Category Archives: discovery

Attorney Client Privilege: Law firms and In-House Counsel

This is a very interesting article.  The attorney-client privilege is an important confidentiality rule that protects certain communications between a client and the lawyer/law-firm.  The attorney-client privilege is an important privilege because it encourages clients to be candid with their attorney.

The ABA adopted Resolution 103, which provides that the attorney-client privilege extends to communications between a law firm and in-house counsel for the purpose of facilitating legal services.  The resolution provides that these communications are protected to the same extent between the lawyer/law-firm and personnel of a corporation or other entity.

The ABA explains,

The measure stems from the increasing complexity of regulation, rules of professional conduct and greater disclosure obligations under legislation such as the Sarbanes-Oxley Act.

via Attorney-client privilege should apply to law firms consults with in-house counsel, ABA House says – ABA Journal.

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Government Can Track Cellphones Without Warrants

Mostly everyone has a cell phone.  A lot of smartphones have GPS capabilities.  This can be handy when you are looking for directions and you are lost.  However, what about being tracked?  For instance, unless you change your privacy settings, your photos will keep track of where you took the picture and what time.

The question the Fifth Circuit Court of Appeals decided is whether the government needs a warrant to track you.  In In re: Application of the U.S.A. for Historical Cell Site Data (July 30, 2013 5th Cir. Ct.), the court ruled that obtaining cell-location information without a warrant  did not violate the Fourth Amendment.

When we think of the Fourth Amendment we remember that a search and seizure may require a warrant.  If there is no expectation of privacy, i.e. in a garbage bag we got rid of, then the government wouldn’t need a warrant.  However, if we have an expectation of privacy, i.e. to enter your house, then the government must have a warrant.

An expectation of privacy usually is the crux of a search and seizure case.  Here, the ACLU argued that people have a reasonable expectation of privacy when they are being tracked for a long period of time and the data gathered is collected in great detail.

In this case, this argument was not discussed by the court.

Why would this not be discussed?  The Fourth Amendment deals with government actions.  In other words,  the seizure or search has to be collected by the government.  In a similar case, the Supreme Court had decided that the government must obtain a warrant if it wants to install a GPS tracking device.  See United States v. Jones (2012).

However, this case was found to be different.  The reason for this is because the Fifth Circuit Court of Appeals found that the information was collected by a third-party, i.e. the cell phone carrier.  The court explained,

Where a third party collects information in the first instance for its own purposes, the Government claims that it can obtain this information later with a [section] 2703(d) order, just as it can subpoena other records of a private entity.  We agree.

Id. (citations omitted).

Here, the government was not installing a GPS tracking device.  The Government was accessing a business record owned by carriers.  The court stated:

… cell site information is clearly a business record.  The cell service provider collects and stores historical cell site data for its own business purposes, perhaps to monitor or optimize service on its network or to accurately bill its customers for the segments of its network that they use.   The Government does not require service providers to record this information or store it.  The providers control what they record and how long these records are retained.

Consequently, the court found that the Government did not need a warrant.

via Cops Can Track Cellphones Without Warrants, Appeals Court Rules | Threat Level | Wired.com.

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Court orders reporter to testify in leak case re: Sterling

The Fourth Circuit Court of Appeals ruled in a 188-page decision that there is no journalist protection of sources.  The decision can be viewed here.

In this case, ex-CIA officer Sterling worked for the CIA from 1993 to Jan. 2002.  During his tenure, he provided classified information to a NT Times reporter Risen.  In 2001, Risen published two articles based on classified information provided to him by Sterling.  After Sterling’s employment was terminated, Sterling attempted to publish a book but was denied ultimately because it contained classified information.

Afterwards, and while Sterling was pursuing legal action against the CIA, Sterling again gave Risen classified information.  NY Times Reporter met with senior administration officials to discuss the impact of the story.  The recommendation was to not publish, which the NY Times agreed to.  Nevertheless, NY Times reporter Risen published his book, “State of War: The Secret History of the CIA and the Bush Administration,” which disclosed classified information.

As a result, the Attorney General sought to compel Risen’s testimony about the identity of his source.  Risen motioned to quash the subpoena on the basis that he was protected under the First Amendment or/and the federal common-law reporter’s privilege.

 

The Circuit Court of Appeals disagreed.  The court held that Risen did not have a reporter’s privilege.  The Circuit Court of Appeals relied heavily on Supreme Court cases.

In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court in no uncertain terms rejected the existence of a reporters’ privilege.   In Univ. of Pa. v. EEOC, 493 U.S. 182, 201 (1990), the Supreme Court explained that the “First Amendment does not invalidate every burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability.”  In Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991), the Supreme Court again stated that the First Amendment does not “relieve a newspaper reporter of the obligation shared by all citizens to a grand jury subpoena and answer questions relevant to a criminal investigation, even though the reporter might be required to reveal a confidential source.”

Pointedly, the Circuit Court of Appeals refused to apply a “balance test” approach when deciding whether a reporter can be compelled to testify in criminal proceedings.  The court noted that in civil matters, the court recognized a reporter’s privilege which could be overcome if the 3-part test was met.

The Circuit Court of Appeals noted why this line is so important.  In criminal cases, there is a fundamental and comprehensive need for every man’s evidence.  For this reason, any shield to information has to be narrowly construed.  In a civil matter, however, the need for information does not share the same urgency or significance.

For these reasons, the Fourth Circuit Court of Appeals ordered NY Times reporter Risen to testify in the criminal trial of former CIA official Sterling charged with providing the reporter with classified information.  In so doing, the Court of Appeals held that the First Amendment does not protect reporters who receive unauthorized leaks from being forced to testify against the people suspected of leaking to them.

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July 22, 2013 · 13:45

Hair evidence analysis is not so great

I came across this very interesting press release which stated that in many FBI cases hair analysis’ reliability was exaggerated when making a positive identification in FBI cases.  These include 27 capital cases.

According to the press release, the FBI labs reports have consistently asserted that hair analysis can’t be used to make a positive identification.  However, some FBI agents asserted that hair analysis led to near-certain matches.

In other words, the practice of using hair analysis was deemed “highly unreliable” by the National Academy of Science.  Even though it is possible to conduct hair microscopy and find similarities among various samples, “in many cases the FBI analysts were overstating the significance of these similarities, often leaving juries with the false impression that a hair recovered from the crime scene must have come from the defendant and could not have come from anyone else.” (italics and underline added).

The FBI and the Justice Department uncovered the cases in a review of more than 20,000 lab files that was undertaken in consultation with the Innocence Project and the National Association of Criminal Defense Lawyers, the story says.  So far, about 15,000 files have been reviewed, turning up about 2,100 cases in which hair evidence was used and 120 convictions that could be problematic, including the 27 capital cases.

The Innocence Project Co-Director Peter Neufeld made the following statement:

The government’s willingness to admit error and accept its duty to correct those errors in an extraordinarily large number of cases is truly unprecedented.

The Justice Department will notify prosecutors, convicted defendants and their lawyers if a review panel finds FBI examiners made excessive claims. In such cases, the Justice Department will waive rules that restrict post-conviction appeals and will test DNA evidence upon the request of judges or prosecutors.

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Evidence destruction leads to ruling U.S. was negligent

Under the civil rules of procedure, a sanction for the destruction of evidence would include an adverse finding.  In other words, if you are a party to a lawsuit and destroy evidence, the court may find that you were guilty of the allegations.

One of the reasons for this is that now, the court has no way of telling what the evidence said.  Would the evidence point to the party knowing about the problem?  Would the evidence show the party did nothing while it knew?  Would the evidence show nothing?

That is why it is so important to write a Spoliation Letter.  An Spoliation Letter is a letter that explains your duty to preserve evidence.  The letter explains that because there is a lawsuit (or there will be one), you now have to stop destroying evidence.

As an attorney, regardless of what side you are in, you have a duty to advise your client.  A big part of discovery is finding relevant evidence.  It would be against the idea of justice to go about destroying evidence.

This case highlights the importance of not destroying evidence.  In this case, in 2009, a 9-year old boy was at a mountain trail in Lassen Volcanic National Park when the retaining wall gave way.  Unfortunately, the boy died from this accident.

Court records show a complaint that the chief of maintenance shredded all of his documents, some of which dealt with visitor safety issues.  The documents were shredded sometime around December 2009 and January 2010.

As a sanction for destruction of evidence by the National Park Service in a wrongful death case, a federal judge in Sacramento, Calif., ruled Tuesday that the United States was negligent.

U.S. District Judge Nunley, held that the government was negligent “for all purposes in this case.”  The judge found that the government “purposely destroyed” the remains of the retaining wall, and that the park director and some staff knew the wall was unsafe, the newspaper says.

“What is less clear, although highly suspicious, is whether defendant [destroyed] evidence other than the wall,” U.S. Magistrate Gregory G. Hollows wrote in a previous decision.

Still undecided in the case and expected to be addressed at a June hearing is whether the government can assert a “discretionary function” defense under the Federal Tort Claims Act. The government argues that those in charge of the park had discretion to decide whether or not to repair the wall, and hence the government cannot be held liable for their decision-making.

via As sanction for destroying evidence, federal judge finds US negligent in wrongful death case – ABA Journal.

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E-Discovery: Defendant not required to redo discovery

In this product liability case, the issue is when does a defendant meet its discovery obligations.  In other words, does defendant satisfy its duty by using a keyword search.

In this product’s liability case, In re: Biomet M2a Magnum Hip Implant Prods. Liab. Litig., NO. 3:12-MD-2391 (N.D. Ind. Apr. 18, 2013), the court held that the burden of the costs outweighed any benefits.  Here, the costs of starting over with 19.5 million documents outweighed the possibility of finding additional relevant documents.  The case is as follows.

Defendant (Biomet) relied on keyword searching in order to reduce the volume of information.  The documents to be searched were reduced from 19.5 million to 2.5 million.  Afterwards, Biomet used predictive coding.  Throughout this process, Biomet spent $1.07 million, and expects the e-discovery costs to total between $2 million and $3.25 million.

Plaintiffs asked the court to require Biomet to start all over again and only use predictive coding.  Plaintiffs wanted to be part of the process and give input as to the predictive coding language.  The court disagreed.

In explaining its decision, the court relied on proportionality.  The proposal to start all over again (utilizing the original 19.5 million documents) “[sat] uneasily with the proportionality standard in Rule 26(b)(2)(C).”  Further, starting again would “entail a cost in the low seven-figures” and that the “confidence tests” run by Biomet “suggest a comparatively modest number of documents would be found.”

The court agreed that predictive coding would identify additional relevant documents.  However, the benefits would not outweigh the burdens.

 

via Citing Proportionality, Court Declines to Require Defendant to Redo Discovery Utilizing Only Predictive Coding : Electronic Discovery Law.

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Major Possible Changes to Federal Discovery Rules

Corporate Counsel reported about a very important and significant change that might occur next year.  Here are the highlights of the proposed amendments (starting on Page 91 of 322).

The e-discovery rules may change once again by next year.  The United States Court’s Advisory Committee on Civil Rules voted last week to send proposed amendments to the Standing Committee on Rules of Practice and Procedure.  The Standing Committee will consider approving or rejecting the proposal in early June.

The most significant proposals would narrow the scope of discovery under Rule 26; impose or reduce numerical limits on written discovery and depositions under Rules 30, 31, 33, and 36; Rule 37 will adopt a uniform set of guidelines regarding sanctions when a party fails to preserve discoverable information; and Rule 34 will tighten the rules governing responses for production of documents.

Rule 26’s proposed amendments are as follows:

  • Rule 26(b)’s proposed amendment restricts the defined scope of discovery to information that is “proportional to the needs of the case.”  The language is as follows:

    “and proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

    These proportional considerations are currently listed in Rule(b)(2)(c)(iii).  This amendment would mandate adherence by the parties without court intervention.

  • Rule 26(b)’s proposed amendment would delete the following sentences:

    (1) “For good cause, the court order discovery of any matter relevant to the subject matter involved in the action.  Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”

  • Note, that the proposed amendment for Rule 26(b) states that “Information within this scope of discovery need not be admissible in evidence to be discoverable.
  • Rule 26(c) (protective orders) adds “or the allocation of expenses.”

Rules 30’s and 31’s proposed amendments are as follows:

  • The number of depositions (oral and written) would be reduced from 10 to 5.
  • The limit of an oral deposition is reduced to 6 hours.
  • The number of written interrogatories would change from 25 to 15.
  • The number of requests will be 25, except for requests relating to the genuineness of documents.
  • There will be a presumptive limit on the number of Requests for Admissions a party may serve.
  • A court order or a stipulation by the parties may increase the limits on any numerical discovery.

Rule 34’s proposed amendments (which govern the production of documents and electronically stored information) are as follows:

  • The objections to document requests must be stated with specificity.  This requirement has already been applied to interrogatory responses under Rule 33.
  • When the responding party must state that it will produce the requested documents (instead of permitting inspection), the production must be completed by the date for inspection stated in the request or by a later reasonable time stated in the response.
  • A party objecting to a document request must state whether any responsive materials are being withheld on the basis of the objection.

Rule 37(e)’s proposed amendment (which concern sanctions for failure to preserve discoverable information) state:

  • A court may impose sanctions when it finds that a party failed to preserve information that should have been preserved for litigation.  The sanctions includes remedies and curative measures that are not considered “sanctions,” such as allowing additional discovery, requiring a party to recreate or obtain the information that it lost, or ordering a party to pay reasonable expenses resulting from the loss of information.
  • The court may also impose sanctions listed in Rule 37(b)(2)(A) when to address preservation failures.  These sanctions include issue or evidence preclusion, the striking of pleadings, the dismissal of the action in whole or in part, and an adverse inference.
  • The court may impose sanctions or order an adverse jury instruction only if it finds that the failure to preserve caused “substantial prejudice” in the litigation and was “willful or in bad faith.” or that the failure to preserve “irreparably deprived a party of any meaningful opportunity” to litigate the claims in the action.

 

via On the Cusp of Major Changes to E-Discovery Rules.

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The Sedona Conference®

Electronic discovery and electronic stored information are very important topics for everyone – employes, law firms, lawsuits, etc.  The Sedona Conference should be the first step you take when trying to get a better handle in the area of electronic discovery and electronic stored information.

I bring to your attention the website that lists all of the Sedona Conference’s publications.

Recently, the Sedona Conferenced uploaded its post-comments publication in the area of proportionality of costs.  This is an important publication because the proportionality of costs will influence who pays for the costs of discovery and what is a reasonable request.  In other words, defining what is an undue burden and expense.

Publications | The Sedona Conference®.

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Giving up your password when looking for a job?

Should your potential employer require you to give up your password to Twitter? Facebook? LinkedIn? Will your comments, background information, age, nationality, pictures be used against you?

What if the employer does not use that information, but still has access to it?  Would that raise a concern that it was in fact used against a job applicant?  Allowing the requirement of social media passwords bring potential liability issues to employers.

Minnesota Lawyer (subscription required) has a very interesting article.   The Minnesota proposed bill, introduced by Rep. Mary Franson (R-Alexandria) seeks to ban employers from asking job applicants for their social media passwords as part of the job interview.  It is important to note, as stated by the article, that the bill does not discuss already hired employees and the use of employer laptops, computers, smartphones, etc.

Pending legislation in Minnesota includes H.F. 293, H.F. 611, S.F. 484, and S.F. 596.  All of these bills seek to ban employers fro requiring social network passwords as a condition of employment.

The National Conference of State Legislation reports that there are at least 29 states with introduced or pending legislation seeking to ban employers from requiring/asking for these social media passwords.

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