Around the Block: 12/24/2009

I hope everyone is enjoying their holiday (in fact, I hope you hard working folks are getting a holiday). Here are some articles from industry blogs and other sites:

Bow Tie Law has a post concerning a dispute over the admissibility of an email. From the article:

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

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

Readers may recall that Post Process featured a Case Blurb on E-mail authentication from Judge Grimm’s opinion in Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

On the CYB3RCRIM3 blog, Professor Susan Brenner discusses double jeopardy and dual sovereignty in the case of a stock trader accused of manipulating securities prices, computer fraud and identity theft.

Legal Holds and Trigger Events, a blog I just found, has posted an article discussing a case where a judge becomes suspicious of Producing Party’s lack of evidence. Suspicious judges are a bad thing for your client. From the article:

Here, a U.S. Magistrate Judge for the Northern District of Mississippi, openly suspicious of defendants’ lack of evidence, orders defendant to pay for the services of a third-party e-discovery expert to answer some very basic questions posed by the court. Procedurally, the court was entertaining plaintiffs’ motions to strike and for sanctions. The court declined to order sanctions, but nevertheless takes defendant to task for failing to come forward with what exactly was done to preserve ESI and search ESI in response to plaintiffs’ discovery demands.

Note: I have added this blog the Blogroll.

The National Law Journal has an article describing Southeastern Mechanical Services Inc. v. Brody, No. 8:08-CV-1151, 2009 WL 2883057 (M.D. Fla. Aug. 31, 2009), in which the court imposed sanctions on a party for wiping a blackberry. H/T to Inter Alia.

Case Blurb: Benedict College; Attorney’s role as Officers of the Court

A primer on the American adversary system appears in order. Our system of dispute resolution and justice rests on the “unshakable foundation that truth is the object of the system’s process which is designed for the purpose of dispensing justice.” United States v. Shaffer Equipment Co., 11 F.3d 450, 457 (4th Cir. 1993). It is a process dependent on:the adversarial presentation of evidence, precedent and custom, and argument to reasoned conclusions–all directed with unwavering effort to what, in good faith, is believed to be true on matters material to the disposition. Even the slightest accommodation of deceit or a lack of candor in any material respect quickly erodes the validity of the process. As soon as the process falters in that respect, the people are then justified in abandoning support for the system in favor of one where honesty is preeminent.Id. The court does not view favorably any attempt “to play fast and loose” with our judicial system. United States v. Levasseur, 846 F.2d 786, 792 (1st Cir.1988).

Too often a lawyer loses sight of his primary responsibility as an officer of the court. Wagner v. Williford, 804 F2d 1012, 1017 (7th Cir. 1986). Zealous advocacy can lead to obstruction where it impedes the court’s search for truth. Counsel has a basic ethical obligation to be “scrupulously candid and truthful” in his representations to the court. More practically, if a lawyer is to be an effective advocate, where his reputation for veracity is suspect, he will lack the confidence of the court in matters serving his client. United States v. Thoreen, 653 F.2d 1332 (Wash. App. 1981). This court concurs with the proposition that the judicial system can provide “no harbor for clever devices to divert the search, mislead opposing counsel or the court, or cover up that which is necessary for justice in the end.” Shaffer, 11 F.3d at 457-458.

Benedict College v. Nat’l Credit Sys., 2009 U.S. Dist. LEXIS 106742 at *17-18 (D.S.C. Nov. 16, 2009)

Case Blurb: Benedict College; Uncategorized ‘Data Dumps’ are Impermissible

Furthermore, the fact that the information sought might already be in the possession of the requesting party or obtainable from another source is not a bar to discovery of relevant information.

Having reviewed the 30(b)(6) deposition of [Producing Party's Representative], heard the arguments of counsel at the hearing, and considered the arguments presented in the briefs, the court finds [Producing Party's] position untenable. Contrary to defense counsel’s argument, the rules of civil procedure and evidence do not permit a party to dump on opposing counsel a load of documents–in this case, some 5,000–without a correlation to the requesting party’s discovery request, then produce an unresponsive, evasive or otherwise obfuscating 30(b)(6) witness who fails to provide an explanation of the discovery produced, and then claim that it was the requesting party’s fault for not making proper inquiries in discovery.

Benedict College v. Nat’l Credit Sys., 2009 U.S. Dist. LEXIS 106742, 16-17 (D.S.C. Nov. 16, 2009)

Case Blurb: Benedict College; Printed and “PDF’d” DB Records Lacking in Completeness

The court rejects [Producing Party's] argument that its production of nearly 5,000 pages of documents were provided “as they are kept in the usual course of business” and therefore need not be organized and labeled to correspond to the categories in [Requesting Party's] discovery requests. According to [Producing Party's] representations at the hearing and its brief, the documents were not provided as in the usual course of its business, but printed out from its database, copied, Bates numbered, converted to pdf format and then produced–with the information in the charts neutered of their derivation and metadata, and lacking the necessary identifiers to enable [Requesting Party] to make sense of the information provided.

Benedict College v. Nat’l Credit Sys., 2009 U.S. Dist. LEXIS 106742 at *9-10 (D.S.C. Nov. 16, 2009)

FL Case Blurb: Elec. Mach. Enters.; Spoliation as a Cause of Action in Fed/Fl. Courts

Spoliation encompasses two related but distinct concepts–an independent cause of action and evidentiary sanctions. The first form of remedy for spoliation is an independent cause of action at common law, arising under state tort or negligence law. There is no federal cause of action for spoliation. See, e.g., Sterbenz v. Attina, 205 F. Supp. 2d 65, 74 (E.D.N.Y. 2002) (holding that the inherent power of a federal court to sanction litigants “does not effectively afford a federal cause of action for spoliation where a state law claim does not exist”). At one time, Florida law recognized both a first-party cause of action brought by a party to the underlying lawsuit and a third-party cause of action brought against a non-party for either negligent or intentional spoliation of evidence. See Gayer v. Fine Line Constr. & Electric, Inc., 970 So. 2d 424, 426 (Fla. 4th DCA 2007). However, after the Florida Supreme Court’s ruling in Martino, there is no longer a first-party cause of action for spoliation against the same defendant as in the underlying litigation. Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 346 n.2 (Fla. 2005); Gayer,970 So. 2d at 426. In Martino, the Florida Supreme Court held that the availability of sanctions, including the imposition of evidentiary presumptions and inferences, provides sufficient protection to the plaintiff where the defendant in the litigation commits negligent or intentional spoliation of evidence. 908 So. 2d at 346-47. As noted, Martino specifically did not displace the independent cause of action for spoliation against a third party. Id.; Jimenez v. Cmty. Asphalt Corp., 968 So. 2d 668, 671 (Fla. 4th DCA 2007).

Elec. Mach. Enters. v. Hunt Constr. Group, Inc. (In re Elec. Mach. Enters.), 2009 Bankr. LEXIS 2374 at *183-84 (Bankr. M.D. Fla. 2009)(emphasis added).

Case Summary may be viewed here.

Law Firm Staffing for the future…and a Law Firm Staffing Reference Model

“Law firm staffing is more an artifact of history than design. Forward thinking law firms need to re-architect themselves,” according to a post at Prism Legal. From the article:

It seems clear lawyers must delegate analysis and management to other professionals. So firms need more business analysts and project managers generally for effective service delivery and specifically to support and alternative fee arrangements. What is the right ratio of each to the number of lawyers? Does that ratio vary by practice? What other types of professional support personnel are needed? How should firms analyze and answer these questions? I don’t have answers but I think these are important – and the right – questions. Firms that answer them well can gain clients and prosper.

The article also references an earlier post, in which the author suggested the need for a Law Firm Reference Model. Interesting idea, and arguably necessary in these days when much of law (especially e-discovery and computer law) is intersecting with other disciplines.

Case Blurb: Seeley; Court Denies Motion for Sanctions under “Elementary Fairness” Doctrine

Factual Background: Plaintiff, a worker at a Wal-Mart distribution center, was trained on and operated a conveyor belt machine manufactured by Defendant company. During the operation of the equipment, an accident occurred resulting in severe injuries to Plaintiff’s hand. Plaintiff brought this action for products liability and negligence.

Procedural History: Before the court was, inter alia, a motion by Defendants to impose sanctions on Plaintiff, evidently for the destruction of a part of the conveyor belt machine, known as a roller. Plaintiff’s hand was stuck in the machinery, and the roller was primarily responsible for this. The roller was either destroyed or missing, and Defendants asked the court to sanction Plaintiff for the (presumably destroyed) roller.

Discussion:
Sanctions for spoliation can be imposed for either intentional or negligent destruction of evidence. Hartford Fire Ins. Co. v. Regenerative Bldg. Constr. Inc., 271 A.D.2d 862, 863, 706 N.Y.S.2d 236 (N.Y. App. Div. 3d Dep’t 2000). In either case, a litigant must have been responsible for the destruction. Id. A court considers what is necessary for “‘elementary fairness’” when deciding to impose or reject sanctions. Id. (quoting Puccia v. Farley, 261 A.D.2d 83, 85, 699 N.Y.S.2d 576 (N.Y. App. Div. 3d Dep’t 1999). In Hartford Fire Ins., none of the parties knew the location of the unavailable evidence. Id. at 864. The record did not demonstrate who destroyed the evidence or when it was destroyed. Id. The court stated “[u]nder the circumstances . . . it cannot be presumed that plaintiff is the party responsible for the disappearance of such evidence, or, more importantly, that it was discarded by plaintiff in an effort to frustrate discovery.” Id. Accordingly, denial of the defendant’s motion for sanctions was upheld. Id.

Seeley presents a nearly identical situation to that in Hartford Fire Ins. She did not intentionally or negligently destroy the roller that caught her hand. The Wal-Mart facility possessed the roller at all times. The record is unclear as to who destroyed the roller and to when it was destroyed. Nothing suggests plaintiff discarded the roller to impede discovery. Thus, under Hartford Fire Ins., sanctions against Seeley are inappropriate as both situations present a lack of information on the actual destruction but some indication plaintiff was uninvolved. Defendant’s motion to dismiss all claims based on spoliation must be denied.

Seeley v. Logistex, 2009 U.S. Dist. LEXIS 79549 at *12-13 (N.D.N.Y Sept. 3, 2009)(emphasis added)

A Tug of War over Forensics Applications and Formats

From two different blogs, we read of a fascinating criminal case involving a tug of war over evidence. Ultimately, the main points made by both the prosecution and defense missed the mark. A little knowledge could have gone a long way.

We begin by browsing over to Law Professor Susan Brenner CYB3RCRIM3 blog, to a post entitled Encase v. Ghost. Here she describes the case of State v. Dingman, 149 Wash.App. 648, 202 P.3d 388 (Washington Court of Appeals 2009), where a construction contractor specializing in building sunrooms was given a large deposit and money for materials, but who allegedly never finished the job. At trial, Mr. Dingman was convicted of 16 counts of theft and 11 counts of money laundering. He appeals. Why?

Because of the tug of war over evidence residing on his computer. Prior to trial, Dingman requested access to the files on his computers, which were seized by the state and still locked up. The state evidently made Encase images available to the defendant, but that wasn’t good enough. Why?

According to testimony, neither the Dingman legal team nor their forensics expert possessed a copy of the EnCase application (they thought) necessary to read the image. And Encase costs over $3,000 and required another $1,500 for training, according to Defendant’s expert. The State should, as they had in the past, provide a copy of the hard drive in a non-Encase format. Even better, allow the Defense to use its own tools to image the drives themselves. Ghost was specifically mentioned as the Defense’s tool of choice. The State objected. Why?

Evidently, the State believed that the Hard Drives could be damaged should they be released from custody, and that Ghost might produce an inaccurate copy. The States expert noted that he had a copy of Ghost, but did not use the tool for forensics. The State also argued that it didn’t need to “conform” its investigation to the “whims” of the defense, and that the Encase images had been happily accepted by all other defendants prior to this case. The trial court denied Defendant’s motion, and ordered the Prosecution to provide Encase images to the Defense.

After receiving a continuance to allow Defense the time to examine the drives, the trial court refused to grant a second, despite the Defense’s assertion that it had only been partially successful in reviewing the evidence. The Defense and their expert had only been able to access two of the nine drives, and on those two encountered files that it could not open. The trial continued, leading to the conviction of Mr. Dingman on several charges. Of course, we are not done. Why?

On appeal, the higher court cited a Federal district court decision stating that a defense expert should be able to “`utilize his or her hardware or software.’” The prosecution had not established for appropriate restrictions necessary to limit discovery in the manner occurring in the instant case. The Court of Appeals continued by holding that the lower court had “erred by requiring that the State provide only an EnCase mirror image of Dingman’s hard drives to the defense.” The State Supreme Court declined to review the opinion, and Mr. Dingman gets a new trial, should the state decide to a mulligan.

There is plenty wrong here. A lack of knowledge, and of collaboration, has cost the state a bit of money, time, and perhaps secured the liberty of someone who may not deserve it. Rather than lay it out here, however, I’ll direct you to Craig Ball’s commentary, where he does a fine job of discussing all of the issues. His post is called Stubborn v. Stupid.

DECAF for your COFFEE? New tool fights forensics application’s attempt to get your data

Ars Technica posts an article describing the battle that might occur inside your P.C.:

In response to Microsoft’s Computer Online Forensic Evidence Extractor (COFEE), which helps law enforcement officials grab data from password-protected or encrypted sources, two developers have created “Detect and Eliminate Computer Assisted Forensics” (DECAF), a counter intelligence tool designed to thwart the Microsoft forensic toolkit. DECAF monitors the computer it’s running on for any signs that COFEE is operating on the machine and does everything it can to stop it.

More specifically, the program deletes COFEE’s temporary files, kills its processes, erases all COFEE logs, disables USB drives, and even contaminates or spoofs a variety of MAC addresses to muddy forensic tracks. It can be told to disable almost every piece of hardware on a machine and delete pre-defined files in the background. The 181KB DECAF program even has a ‘Spill the cofee’ mode in which it simulates COFEE’s presence to give the user an opportunity to test his or her configuration before actually using it. Source code for DECAF has not been made available, since the authors fear it will be reverse engineered, making it unclear what else the tool might be doing and whether or not it is completely safe to use.

Case Blurb: Scalera; Inherent Authority of a Federal Court to Impose Sanctions

The court has the inherent power to impose sanctions for the spoliation of evidence, even where there has been no explicit order requiring the production of the missing evidence.

Scalera v. Electrograph Sys., 2009 U.S. Dist. LEXIS 91572 (E.D.N.Y. Sept. 29, 2009)(citing Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002))

See Case Summary here.