An Electronic Discovery Blog covering News, Articles
and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - firstname.lastname@example.org - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM
Sunday, January 20, 2008
Home is Where the Hard Drive Is... Home is Where the Hard Drive Is...
Folks, in the spirit of my '08 New Year's resolution, Alextronic is back on the map at least for now.
I had been receiving a bit of flack from my once quasi devout following from the days that this Blawg was daily and then weekly. It slipped to bi-weekly, monthly, every quarter and finally it seemed posts were only going up on leap years. I am constantly amazed at my colleagues that religiously keep up their e-discovery Blawgs and newsletters on a consistent cycle. How on earth do my colleagues do it, each time I receive those enlightening and well written posts which arrive like clockwork. Do they synch them with their garbage bills?
The wakeup call came when, to my honor and embarrassment, Robert Ambrogi listed Alextronic as the top e-discovery Blawg in the November issue of Law Technology Product News (O.K., so he listed his favorite Blawgs alphabetically and being Alextronic doesn't hurt given that criteria) bit it was nonetheless an honor to be mentioned. I certainly am most deserving of his criticism that my writer's block seemed to be prolonged and, by my own admission, inexcusable... so guilt and a sudden need to release some ESI related ideas that have been swimming around in my head have lead to this long overdue Blawg entry.
I am writing this on my home computer. You don't want to know all the things I do on my home computer and I don't want you to know all the things I do on my home computers. Googling ex-girlfriends, wasting time following Kasparov's chess moves, reading back issues of the the Exile (www.exile.ru), playing Tetris during working hours, tracking photos of the small Ukraine village where I spent a summer picking potatoes and sending the fifteenth threatening e-mail to the guy who owes me Sharks tickets from the Texas Hold 'Em hand I won last June is just the tip of the iceberg... and that is just the quasi respectable stuff...
A friend of mine, we'll call him Max, went through a nasty divorce. Max was the kid who always got me into trouble. My parents tried everything to get me to stay away from Max, but Max always had fireworks, shaving cream, eggs and a devious plan mapped out for the neighbors on our way to Ms. Welte's second grade classroom. I remember the day he convinced me to hitch hike to class, we spent three hours trying to flag down some unsuspecting soccer mom (no one stopped) to score a ride that would have brought us a whole two blocks to our elementary school. One day, we found in our mailboxes a free sample of the new flavor of Wrigley's chewing gum. Needless to say, we were noticeably abscent from class that day and spent the same evening toting around a one pound bag of chewing gum after visiting every mailbox in the neighborhood.
Max called last month not to suggest that we T.P. the middle school or give Mike a swirley again, but to inform me that he and his wife, who I will call Nedra, were getting a divorce.
To Max's credit, he did straighten up a bit in his later years. He was a good father to three kids and only tossed water balloons with them on hot Summer days and not at the local school principle's car.
"You're into that computer as evidence shit, right?" Matt asked as he called as the custody battle heated up. "Nedra's asshole attorney wants my goddamn email off of my home PC, that sonnofabitch. Can he really do that shit?"
"Ummm, I think so," I replied, feebly.
"That can't be legit" howled Max. "Can you check on that for me. I told my lawyer you would help him with this. I'll spring for the cabin next time we fish the upper Sacramento."
I could not refuse a longtime friend in pain and I did pay for our fishing cabin during our last four trips - even though Matt brought the cases of Moosehead. I told him about the seminal California case of Playboy v. Welles, where good old (literally) Hugh Hefner was able to 'get at' yet another luscious Playmate's hard drive (literally, again). I had not heard of much else on the home computer front since the Playboy case, so I promised Max I would dig.
After strapping on the Lexis account and visiting my favorite ESI web resources, I realized that neither Matt nor my home computer was safe at home. Frees, Inc. v. McMillian (2007 Federal Dist Decision out of Louisiana) says that the home computer is subject to a reasonable discovery request even if it was purchased AFTER the events in controversy took place (because, data off of old computers can be easily copied and exported to the new PC). Also, last year in Clayon v. Mizuho Securities, the defendant wanted to dig around in the Plaintiff's personal PC when the Plaintiff's claims of mitigating damages were disputed. The court allowed access, but gave the right of first harvest to the Plaintiff's own forensic expert and if the results seemed fishy, then the court would allow the requesting party's expert (the defendant's expert in this case) access to the home drive. Things did not look good for Max.
When I called Max to tell him the bad news, he responded in typical Max fashion. "I'll just put a Black and Decker Ic1 voltage emitor to the damn thing and give it to the judge while it is still smoking." Max was in construction and new more about voltage emitors than did I, but I told him it was a bad idea. I educated him about adverse inferences and about Teague v. Target Corp, a 2007 No. Carolina case which said that if the PC is destroyed due to a seemingly 'culpable state of mind' the adverse inference attaches. I told Max that there is little that anyone can do wit a voltage emitor which cannot be seen as overly culpable.
I did tell Max, however, that there was case law and rational arguments that his attorney could make to argue that the computer did not contain germane evidence that has not already been presented through paper discovery and deposition transcript and that the requesting party in California under the Toshiba decision would likely have to shoulder costs, which may make the other side back down or back off completely. I had a chat with Max's attorney who had just attended his first ESI lecture at a state bar event and had Zubulake down well enough to be dangerous. After a long chat, he asked me if I had any parting advice for him.
"Yes," I said, "if you don't want to see your mailbox egged our your house toilet papered, do a good job for Max." posted by Alexander | 10:32 AM