E-Discovery Lawyer & Attorney : Quarles & Brady Law Firm : Electronic Discovery, Data Preservation, Conversion, Computer Forensics

Into the "no duh" category of cases falls a recent Texas appeals court decision upholding the conviction of Manuel Flores for cocaine trafficking.  Flores v. State, No. 14-06-00813-CR (Tex. App., Oct. 23, 2008).  Flores contested his conviction on the grounds that he had been subjected to the "John Reid technique" of interrogation, which he claimed could lead to false confessions.  As support, he asked the trial court to take judicial notice of the Wikipedia article on the technique.  The court properly declined to do so.

Apparently borrowing a page from the Cheech and Chong primer on drug trafficking, Flores was busted when he went to pick up a package of 38 baskets made of straw into which 11 kilos of cocaine had been "intricately woven."  (Pop culture mavens will recall the scene in Cheech and Chong's 1978 film "Up in Smoke" where the two successfully drive a van constructed entirely of marijuana across the border).  Interestingly, as of this writing, Wikipedia doesn't contain an entry for the "John Reid technique," but does contain an entertaining entry for "Up in Smoke."

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The Enforcement Manual, or "Red Book," of the SEC (that's right: the SEC) was released to the general public this October and it is the perfect read if you're being investigated by the SEC or know someone who will be.  It contains simply a wealth of helpful information on what the SEC wants in terms of electronic production.  Although there are a number of relevant sections, two of the particularly helpful being sections 3.2.6.2, "Form of Production," and 3.2.6.2.3, "Format for Electronic Production of Documents to the SEC," both of which provide some guidance for those responding to an SEC subpoena. Now, in addition to the two standard responses to SEC subpoenas of (1) sending everything in every possible format, including scans of  napkins with humorously-shaped and possibly discoverable stains and (2) sending nothing and hoping no one notices, the subpoenaed have a third option: send materials in precisely the formats that the SEC wants.

For those of you anxious to sink your teeth into the delicious prose of the Security and Exchange Commission, the complete manual is available here. (You will be relieved to know that the most recent SEC offering is without the tacked on romantic subplot that made Additional Form 8-K Disclosure Requirements and Acceleration of Filing Date such a disappointment.)

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The adage that "quality, not quantity matters" certainly applies to the maintenance of business records. Businesses often devote numerous hours to developing lengthy schedules defining what records must be kept and for how long. While the development of a comprehensive schedule is important, the quality of the records to be maintained is just as important. Records must be of a sufficient quality to allow companies to defend against legal claims.

One important quality consideration is how to store the records. Records should be stored so that records can be easily located when necessary to respond to a discovery request. Failure to do so can result in burdensome costs.

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Social networking websites have taken the world by storm.  On MySpace and Facebook, users lovingly chronicle the intimate details of their lives, post their current relationship status and feelings, provide spontaneous opinions, and upload off-the-cuff photographs.  Even the more professional networking site LinkedIn, is now trying to become more social by adding a blog application.  Unfortunately, users often post without considering the trail of evidential bread crumbs they leave in their wake.  Just last week, Virgin Atlantic Airways fired 13 members of a cabin crew after they allegedly posted inappropriate comments on Facebook.  And today, investigators visit these sites as a matter of course when looking into an individual for purposes of employment, college admission, background checks for criminal activity, and so on.

This growing use of social network information raises two important questions for the corporate world in this new age of electronic discovery:

1. Are social networking sites accessed using an employer's computer, fair game when it comes to electronic discovery and document production?

2. If social networking pages are produced as part of electronic discovery, would this information then be admissible in court?

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Ask any lawyer whether the typical law school course is "practical," and you'll likely receive a resounding "No!" - after they stop laughing, of course. But bloggers have stumbled onto a novel idea - why not teach law students practical skills for dealing with e-discovery issues before they are sent out into the legal community? In a recent article, William Hamilton, a commercial litigator at Holland & Knight and an adjunct professor at the University of Florida's Levin College of Law, pointed out that "e-discovery failures continue, apparently unabated" and "many of the dramatic e-discovery failures of the past two years have involved firms at or near the top of the profession." See The E-Discovery Crisis: An Immediate Challenge to Our Nation's Law Schools, November 5, 2008." Some experts believe that "attorney incompetence in e-discovery is so widespread that it presents a massive ethical crisis across the entire legal profession." Id.  So why not educate the next generation of lawyers about the best methods for dealing with e-discovery? These law students can bring a new level of e-discovery competence to law firms, government agencies, and clients. Id. It may be the best method by which the profession can slay the e-discovery dragon and avoid the pitfalls and sanctions of the "e-discovery crisis." 

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