Tales from Two e-Discovery Experts: A Webinar with William Kellermann and Tom O’Connor

CT Summation hosted two educational webinars with e-Discovery experts William Kellermann of Wilson, Sonsini, Goodrich, & Rosati, PC and Tom O’Connor of the Gulf Coast Legal Technology.  Both graciously took time out of their day for two separate webinars in which they discussed the top e-Discovery issues facing the legal profession.  Readers can download a recording of the 9am webinar from http://ctsummation.acrobat.com/p27381265 and the 3pm webinar at http://ctsummation.acrobat.com/p83311586

 

Bil and Tom discussed e-Discovery case pitfalls, planning concerns, and a variety of ethical issues.  The webinar audience participated in a question and answer session that lasted for a full hour after the webinar, providing direct insight into current concerns of lawyers, paralegals, and litigation support professionals.   Several of the Q&A topics will be addressed in future blog postings. 

 

Thanks again to Tom O’Connor and William Kellermann for two excellent webinars. 

 

 

 

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If I Represented Victoria Lindsay

I recently posted on YouTube videos being used as exhibits that highlighting illegal conduct.[1] I regret having an example so quickly.

 

Eight teenagers were arrested for beating a teenage girl in Lakeland, Florida. The youth beat up the victim so they could make a YouTube video.

 

The assault included one of the female attackers striking the victim on the head several times and then slamming the victim’s head into a wall, rendering her unconscious. Three other teens forced the victim into a car and took her to another location.[2] Footage of the attack is available with most of the news articles covering the story.

 

This savage total abandonment of humanity was some sick lust to post something on YouTube.

 

I wish a painless and quick recovery to the victim. I wish the district attorney handling this case total success.

 

The civil lawsuit that will likely follow will not rival anything like Enron, the Southwest Airlines safety scandal, or the White House missing email cases when it comes to electronically stored information. It does have e-Discovery I would seek as a plaintiff attorney for the victim. Just because a case does not involve a multinational corporation does not mean small cases do not have e-Discovery.

 

If I were the district attorney or the plaintiff attorney, I would seek the following electronically stored information:

Cell Phone Text Messages: Teenagers communicate by text messages. There is a complex shorthand language that will require some translation, but these messages might show a conspiracy between the teenage attackers. This may require an expert to copy the cell phones or a third party subpoena to the cell phone company to acquire the text messages.

 

Cell Phone Photos or Video: It is difficult to find a cell phone that does not take photos or shoot video. Any exciting clips may show further evidence of guilt. A defense lawyer might find statements by co-defendants urging the attack to stop.

 

Instant messages: Third party experts might be required to copy instant message history from the defendants’ computer hard drives.

 

Blog postings: Teenagers communicate via posting on social networking sites such as MySpace. These sites allow users to post “tags” on their “friends” pages communicating plans, meetings, or other statements. I would have an expert copy each teenager’s webpage to seek each blog posting and tags for any evidence showing a plan to assault the victim.

 

YouTube Videos: I would have an investigator review every posting by any defendants on YouTube and copy potential party admissions. If these youth were planning to post an attack on YouTube, there might be video to show their plans.

 

The above are just a few ideas. Even though this isn’t a large case or a very complex one, it still contains e-discovery and attorneys should not forget that.

 

I hope the district attorney handling the case and the plaintiff attorney seek computer experts to gather any possible electronically stored information.

 

Go do justice.

 

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[1] http://ctsummationblog.wordpress.com/2008/03/05/the-youtube-cameras-that-create-instant-electronic-evidence/

[2] “8 Teens Charged in Videotaped Attack,” AP, April 8, 2008, lasted visited http://news.yahoo.com/s/ap/20080408/ap_on_re_us/teen_beating

 

Text and Instant Messages: From Authentication to Party Admissions

Anyone with a teenager has probably seen a grossly excessive phone bill from text messaging.  Young people use instant messaging (IM) for social use, even going to the point of ending relationships by IM.[1] Both forms of instant communication use the same language shorthand, such as “LOL” to convey “laughing out loud” or “SLAP” for “Sounds like a plan.”   

Text and instant messages are appearing in case law with increased speed.  These “instant communications” pose issues of authentication, best evidence rule concerns and usually communicate party admissions.   

In Lozano v. Texas, a criminal defendant challenged text messages admitted in his trial as hearsay.  The appellate quickly dealt with the appeal, holding that the text messages were his statements and thus party admissions.[2] In what highlighted the extent of the defendant’s poor judgment, “Exhibit A” to the opinion included all the text messages between the defendant and his victim over a four month period.   

In a murder trial, a Maryland court addressed text message authentication.  The defendant sent threatening text messages to the victim from his cell phone.  The Court held that the phone number and texts were direct evidence that messages were from Defendant, thus authentication was proper.[3]  

A Virginia court put an interesting spin on the best evidence rule and instant messages.  In a criminal case, the defendant admitted to his best friend that he was sorry in an instant message for assaulting her.  The victim testified to the content of the message, because she did not save or print the instant message.  The court found that the defendant’s statements were party admissions, the IM handle was identified as his, and thus the best evidence was the victim’s testimony.[4]  While it may have not been the court’s intent, the outcome was an instant message being treated as a spoken statement, due to the transitory nature of instant messages.   

Text and instant messaging will continue to grow as a regular means of communication.  Attorneys, parties, and the Courts will be facing these issues for a long time to come.  Case preparation will require search terms to include the “LOL” language.  Lawsuits will range from the mundane to extremely high profile.  Just ask Mayor Kwame Kilpatrick of Detroit. 

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[1] “Poll: IMs Help Teens Avoid Embarrassment,” Alan Fram and Trevor Tompson, Associated Press, November 15, 2007.

[2] Lozano v. Texas, Not Reported in S.W.3d, 2007 WL 4216349, 6 (Tex.App.-Fort Worth).

[3] Dickens v. State  175 Md.App. 231 (Md.App.,2007).

[4] Truman v Commonwealth, Not Reported in S.E.2d, 2007 WL 2765796, 4 (Va.App.) 

Vindicating Consumer Rights against Online Forum Selection Clauses

Businesses for decades have protected themselves from unlimited jurisdiction with forum selection clauses, a contractual provision that specifies the jurisdiction in the event of a dispute. Forum selection clauses give a company “contractual predictability,” thus have the potential to reduce the cost of doing business and theoretically passing savings onto consumers.[1]

Online businesses attempt to protect themselves against “world wide jurisdiction” with forum selection clauses. These online forum selection clauses walk a fine line between protecting legitimate business interests and subverting consumer rights.

The Washington Supreme Court recently struck down a forum selection clause in a dispute between consumers and their ISP. In Dix & Smith v. ICT Group, Inc., and AOL, two plaintiffs claimed secondary email accounts were activated via AOL’s pop-up ads. Both Plaintiffs damages only amounted to $100. The plaintiffs sought to bring a class action under the Washington Consumer Protection Act (CPA) for engaging in unfair and deceptive acts by creating unauthorized spin off accounts.[2] AOL sought removal to Virginia pursuant to the Forum Selection Clause in the user’s terms of service.[3]

It is well established that a forum selection clause is prima facie valid and is not a term that needs to be negotiated between parties.[4] A party challenging a forum selection clause has the burden of showing the clause is unreasonable. A party can show the clause unreasonableness if 1) it was induced by fraud or overreaching, (2) the forum is so unfair and inconvenient that it deprives the plaintiff of a remedy or of its day in court, or (3) enforcement would contravene a strong public policy of the State where the action is filed.[5]

The Washington Supreme Court denied enforcement of AOL’s forum selection clause. The Court held that a forum selection clause that seriously impairs a plaintiff’s ability to bring suit to enforce the CPA violates the state’s public policy, because of the importance of the private right of action under the Consumer Protection Act to vindicate the rights of the state’s citizens.[6] The Court stated, “…that a forum selection clause that seriously impairs the plaintiff’s ability to go forward on a claim of small value by eliminating class suits in circumstances where there is no feasible alternative for seeking relief violates public policy and is unenforceable.”

Courts will continue to grapple with the enforcement of online forum selection clauses.

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[1] Dix & Smith v. ICT Group, Inc., and AOL, 161 P.3d 1016, 1020 (Wash., 2007)

[2] Dix, 1019

[3] AOL’s Forum Selection Clause:You expressly agree that exclusive jurisdiction for any claim or dispute with AOL or relating in any way to your membership or your use of the AOL Services resides in the courts of Virginia and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of Virginia in connection with any such dispute including any claim involving AOL or AOL Services. The foregoing provision may not apply to you depending on the laws of your jurisdiction. Dix, 1018.

[4] Dix, 1020, citing Kysar v. Lambert, 76 Wash.App. 470, 484-85, (1995); see The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, (1972); Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 589-95, (1991).

[5] Dix, 1020, citing Gilman v. Wheat, First Sec., Inc., 345 Md. 361, 378, (1997).

[6] Dix, 1022.

Service of Process…by Email?

The Internet allows anyone to anonymously post information on the Net. Websites often have no contact information besides a generic email address.  The anonymity of some websites and the inability of any meaningful way to find the individuals running them makes service of process a significant challenge.   

A recent case demonstrates this problem and the solution: Service of Process by email.[1]  These situations generally occur with parties outside of the United States, varying from a divorce action where a husband moved to Saudi Arabia, to someone within the US who was unable to be located, to a website with a PO Box for an address with an agent who refused service of process.[2]   

The continued growth of bloggers, commentators, or fly-by-night online businesses highlights the issue of who to serve in a dispute.  In a case that will be known mostly for prior restraint on the First Amendment, Bank Julius Baer & Co. Ltd., v. Wikileaks is prime evidence of when service of process by email is necessary.  In Wikileaks, the plaintiff served a summons, complaint, and a TRO on WikiLeaks’ listed PO Box and to their counsel.  Counsel for WikiLeaks refused service.[3]     

The Court found alternative service of process was necessary because the physical addresses for the defendants could not be found and that the defendants’ agent refused service.  The defendants’ email addresses would meet the requirements for the defendants to receive notice and an opportunity to be heard.  The Court went on to order the defendants to be emailed by 3:00pm the day of the court order.[4]   

Things like this will keep happening.  Situations where “banks” disappear in Second Life and other online fraud may leave victims with only an email address to locate a wrongdoer.[5]    In such instances, one can argue case law allows for alternative service of process when the “usual methods of service prove impracticable, service that is ‘reasonably calculated, under all the circumstances, to apprise [the] interested part[y] of the pendency of the action’ will suffice.”[6]   

The fact online wrongdoers can attempt to hide themselves with anonymous domain “who-is” listings will make finding them for service of process all the more difficult.  In such situations, service of process by email may allow plaintiffs to seek justice instead of cyber-tortfeasors hiding behind technology.     

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[1] Bank Julis Baer & Co. Ltd., v. WIKILEAKS, et al., Slip Copy, 2008 WL 413737 (N.D.Cal.)

[2] Hollow v. Hollow, 193 Misc.2d 691 (NY.Sup.2002); DR.I., Inc., v. Dennis, Not Reported in F.Supp.2d, 2004 WL 1237511 (S.D.N.Y.); Bank Julis Baer & Co. Ltd., v. WIKILEAKS, et al., Slip Copy, 2008 WL 413737 (N.D.Cal.).

[3] WikiLeaks, 1. 

[4] WikiLeaks, 2.

[5] See Blog Entry, “Virtual Litigation in the Real World,” http://ctsummationblog.wordpress.com/2008/02/13/virtual-litigation-in-the-real-world/

[6] DRI., 1, citing Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 (1950)

The YouTube Cameras that Create Instant Electronic Evidence

New video cameras on the market take YouTube ready video.[1]  It is a matter of time before it is commonplace for these cameras to immediately upload footage via embedded wireless to YouTube.  For many plaintiff attorneys and district attorneys, this is a dream come true:  People have the tools to document events putting them in legal jeopardy and upload them right to YouTube as evidence in future legal action.   

I handled a case as a young attorney, long before YouTube and before I knew the term “electronically stored information.”  I worked for a criminal defense attorney who had a case involving the son of a well known local figure.  The son was involved in a college rugby party gone bad. Since the event was near my alumni, I got the case.   

I ran into the Assistant District Attorney on my way to the courthouse for our first appearance.  The Assistant DA and I had gone to law school together and he invited me to his office to talk about the case.  The Assistant DA was a very active social partier in law school and even he was shocked by the defendants’ partying gone wrong.  There even was video tape of the college party turning ugly which he described as “Girls Gone Wild” meets “COPS.”  The fact the Assistant DA was so taken aback by the video made me very nervous for our clients.   

The videotape in the “Wild Rugby Party Case” was the evidence that put us squarely on the defensive.  Evidence from today’s new “toys” that can take video and immediately upload the event on YouTube or videoblogs is the express train to “State Exhibit A” for those foolish enough to document good times gone bad. 

Moral of the story, don’t behave irresponsibly.   

And for all you plaintiff lawyers and assistant district attorneys out there, surfing YouTube for evidence just became a part of due diligence. 

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[1] See products such as the Casio Exilim Card EX-S880

iProblems with MP3 Players

Consider this…

 A mother bought her daughter an MP3 player from Wal-Mart.  Mom thought the MP3 player was new, but Wal-Mart sells used MP3 players as new products without disclosing the fact they are used.[1]   

The 12 year old daughter started using her “new-to-her” MP3 player.  To her shock, the device contained sixty-two photos and six and a half hours of video of hardcore gay porn.[2]  Mom was not happy and sought legal counsel.  Shortly thereafter, the corporate counsel for Wal-Mart was really not happy.  

One MP3 player landed a nationwide corporation in Federal court facing a possible class action suit over selling used MP3 players as new products.  This is but one example of the legal troubles a portable music device can cause.   

But wait, there will be more.  

If the key evidence in a case is an MP3 player and its data, what do you do with it?  The device is essentially a hard drive that can hold many different types of electronically stored information.  This ESI (Electronically Stored Information) is subject to the Federal Rules of Civil Procedure (FRCP) and Federal Rules of Evidence (FRE).  This makes a media player under an inch long and a few centimeters thick subject to preservation, requests for production, and even spoliation. 

The duty to preserve electronically stored information might require an expert to make a mirror image of the data off an evidentiary MP3 player.  Moreover, Courts may treat these situations to copying a personal hard drive, requiring a neutral third party to copy the MP3 player, give the producing party an opportunity to review for privilege, and then produce to the demanding party.[3]    

Litigation involving MP3 players is just at its dawn.  Knowing that MP3 players contain ESI and are subject to the Federal Rules of Civil Procedure will empower you to be ready for these cases. 

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[1] Martin v. Wal-Mart Stores, Inc., Slip Copy, 2007 WL 4374175 (N.D.Ill.)

[2] Martin, 1.

[3] See generally, Advante International Corp., et al., v. Mintel Learning Technology, et. al., 2006 WL 3371576 (N.D.Cal) and Ameriwood v. Liberman, Slip Copy, 2006 WL 3825291 (E.D.Mo.) 

First CT Summation City Forum: On the Record in Miami

CT Summation hosted its first City Forum of 2008 in Miami on February 21^st.  Our new seminar is “On the Record: Enhancing the Deposition Life Cycle with Technology.”  The seminar covers the entire deposition life cycle, from creating exhibits to conducting the deposition, and ultimately preparing for trial using technology throughout the process.   

“On the Record” demonstrates how lawyers prepare for deposing a 30(b)(6) IT expert/witness.The seminar culminates with a mock deposition of the IT witness.  The exhibits showcased during the seminar ranged from the document retention policy, to a conflicting litigation hold memo, and also to an instant message showing willful destruction of evidence.   

The seminar focused heavily on deposition strategy, planning and using technology to leverage your deposition preparation and examinations.   

We are taking “On the Record” to a city near you.  Please visit our upcoming City Forums at http://www.ctsummation.com/News/Seminars/default.aspx  

Be Careful What You Blog

Human beings are expressive by nature.  The number of social networking sites where people post photos, online diaries, and other personal information is staggering.  These runs the gambit from teenagers on MySpace to professionals on LinkedIn to 30-somethings on Facebook.  

However, be careful what you blog about on these websites.   

Jury Duty and Blogging Does Not Mix 

In one criminal case, a defendant on appeal sought a new trial because one juror maintained a blog.[1]  The defense lawyer discovered the juror’s blog after the trial.  On the first day of the case the juror blogged, “…I can’t talk about the case da**it, and that is so highly frustrating.”[2]   

After the guilty verdict, the blogger posted the following: “Well, it figures. Had a horrible time not being able to talk about the case. But now after finally having deliberations, it’s like bleh, I don’t want to talk about this sh*t anymore. * * * Basically, I feel like I was the only [person] playing devil’s advocate and presuming this guy was innocent. * * * .”[3]  

The blogger also discussed how the evidence convinced him the defendant was guilty.   

The court quickly disposed of any claims of jury misconduct.  First, the blogger’s first posting did not show any bias.  Second, the blog postings were post-verdict and the blogger was free to discuss the case.[4]   

Blogging and Child Custody Cases  

A mother lost the custody of her child in part from her lifestyle she claimed on her MySpace blog.[5]  The lifestyle of a parent can be considered as evidence in child custody cases “to the extent it has a direct adverse impact on the child.”[6]   

The mother admitted in court that she wrote the blogs at issue and that they were public for anyone to view.[7]  Since these entries were public, there was no expectation of privacy.[8]  The MySpace blog entries stated the mother practiced sado-masochism and used illicit drugs.[9]  Moreover, her blog entries on drug use contradicted her in court denials of using illicit drugs.   

The Court found that the mother’s lifestyle could have an adverse impact on her child and custody was awarded to the father.   

Duty of Attorneys 

Attorneys have new issues to consider in light of blogs.  In the first example, asking questions during jury selection on whether any prospective juror maintains a blog can help avoid jury misconduct.  Due to the high usage of blogs, Courts should also instruct jurors not to discuss the case on a blog.   

Lawyers should find out if their clients maintain a blog.  More importantly, lawyers should find out what is being admitted on those blogs.  Knowing a client has admitted some form of wrongdoing is better to find out in your office than as a “surprise” during a deposition.  There are even horror stories of deponents actually admitting statements that contradict with deposition testimony shortly after the deposition.  

Blogs are beginning to impact cases.  Most lawyers rather be the ones making the impact instead of receiving it. Understanding how blogs can help your case can put you in the first group instead of the second. 

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[1] Ohio v. Goehring, Slip Copy, 2007 WL 3227386 (Ohio App. 6 Dist)

[2] Goehring, 5.

[3] Goehring, 6.

[4] Goehring, 6.

[5] Dexter v. Dexter, Slip Copy, 2007 WL 1532084 (Ohio App. 11 Dist.)

[6] Dexter, 6, citing Pater v. Pater (1992) 63 Ohio St.3d 393.

[7] Dexter, 6. 

[8] Dexter, 6. 

[9] Dexter, 6.