America’s Got e-Discovery Talent – Part 2

Mary Mack:

Thanks Rebecca and I want to thank Ralph and Brett for an encore discussion. Usually when we do case law updates we fit them all into one session. But so much has been happening and our listeners gave us some wonderful feedback about the last time we were with you two gentlemen. So we’re going to dive right in and Ralph, would you be so kind as to explain the picture of the guy with the cell phone.

Ralph Losey:

Why thank you Mary. I would like to invite the listeners today, who obviously don’t have enough to do as they’re listening to us now, but welcome, and we appreciate it, to please tell me who is the gentleman pictured below?

I’ll tell you, he’s a lawyer. But who is the lawyer pictured here? Send us an email if you can identify this character from the past. This is all a prelude to our talking about cases in 2010.

Bray & Gillespie I

The Bray & Gillespie III case was published in January 2010, so it just makes it. But you notice it’s actually number three. It’s the third opinion that’s issued in this case that pertains to e-Discovery. (Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 546429 (M.D. Fla. Mar. 4, 2009) (Bray I); 2009 WL 2407754 (M.D.Fla. August 3, 2009) (Bray II); 2010 WL 55595 (M.D. Fla. Jan. 5, 2010) (Bray III).) Before I go into the facts and the meaning of Bray & Gillespie III, I wanted to tell you quickly about Bray & Gillespie I and II. That provides the necessary background to understand just how incredible this third decision is. (It’s almost as incredible as that ten year old girl on America’s Got Talent, Jackie Evancho,who sings like an adult opera star. That is spooky! See for yourself.)

I wrote about Bray & Gillespie I in my latest book, it’s Chapter 8. An interesting thing about Chapter 8 is it’s entitled “My Grilling by Mary Mack.” It is a modified transcript of an interview I did before with Mary Mack, where I didn’t have Brett Anders with me for protection. I got even with her grilling interview by later adding what my secret thoughts were at the time. So if you’re wondering what the duel was like between Mary Mack and I, and what I was think, you can check out the book. Anyway, in this prior interview Mary asked me about the Bray & Gillespie case, and I explained it, and included that in the book.

The first Bray & Gillespie opinion was very interesting for a couple of reasons. Number one, the magistrate judge was here in Orlando, right in my home turf, Judge Carla Spaulding. She was told by plaintiff lawyers and defense lawyers two different things as to what went on in their 26(f) meet and greet conference. She had the plaintiff’s counsel say that the defendant – Lexington Insurance Company – that they agreed that they could have a production without metadata. The insurance company lawyers, whom I happen to know, said: no, no, no – that’s not true. We told them we wanted all of the metadata and we were going to want native file production.

So this judge hearing two different versions of what went on, she did something that a lot of judges I would suggest wouldn’t take the time to do, she basically called them on it. She said, okay gentlemen, I’m going to schedule an evidentiary hearing, and we’re going to get to the bottom of what really went on here. That led to an evidentiary hearing where testimony was given by lawyers. Basically the lawyers for the plaintiff pointed their finger at prior lawyers whom they had replaced for the plaintiff and sort of blamed them. Judge Spaulding reacted to that by saying, you know what, let’s have another evidentiary hearing. And guess what? The prior lawyers voluntarily flew down, I think they were from Philadelphia, and they appeared at that evidentiary hearing. So there was a second hearing about what went on in at the 26(f).

The bottom line to all of that is, the judge believed the defendants, the attorneys for the insurance company, and did not believe the attorneys for the plaintiff. She held that there was going to be a requirement that metadata be produced. In the process she went through an analysis of the rules on production. Because she said that even if there wasn’t an agreement, the Rules require production in the original form, which means native, all metadata; or, they require production in a reasonably usable form.

Then she did an interesting, helpful analysis on reasonable usability if you are a requesting party, or responding. She said that clearly the form that was produced by the plaintiff here to the defendant was not reasonably usable. So what was that form that was not reasonably usable? Get this, here’s what they did. They produced 100,000 emails to them in .TIFF form and they produced 100,000 attachments that went with those emails in .TIFF form. But what they didn’t produce was a full load file. They had a full load file, but they stripped it down before production to a very minimal metadata load file. One of the metadata fields that they stripped was the metadata field that tells you which attachment went with which email. So, here you are, you’ve got 100,000 emails and 100,000 attachments, and you’re just supposed to figure out for yourself which went with what? That’s just plain mean!

That’s what the defendant said, and the court agreed, and here’s where the case gets even more interesting. Not only did the court sanction the plaintiff’s attorneys that appeared of record. The court also sanctioned the plaintiff’s attorneys’ law firm, citing case law which is kind of interesting to know about, as to how a law firm has a responsibility and can be sanctioned for the actions of its partners. And, so, that case kind of made history, it got a lot of people’s attention. (Kind of reminds me of the way the Illusionist, Dan Sperry, got Howie Mandel’s attention, with his dental floss through the neck trick shown here. Sharon Osbourne’s reaction to the stunt is probably close the the reaction of defense counsel in reading the orders in this case sanctioning one plaintiff’s counsel after another.)

I know many firms after that instituted rules that required reporting by lit support of activity like that. So if a partner tells the litigation support department in a law firm, go ahead and make the production, but I’ll tell you what, let’s just strip the metadata that will allow them to know what email goes with what attachment. They have made a rule saying that if you’re asked to do this, the lit support person, then you are to go around this partner and go to a top person. Report this, and don’t do it, until you get approval from higher up in management.

Why did firms do that? Because they wanted to protect themselves from the loose cannon partners out there that think it’s all fun and games, that you could just do that and that’s just part of normal hardball discovery. They don’t understand that this is changing evidence, and is against the Rules. They don’t understand that it can result in you’re being sanctioned.

Mary:

So, Ralph, this is new, that I’ve heard that lit support is empowered to go around a partner that has a ridiculous request.

Ralph:

Well, this isn’t all firms, but I know that this was implemented in some firms and frankly it’s a protection for the law firm. I would recommend that all law firms consider doing that. This is a wake-up call for all law firm management – you better get your lawyers under control and impose some discipline out there. Otherwise you may have a lot of explaining to do when the law firm itself gets sanctioned.

Mary:

This is also what happened with the associate on the Qualcomm case, and that’s somebody who has a license to protect. So this is fantastic for the lit support community because I know a lot of them are worried about exactly these issues – partners who don’t understand technology making potentially bad decisions.

Ralph:

I agree. People talk to me and they say, you can’t put this in your blog, so I don’t, but we all know very well that there are lit support people receiving specific instructions like that. They know it’s not right, but they’ve gotta do it. So, yes, if you’re a law firm, you ought to think about it.

By the way, I see we’ve got an email from someone who correctly identified the handsome looking fellow above as Caveman Lawyer from Saturday Night Live. This show aired in the 80’s and you can see he had then state of the art iPhone technology, that’s what cell phones looked like back then. He used to say, “I’m nothing but a simple caveman lawyer,” and I’ll tell you why that’s appropriate when I finally get to Bray & Gillespie III, but I did want to share Bray & Gillespie I first. That is the impact – it did have an impact, as kind of the shot heard round the world, because the law firm that was sanctioned, I’ll tell you this, it’s one of the world’s largest law firms. It was a big time law firm that got sanctioned.

Bray & Gillespie II

Okay, that was Bray & Gillespie I, and believe it or not, that wasn’t the end of it. So the big time law firm gets out of the picture, and some local lawyers in Central Florida take over. You would think that they would clean up the act, but no. Bray & Gillespie II ensued next, which I also wrote about in my book in Chapter 32. Chapter 32 has kind of an interesting title, it’s one of my favorite essays I’ve ever written. It’s called Plato’s Cave – why most lawyers love paper and hate E-Discovery and what this means to the future of legal education. In this chapter I try to get in the heads of my brothers and sister lawyers who are my age that basically grew up on paper. I try to explain to the rest of the world, particularly the younger generation, why it is that senior partners hate e-Discovery and love paper, love their bates stamp, don’t try to take it away from them. I found out. That’s what Bray & Gillespie II is kind of about.

In my chapter Plato’s Cave I explain how the new attorneys that were taking over – they were co-counsel all along – they actually said that the hotel system that kept track of guests when they would check into the hotel could only be found and seen in paper. The plaintiff was a hotel – they were suing for damages caused by three hurricanes that hit Florida one terrible summer. They said, you know what, we keep all of the records of how many guests we have and I know your expert would like to see these records to analyze damages. But the truth is these SQL databases, they really only can be produced in paper.

Plaintiff’s counsel insisted on that, stuck to that party line, said here’s our warehouse full of paper, go look at it. They basically played all kinds of games like that. It really upset Magistrate Spaulding and I think rightfully so. In view of this she recommended that the entire case be thrown out because the defendant, the insurance company, had been prejudiced. It couldn’t get access to the information it needed to defend the case. That was Bray & Gillespie II.

Bray & Gillespie III

Now the stage is finally set for Bray & Gillespie III, the 2010 case, which is the appeal of the Magistrate’s order recommending that all three counts, one count for each hurricane, be dismissed with prejudice as a discovery sanction. By the way, in Bray & Gillespie II, the lawyers and the client are again sanctioned, along with dismissal of the case.  In Bray & Gillespie III, the district court Judge Scriven, who used to be a magistrate judge and really has a good grasp on discovery – she heard representations from the replacement counsel. No surprise that at this point the last lawyers got fired. New counsel comes in. These new guys, I know them, they are really- they’re pretty good. I hope they’ll excuse me for my caveman lawyer reference because caveman lawyer was  one of my comic heroes as a young man. Obviously things in the modern world like a SQL database did not “frighten and confuse ” them like their predecessor attorneys. (Remember these famous lines from SNL?)

Anyway, the replacement counsel basically thought to call the software vendor. I mean genius, right? They called the software vendor of the software program with SQL database that the hotel used. He did it, by the way, with a tech at his side – that’s a good tip right there everybody. Use the team approach. If you’re a lawyer and you don’t know that much about SQL databases, and only Mary Mack here knows a lot about SQL databases, I know enough to know that I don’t like them, have an expert on the phone with you.

It only took one phone call to find out that, duh, of course you can get the electronic records from out of the SQL database. Duh, of course you can make a native production as they wanted, so the damage experts could deal with it. So, new plaintiff’s counsel says, okay, look, we’ve corrected the problem. We’re ready to make a production now. I’m a hero, one phone call, I saved the day. You know, no harm, we’re ready to produce.

At this point, the judge says, well, it’s a little late now. Your client should have made that call long ago. Basically they were hung by their own petard at this point. The judge said, look, it was so easy, one phone call, why didn’t the plaintiff do this three years ago? Why didn’t they do it after the last motion to compel? The judge said no, don’t bother producing it, it’s too late now. We’re going forward with the trial. We aren’t going to strike all three counts, but we are going to strike one of the counts and plus plaintiff, you’re going to pay a $70,000 fee sanction.

I hold up the Bray & Gillespie saga of three cases as the poster child for what happens when you don’t cooperate. This is what happens. You get part of your case thrown out. You get yourself sanctioned. In the end, you haven’t done your client any good at all. This is what happens when you think that you should be fighting about e-Discovery and dumb things like metadata attachments. This is what happens when you only pretend like you understand and don’t bring in a team and an expert to help you figure out stuff that you don’t understand like SQL databases. (Speaking of poster childs, check out the YouTube video that got Jackie Evancho onto the show. She is the favorite to win this year’s America’s Got Talent, just like Bray & Gillespie is to win America’s Got e-Discovery Talent.)

Mary:

Yeah, and to underscore what you say about databases, Ralph, I would say that anytime you’ve got database information, you need an IT person. Because the nature of a database is that it’s so flexible, that you really have to get into it to see how things are rolled up, what things relate to other things, how things get deleted, all of that. So, point well taken on those databases.

Ralph:

Okay, I think we’re done with Bray & Gillespie. Let’s move on.

Crispen and Social Media As Evidence

Mary:

Now we’re moving into the Crispin case. Crispin v. Christian Audigier Inc., 2010 U.S. Dist. LEXIS 52832 (C.D. Cal. May 26, 2010). This is a case where it’s about a license and Crispin was said to have given an oral license. What the other side wanted to do was to look at his Facebook and emails to create a contract. So, this is a case very much in the news, at least in terms of subject matter around Facebook and MySpace and other social media as to what is public, what is private, what can be subpoenaed, and what cannot. At the end, Brett will be talking a little bit more about Quon and the difference between what is stored and what’s transmitted. It certainly makes a big difference, and then the other thing pertains to user privacy settings. (For comment on the interesting Crispin case see a short Harvard Law student article.)

There’s a lot of talk about attorneys using these social media sites to look for witnesses, impeachment, and that type of thing. Ralph and Brett, you’re in the employment area of law, how do you think that these Facebook cases and social media cases are going to affect your practice and the practical things that you advise your client’s to do?

Brett Anders:

I have a few real life examples. One thing I can say is that the social media sites, at least from a litigation perspective, they’re pure gold in terms of what you find. I’ve used them frequently in cases, especially harassment cases – sex harassment cases, where the information you see on the Facebook page is completely different than the allegation. For example, somebody – we had a case where somebody complained that as a result of the harassing conduct they were very depressed and they couldn’t go on vacations. Yet they had all of their vacation photos – photos up on their Facebook page. Actually in that situation it was a Myspace page that was completely public.

You mentioned witnesses before. It’s also a great way to find potential witnesses to corroborate testimony. They usually have a lot of their friends there. Their friends will know personal information about them so, it’s a good tool there. (Speaking of using FaceBook to find friends, did you see how America’s Got Talent has begun using YouTube contests to find talent? I’m thinking maybe the next new talent show to grace the airways just might be YouTube itself. Who needs these middlemen judges anyway?)

I also get a lot of calls from clients, because in addition to litigation, I also do a lot of day to day HR counseling. You’d be amazed at the number of termination decisions that are made based on information found on Facebook. One reoccurring question I get asked now – especially now that it’s summer and the weather is a little bit nicer – is somebody calls in sick and they maybe forget that they friended a few people at work on Facebook. Then their post or their status update for the day is going to the beach. So we’ve had a few calls about whether an employer who saw this on their Facebook page, or one of their friends saw it and reported it, can we take action based on it. We’re just seeing more and more of how what a person puts on their Facebook or their Myspace page has huge implications, either in work or in a lawsuit.

From a practical standpoint, certainly in litigation, the user can change their privacy settings. There’s going to be some stumbling over shoelaces around what the settings were at the time the information was pulled off of Facebook. Was it public or was it private?

I know of a situation where the plaintiff had a public FaceBook page with good information, relevant information to the lawsuit. Those pages were printed up and produced for discovery. The defendant then received a motion to amend the complaint to add a claim for violation of the Stored Communications Act. The defense responded that there wasn’t any type of unlawful interception or accessing of a stored communication or stored data – it was public.  At a hearing the defense asked the court, ask the judge’s clerk to open up the page and view for themselves the public nature. As it turned out, the plaintiff had cancelled their Facebook account three days before the hearing and it no longer existed. The defense then argued that the plaintiff had spoliated evidence, they destroyed evidence. The plaintiff tried to argue that he had to take it down to protect his privacy. The court allowed the claim to go forward and didn’t address this spoliation issue at that time, but said it would be considered later.

The defense then subpoenaed Facebook to find out what the privacy settings were for that account at the time and when various changes may have been made. Facebook responded by saying they do not log changes to privacy settings – that’s just not something that they keep track of. So one problem is you’re going to have people who after the fact change their settings and you will have to prove that something was public or private at a given point in time. We’re really going to need the courts to start giving some rules or guidance as to what is private and what’s not and what the tests are.

Ralph:

I think an exciting area in e-Discovery is employment law. It’s one of the reasons I went to Jackson Lewis. I could have more fun cases like you get in employment law. It’s a hot issue and I spend a lot of time thinking about ways to take advantage of online information. We are developing protocols – I don’t want to get into all of that, a little bit of trade secret stuff there – but let me just tell you, if there’s any law students listening out there or people looking for a job, become a better Googler, it will help. That is a good skill to find all of this information.

Mary:

No kidding, and I think that one of the areas that’s just ripe, and I hope this isn’t one of your trade secrets, Ralph, but the litigation hold notices that I’ve seen don’t really mention social media and things like canceling an account or changing privacy settings and things of that nature. So that’s certainly an area for folks to consider.

I wanted to throw this out to you, Ralph and Brett, about waivers of privilege or trade secret by making things readily available on social medias. How is social media affecting those two areas?

For the answer to this and other questions, and to continue to hear the judges and their cases judged, come back next week for the conclusion to America’s Got e-Discovery Talent, Part Three.