories, 512 F.3d 1363, 1376 n.4 (Fed. Cir. 2008).

The Court held admitting the late discovery production would be prejudicial to the Plaintiffs.  Pursuant to Federal Rule of Civil Procedure 37(c), the Court excluded the late production, specifically barring Microsoft from “introducing the late-produced discovery into evidence either directly or through their expert’s report or deposition.”  Hochstein, 5.  The expert’s report and deposition were to be redacted to remove any reference to the late produced discovery.  Id.

Microsoft also produced over 140,000 marketing documents to the Plaintiff, effectively two months before trial.  Hochstein, 9.  Adding insult to the 5 week late production, the Defendants did not produce an index with the 143,733 documents.  Hochstein, 9.

The Defendants were ordered to produce an index for the document production.  Additionally, Microsoft was barred from using the marketing documents against the Plaintiff or contesting admissibility.  Microsoft could use responsive documents in the event the Plaintiffs used marketing documents in their case-in-chief.  Hochstein, 9-10.

Game Over

Federal Rule of Civil Procedure Rule 26 does not have a “cheat code” of “Up-Up-Down-Down-A-B-A-B.” 

Cases that go on for years with a soon approaching trial date will not have judges who willingly allow late productions that prejudice opposing parties.  Additionally, those producing discovery without an index are not fully using litigation support software or processing applications.

Measure for Measure: Sexting, District Attorneys and Restraining Orders

Parenting has never been easy.  Since cell phones starting having cameras, parents have had to talk to their teenage children about the dangers of “sexting.” For those who have never heard of this practice, it is taking photos of a sexual nature and sending them via text message.  There is no shortage of cases with youth under 18 being charged as sex offenders for this practice. 

The proper legal deterrent for “sexting” is the subject of debate.  Some people think charging 15 year olds as felony sex offenders is the appropriate deterrent, with serious ramifications on college selection, job applications and just moving for at least a decade.  Some take a “do nothing” approach.  Others are looking for a middle ground.  It is only a matter of time before state legislatures take this issue up to determine the appropriate legal deterrent for “sexting.” 

The case Miiller v. Skumanick, 2009 U.S. Dist. LEXIS 27275 (M.D. Pa. Mar. 30, 2009) is the story of a temporary restraining order being issued against a District Attorney from charging multiple teenage girls for felony child pornography from texting.  A preliminary injunction hearing is schedule for June 2, 2009.

Thoughts on being a District Attorney

To be fair to District Attorneys, I think the DA in this case is the exception and not the norm.   Being a DA has to be hard.  The job can be demanding and stressful in protecting communities from crime.  I remember a DA joking to us in law school that new all DA’s get a concealed weapons permit and a bullet proof vest. 

Many states have also adopted the Model Rules of Professional Conduct Rule 3.8 for prosecutors, which states in relevant part:

Rule 3.8 Special Responsibilities Of A Prosecutor

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense…

Factual Overview: Threat of Prosecution from the District Attorney

The District Attorney in Miiller sent letters to the parents of 20-some students who had been identified in cell phone photos.  Three of the students (later Plaintiffs) had photos of themselves in bras and the other in a swim suit. 

The DA’s letter promised child pornography charges would be dropped against the youth if they completed a 6 to 9 month “re-education” program (which was reduced to 5 weeks) and drug testing.  Those who did not attend the “re-education” program and drug testing would be charged as sex offenders.  Miiller, 4. 

The District Attorney held a meeting at the Wyoming County Courthouse with everyone who received the letter.  This meeting consisted of a threat to prosecute the teenage girls in the photos unless they submitted to 1) probation, 2) paid a $100 program fee and 3) completed the “re-education” program. 

The “re-education” program was to instruct the girls on their inappropriate behavior and to “gain an understanding of what it means to be a girl in today’s society, both advantages and disadvantages,” and “identify non-traditional societal and job roles.” They were also required to write a paper on their actions and how they were wrong.  Miiller, 5-6. 

“These are the rules. If you don’t like them, too bad”

Parents understandably questioned the District Attorney on his methods.  One of the girls at issue had photos of herself in a bathing suit.  When questioned by the father how swim suit photos were child pornography, the DA explained the youth had posed “provocatively.”  When questioned on who decided what was “provocative” the DA told the father, “[T]hese are the rules. If you don’t like them, too bad.”  Miiller, 5.  The District Attorney also told the questioning parents he could charge their children with child pornography during the meeting, as obvious leverage for the parents and youth to consent to the “re-education” program.  Id.

When the parents of the other Plaintiff challenged the District Attorney’s child pornography definition, the DA claimed the youth had no right to a jury trial in Juvenile Court, even with felony child pornography charges. 

The Civil Lawsuit (Or, this is the US Constitution, if you don’t like it, too bad)

The parents of the three Plaintiffs did not give in to the District Attorney’s threatened prosecution of their children.  The Plaintiffs brought a 1983 action base on 1) retaliation in violation of plaintiffs’ First Amendment right to free expression, because the photographs did not violate any obscenity law; 2) retaliation in violation of plaintiffs’ First Amendment right to be free from compelled expression, specifically having to write a paper about their actions; 3) retaliation against the parents for exercising their Fourteenth Amendment substantive due process right as parents to direct their children’s upbringing, as evidenced by the “re-education” program material.  Miiller, 10-11. 

The Temporary Restraining Order

A temporary restraining order is an “extraordinary remedy” that requires a Court to evaluate: 

(1) Whether the moving party has shown a reasonable probability of success on the merits;

(2) Whether the moving party will be irreparably injured by denial of the relief;

(3) Whether granting preliminary relief will result in even greater harm to the nonmoving party; and

(4) Whether granting the preliminary relief will be in the public interest. Miller, 13, citing Crissman v. Dover Downs Entertainment Inc., 239 F.3d 357, 364 (3d Cir.2001).

The Plaintiffs met all of the requirements for a retraining order against the District Attorney.  Moreover, the Court outlined the state law definition of “prohibited sexual act,” which did not include “provocative” poses.  Miiller, 25-26.  One can wonder if the District Attorney over-stepped his ethical duties as a prosecutor, if he was threatening prosecution not supported by probable cause, let alone advising the accused youth of their right to counsel. 

In reviewing the sub-requirement that the Plaintiffs’ Constitutionally protected activity caused the retaliation, the Court noted that the District Attorney’s threat to charge the youth with felony child pornography was “not a genuine attempt to enforce the law, but instead an attempt to force the minor plaintiffs to participate in the education program.” Additionally, the continued threat of prosecution for not participating in the “re-education program” indicated that the charges were “retaliation for their refusal to engage in compelled speech.”  Miller, 24-25.

What is the Appropriate Deterrent?

The actions of the District Attorney in Miiller were extreme.  It will be interesting to see if the preliminary injunction is granted on the June 2, 2009 hearing.  Judging by the tone of the Court Order, I would think so. 

Cases such as Miiller may prompt state legislatures to determine the appropriate punishment for a teenager sending or receiving sexually suggestive photos from other teenagers.  Some states may find the current child pornography laws are sufficient, because the threat of having to register as a sex offender is a high deterrent.  Other states may try finding a lessor punishment. 

In the meantime, parents should have very frank discussions with their children about responsibility and consequences.

Name that Form of Production: Converting ESI to TIFF without Metadata is Not a Reasonably Useable Form

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 U.S. Dist. LEXIS 21250 (M.D. Fla. Mar. 4, 2009) is a lengthy opinion covering Rule 34 requests, form of production issues concerning metadata, reasonably useable form of production, ethical responsibilities for candor to the Court and Opposing Parties and sanctions.  One could imagine the fact pattern on a Bar exam for issue spotting. 

The Procedural History Highlights

Defendant Lexington Ins. Company requested electronically stored information “in native form without deletion or alteration of metadata” from Plaintiff Bray & Gillespie. Bray & Gillespie, 13.  Bray & Gillespie (B&G) instead produced non-searchable TIFFs stripped of metadata.  Several attorneys from Reed Smith also withheld material information and made misrepresentations to the Court and Opposing Counsel as the motion to compel saga played out. 

Lexington Ins. Company sought sanctions against the Plaintiffs and to compel the production of ESI with metadata. 

Short Overview of ESI Collection

B&G had student interns download electronically stored information and scan paper documents.  This information was copied to a “Target Hard Drive” and given to the law firm Anderson, Kill & Olick, P.C.  Extractiva was then used to convert the ESI to static images (TIFFs) and extract metadata.  This ESI was then loaded onto an Introspect review database.  Bray & Gillespie, 7-8.

Reed Smith became the attorneys for B&G after one of the lawyers left Anderson, Kill & Olick, P.C. 

The Discovery Request & Production

After Lexington made discovery requests for electronically stored information, the Plaintiffs produced paper documents on disk and agreed to a “rolling production.”  Bray & Gillespie, 14-15.  The Defendants brought a motion to compel several months later when the Plaintiffs had not begun a “rolling production.”  Bray & Gillespie, 17.

Nearly four months after the rolling production agreement, the Plaintiff produced some ESI from the Introspect database on disk.  Bray & Gillespie, 18. 

The Defendants renewed a motion to compel shortly after the first ESI production.  Bray & Gillespie, 20.  A second production followed after a Court order.

As the Defendants began reviewing the ESI productions, they learned the ESI was in TIFF format, with no metadata or extracted text for author, data, or subject.  Bray & Gillespie, 22-23.

Producing ESI in a Reasonably Useable Form

The Court stated that producing the ESI in TIFF format without metadata eliminated the search capabilities compared to producing the ESI in native form.  As such, the ESI production was not in a reasonably useable form.  Bray & Gillespie, 23.

There were two options for making the production searchable: Option 1) OCR the TIFFs and then run ALCoder over the OCR to populate database fields for author, date, etc.  This would cause an additional cost to the Defendants, since the material was already searchable in native file form.  Option 2) Produce ESI in native form with extracted text, which makes use of the already searchable native files. 

 …and then Things Get Worse with Misrepresentation to Court on ESI Collection

You know someone is getting sanctioned when a Judge uses a lawyer’s name and the phrase “concocted a story” in an opinion. 

One of the Plaintiff lawyers represented to the Opposing Party and the Court that the Plaintiff printed all of the ESI and it was then scanned as TIFFs.  Bray & Gillespie, 25.

The Court summed up the “concocted story” as ignoring readily available or known facts pertaining to the collection and production of ESI.  Bray & Gillespie, 25-26. 

Enter the Sanctions Motion

The Defendants were not happy.  The Defendants claimed the Plaintiffs violated the Court order to produce ESI according to the form of production stated in the discovery requests.  The Defendants sought production of ESI according to the discovery requests, striking portions of the Plaintiffs’ claims and reasonable costs. Bray & Gillespie, 28.

The Court ordered B&G to produce to the Defendants the Plaintiffs’ Introspect database, minus any privileged ESI.  Bray & Gillespie, 66.  Additionally, B&G was ordered to pay all costs, including buying software or hiring someone to copy the litigation support database.  Bray & Gillespie, 67-68. 

The Plaintiffs were also required to allow a Defense computer expert direct access to the Plaintiffs’ Introspect database to confirm all non-privileged information had been produced.  Bray & Gillespie, 67-68. 

The lead attorney for the Plaintiffs was sanctioned and ordered to pay attorney’s fees and costs, which included the testifying expert and the Court reporter for transcribing the sanctions hearing. Bray & Gillespie, 71-72.   Others were sanctioned as well.

This is a very lengthy case that is fact intensive.  Every detail is not summarized in this blog.  The case is worth reviewing for the discussion on the reasonably useable form of production, discovery misconduct and the sanctions motion.

Status Messages and Client Confidences

Web 2.0 marketing is a highly effective way for lawyers to promote their services to prospective clients.  Web 2.0 marketing is leveraging collaborative programs hosted over the Internet, such as social networking sites or Wikis, to provide content highlighting an attorney’s services.  This form of marketing could also result in disaster if used incorrectly. 

Client Confidences: The Work Product Doctrine and the Attorney Client Privilege

The sailor in me remembers Hickman v Taylor 329 U.S. 495 (U.S. 1947) because it had a tug boat that sank.  The lawyer in me remembers it for the Work Product Doctrine.

 

For those not familiar with the Work Product Doctrine, the Doctrine protects documents prepared in anticipation of litigation from discovery, including mental impressions, conclusions, opinions, or a lawyer’s legal theories.  Chemtech Royalty Assocs., L.P. v. United States, 2009 U.S. Dist. LEXIS 27696 (M.D. La. Mar. 30, 2009).  The Work Product Doctrine is codified by Federal Rule of Civil Procedure 26(b)(3).  The Doctrine covers material prepared by a party and a party’s representative, which includes lawyers, consultants or agents.  In re CV Therapeutics, Inc. Sec. Litig., 2006 U.S. Dist. LEXIS 41568 (N.D. Cal. June 16, 2006), citing FRCP 26(b)(3). 

The Attorney Client Privilege is a different concept.  The Attorney Client Privilege protects “confidential disclosures made by a client to an attorney in order to obtain legal advice, as well as an attorney’s advice in response to such disclosures.”  In re CV Therapeutics, Inc. Sec. Litig., 2006 U.S. Dist. LEXIS 41568 (N.D. Cal. June 16, 2006), (citations omitted).  Additionally, the privilege applies “only [to] those disclosures — necessary to obtain informed legal advice — which might not have been made absent the privilege.” Id.

California law also requires a lawyer to, “…maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”  Cal Bus & Prof Code § 6068

Additionally, attorneys should realize they are responsible for their staff, consultants, non-lawyers, and others also using technology. ABA Model Rule of Professional Conduct, Rule 5.1, Rule 5.2 and Rule 5.3 outline these responsibilities.

Enter Web 2.0 Marketing

There is the potential for disclosure of information protected by both the Work Product Doctrine and the Attorney Client Privilege on social networking sites such as Twitter or Facebook.  These services are popular Web 2.0 sites where users can create public profiles, invite other users to follow their daily updates, micro-blogging and other information sharing.  It does not take much to imagine someone new to Web 2.0 marketing disclosing too much information to their “friends” or “followers.”

Here is how the risk of disclosure is possible: a Facebook user posts a status message they deem harmless, such as “I just landed ‘Company A’ as a client and have a bunch of back-up tapes to restore.”

Does this disclose any mental impressions or strategy about the case?  Probably not, but it is flirting with disclosure.  Moreover, Company A would probably not be thrilled with their lawyer announcing their actions in a lawsuit to 300 “friends.”

After reviewing data from imaged hard drives, the same individual posts the status message, “Wow, they really blew preserving their emails.” 

If the client is somehow identifiable, there is a problem, because a mental impression of the client’s ESI is being disclosed.  While the “friends” are probably in no way related to anyone in a lawsuit, disclosing a client confidence to one person is one too many. 

This Does Not Mean Don’t Market!

This is only a call to action for common sense.  Lawyers, consultants and their agents should exercise reasonable care in promoting their services.  A status message of “Working on a Summary Judgment Motion” or “Preparing for the CMC” or “I settled the case!” is not disclosing any legal theory or confidence.  Moreover, using Facebook with the JDSupa application to show published documents can be very effective marketing.  However, saying a client name, plus a specific argument or confidence in a status message, might put a tech savvy lawyer in hot water. 

Web 2.0 empowers lawyers to promote their services and demonstrate their knowledge in ways few people could imagine when Silicon Valley engineers were teenagers building computers in the 1970s.  Lawyers marketing their services on Facebook, Twitter and other social networking sites should exercise reasonable care to protect client confidences.  While this may seem like stating the obvious, the potential for someone saying too much in a status message is very real.

Spinning the Spoliation Record (OR, Download MP3 Sanctions)

I watched David Boies argue the original Napster case on CSPAN while taking Computer and Internet Law at McGeorge, University of the Pacific.  David Boies is more remembered for later representing Vice President Al Gore in the Bush v Gore legal saga.

Online music downloads have caused litigation with the click of the mouse since the days of Napster in the 1990s.  Arista Records LLC v. Usenet.com, Inc., 2009 U.S. Dist. LEXIS 5185 (S.D.N.Y. Jan. 26, 2009) continues the story of the music industry suing for copyright infringement. 

Arista Records LLC v. Usenet.com, Inc. is a tale of sanctions and music downloads. The Defendants operated Usenet.com, which is network message board that predates the Internet.  Arista Records, 4-5. The Defendants charged subscribers a monthly fee effectively for file sharing.  The Plaintiff music industry claimed the Defendants provided Usenet subscribers access to music piracy groups containing copyrighted digital music files. Arista Records, 7.  The discovery requests at issues included the Music Groups, Digital Music Files and promotion material on the Defendants’ website.

 The Plaintiffs claimed the Defendants deliberately destroyed evidence of the Music Groups, Digital Music Files and website information, thus claiming spoliation for the following:

 1) “Usage Data,” which Plaintiffs defined as “pre-existing records from Defendants’ computer servers reflecting actual requests by Defendants’ paid subscribers to download and upload digital music files using Defendants’ service;”

2) “Digital Music Files,” which Plaintiffs define as “the physical digital copies of the copyrighted sound recordings at issue in this case and related information hosted on computer servers operated by or on behalf of Defendants”; and

3) “Highly incriminating promotional materials previously available on the Usenet.com website.”  Arista Records, 8.

The chronologies of facts outlining Plaintiffs’ claims are technical and detailed.  The following outline is created from the Court’s opinion:

August 2007: Plaintiffs first sent a written notice of copyright infringement. 

The Defendants did not respond to the written notice.

October 12, 2007: Plaintiff sues Defendants.

January 2008: Plaintiff Rule 34 requests specifically for the Usage Data.

February to March 2008: Plaintiff attempted to acquire data through correspondence with Defendant

March 8, 2008: Defendants agreed data was relevant and to produce “snapshots.”  Arista Records, 9-10.

During a period of only days in March 2008, the Defendants disabled the music groups subject to the discovery requests.  The Plaintiffs challenged this action and demanded the Digital Music Files be preserved.  The Defendants represented the music files had been preserved.  Arista Records, 12-13.

The Plaintiffs claimed the Defendants reconfigured their system in order to write-over the Digital Music Files.  Additionally, the Plaintiffs represented to the Court that only 78 of the 900 Music Groups had been reactivated.  Arista Records, 13.

 The Defendants went to the extreme of removing all references to “Music” and “mp3s” from a promotional webpage. The Court noted the “Defendants destroyed all copies of this webpage, and only produced the sanitized version of it to Plaintiffs during discovery.” Arista Records, 79-80.

The Court found the Defendants’ production was in bad faith and sanctioned the Defendants with an adverse inference instruction for their discovery violations.  Arista Records, 78-80.  The Court based the sanction order on the fact the Defendants had an obligation to preserve and produce the following ESI:

Useage Data and Digital Music Files.   Arista Records, 61-62.

Images from the website.  Arista Records, 64.

Promotional materials from the website.  Arista Records, 79-80.

The Defendants argued that they could not preserve data on their serves because it was transitory in nature without any sort of back-up.  Arista Records, 68.  This argument was flatly rejected, because the Defendants had produced some of the “transitory” Usage Data and Digital Music Files to Plaintiffs.  Id.

What are the lessons learned from this case?  First, don’t go around destroying ESI that is relevant to a lawsuit or subject to a discovery request.  Arista Records has many examples of bad faith behavior with willful acts to remove user group information, digital music files and website information.  Additionally, a party’s duty to preserve and produce electronically stored information does not allow for unethical gamesmanship. 

The other big lesson: Music downloads and piracy has been the subject of litigation for over a decade and will not likely cease anytime soon.

Ethics of e-Discovery (or, Teaching Lawyers Ballet)

“Watching an incompetent lawyer is like watching a clumsy ballerina.” 

Magistrate Judge John M. Facciola, February 4, 2009

 Magistrate Judge John M. Facciola’s keynote at Legal Tech 2009 had a call to action for lawyers to have certifications and standards of competence regarding technology. 

In light of how everyday life has changed from iPhones to DVRs to Facebook, it is no surprise you can see why Judge Facciola took this position. 

Cases such as Mancia v. Mayflower Textile Servs. Co., 2008 WL 4595175 (D. Md. Oct. 15, 2008 ), Covad Communications Company v. Revonet, Inc. 2008 U.S.Dist. LEXIS 104204 ( Dec. 24, 2008  ), Victor Stanley, Inc. v Creative Pipe, 2008 U.S. Dist. LEXIS (May 29, 2008 ) further highlight the need to understand not just the technology the clients are using, but the litigation support products the firm is deploying. 

The questions remains, how would certificates or competency standards be measured?  Who would manage such a system? 

History is helpful in coming up with a plan.

 In 1975, California was the first state to introduce the Professional Responsibility Examination, testing candidates on legal ethics and rules of professional conduct.  California enacted the “Ethics Exam” in response to many of the major players in Watergate being California attorneys.  Today, California’s continuing legal education requirements includes Legal Ethics, Detection/Prevention of Substance Abuse and Elimination of Bias in the Legal Profession.  These ethical requirements are managed under the existing CLE structure for California attorneys. 

 Just as the Bar reacted to the Watergate attorneys, State Bar Associations may have to take action against “technical incompetence.” 

 State Bar Associations across the country should consider requiring CLE course material specifically on the ethical duty of competency, specifically regarding technology.  Moreover, the legal justification for “technically competency” is arguably already an ethical requirement.  California Rules of Professional Conduct 3-110(B)(2) defines competence in any legal service as including “learning and skill.”  Additionally, subsection (C)(2) states:

If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by…2) by acquiring sufficient learning and skill before performance is required. CA Rules of Professional Conduct 3-110(C)

 The need to understand electronically stored information and technology was brought to life while talking with a lawyer a few months ago.  The lawyer said their client was a heavily regulated industry.  I would be shocked if this client did not use any software to track materials and for legal compliance.  The lawyer asked, “What if I decide e-Discovery is not important because I have paper invoices and logbooks?”

 The lawyer was blunt in saying he did not want to “deal” with e-Discovery. This lawyer was willing to dismiss all electronically stored information without consulting the client on what ESI existed, email archiving polices, whether they enacted a litigation hold, or doing any collection or review.

My first reaction for anyone thinking that is a good plan, please review Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (S.D. Cal. Jan. 7, 2008).  Qualcomm stated, in relevant part:

“[An] Attorneys’ ethical obligations do not permit them to participate in an inadequate document search and then provide misleading and incomplete information to their opponents and false arguments to the court.”  Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (S.D. Cal. Jan. 7, 2008).

One could argue a lawyer has made an “inadequate document search” if they do not have any discussions with their client on electronically stored information, enact a litigation hold, perform collection of ESI, or any review of e-Discovery.  Furthermore, by the virtue of their search being inadequate, the lawyer’s arguments to the court would at a minimum be false, if not outright misleading. 

I believe State Bar Associations are the ones in the best position to require e-Discovery continuing legal education courses.   Creating new agencies or oversight organizations might tax already tight state budgets.  While teaching lawyers not to be clumsy ballerinas will not be easy, adding 2 or 3 hours of e-Discovery courses on collection, technology or review probably will be the easiest song for lawyers to learn how to dance to.