E-Discovery and the Legal Nightmare It Can Become--A Cautionary Tale

Pretty much everyone in the legal and corporate worlds is aware that the legal landscape is changing and electronic discovery (e-discovery or EDD) is driving that change. E-discovery refers to any process by which electronic data is sought, located, secured, and searched with the intent of using it as evidence in a civil or criminal legal case. Even a small company can have millions of electronic and paper documents which somehow need to be located, copied, digitized, reviewed and, if necessary, produced during litigation. While existence of this data in a digital form can greatly speed review and searching, the penalty for a poorly designed system or poorly trained litigation team is extreme.

In the process of electronic discovery and recovery, data of all types can serve as evidence. This can include text, images, calendar files, databases, spreadsheets, audio files, animation, web sites, and computer programs. And as the lines between different technology hardware gets more and more blurry, potentially any electronic device can become a source of potential electronically stored data. The obvious sources are PC's, network servers and laptops. But now data is also stored on jump drives, portable hard drives, CD's, DVD's, Blue Ray Disks, memory chips, PDA's, and even i-Pods and cellular phones.

Most lawyers, even those who don't practice in Federal Court, are vaguely aware of recent amendments to the Federal Rules of Civil Procedure, including 16, 26, 33, 34 and 37. As a result of these amendments, the old "The dog ate my homework" excuse won't work anymore. There is no excuse for failing to maintain or produce electronic data and a party can be severely sanctioned for failing to comply. Many states are also bringing their own rules of civil procedure and into line with the Federal Rules--with similar penalties for violations.

The recent case in involving Qualcomm is instructive. Based in San Diego, Qualcomm licenses semiconductor technology and software to cell phone and DVD makers that makes the devices work. But there are other companies in this business. One competitor of Qualcomm's is Broadcom and for several years the two companies have been engaged in a pitched battle over who has infringed whose patents. One of the battle fronts is in the San Diego Federal District Court. Qualcomm was sued Broadcom over two of these patents covering technology that Broadcom had incorporated into its video players.

You can imagine the e-discovery issues involved when two giant chip/software/hardware makers with thousands of patents go after each other. Broadcom alleged as an affirmative defense that Qualcomm had waived its right to assert patent infringement, arguing that Broadcom's products were based on the JVT (Joint Video Team) international standards. Companies are entitled to base their products on such standards without fear of being sued for infringement. This is why your DVD movie can play in virtually any DVD player because they all use the same standards.

Broadcom claimed that Qualcomm waived its patent rights by participating in the standards process without disclosing that the resulting standard would violate existing patents held by Qualcomm. Broadcom's argument was essentially that Qualcomm engaged in a giant game of sandbag. On the one hand, Qualcomm helped to establish an industry standard that all companies could use, while at the same time knowing (without disclosing to the JVT committee) that it also held the patents on the very technology being incorporated into the standard. The secret ownership of these patents would, in turn, allow Qualcomm to sue any company using the standard for patent infringement. Smart if it works--REALLY dumb if you get caught. Qualcomm got caught.

The San Diego case went to trial and in January a jury ruled that the Qualcomm loses: it had violated Broadcom’s patents to the tune of $8.5 million. But even before the verdict, Qualcomm sustained a huge (and apparently unforseen) body blow as the trial was drawing to a close. One of Qualcomm's engineers revealed the existence of a mere 200,000 pages of e-mails that were not previously disclosed during discovery. Broadcom contended these e-mails should have been produced. Discovery is the pre-trial process where the parties take depositions and exchange documents. About 21 of the e-mails that should have been produced were the smoking gun kind that every lawyer dreams of. Qualcomm's lawyers said "Oops--Our bad" and sent letters of apology to the judge. They explained that they had used an improper "keyword search" during the review process that failed to kick out these e-mails so they remained buried in the millions of other documents being poured over and were never produced to Broadcom.

So all is forgiven, right? Qualcomm lost, afterall. End of story. Well, not exactly. That apology and dog-ate-the-emails fable wasn’t enough for the judge on the case, Rudi Brewster. On August 6 he issued a savage 54-page ruling accusing Qualcomm of not only of failing to turn over the more than 200,000 pages of relevant email and electronic documents during discovery, but of engaging in a long campaign of "constant stonewalling, concealment and repeated misrepresentations." He described it as "an organized program of litigation misconduct" and asked the federal magistrate in the case to consider sanctions against the outside attorney. Brewster ordered Qualcomm to pay Broadcom’s litigation costs, and voided two of its patents that had been incorporated into the JVT. David Rosmann, the vice-president of intellectual property litigation at victorious Broadcom, estimates that its fees will be around $10 million.

Bottom Line in this cautionary tale: Even assuming that Qualcomm's excuse for why it didn't produce the e-mails was legitimate (doubtful, but plausible even for parties who are trying hard to play by the rules), the penalties for that mistake are staggering. So, if you find yourself in a litigation situation, make sure your attorneys, IT department and any third-party e-discovery management company are all on the same page. If you don't have a spare $10 mil lying around, a mistake like the one in Qualcomm's case could put you out of business. Oh, and, not surprisingly, Qualcomm has new legal counsel now. So e-discovery mistakes can be just as deadly for the lawyers as for the actual parties.

I See Drunk People--What's Going on Out There?

There seems to be a rash of weird drunk driving stories making the rounds these days. From the "There just ain't enough to do in Clio, Michigan" department, comes this item. On November 8 a man and his 13-year-old son were both arrested for drunk driving. A police officer noticed a truck that appeared to be stuck in the mud in a city park. When the officer approached the vehicle to investigate, he was somewhat surprised to find a drunken 13-year-old boy at the wheel.

Upon further investigation, the officer was even more surprised to find the lad's father sitting next to him in the passenger seat, also drunk. The man told police that he had turned over the driving duties to his son because he'd had too much to drink. The boy admitted that he was also too intoxicated to drive. Open containers of beer and liquor were found in the vehicle, said Clio Police Chief James McLellan.

The father, a 41-year-old Flint-area man, is facing several misdemeanor counts, including child endangerment, allowing an intoxicated person to drive his vehicle and allowing an unlicensed minor to drive, police said. The boy was charged in juvenile court with driving while intoxicated, among other things.

The pair were apparently trying to get home when they went into the park to turn around. The truck rolled off the pavement and became stuck in a muddy area. The kid will learn all that once he takes drivers education a few years from now.

And that isn't the only item. In another story, this one from Ypsilanti, Michigan, a man was arrested for drunk driving. Police told The Ann Arbor News that they first stopped the man after watching him run a red light. The Breathalyzer test registered a 0.11, three points over the Michigan legal limit of .08. Oh, and the man had his 12-year-old son in the car with him at the time.

Back at the station, the police told the boy to call his mother to come and pick him up. A short time later the mother arrived with her 9-year-old daughter in the car. The astute officers noted that she, too, appeared to have been drinking. A breath test was administered and she was found to be legally drunk after registering a 0.13. The police also arrested her. I can't tell from the story who finally drove the kids home. Maybe it was the drunken 13-year-old from the first story.

And in still another story, a man in Australia was arrested three times in a single day for driving while drunk (evidently a world record). The man was arrested the first time on Saturday evening driving along a road south of Perth, Australia, with a blood alcohol reading of 0.194. That is almost four times the legal limit in Australia. The man was caught an hour later driving along the same road and this time his car was confiscated by Police, to prevent future crimes, you see. But, later Sunday morning the man was arrested again in the same car. Police say that after his car was impounded, he broke into the Boddington Police Station in the early hours of Sunday morning, retrieved his car, and drove away. The third stop occurred several hours later. In addition to the third drunk driving charge, police added two more counts: trespass and driving without a licence. He was due to appear in court in Perth about 10 days ago.

While these are somewhat silly stories, drunk driving is no joking matter--no matter which side of the case you wind up on. If you or a family member are the victim of drunk driver, your life is forever changed. If you are the drunk driver and are caught, well, your life may change for the worse as well. A conviction under the new drunk driving laws will likely result in the suspension of your driving privileges, jail time, hefty fines, and Driver Responsibility fees payable to the Secretary of State for years after your conviction.

No matter on which side of the case you find yourself, do the smart thing and contact a skilled attorney.

Sad to See You Go--Judge Mary Beth Kelly Steps Down as Wayne County Chief Judge

Judge Mary Beth Kelly has announced she will step down as Chief Judge of the Wayne County Circuit Court. I have had cases in front of Judge Kelly and found her to be prepared, decisive, reasoned and civil. Not always qualities found in judges, or attorneys in general, for that matter. She will be missed and so will her attempts to drain the swamp.

Judge Kelly was first appointed to the bench by Governor John Engler in 1999. She was appointed Chief Judge by the Supreme Court in 2001, 2003 and again in 2005. She angered many of her colleagues with her policies. She inherited a lot of headaches from her predecessors, including budget deficits ($35 million or so), a shortage of judges, and a nightmarish Friend of the Court office, among others.

Her most visionary and potentially beneficial proposal concerned privatizing the Friend of the Court. This would have saved money and resulted in more child support money being brought in for families. This proposal really angered the union that represents Friend of the Court staff and the County Commission, all of whom evidently feel that the Wayne County Friend of the Court is operating just fine the way it is. See our previous post "Fiend of the Court May go Private".

At about that same time, Judge Kelly moved to assist Circuit Judge Deborah Thomas with her docket troubles. It seems Judge Thomas had fallen behind and, acting in accordance with a recommendation of the court's docket review committee, Judge Kelly temporarily took away Thomas' authority to handle pretrial motions (a time consuming part of the job). Judge Thomas was outraged and resistant to the move. Supporters of Judge Thomas picketed the courthouse. Evidently they felt that--like the Friend of the Court Office--Judge Thomas' court was running just fine the way it was. As usual, the rights of the parties assigned to Judge Thomas to have their cases resolved as quickly and cheaply as possible come second.

In another controversial but very bold move, Judge Kelly raised the ire of her colleagues by assuming responsibility for reviewing all legal challenges to the racial composition of Wayne County Circuit Court juries. For reasons that don't seem to be fully understood, Wayne County juries often have fewer black members than county demographics would anticipate.

But Judge Kelly's position is consistent with the rulings of the Michigan Supreme Court. In 2005 the High Court ordered that race, gender, religion or nationality were considerations that could not be used in jury selection. This decision followed efforts by Wayne County judges — including Thomas — to impanel more racially balanced juries. The Michigan Judges Association and the Michigan Department of Civil Rights opposed the Supreme Court's rule change. A 2006 study by the National Center for State Courts, based in Williamsburg, Va., found African-Americans comprised about 26 percent of jury pools in Wayne County compared to 40 percent of the area's population.

The death blow to her tenure as chief judge really came several weeks ago when her esteemed colleagues on the bench voted overwhelmingly (just as they had done in 2005) to remove her, urging the Michigan Supreme Court to appoint Circuit Judge Robert Colombo, Jr. to replace Kelly. The long knives came out and Judge Kelly finally agreed, for the good of the court, to step down. It's a pity the other judges on the circuit didn't give more of her ideas a chance to bear fruit. For the record, Judge Columbo is also a fine judge and will likely make a very good chief judge.

Kelly counts among her accomplishments: adding judges to the court's Family Division--one thing she was actually allowed to accomplish. Happily, following her departure as Chief Judge Judge Kelly will still hear family law cases after January and, hopefully, continue to tackle the ongoing funding and other intractable problems at the Friend of the Court.

No good deed--or in this case good idea--goes unpunished. Judge Kelly had a lot of good ideas, which could only improve the Wayne County Circuit Court and its bloated, inefficient appendages. Her legacy would be much larger and more far reaching had she not been stymied in her efforts at reform by the keepers of the status quo, both on and off the bench. She has colleagues on the Wayne County bench, but few peers.

See this link for a more thorough article on Judge Kelly's tenure as Chief Judge: Metro Times.

Michigan's Move to Become a Bigger Player in Presidential Races Shot Down

I was gratified and amused over the summer to see that Republicans and Democrats in Michigan had agreed to move Michigan's presidential primary up to January 15. This was an uncharacteristically bold move designed to given Michigan a much more prominent role the primary process. Governor Granholm signed the bill into law on September 4. But all good things must end. A judge in Ingham County (Judge William Collette) has found a part of the law unconstitutional. Well, it was fun while it lasted. Under Democratic National Committee rules, only Iowa, Nevada, New Hampshire and South Carolina are allowed to hold primaries before February 5.

This law, if it survives the legal challenge in some form, would make Michigan's primary one of the earliest (number 4 on the hit parade after New Hampshire, Iowa and little Wyoming--if my math is right). For too long other states have been the king-makers. It is not uncommon for the Northeasterners in New Hampshire to vote for one candidate and the sensible Midwesterners in Iowa to vote for totally different candidates. That generally positions the next state to hold a vote as a very important player.

This is a particularly significant position as the primary schedule stands now. Assuming Michigan's primary is held on January 15 (which the pols say is still the big day), another 23 states will hold their primaries and caucuses in just the next three weeks between January 15 and February 5. Any state that holds a primary out in front of the 23 others could well decide who has the momentum going into the next round. With primaries and caucuses packed so densely, there just isn't enough time between primaries to spin results or get media exposure to change the momentum of the juggernaut. Good for Michigan. Other states also moved up their primary and caucus dates for the same reason.

Amid the chaos of the announcement last summer, most of the Democratic candidates pledged not to campaign in Michigan. The Republican hopefuls didn't seem to care much and seem to see it as an opportunity to be alone in the room with us Michiganders for a while to get their positions across. This seems like the smarter position to me.

As to the unconstitutional business, on the bright side Judge Collette did not rule that the entire law was unconstitutional. Rather, he ruled unconstitutional a provision in the law that gives the Democratic and Republican parties exclusive access to lists of people who voted in their party's primary. This ruling, at least implicitly, acknowledges that moving the primary date up is perfectly legal.

However, the ruling effectively cancels the primary date unless there is a successful appeal or state law is changed to allow the vote to go forward. There are several options for lawmakers at this point.

The State Legislature could appeal the ruling. Or, lawmakers can pass a different version of the law that resolves the voter list issues that Judge Collette found so troubling. A two-thirds majority of lawmakers supporting the existing law is another option.

A third option is to let the ruling stand and for the political parties to opt instead for caucuses or nominating conventions to select the candidates. Primaries are better from Michigan's prestige perspective, since they allow for much broader participation by all the party faithful (not just the fanatics who would attend a nominating convention or caucus). Going the convention/caucus route would greatly dilute Michigan's influence in changing the momentum of the race.

Here is the primary and convention schedule as it presently stands:

To Be Determined:

New Hampshire (primary)

JANUARY 2008
January 5: Wyoming (GOP caucuses)
January 14: Iowa (caucuses)
January 15: Michigan
January 19: Nevada (caucuses), South Carolina (Rep primary)
January 29: Florida, South Carolina (Dem primary)

FEBRUARY 2008
February 1: Maine
February 5: Alabama, Alaska, Arizona, Arkansas, California, Colorado (caucuses), Connecticut, Delaware, Georgia, Idaho (Dem), Illinois, Minnesota, Missouri, New Jersey, New Mexico (Dem), New York, North Dakota (caucuses), Oklahoma, Tennessee, Utah
February 9: Louisiana
February 10: Maine (Dem caucuses)
February 12: District of Columbia, Maryland, Virginia
February 19: Hawaii (Dem), Washington, Wisconsin

MARCH 2008
March 4: Massachusetts, Minnesota (Dem), Ohio, Rhode Island, Texas, Vermont
March 8: Wyoming (Dem)
March 11: Mississippi

APRIL 2008
April 22: Pennsylvania

MAY 2008
May 6: Indiana, North Carolina
May 13: Nebraska (primary), West Virginia
May 20: Kentucky, Oregon
May 27: Idaho (Rep)

JUNE 2008
June 3: Montana, New Mexico (Rep), South Dakota

AUGUST 2008
August 25-28: Democratic National Convention in Denver, Colorado

SEPTEMBER 2008
September 1-4: Republican National Convention in Minneapolis-St. Paul.

Perhaps a system where the first state to hold the primary rotates would be a good idea. Every state gets its turn to be a king maker. Or maybe better yet, group the states into four or five sets of 10-12 each. Then hold a primary for one group all on the same day. Wait a month to see who has the momentum and for the spinners to do their thing, then hold the rest, each group's primaries would be a month apart. Rotate which group would go first. Give everyone a real chance to set the trend. That all probably makes too much sense. Forget I said it.

Gypsies, Tramps & Thieves Redux--Fumbling Toward Mediocrity

Well, the Lansing Parliament may actually be getting it right for a change--maybe. This past Wednesday, the Michigan Senate voted 23-15 to repeal a much-maligned (hated, despised, contemptible, vile, loathsome, odious) tax on services, such as business consulting, tanning and graphic design, before it takes effect Dec. 1. We commented on the malodorous tax in an October 2 post. Read it here. The tax deal was passed in the wee hours of the morning on October 1.

As first reported in that missive, this tax was a bad idea. It expanded Michigan's sales tax to certain services, including fortune tellers, phrenologists and, perhaps most importantly, business consulting services. It is these chaps who will take the biggest hit under the tax and be forced to pass the increases on to customers. It was estimated by some that, if allowed to go forward as planned, the tax could cost consulting businesses $500 million. This would help to crush or drive out still more business from the state. Bleeding an already anemic patient has not been an accepted treatment since the middle ages, which is probably when the Governor and the State Legislators last studied economics.

The full State House is expected to follow up this week, perhaps as early as today. At issue is what new plan should be concocted to replace the $614 million the ghastly tax would pour into state coffers this fiscal year. The key to successfully driving a stake through the black heart of the service tax is making up for the revenue that lawmakers and governor Jennifer Granholm have designated for K-12 public schools and law enforcement, along with other government services. It has not occurred to these people that they need to cut costs and unnecessary services rather increase taxes.

Businesses have argued that the tax is confusing and goes a long way toward making Michigan an even less attractive place to do business. A fundamental flaw in the tax is that it is unfair and taxes some services but not others. Most notably, accounting and legal fees are exempt from the tax.

While they ruminate on the solution, the pols have pushed the date when the tax kicks in back from December 1 to December 20. It is hoped that the delay will buy more time for the Legislature to consider alternatives. Time management is not one of the skills for which this Legislature is widely known.

Having learned from hard experience that the legislature can be neither trusted nor counted on to do the smart thing, the Coalition to Ax the Tax, made up of businesses from around the state, has pledged its willingness to collect signatures place the tax on the ballot and let voters decide in November 2008 whether the tax should be repealed if lawmakers fail to kill it. If we simple proles are going to pay the tax, it seems we should get to vote on it.

"Don't Tase Me Bro' "--The Death of Civil Discourse

This past Monday Darnell Oldham, Sr., may have gotten himself permanently disinvited to Lansing City Council meetings. Oldham is apparently a bit of an eccentric who amuses himself by disrupting city council meetings. This week Oldham tossed a hangman's noose at the Lansing City Council. Oldham, an African American and Vietnam War vet, asserts that the noose symbolized the Lansing City Council's "lynching" of his right to free speech. Huh? To his credit, Council President Harold Leeman, Jr. is attempting to ban Oldham from future meetings. Good for him. Oldham is a proud representative of an ever increasing class of professional or semi-professional cranks who disrupt meetings and hi-jack events across the country every day.

Recently another professional disruptor interrupted a forum in Florida where failed presidential candidate John Kerry was speaking--or at least attempting to speak. Andrew Meyer, a University of Florida journalism student, repeatedly and forcefully asked Kerry why he conceded the 2004 election after multiple reports of disenfranchisement of black voters and rigged electronic-voting machines. Lest you doubt Meyer's illegitimate purpose, dear reader, shortly before he began his assault, he handed a video camera to a girl in the audience to film him. His intent was to post the video on YouTube, as he has done with other clips of his carefully recorded antics.

Meyer was given the opportunity to ask a question of Senator Kerry. He asked the question. Senator Kerry answered the question. Meyer then refused to leave the microphone and kept talking. Despite being asked to leave the auditorium and eventually being escorted out, he returned and continued to shout out his question. His efforts became so forceful, and his actions so disruptive that it took half a dozen security officers subdue him. He continued to struggle mightily with the officers, even as they tried to carry him out. Finally, they had enough. As one of the officers pulls out his electric Taser, Meyer is heard to exclaim (a little too late), "Don't tase me, bro. Don't tase me." So they taser him. His infantile behavior improved markedly.

What these people don't seem to realize is that their antics interfere with legitimate discourse and, yes, even the work that is being accomplished by these groups. The right to free speech does not give anyone at any time the right to completely disrupt the legitimate activities of the Lansing City Council, a John Kerry speech, or any other legitimate activity.

Meanwhile, back in Lansing, the throwing of a noose is never an acceptable means of expression--whatever the thrower's race. Such a racially charged outburst is beneath the dignity of anyone with a legitimate grievance and Oldham--and ninnies like him--should be banned from future meetings. His point, to the extent Oldham has one, could be made far more forcefully in a civil, coherent manner. If not to the city council, then to the newspapers, television cameras or elsewhere. Failing in that, Oldham should run for the city council then everyone will have to listen his opinions--good, bad or indifferent.

Of course, the Disruptor Class never really has the staying power to legitimately express their views or--heaven forbid--run for office and actually work for change or the positions they claim to advocate. They are more comfortable muttering in the shadows until their their moment in the sun. I've been forced to sit through more than my fair share of meetings that were made to grind to a screeching halt when some professional crank refused to be silenced after a full and fair opportunity to be heard. At those moments, I wish Tasers were standard issue to every city council.

Read more about it in the Lansing Journal. To read more about Meyer episode in Florida and see the video, Click here.