On the Mark

While I’m really not quite sure why the White House objects to an order that restates its existing obligation to preserve e-mails, it seems it does.

Perhaps it has something to do with the fact that an order, if not obeyed, carries consequence. Legal consequence.

I am not alone in being troubled by an administration that can’t quite get it right with respect to e-mail retention — e-mails, coincidentally,  from a period of great scrutiny during the Alberto Gonzalez debacle.

In a follow-up to a story and commentary I posted last month, (see my post) I want to point out last week’s Washington Post story by Peter Baker.

(Here’s the Story)

By Peter Baker - Tuesday, November 13, 2007
Washington Post Staff Writer

A federal judge ordered the White House yesterday not to destroy any backup computer tapes of its e-mail, pending civil litigation seeking to learn more about what happened to a trove of messages missing from a 2 1/2 -year period earlier in the Bush presidency.

The Bush administration had opposed such an order, arguing that it is unnecessary because the White House administrative office already is preserving backup tapes in its possession. But U.S. District Judge Henry H. Kennedy Jr. was not satisfied by that assurance and issued the formal order, which carries contempt penalties if violated.

Read the full story here.

Who needs law school? Dispute resolution? Scales of Justice? Forget all that thoughtful stuff. Here’s a judge who took the numismatic approach: He flipped a coin.

 I know, you think I’m kidding. I assure you I’m not.

Juvenile and Domestic Relations Court Judge James Michael Shull’s career has now, hopefully, screeched to a halt. It seems that aside from deciding a custody matter (which parent would have a child for Christmas) by flipping a coin, Shull had previously behaved outrageously in his court.  He asked a woman to pull her pants down, not once, but twice, to determine if her claim of being stabbed by her boyfriend was legitimate. And it doesn’t end there. He called a youth who appeared in his courtroom ”a wuss” and a “momma’s boy”.

Read the complete story here. - By LARRY O’DELL, Associated Press Writer

On the Mark has just finished its first full month and we’re pleased with the reception the blog has received. A lot of clicks, some thoughtful comments from our users and some entertaining and informative content to boot. 

Thanks for making the first month a success!

Now it’s time to continue with the game plan and introduce some of the good stuff I have coming up.

We start today with a guest piece by Conor Crowley. A fellow Sedona-mate and one of the most insightful attorneys I’ve ever met in the e-discovery realm, Conor brings a very well written piece about  preservation and how it’s changing in the eyes of many people.  

Conor writes:

In cases such as Convolve, Inc. v. Compaq Computer Corp. and Phillips v. Netblue, Inc., courts were presented not with requests for orders to preserve data normally not retained but rather motions seeking sanctions for failure to preserve such data in the absence of agreements or orders directing preservation.  However, in a recent case of note the court was faced with the question of whether to issue an order directing the preservation of data that would otherwise be lost due to its ephemeral nature.

In Columbia Pictures, Inc. v. Bunnell, 2007 WL 2702062 (C.D.Cal. Aug. 24, 2007), the court addressed a motion by plaintiffs for an order directing the preservation of information in the Random Access Memory (“RAM”) of defendants’ computers.  The court rejected defendants’ argument that ESI included only information stored for later retrieval.  Defendants also argued that ESI could not include information held in RAM because the period of storage (less than six hours) was too temporary.  The court found defendants’ “interpretation of ‘stored’ unsupported by the text of the Rule, the accompanying commentary of its drafters, or Ninth Circuit precedent involving RAM,” specifically finding that “Rule 34 requires no greater degree of permanency from a medium than that which makes obtaining the data possible.”

Although the court in Columbia Pictures was presented with a case where the information stored in RAM was highly probative, it is clear that neither the lack of intent to later retrieve ESI nor the short duration of its existence are a bar to requiring preservation.  This position is consistent both with the Rules and The Sedona Principles for Electronic Document Production (“The Sedona Principles”). The Advisory Committee Notes to the Rules provide that “Rule 34(a)(1) is intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments.”  Principle 8 of The Sedona Principles provides that “[t]he primary source of electronically stored information for production should be active data and information.”

Thank you, Conor.

Also in November, look for our series of profile interviews with industry thought leaders. We believe these will be informative, colorful and a more rounded picture of the movers and shakers in our community. Stay tuned, as they say.

On the Mark

By Mark V. Reichenbach - October 29, 2007

New York - One month ago yesterday here at On the Mark  I blogged about Morgan Stanley and its recent email woes and admissions that came to light in 9/11 arbitrations. In that piece titled Mo’ (Morgan) Money (click for story) we touched upon emails requested in the arbitrations and Morgan’s response and conduct.

“The emails in question were those in existence before 9/11 which Morgan claimed were destroyed in the attacks and thereby unavailable for production. It was found Morgan in fact had restored the previously claimed destroyed emails.

What appears even more troubling is that pre 9/11 emails once restored were then allowed to be lost due to the overwriting of backup tapes that contained the emails in question”. 

Well, it’s shaping up that Morgan is in the crosshairs of many plaintiffs who are eyeing lawsuits against the financial giant.

On Thursday’s Law.com piece originally found on The Daily Business Review, Jordana Mishory details the possible future of litigation against Morgan Stanley and those who are bringing it.

Darren Blum of the firm Blum and Silver has set up the Internet website named SueMorganStanley.Com, directing those interested in jumping on the bandwagon to a source of additional information.

Other securities attorneys are also taking action and gathering their names.

This story won’t have an ending for some time. I suspect we’ll be discussing these battles for years.

Saturday blogging?

Get a life, Mark.

I’m trying.

The baby is in the other room with her Mom watching Pingu and I’m drinking coffee on my Saturday rounds in the blogosphere.

Here’s one for you, an excellent recap of the Lorraine v Markel American Insurance case which Craig Ball points out to the readers of EDDUpdate.  Just as Craig states, this is a five-minute read of a rather lengthy opinion from Judge Grimm about authentication and admissibility.  The recap he cites from Law.com can be found here.

The article Keep ‘Smoking Gun’ E-Mails From Backfiring written by H. Christopher Boehning and Daniel J. Toal really breaks down for easy consumption . This is one of the best recaps of this decision available and will help readers more readily grasp the concepts in play here. 

On The Mark rates this a must read.