In the Swofford v. Eslinger case, the court sanctioned in-house counsel (but not outside counsel) for failure to preserve evidence. The attorney sanctioned was general counsel for a government entity, the Seminal County Sheriff’s Department. What was unique about this case was that the sanctions were brought against in-house counsel for spoliation of evidence even … Read more »
Category: Records Management
The Four Areas of Risk and Knowledge
When thinking about risk, I break things into four quadrants. There are things we know and there are things we don’t know as individuals. I then slice slice that further again with the things we know and the things we don’t know as part of the larger organization or conscious state. Our sweet spot is … Read more »
California Adopts e-Discovery Rules
Never mind the budget crisis or handing out IOUs, California has passed its own Electronic Discovery Act. California joins the 30 other states that have decided to include provisions in their rules aimed directly at the discovery of Electronically Stored Information. The Act amends the California Code of Civil Procedure by expressly permitting discovery of … Read more »
Discretion and Compliance
Martin Lomasney created a famous saying on the importance of discretion: “Never write if you can speak; never speak if you can nod; never nod if you can wink.” At the time of Lomasney, it was not email but telegrams that were the principal method of electronic communication. But those telegrams just ended up on … Read more »
Email Compliance 201
LiveOffice presented a webinar on records management issues related to electronic correspondence and archiving. (I missed the Email Compliance 101 session.) First up was Christina Rovira, Legal Compliance Advisor at CoreCompliance & Legal Services, Inc. She pointed out that SEC and FINRA require investment advisers and broker-dealers to supervise the business activities of their representatives. … Read more »
Document Retention Policies and Spoliation of Evidence
In a recent case, a court found the implementation of a document retention policy to amount to the spoliation of evidence and imposed the “nuclear” sanction of declaring the suit unenforceable. In the case of Micron Tech. v. Rambus in the U.S. District Court for Delware, Judge Sue Robinson was addressing the effect of Rambus’ … Read more »
Secured Creditor Filings
It recently popped into the news that the lender for the bankrupt law firm Heller Ehrman terminated its UCC filing: Banks May Lose $51 million in Heller Dispute. On August 3, 2007, a UCC Financing Amendment was filed with the termination box checked. (See a copy of the UCC Amendment.) The lender filed a correction … Read more »
Things You Should Never Put in an E-Mail
Molly McDonough of the ABA Journal puts together a list of things you should never put in an email, borrowing from Roger Matus‘ 10 Things Never To Put In Email: “I could get into trouble for telling you this, but…” “Delete this email immediately.” “I really shouldn’t put this in writing.” “Don’t tell So-and-So.” Or, … Read more »
Computer Illiteracy Is No Defense For Spoilation
You can’t put your hands in the area and say you do not know anything about computers. The Oklahoma Supreme Court recently issued an opinion that a litigant was subject to sanctions: Barnett v. Simmons, 2008 OK 100, 11/10/2008). The court looked to the standard for sanction in Oklahoma and found no requirement of willfullness. … Read more »
Public Hearing on Massachusetts Data Privacy Regulations
The Massachusetts Office of Consumer Affairs and Business has published a Notice of Public Hearing on 201 CMR 17.00, Standards for the Protection of Personal Information of Residents of the Commonwealth. (.pdf) The hearing is on Friday, January 16, 2009 at 2:00 pm in Room No. 5-6, Second Floor of the Transportation Building, 10 Park … Read more »