January 19

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Corporate Digital track

  • both individual and institutional
  • Think where we’ve come institutionally. 50 years ago, companies kept their records on massive amounts of paper, that cost huge amounts to store. There were records management units in corporations, whose entire function was managing this information track.
  • Think where we are now. What do a company’s records look like at this point? Companies retain vast amounts of digital data.
  • Think about the multiplicity of forms and modes of storage for digital information.
    • Compare this to the track that we as individuals lay down (though we also lay down all that other information).
  • We went through a period during the change to digital when the old records management types started to look quite irrelevant. Now the tech department was king. Different culture, not top down organized.
    • You wind up with a structure that’s not top down hierarchical, but rather, much more organic.

Big Bank

  • Imagine a foreign bank during this transition period. If you take a time flow up through about 2000, the bank is dabbling in getting into the digital environment. Then the bank starts to shift over its core transactions to digital, but still is maintaining parallel paper records for many things. How would you advise this bank? They’re thinking of adopting a centralized digital management system. They’re concerned about their materials and customers.
  • How do you sort what you keep from what you get rid of?
    • In the old paper records days, that resulted in the development of careful practices, reduced to policy and lawyered, about how recoreds were to be kept.
    • But the questions of what to destroy and what to keep bump up against the law
    • Can a company destroy a document? Yes. If you own a document, you can do what you want with it.
  • Under what circumstances does a document create a character where destroying it creates a legal problem?
  • DC bar committee: “the test is whether the document destruction is directed at concerte litigation, either pending or almost certain to be filed. The needs for certainty as to when the rule applies and for flexibility of action by the lawyer dictate that the rule’s application be thus confined.
  • You represent a lawnmower company. Someone gets badly injured. In the course of discovery, you find a document that will kill you in litigation.
    • Do you shred? No.
    • That document has now become invested with something. It is evidence in a pending suit.
    • So what do you do ? options: (1) settle; (2) advise client of how damaging the document is, and if it disappears… what is the risk? Is your lawyer going to testify? Are you likely to be caught?
    • Now the lawyer has settled the case. This P goes away. But the lawyer realizes that this defect still exists. Now the document is in hand, and there’s no pending litigation. Can the lawyer advise the client that he may treat the document just like any other?
      • Answer from: DC bar committee: “the test is whether the document destruction is directed at concrete litigation, either pending or almost certain to be filed. The needs for certainty as to when the rule applies and for flexibility of action by the lawyer dictate that the rule’s application be thus confined.
      • What is “flexibility of action by the lawyer”?


Spoliation

  • When N first started teaching evidence, he wondered what counts as obstruction of justice. The law at that time was based on an idea of property; that document belongs to you. But when the process of law imposes some change on the document (like subpoena), then the status of the document changes. That was the line.
    • This has now changed, after Watergate. That’s where “imminent” comes in.
    • But the basis ‘status’ idea is still around.
  • But just because you’ve obeyed the law, you’re not necessarily home free. If you’ve subpoenaed the document and the other side has destroyed it, that’s known as Spoliation,, and that itself becomes an evidentiary fact, from which a trier of fact can draw a conclusion.
    • A judge evolved doctrine.
    • It’s possible for the judge to keep that as a contempt, or could permit the jury to draw an inference from the fact of it. it acts like an admission from the party opponent, like running from the crime.
      • If it’s strong enough, the judge can draw that inference and preclude that issue.
  • But recognize that this is a structure that exists in a real world of litigation, where discovery starts as a low level process, managed by assistants.
    • If you get caught by the opposing party not producing something. It’s likely that you say, we’ve made a mistake, here’s a document, and the magistrate will proceed (not looking for a fight). So there’s not much of a sanction for taking the chance of withholding a document. lawyers will be lawyers
    • Likewise, if it's discovered after the trial that the document was there, your chances of getting a new trial are very low. The rules of closure shut you down pretty fast. 10 days without fraud, a year with fraud.
  • The time when it's dangerous to be caught cheating is when there's a jury sitting. That's when the judge allows you to make a trial issue of the spoliation.

Fen Phen

  • in the discovery against the drug companies, the P's lawyer went through a 2 year process of digging and finding documents. But he also found that documents were missing.
  • Won the biggest judgment ever in MA. That provided the base for the national class action lawyers who played off of this discovery. That was a big hit for the plaintiff's bar.
  • You can see the power of document destruction in front of the jury. This is human; juries can understand this .
  • Do not argue in your opening statment

The Rules

  • FRCP 26(a)(1)(B); discovery extends to docs in the "possession, custody or control o the party"
  • FRCP 26(b)(2)(i): discmay be limited if "the discovery sought is unreasonably cumulative or duplicative, ro is obtainable from some other sources
  • FRCP 26(b)(2)(iii): and if the burden outweighs the benefit (balancing test), may limit it
  • If you're exposed to American courts, you face a super threatening discovery system. Any doc under your control, unless privileged
  • Preservation
    • Statutory and regulatory requirements
    • Criminal to destroy a doc with intent to impair its availabilitiy for use in the proceeding;
    • Unethical to destroy docs known to be potential evidence in pending or imminent litigation
  • So we have rules made for the analog era, in era where docs are preserved digitally.

Company Policy

  • How would you craft a program for a company that wants to get rid of as much as possible without worrying about Spoliation?
    • could go through the case law and see where the line is drawn for every kind of document and then destroy as much as possible
    • this solves the spoliation problem since the spoliation inference depends on being able to draw an inference that the docs were destroyed for the purpose of evading a particular claim.
    • If there's a general policy of destruction, then you can't draw that inference.
  • Document Retention Programs
    • presumptive limits on retention of emails that are not business records
    • recycle time on back-up tapes
    • notification and preservation measures for pending litigation
    • preservation of evidence for potential litigation
    • establishment of system and training of personnel
  • The company finds it increasingly difficult to respond to discovery and preservation orders since it doesn't know what it's got and it doesn't have control over its system.

Back to Big Bank

  • Think about Fen Fen. D atty requests an order for preservation. The company gets the preservation order.
  • How should Big Bank handle the preservation order?
  • Is an old deleted email recoverable?
    • It probably still exists on the server that sent it.
    • The IT department will run routine tape back-ups.
      • Whereas in the paper world, the people running the show wanted to destroy things, in the modern world, the culture is totally different; IT departments grew up living in fear of a crash. They don’t want to lose anything.
      • IT culture vs. lawyer culture
    • The IT dept started backing up in 1968, on machines that don’t exist anymore, stored in places that no one has indexed.
      • Discoverable, but inaccessible
      • One response to the order; just hand in the whole thing
    • There's so much information; how do you search it?
      • One advantage of digital information storage is that there are programs that make it easy to search them.
      • But what we're talking about is tapes in warehouses of information recorded with mystery software on mystery hardware that hasn't been digitized. You'd have to put back online all that information in order to use those techniques.
      • Spectrum from online ---- to slightly online ---- to obscure material
    • Discovery isn't limited to original documents or admissible evidence. It's anything that could lead to admissible evidence.
  • Send out a general order to halt all destruction in the company
    • What happens when 40,000 people in the company hear about that?
    • But if something gets destroyed in the week while you figure everything out, you're in trouble
      • There are so many copies of docs out there that one bit of destruction isn't going to be a threat
      • But the problem isn't if something is actually destroyed, but if it looks like someone tried to do so.
      • Companies see this problem as totally huge. The organization doesn't permit an automatic response to this kind of order. You would need huge amounts of training.
  • Perhaps the Bank should hire a company to come in and restructure the way it handles its information.

o So long as the costs of discovery are borne by the producing company, then it would be cheaper for them to use such a system.

Stepping Back

  • Here's what has happened: Companies receive these requests and find it's expensive to comply. The general counsels get together and stress about it. They say, we need the rules changed. The plaintiffs shouldn't be able to impose this expense; it's now a huge litigation weapon. Increases the likelihood of settlement at an earlier stage.
  • So you receive the request. You now go before the judge and explain how expensive compliance will be, and claim fishing expidition. You ask for P's to share the cost.
    • Response: the company is claiming that its own inefficiency should be a plaintiff's cost. It's up to them to keep their information in sensible fashion.
    • This has evolved into a structure that recognizes the different layers of accessibility, and gives judges discretion to shift costs in situations where the odds of finding things are low, difficulty of access is high, reasonableness that things are inaccessible is high, etc.
  • Now consider the problem as a whole. You're looking at a need to get your information in control. Dangerous not to produce, hugely expensive to produce
    • the olden days of paper produced a tiny percent of information in comparison with now.
  • When digital information goes online, you can do efficient search, but one problem doesn't go away: after you've found all responsible docs, do you just give them to P's, or do you review them for privilege?
    • Most litigators feel uneasy about giving docs away that they haven't looked at. If you voluntarily disclose, you waive privilege.
    • So now we need an army of lawyers. That's a non scaleable cost.
  • Does it make sense to try and destroy information at all? Would it make sense for companies to retain everything? Does the digital environment allow us to approach truth in a new way?

Questions?

  • are there different rules for criminal and civil? Not in the corporate context. The govt has gotten very sophisticated in the use of its power to demand information from companies.
  • Could you say more about why the Swiss banks decided they were better off having information?
    • They haven't actually decided that. But it has become a consideration.
    • N went to a conference with them, and was impressed by how directly they are facing these issues.
    • The other major concern was affiliates.
      • You can put your data in Sealand, but that doesn't insulate it from discovery if someone who controls access to it is within a court's jurisdiction. How do you structure a company in a way that has both far flung facilities around the world and yet have control of all your data limited to one jurisdiction. It doesn’t work.

Links

Sedona Principles Sedona Background

Human Digital Track - DNA

  • Alcock trial
  • Alcock's lawyer is going to make the case for Jah Cure's parole to Kevin Walland who will be mediating, with all of us weighing in.
  • The idea is to address a problem that has plagued the system of people coming up for parole in circumstances in which the dispute, the disruption in the community that traces back to the crime, hasn't really dissipated. The parolee is often released, goes home, fights break out, and you're back in the soup.
  • The restorative justice strategy is to gather all the views that are relevant and see if they can be responded to.

Jamaican Guests Discussing Alcock Trial

  • Kevin Wallen: students and staff expressing truth: restorative justice program
  • Courtney Kezembe: barrister who practices in Jamaica and other countries. He is representing Mr. Alcock who is up for parole.

Should Alcock be granted parole, giving that he's always maintained his innocence

    • he has matured
    • he has forgiven the system, the victim, and himself
    • he has accepted the circumstances he found himself in, and with that acceptance, he has no animosity towards the system. Rather, he has become a leader in terms of peace, towards leading the inmates to recognize the duty to abide by law, making a contribution to society, and having a positive outlook and attitude towards life. This extends to Jamaica at large. He is a powerful force in regards to moving the entire socity forward towards peace, respect for women and non-violence
    • he is a leader in the SET program, which has produced incredibly positive music.
  • He has the means to provide for himself.
  • Are you pursuing DNA evidence?
    • I was not the attorney at trial or appeal. Up to now, I have seen no evidence that DNA was actually taken from the women, no evidence that there was discussion by the police of DNA being involved in the case. We do know that she went to the doctor that night. I have tried to see that doctor to get a file, and have been unable to do so. Also, this happened in November 1998, and while DNA was important in America at that time, it hadn't really gotten to Jamaica.
  • Do all inmates in Jamaica get a lawyer on parole?
    • No, this is rare
  • Does the parole board emphasize the things you mentioned
    • Yes, the emphasis is on whether he declares he is guilty and remorseful. So they look at wheat you're now saying whether you've been rehabilitated.
    • In Jamaica, when someone is up for parole, there's a lot of data gathered. The community submits a report, so does the victim, so does the parole officer, the psychiatrist and the institution. But you don’t get much of a say; you don’t get to tell your story.
  • Will the victim testify at the parole hearing, and what weight should be given to her testimony?
    • Probably she is not able to testify, although she can contact the players and give her voice. Significant weight will be given to that.
  • What happened to the other witnesses?
    • Many times, police are not thorough. Often times, there is a report of many perpetrators, but only one person before the court. As to why the other witnesses weren't called, it was a result of the prosecution's choice. The defense did not figure out what was going on with the other witnesses.
  • Will Jah Cure's notoriety help his cause in getting parole, or will it hurt it? maybe particularly because he's maintained his innocence.
    • He has been in the public eye.
    • The victim came out when she saw him on TV on a program that featured public officials. When she came out, everything changed. People started taking sides.
    • Before, there was no victim. Now there's a woman saying she has nightmares. Emotions are now involved.
  • How does the process respond to that kind of concern for the victim? How at the point of trying to achieve an amelioration of a residual dispute do you deal with that?
    • This is really an opportunity for Alcock.
    • Right now, the swing is towards the victim.
    • There's a flip side: Alcock has to come out and address violence in Jamaica. Rape is unacceptable, and we as human beings must do what's in our power to address that situation.
    • It's not an issue of credibility; we're not saying that the woman is lying. Rather, we think it's an issue of mistaken identity.
    • He has total compassion for the victim. Total acceptance about the reality of the tough situation that she went through. So there is an opportunity to swing the conversation over to the larger issue of violence in society.
  • Even if he has reconciled himself, she isn't at that point. So looking at your project in the prisons, what happens when the community hasn't reconciled.
    • It's an ongoing process. The system doesn't do anything once the person is out of prison.
    • We try to get the person to speak out on the issue. The people in the community need to see that the person has been changed.
    • Once the person is released, and the community is not reconciled, then we need relocation
    • In Jah Cure's case, the same people who are angry at him also enjoy his music
  • What efforts have seen made to include the victim in this process?
    • In the article that she gave an interview for, she said that she wants him to admit his crime and to publicly say he's sorry. She hasn't expressed an interesting in being super involved; it's been very difficult for her.
    • There's two sides; there is a powerful Free Jah Cure movement in Jamaica. There is also the victim's side. Almost every day someone calls the radio and says not to play his music.
    • The restoration has to be about the total society. We need to move the entire society forward.
  • In your opening statement, you said that he has no animosity towards the system, even though he maintains his innocence. How does a man that believes his innocent, and who had a problematic trial, not have animosity?
    • First, how do you think the system failed?
      • The defense atty wasn't there
      • The witnesses didn't testify
      • The problematic identification
      • There was no testing of the prosecution's case at all
    • What about the judge?
      • She has questions that bear in mind directly to facts that related to the elements of the offense, so that's why she was being so specific in some of her questions. She probably comes out of a prosecutorial background, and she knows exactly how a case has to be put together for there to be proof sufficient to support the elements of the offense.
      • There are couple of places in her article where the victim goes over the story.
    • Ok, as for animosity; a person can change a lot in seven years. One can complain about injustice, or can become positive about it, as in the book, Man's Search for Meaning. Having a positive approach will do him much good. When you're in the presence of this man, he has an incredible grace.
  • Suppose that when the victim was taken to the regional hospital, there was a medical exam that produced DNA testable evidence. Suppose that that rape kit still exists. Should Alcock be required, as a condition of his parole, to take the test?
    • He would be happy to do that.
  • What would be the next step if there was a DNA match?
    • Nothing would happen. His sentence would continue.
    • As for the parole board, he would have to change his approach, and the board would look at that new approach.
  • Isn't rehabilitation different when someone is guilty? How do you deal with the dissonance if perhaps he is guilty, and his forgiving the system doesn't mean much, because he may have gotten what he deserved?
    • The idea is that you not confess what you have done. The idea is that if the court sentences you and you're in our program, you work to understand where you are. I look at it from the spiritual side, and that means, at the end of the day, you go back to your cell and you have to deal with you. These things that happen to you don’t come out of the blue. The idea is that we help people to understand that which they try their hardest to forget. After you've been proclaiming your innocence for years, at what point do you suddenly admit guilt? So the program allows people to talk through things without judging.
  • We've been talking a lot about perspective and the Necker cube. But in the hypo, where the DNA came out positive, everyone swung around to say that we would say he was guilty. It's interesting that we say that DNA collapses the possibilities; an idea of the possibility of "truth."
    • Nesson; here, you're talking about the individual digital track. And there is the potential for developing massive databases for DNA. In some places, anyone who's been convicted of certain crimes is required to give a DNA sample. We could get to a point where if every man had his DNA in a database, then you could stop rape. So it raises the same question in this context as I was talking about this morning in the corporate context; as we imagine databases of various kinds being assembled, we can see the potential of a database that could be incredibly efficacious legally, but incredibly threatening to many people. Think about how our system is going to move forward as we go into an increasingly digitized environment.
  • Does the science lord threaten the legal system's established methods of determining truth?
    • Yes, there has been the threat of centralized, organized databases
  • Simple because the DNA was there doesn't mean that a crime took place.
    • To follow up on that, do you think that if there was a charge for rape and there was consent, that the DNA would be so prejudicial that it would be kept out?
      • Nesson: well, if there's a match, then you can bet that the defense will be consent. We're not going to solve everything, but now we've taken care of stranger rape.
  • If he did do it, then he isn't really reformed, is he? So has he ever offered to take a test?
    • A lie detector could be something to add as a public interest.
  • I would really like to see it from his perspective, but I can't, because I haven't heard his story. He hadn't really offered an alternate story.
    • Part of the failure at trial was that he didn't take the stand and tell his story. I don’t know why that didn't happen. I think the judge should have stopped the case and appointed him an attorney who was present.
    • Nesson: but we're not hearing what his story is even now
    • His story is that he was in Kingston in a studio recording music. He was with a studio engineer and others in the studio, and wasn't in the city at that time. how do we get that information to the community? That's a good question.
    • He has publicly told his side of the story. The television stations are afraid to broadcast out of fear of a broadcast. The air is so tense right now that someone would have to be a very brave reporter to bring forward his side. Anyone who speaks on his side will be branded as another member of the Jah Cure movement.

Rubin Carter

  • I have sat an listened to the ins and outs of JC's case and your thoughts and the briefing
  • I hear all the time about victimhood, and I hear all the time about closure. Both of these things are illusions, both of them don’t exist, and yet we think that victims exist. As long as people can consider themselves as victims, and as long as we can look at people as victims, then those people are justified in being angry, bitter, mean, hateful. When in reality if we are not all victims, … no one chooses to be born, we were all placed here… then there are no victims at all. If we begin to look at people more as people than victims, then we can look at things more clearly.
  • There is no place for innocence in prison. If you claim you're innocent, then you get no work detail, no parole, etc. When people begin to victimize people, that's a poor place to start to unravel a case. If a person is innocent, then that person's behavior in prison will demonstrate their innocence, by which I meant hat they won't be compliant with the prison. I spent 20 years in prison, and my behavior was totally different than anyone else's behavior in there. The fact that two juries found me guilty did not make me guilty, and didn't make me want to act like I was guilty. I refused to obey the laws of the prison. I refused to eat their food, wear those stripes, refused to talk to a guard. The fact that I'm standing here today is miraculous. I had three life sentences, just narrowly escaping the chair. So my life in prison was for ever and ever. Even if the country became liberal and said they would give him parole after 25 years, then he would have to serve another 25 until he became eligible again, and then again. I have to do 75 years before being even eligible for parole. So it's your behavior that determines whether you're innocent or guilty.
  • But if JC had the group of students arguing his case, he would stay in prison for the rest of his life, because these students did not know the case and did not know the case. One of the students told me, men rape women. Sure, but that doesn't mean that this man raped that women. It's your attitude about life that matters. You as potential lawyers have to look at a case… look at the telltale signs of a wrongful conviction. There are many telltale signs. Eyewitness identification is a horrible thing; they may be totally credible, totally confident, but totally wrong. Inconsistent police reports and notes, the reliance on unreliable witnesses like jailhouse snitches. Retracted confessions and eyewitness ID are disastrous.
  • Here in the JC case we have an ID problem. One person in the briefing session said that when you rape someone you have to be close to them. I don’t know if that tells whether someone is guilty or not. I don’t know that.
  • You can't get personal with this thing. You must not be personal. Being a good lawyer is having a good attitude.
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