Houston Area DA Sanctioned for Contempt after Deleting E-Mails

The strange saga of Harris County District Attorney Chuck Rosenthal is, hopefully, winding down. If you weren’t aware, Rosenthal, has been in the news in Texas for a while, when e-mails containing racist and pornographic content, and love letters to his secretary were found on his work P.C.

In response to civil rights suit against the county, Rosenthal had produced over 1,500 emails to the court.

Newsweek described the situation like this:

Rosenthal is back in the headlines again. Last December, as part of a federal civil rights lawsuit into how justice is meted out in the county, he turned over the (partial) contents of his government e-mail account. And what a batch of e-mails it was. Black ministers called for the Republican to resign because of racist material, including a cartoon depicting an African-American suffering from a “fatal overdose” of watermelon and fried chicken. There were adult video clips and love notes from Rosenthal to his secretary, his mistress during a previous marriage.

Despite the copious production, the DA was found to have failed to have produced another 2,500 e-mails relating to the civil rights case.

A judge listened to testimony…to decide if Harris County’s top prosecutor should be punished for deleting more than 2,500 e-mails after he was ordered to produce them, KPRC Local 2 reported.
[...]
Kelley said he wants the judge to hold Rosenthal in contempt or sanction him for the destruction of the e-mails.

Rosenthal has said in court documents he thought the 2,500 e-mails he is under order to produce were backed up elsewhere and has called the decision to erase them an error in judgment.

As we all know, this is not something a party, especially a party who is an attorney, should do:

Harris County District Attorney Chuck Rosenthal should have known not to delete more than 2,500 e-mails that a court had ordered him to produce, the general counsel for his office testified Thursday in a hearing on whether Rosenthal should be held in contempt.

General Counsel Scott Durfee said Rosenthal was “crestfallen and surprised” when he found out the e-mails had not been backed up elsewhere and could not be recovered. But as an attorney, Rosenthal should have known that the e-mails were evidence and should not be deleted.

“This is not something that would be foreign to a practicing attorney?” U.S. District Judge Kenneth Hoyt asked Durfee.

“It would not,” he replied.

Rosenthal initially resisted calls for resignation, and calls for him to drop out of the next election. Ultimately, though, he found no sanctuary from fellow politicos, and announced his resignation, although he didn’t quite completely acknowledge his responsibility in the affair (no pun intended).

Rosenthal, 62, said a prescription drug combination had impaired his judgment and said media coverage of his e-mails — which included sexually explicit and racist content and affectionate notes to his executive assistant — had taken its toll on his family.

“Although I have enjoyed excellent medical and pharmacological treatment, I have come to learn that the particular combination of drugs prescribed for me in the past has caused some impairment in my judgment,” Rosenthal wrote in his resignation letter.

With respect to the emails, he stated:

“I now understand that I am unable to rely on my memory regarding the steps I took to manage the contents of my desktop and need to rely on reconstructing events from available documents and records,” Rosenthal writes in the declaration. “I have now consulted a medical specialist and am informed by him about conditions that have affected my perception and recollections of the past months. While I am seeking treatment to address these matters currently, I am concerned and wish to ask the Court to take into account that my prior testimony and Declaration must be considered in this context.”

Yesterday the Houston Chronicle reported that the Judge, unsurprisingly, was not impressed:

In blistering and scathing language, Hoyt’s court order rebuked Rosenthal for knowingly violating an Oct. 31 subpoena seeking his e-mails.

Hoyt criticized Rosenthal for showing “an intentional willfulness” to disobey the law.

“This conduct reveals a man confident in his status, entrenched in his brand of law,” Hoyt wrote. “He would not or could not acknowledge an authority beyond himself.”

Various contradictions and misrepresentations made Rosenthal’s testimony unreliable and incredible, Hoyt said. “The court views his conduct as venomous and hostile to the judicial process,” Hoyt wrote.

Rosenthal gave several explanations for why he deleted the

e-mails, Hoyt noted, such as believing his general counsel had printed hard copies of the documents and claiming he thought the documents were preserved on the computer network’s backup tapes.

Rosenthal also later testified that he deleted the e-mails to increase his work efficiency and to free memory space on his computer, Hoyt said.

“There is no evidence that Rosenthal’s computer memory space was threatened by additional e-mails or that, in fact, it was short of space. Hence, these reasons — all implausible inconsistencies — defy the law of common sense,” Hoyt wrote.

Rosenthal was fined a total of $18,900; with the County’s General Counsel responsible for $5,000 of that for failing to properly advise Rosenthal on how to properly comply with the subpoena requiring production of the email. The county will meet later to decide how much, if any, of the fine they will assume.

The county has already had to settle the civil suit:

Harris County officials Monday settled a civil rights lawsuit that led to the district attorney’s resignation, KPRC Local 2 reported.
[...]
Harris County commissioners said they were approached with a $1.7 million settlement offer over the weekend.

“The county (Commissioners Court) is concerned about the liability,” Commissioner Steve Radack said. “We are trying to limit as best possible the exposure to the taxpayers in this lawsuit.”

The county will also pay court costs and the Ibarras’ attorney fees.

The newly appointed interim DA now has his hands full with trying to restore confidence in the integrity of the office.

Magidson will serve as interim district attorney until the end of December. During that time, Magidson promised he would restore public confidence
“We’re going to prosecute these cases zealously but they are going to be tempered with justice and we are going to make sure we are doing .the right thing,” he said

The only final comment I have is that the $18,900 is hardly excessive, considering the court’s “blistering” language. Perhaps the court considered the ex-DA’s current plight, and the large settlement amount, in its calculations. If this had been an attorney from a private firm, however, I wonder if the result would have been different?

Fun with e-mail

Oops. According to the ABA Journal Online:

A misdirected e-mail from Credit Suisse helped set the stage for two lawsuits filed this week by two private equity firms seeking to purchase Clear Channel Communications, the New York Times reports.

The suits accuse Credit Suisse and five other banks of breaching a contract to finance the $19.5 billion sale and interfering with the purchase agreement. The court filings come less than a year after the buyers, Bain Capital and THL Partners, received an unusual e-mail from Credit Suisse. The July e-mail contained confidential documents discussing how the banks planned to renege on terms of the lending agreement, the Times story says.

ABA Section Journal Addresses Admissibility of Text & Instant Messages

The March Issue of Litigation News (no link available to current issue) contains an article relating to the Admissibility of text and instant messages. According to the article, the major challenge for authenticating the messages is “usually proving the identity of the persons in the conversation.” These challenges are, however, navigable. To wit:

The New York Appellate Division, for example, recently held that the trial court properly admitted an Internet text message that had been authenticated strictly on the basis of circumstatial evidence. People v. Pierre. The sender, a defendant in a murder trial, allegedly transmitted a message to the victim’s cousin, stating that he did not want the victim’s baby. The prosecution did not ask the Internet service provider to authenticate the message, and the witness who testified to its origination did not print or save the message.

Even so, the witness testified that she knew the defendant’s screen name, and she had sent an instant message to that name. The Appellate Division noted that the defendant had sent the witness a reply that would have made no sense unless it had come from the defendant. Most importantly, there was no suggestion that anyone had impersonated him. Thus, the court found that these factors were sufficient to warrant admission.

The article contrasts this situation with a decision by a California court to exclude a text message, because prosecutors failed to properly authenticate it, and circumstances were such that more than one person could have sent it. The Second Circuit recently rejected a court’s decision to admit a chat session’s transcript made by cutting a pasting the text from the chat window into another file format (presumably Word?). The article concludes by emphasizing the need for attorneys to engage experts:

“As a practical matter,” says Steven A. Weiss, Chicago, former Co-Chair of the Section’s Technology for the Litigator Committee, “because of the myriad of devices being used to send and receive electronic messages, lawyers will usually need an IT expert to access and rtrieve IMs and text messages, and to explain to the cour how the information is stored in a particular device and how it was retrieved.”

What you don’t know (about metadata) could hurt you

Law.com has a National Law Journal article that describes the ethics, and the dangers, of metadata. The discussion isn’t so much on the evidence side, as on the side of correspondence between attorneys; to wit:

As the District of Columbia Bar recently explained:

“A lawyer who is preparing a document may electronically circulate the document in draft form among other lawyers in the firm for their review and comment. The other lawyers may insert their suggested revisions and other comments, some of which might address the strengths and weaknesses of the client’s position. If the final version of the document is electronically transmitted to opposing counsel, it may be possible for opposing counsel to discover the comments.

“The sender of the document may not be aware of the metadata embedded within the document, or that it remains in the electronic document despite the sender’s good-faith belief that it was ‘deleted.’”

The article talks of instances where ignorance of the presence of metadata proved damaging:

Examples of unintended releases, he offered, include one firm that posted a Word document online and, with two knowledgeable clicks, a savvy viewer was able to discover that the client initially intended to sue someone other than the named defendant. In another case, a motion in a national security lawsuit was posted with what the lawyers thought had been redacted sensitive information. That information, said Hricik, was easily uncovered by metadata-savvy viewers.

Some bar associations prohibit the mining of data by from documents prepared by other attorneys, likely on grounds associated with the work product privilege. Attorneys often warn their clients that “ignorance of the law is no defense.” Now, attorneys are being warned the same about metadata.

Microsoft Seeks Delay in Discovery Process on Vista Trial

From the Article in Computer World:

Microsoft Corp. on Friday asked that a lawsuit claiming it duped consumers in a Windows Vista marketing program be suspended while the company appeals a judge’s decision to grant the case class-action status.

If granted, the motion would also postpone any new disclosures of potentially embarrassing company e-mails. Last month, the release of similar documents showed that top-level company executives struggled with the new operating system on machines labeled “Vista Capable,” and that partners such as Dell Inc. warned Microsoft that the campaign would confuse consumers.

Microsoft is challenging two aspects of the case. First, they challenged the trial court’s decision basing class-action status on a Washington state law. They also questioned the court’s approval of plaintiff’s theory of harm, called “price inflation,” whereby Microsoft’s actions resulted in increased demand, and price, of systems running a basic version of Vista. Microsoft’s argument is basically that if their appeal is successful, all the expenses and disruptions associated with discovery are or naught.

[HT: Slashdot]

It was slow in coming, but IT is now speeding its way through the legal world

At least, that is the thesis of an article from the business technology section of Boston.com:

Technology was late to come to the world of lawyers and law firms, long known for quill pens and steno pads. But now that it has arrived, it is spreading briskly.

Modern-day law firms, especially megafirms with offices around the world, rely heavily on a vast array of specialized software that helps them run nearly every aspect of their operations. From docketing cases to tracking hours to managing litigation to calculating bills, most legal practices depend on technological solutions.

“Within the past five years, technology in law firms has really, really advanced,” said Randi Mayes, executive director of the International Legal Technology Association, an Austin, Texas, group that represents 1,700 US law firms and legal departments.

Those of us dealing in legal technology or records management are hardly surprised, but the fact that mainstream articles are now popping up with more frequency shows the extent of the legal world’s transformation.

[HT: EDD Blog Online]

Trends in E-Discovery Point to Bad News for the Unprepared

E-discovery should be the thing which causes IT departments to break out their cub scout books and remember what it means to “be prepared.” A recent article posted by the Wisconsin Technology Network discusses the meanings of emerging trends in electronic discovery:

A CIO who is on top of things will have frequent meetings with staff attorneys, review e-discovery processes, and map out what the organization’s infrastructure looks like - essentially knowing where data “lives” so the organization can react to litigation. The number of hours spent on e-discovery is growing, but the time investment depends largely on a company’s litigation profile.

This will sound familiar to frequent readers. The article notes some general trends:

Even for complacent companies, Phelps said e-discovery case law is providing more answers in three specific areas: litigation holds, obligations to preserve data, and the determination of what information is reasonably accessible.

Of course, sometimes the guidance is conflicting and ambiguous, but what is clear is that indifference to the rules won’t be excused by courts.

DataKos: Maintaining Privilege Moves to the Forefront

Contending that avoiding inadvertent disclosure of privileged documents will become the top EDD risk of 2008, DataKos opines:

There is much uncertainty, even among many lawyers, as to when the attorney-client privilege should be invoked or asserted. Let’s face it, business people, and lawyers too, insist on using email for everything. Hence, operationally, there are numerous challenges we all face in protecting confidential information from leaking through email forwarded to third parties.

Citing the adoption of new FRE 502, and the privilege waiver concerns dogging generals counsel, DataKos urges IT & RIM professionals to become acquainted with the issues.

E-discovery from a Canadian Perspective

The ALSP (Association for Litigation Support Professionals) has posted an interview with Canadian attorney, and legal technology expert, Martin Felsky, who, inter alia, discusses differences in electronic discovery processes between the U.S. and his country:

In Canada the issue of how much e-Discovery must be conducted is decided using a proportionality test that weighs the need for the electronic data compared to the costs and burdens of producing it in the context of the amounts in controversy and the issues in the case. Counsel tend to reduce the volume to be examined whereas in the US the attitude is more along the lines of we have to find and process virtually everything that might be relevant.

Mr. Felsky discusses his background, as well as other differences between the two legal systems…

[HT: Information Governance Engagement Area]

The EDD Hot Potato…lands at Counsel’s feet

We have blogged about the fact that many corporate law departments try laying the responsibility for Electronic Discovery projects at the feet of the IT staff. The post was partly motivated by this article. Yet, and we have mentioned this as well, case law indicates that it is up to the attorneys, and not the IT technicians, to properly manage the process. As Reed Smith’s Janet Kwaon and Karen Wan state in a new article, counsel delegates this responsibility at his or her own peril:

[I]n the current climate, given the interplay between ethical obligations and standards for professional conduct and these e-discovery requirements, attorneys may be surprised to learn that inattention to e-discovery may not only work to the detriment of clients — it may lead to professional malpractice or the imposition of sanctions on counsel.

In other words, pointing the finger at IT may not allow counsel to shift liability. And the problem is, there really is no easy fix:

The duty of a party to locate and produce all materials responsive to discovery and counsel’s oversight obligations are nothing new to the discovery process. What is new, brought on by the staggering volume of data and the complexities associated with their management, is the broad array of possible pitfalls and the ability to reveal mistakes and outright gamesmanship through the often inerasable trail of electronic evidence.

We have noted the complexities associated with electronic discovery before:

[E]lectronic discovery requires an understanding across several disciplines. Law, IT, records management, and compliance are some of those areas of knowledge from which any discovery team should draw. It is difficult for any one individual to have sufficient knowledge across all these areas, so communication between experts from these professions becomes important.

Furthermore, we have also advised readers that the selection of an EDD vendor is a critical point in any complex discovery project:

It is my view that the process used to select a vendor (or vendors) is one of those key points of time in the litigation, with respect to discovery. A thorough vetting of a vendor’s capabilities, technology, experience and reputation is essential to defending that decision in the future should the need arise.

So what can attorneys do to avoid some of the pitfalls of EDD that we have previously spotlighted? Well,

• Take Discovery seriously. I mean it; stop laughing.
• Learn the case law. Use our Case Bibliography as a starting point.
• Understand the basic technical concepts (ask experts you hire, or plan to hire, about their methodologies).
• Negotiate the 26(f) conference in good faith; and prepare for it as thoroughly as you would for a deposition, or hearing before the judge.
• In-house counsel should learn the basics of their company’s IT infrastructure; outside counsel should assess both their own clients’ data enterprise, and that of the opposing party.
• Hire EDD vendors and experts by thoroughly vetting the candidates. Remember, price is not everything.

Oh. One more thing. Read my blog!