You may recall from an earlier post that, worthy as the opinion in Lorraine v. Markel is, it put me to sleep (twice). At 101 pages, it is somewhat intimidating! However, it is a superlative guide to the authentication of ESI. If you can live without reading the whole opinion, but want an excellent summary, try this link: http://www.lexisnexis.com/applieddiscovery/LawLibrary/whitePapers/
ADI_WP_LorraineVMarkel.pdf

Many thanks to Courtney Barton of LexisNexis® Discovery Services for sending me this link. Courtney also points out that her company provides a number of excellent ED whitepapers which can be found at http://www.lexisnexis.com/applieddiscovery/lawLibrary/whitePapers.asp

Definitely a link to add to your Favorites!

E-mail:   Phone: 703-359-0700

August 29th is not shaping up as a good day for 14 lawyers involved in the Qualcomm Inc. v. Broadcom Corp. case. U.S. Magistrate Judge Barbara Major has ordered the 14 attorneys to show cause on August 29th why they should not be sanctioned for misconduct in their handling of electronic evidence in the patent infringement suit.  U.S. District Judge Rudi M. Brewster delivered a harsh assessment of the misconduct in his original August 6th opinion in the case. He found that Qualcomm’s attorneys had removed e-mails from files before preparing employees for testimony and concluded that “Qualcomm counsel participated in an organized program of litigation misconduct and concealment throughout discovery, trial and post-trial before new counsel took over lead role in the case on April 27, 2007.”  The court noted Qualcomm’s production of over 200,000 pages of highly relevant e-mails and electronic documents four months post-trial. Ken Withers, a noted expert in federal procedure, calls the misconduct “in a class by itself” and concludes, “This seems to be a concerted effort to thwart the court’s ability to find the truth.” Ouch. Magistrate Judge’s Major’s August 29th hearing will give the attorneys a chance to explain their actions before sanctions are considered. Nine of the attorneys are from the Cupertino firm of Day, Casebeer, Madrid & Batchelder. The other five attorneys are from the Heller Ehrman law firm. As Ricky Ricardo would no doubt note to the lawyers, “You’ve got some ‘splaining to do.” Don’t change that dial – I’ll be back to report on the outcome.

The Show Cause order in the case may be found at http://www.klgates.com/files/upload/eDAT_Qualcomm_8_13_07_Show_Cause_Order.pdf

The original opinion may be found at http://www.klgates.com/files/upload/eDAT_Qualcomm_8_6_07_Order_on_Remedy.pdf

E-mail:    Phone: 703-359-0700

By now, virtually everyone has heard about Lorraine v. Markel, the landmark case regarding the admissibility of electronic evidence decided in a Maryland federal court in May of 2007. It is a fearsome opinion, 101 pages in length. I read the digest of the case and printed it out with every intention of reading it. Ignored, though resting elegantly on my leather sofa, it glared at me balefully for weeks. Finally, knowing that I had a five hour plane ride to the ABA annual meeting in San Francisco, I packed the opinion to read on the plane. I started off well enough as the plane gained altitude, but with apologies to Judge Grimm, I have to confess that I fell sound asleep on Page 15. I know it was on that page because I awoke to find that page and my left hand covered with blue highlighter marks. I had been awakened by my husband, who wanted to let me know that the movies were coming on. Now I had a choice between watching Spiderman 3 or finishing the opinion. What can I say? Spidey won out. So much for my devotion to things intellectual.

Once the movie was over, I was well and truly without any further excuses from duty, so I buckled down and got through the whole opinion. Having been frequently asked by lawyers if they should really spend the time to read this opinion, my answer is a resounding yes. Judge Grimm does an exhaustive (or in my case, exhausting) job at examining all the issues regarding the authentication and admissibility of ESI. In a nice turn of phrase, Judge Grimm calls the failure to authenticate ESI a “self inflicted wound,” and one that judges see all the time. I have no doubt that some attorneys will be surprised by what they read – there are more means of authentication than you might imagine, whether we’re talking about chat room text, e-mails or website content. It is beyond the scope of a blog post to go through this opinion meaningfully, but rest assured, if you have questions regarding the authentication of ESI, this is the opinion to read.

Some days you don’t have to go looking for a blog post. This was one of those mornings. Like the lemmings they are, newscasters this morning all seem to have glommed on to a facet of electronic evidence previously known mostly to divorce attorneys and their experts: the probative value of the E-Z pass. I woke up to this story on the Today show, heard it again on the radio on my way to work, and found it yet again in my Inbox courtesy of Virginia Lawyers Weekly.

If you use E-Z Pass or its equivalent on your way to or from your paramour, beware. E-Z Pass information is now regularly sought by divorce attorneys in those states where adultery may make a difference in how assets are divided. In child custody cases, it is often used to show how seldom a parent may be around while visiting their significant other, off drinking with buddies, gambling at the racetrack, etc. There are twelve states in the Northeast, South and Midwest that are part of the E-Z Pass system. Seven of those states will provide E-Z Pass information in response to court orders in both civil and criminal cases, including my own state of Virginia. Four more, including New Jersey and Pennsylvania, will provide such information only for criminal cases. West Virginia does not currently have a policy.

If a husband thought he’d save a little time getting that E-Z Pass and then used it to visit his honey, he may have sealed his fate in court. You can almost hear Carrie Underwood singing the words of a wronged woman in one of her most famous songs: “Maybe next time he’ll think before he cheats.”

E-mail:    Phone: 703-359-0700