Alextronic Discovery
Alextronic Discovery
An Electronic Discovery Blog covering News, Articles
and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - alubarsky@enterusa.com - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM


Friday, June 04, 2004

ED and the Founding Fathers  

(06.04.04) It had to happen. Just when I thought that I had seen it all, the constituion is now coming into question with respect to ED discovery.

You think I'm Funny... ?

Well this, is funny. Even Joe Pesci would concede.

You heard that right... the US Constitution.

Now, when our friend Ben Franklin and his colleagues signed that sacred
document, it is debatable whether he was pontificating about the right to
bear arms should extend to an AK-47 in the lady's powder room, but could
he and his cohorts could have been dreaming up protections against a rogue
.pst file or a botched deduplication? Did the founding fathers talk hash
code as they reached for the quill pen and ink well?

A judge in Illinois thought not.

In a reasonable decision this year US v. Segal (not Bugsy but close) WL
635065 (ND Ill 3/32/04) the Chicago court dealing with this white collar
mafia matter (believe it or not, a mafia case out of Chicago... ) found
that the bad guys' claim that the prosecution (the Feds) failed to protect
the afiosos' constitution rights to Cohibas, moonshine, Tommy Guns and
metadata was violated when the Feds failed to inform the wise guys that
they had turned over attorney client (or consigiliari-client) e-evidence.

Last I checked, it was incumbent upon the responding party to make sure it
did not turn over obviously privileged materials designated in a privilege
log. The court agreed and held that there is no constitutional violation
when the recipient does not conduct an attorney client review for the
opposing side.

Ain't that obvious, Guido? C'mon now, make me an offer I can't refuse.

The evidence came in and the bad guys are likely to be slicing linguini
and hoping to wake up free and clear of severed horse heads in their new
home at the Federal Pen.

So why then did this matter even make it into court? Was the judge
fearful of saying nay to the family of Al Capone and John Gotti? Nope,
yet an even more well heeled influential family made sure this issue got
attention... the Federal Courts.

The court in INS v. Doherty, 502 U.S.314,323-24, 116 L. Ed. 2d 823, 112 S.
Ct. 719 (1992) mandated that all such claims must be heard. Anything less
would constitute a violation of a constitutional righ to due process of
law as guaranteed by the fourth and fourteenth amendments. This principal
has been on the books for quite some time now. Even Lucky Luciano could
have seen it coming when Mulane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950) was decided.

Right about the time when Marlon Brando stuffed his jaws with cotton to
perfect the image of Don Corlione in part II, the Supremes came out with
Mathews v. Eldridge, 424 U.S. 319, 348-49, 47 L. Ed. L. 18, 96 S. Ct. 893
(1976) identifying a "property interest" in due process towards discovery
of evidence. Until that point, the only property interest that the mafia
concerned itself with was the speakeasy and the rights to Frank Sinatra's
latest Vegas performances.

Times have changed...

Do I amuse you?

posted by Alexander | 12:52 PM

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Alex Lubarsky is a practicing litigator and legal technology enthusiast. He was elected to the California State Bar Law Technology Executive Committee in 2003. Alex is a certified trainer and regularly teaches litigation support. Alex is frequent guest speaker at numerous legal technology conferences and State Bar events across the U.S. and has authored articles for legal technology publications such as Law Office Computing and The Bottom Line.

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