All but one evidentiary objection is overruled following bench trial

Wed, 10 Mar 2010 23:39:16 GMT

LG Display Co., LTD. v. Au Optronics Corporation, et al., Civil Action No.06-726-JJF, March 2, 2010.

Farnan, J. The Court considers certain evidentiary objections following a bench trial and overrules all but one of the parties’ objections.

This is the Court’s ruling on several evidentiary objections raised by the parties during a bench trial. Evidentiary issues at bench trial are less of a concern and typically go to the weight of the evidence and not admissibility. The parties’ various objections with regard to testimony and the admission of evidence are overruled with the exception of one objection filed by Plaintiff. Plaintiff objects to certain expert testimony and exhibits based on the lack of reference in the expert report relating the evidence to any of the four patents-in-suit. The Court previously granted plaintiff’s Motion In Limine premised on the same arguments it raises here in its objection. The Court is not persuaded that its initial decision was erroneous, and therefore, the Court will sustain the objection.

Plaintiff Need Not Substantiate All Theories Presented Within A Single Cause of Action

Sun, 07 Mar 2010 19:14:41 GMT

In my last post I discussed the 'minimal merit' standard with respect to a plaintiff's burden in opposing an anti-SLAPP motion. Recently, I saw a brief (which prompted this post) where the defendant in its moving papers argued that the plaintiff was required to prove the claim to the court. This is wrong. “A plaintiff is not required ‘to prove the specified claim to the trial court’; rather, so as not to deprive the plaintiff of a jury trial, the appropriate inquiry is whether the plaintiff has stated and substantiated a legally sufficient claim.” (Citation omitted). All that is required is to state and substantiate a claim.

But the standard is even more lenient.

According to at least one court, "once a plaintiff shows a probability of prevailing on any part of its claim, the plaintiff has established that its cause of action has some merit and the entire cause of action stands. Thus, a court need not engage in the time-consuming task of determining whether a plaintiff can substantiate all theories presented within a single cause of action and need not parse the cause of action to so as to leave only those portions it has determined have merit." (Citation omitted).

Let's use an example to flesh this out a bit, as my Civil Procedure professor used to say. Suppose plaintiff brings a lawsuit for slander based on a number of alleged slanderous statements, e.g. that defendant said the plaintiff was a "fraud," "was convicted of grand theft," and that the plaintiff is a "scheming douchebag." As part of its burden to demonstrate a probability of prevailing on the merits, plaintiff would need to show that the statements were either statements of fact, or were opinions that implied provably false facts. The statements that plaintiff is a "fraud" and "convicted of grant theft" would arguably be false statements of fact. However, the more colorful statement regarding the plaintiff may not be determined to be a statement of fact. It may be viewed as an epithet in context, which is not actionable.

But no matter. Plaintiff need not substantiate every alleged slanderous statement in order to overcome an anti-SLAPP motion. From my perspective, plaintiff need only show that one of the statements is actionable. Once the plaintiff does so, it has met its burden of 'minimal merit.'

If you liked this post, please subscribe to the California Defamation Law Newsletter to receive the "Ultimate Beginner's Guide To Defamation Law," for free.

“Come to the Cut”

rick@rhdefense.com (Rick Horowitz) — Fri, 05 Mar 2010 22:10:15 GMT

A friend of mine, Joni Mueller, sent me a link yesterday, asking if I’d seen the article. The title was “Exclusion of MySpace Evidence in Gang Related [sic] Murder Trial.” The article discusses an evidentiary ruling in the unpublished case of People v. Wiliams (2010) 2010 WL 611444, 2010 Cal.App.Unpub. LEXIS 1251. [Note: Since there are two versions of the unpublished opinion and since I'm feeling lazy today, I personally will not use citations in discussing the case; the only time citations show up are when I'm quoting the original article using them.]

The article’s focus on the evidentiary ruling is puzzling.

I’m not at all sure why the author of the blog article chose the case he did to discuss the issue he appeared to want to discuss. Frankly, I found the dissent — on an entirely different issue — to be much more interesting. But the fact that the opinion is an unpublished opinion makes it pretty much valueless in California anyway. As with all unpublished cases, California’s Rules of Court make the case uncitable; it does not count as precedent. And the argument on this issue was unremarkable, to say the least.

The only thing I can figure is that there aren’t any published California criminal cases involving the use of social networking evidence and the author wanted to reference such a case, rather than any of my articles on the topic.

I myself would not bother to write about this unpublished case if it were not for the fact that the author of the article, who is licensed as an attorney in the State of California, but who may not actually practice criminal law decided to do so, made a couple of mistakes and I thought I would both fix those and springboard off his post to talk about how social networking does get used in actual criminal cases in California.

(Side note: I do not know “Joshua Gilliland, Esq.,” who “is the blogger for ‘Bow Tie Law.’” I form my opinion that he may not actually practice criminal law on a few relatively minor details. First, the State Bar website shows that he is a member, but he lists his address as being with “D4 Discovery.” The “About” page for his website mentions nothing about actual lawyering, but only discusses his creating and teaching CLE courses, especially regarding e-discovery. And the article itself contains a few — again, fairly minor — errors that I don’t think a practicing attorney would make. My pointing this out is not intended to disparage Mr. Gilliland. Not everyone with a law license wants to, or should be required to, practice law. Even if my assessment is correct, if Mr. Gilliland does a good job teaching e-discovery and doesn’t do criminal trials, I see nothing at all wrong with that. Besides, much of what he said, he got right.)

One thing Gilliland got right were the facts, so I won’t rehash it all here. Basically, the defendant was tried and convicted for murder after a confrontation with rival gang members in which a gang member was shot. Apparently, one of his defenses was that the person shot was the aggressor and part of the evidence he wanted to have admitted to support his theory came from the MySpace page of the dead gang member’s sister (who was also present for the incident and testified about the shooting).

Gilliland seems to make a big deal of the fact the opinion is not clear if the evidence — a videotape — was a videotape of the MySpace page (i.e., someone videotaping the page while viewing it), or was a video that was embedded in, or part of, the page itself. I don’t know why that matters. He afterward mentions that the prosecution objected on “foundational” and “relevancy” grounds. His comments about this ambiguity made me wonder if that’s what he thought created a foundational issue. The court, however, was not unclear about that: the foundational objection was because the prosecutor claimed you could not tell who was in the video just by viewing it.

Gilliland, however, completely missed the point when he stated,

The Trial Court excluded the MySpace evidence pursuant to California Rule of Evidence Code section 352 (no evidence is admissible except relevant evidence). Williams, at *24.

Gilliland’s mistake is that Evidence Code section 352 deals with evidence that typically is relevant, but where the probative value is outweighed by concerns of undue prejudice, confusion or consumption of time. It is Evidence Code section 350 that states no evidence is admissible except relevant evidence.

But this mistake — one of the things that made me think Gilliland doesn’t do many trials — probably occurred because of another ambiguity in the opinion. (I have argued elsewhere that sloppy opinion-writing is one of the things that make unpublished opinions problematic.) The opinion itself states:

[T]he court ruled that it would be excluded under Evidence Code section 352. The court ruled that if the page had shown an actual crime of violence, the evidence would have been admitted, but that “this is playacting. It is no different than Marlon Brando shooting the Godfather or something. Would that show a propensity to commit violence? No. So I am not going to allow it. I think it is irrelevant.”

The appellate opinion then went on to argue that the evidence was repetitive, as there was already significant other (presumably relevant) evidence making the same point. In other words, it was a 352 issue. And besides, the court noted, the defendant-appellant’s claim that his constitutional due process rights were violated by not admitting the evidence was wrong: the videotape “clearly involved a minor point” and exclusion of this minor piece of evidence did not rise to the level of a constitutional violation.

So much for those relatively minor quibbles. As you can see, the issue of “e-discovery” had almost no role to play here; nor was the attempted use of MySpace evidence all that significant.

As I noted, however, MySpace evidence does have some importance in gang cases, particularly when it comes in through gang experts cops. And speaking of gang cops, I particularly liked the dissenting comment of Justice Mosk in the case:

It is a stretch to assert that defendant Harvey somehow committed or aided and abetted a violation of Penal Code section 415 — a misdemeanor — and that a killing is a natural and probable consequence of that target offense. Are the words, “where are you from?” “offensive words in a public place which are inherently likely to provoke an immediate violent reaction”? (Pen.Code § 415, subd. (3).) Here, it was Williams that shot first. There was no violent reaction from the words. It was only after the victim taunted Williams that the latter started shooting. To leap from this series of events to the killing being a natural and probable consequence of the “where are you from?” statement does not seem to comport with the purpose of the doctrine. If the expert testimony can supply the evidence necessary for the target offense, the natural and probable consequence, and the gang enhancement, we are getting to the point where the expert is providing all the evidence to support the guilty verdicts.

It may well be that Harvey is an aider and abettor, but I question the use of the natural and probable consequence instruction. I would reverse Harvey’s conviction on the basis of the instruction.

The italics there are mine.

I’m confused about Justice Mosk’s point, though. Technically, he is correct that we’re only “getting to the point where the expert is providing all the evidence to support the guilty verdicts.” But under the law in California, gang experts cops can provide all or nearly-all the evidence to support guilty verdicts relating to gang charges or enhancements. (Pen. Code § 186.22(a), (b).) In those cases, they not only provide the evidence, they actually tell the jury that the defendant is guilty. Under California law, it is perfectly acceptable for the expert cop to say, “The defendant is guilty of this crime.” Arguments that this is something for the jury to decide and not for an armed officer in full battle gear to decide for them repeatedly fall on deaf ears.

To be fair — something you don’t necessarily get from the prosecution or judge at trial when these points are argued — the appellate courts have insisted on something more than a mere opinion of the ultimate issue. For example, in cases where the opinion is based merely on the fact that the accused person is a gang member and the gang commits crimes similar to the one the accused person has committed, appellate courts have lately not found that to be sufficient evidence. However, in many of these cases, the problem is that the gang expert cop simply did not talk long enough. If he had spit out some litany of “facts” — which can be based on hearsay — that would provide a more solid basis than just “he’s one of them, they do this,” the courts have upheld convictions based only on evidence provided by the expert cop.

Now I also promised above to discuss how MySpace — or social networking evidence generally — is commonly used in gang cases. I’ve already noted that the refusal of the court to admit the videotape in the unpublished Williams case was not an indication of any problems with the way it was collected, as Gilliland appears to think. The problem was some mix of relevancy and the 352 appraisal.

I also think if the prosecution, instead of the defense, had sought to have the evidence admitted, it would have been. This is not just because the courts typically exhibit a pro-prosecution bias on evidentiary matters. (The San Jose Mercury News has a story on its own review of five-years of criminal jury trial appeals which “establish a pattern of judicial conduct that favored prosecutors,” but I can’t link it because it requires registration, which I refuse to do.) It’s also because prosecutor’s often advance social-networking evidence to show that someone is a gang member. Pictures on MySpace accounts showing accused persons or witnesses “throwing gang signs,” or wearing “gang” uniforms clothing and/or “associating” — either in pictures, or by writing on MySpace “walls” — with people the gang expert cop will identify as gang members are all potential sources of evidence as far as the prosecution is concerned. The courts usually agree. Forget the fact that, to paraphrase Freud, “sometimes a red shirt is just a red shirt.”

When it comes to evidence that someone is a gang member, or to prove something about the gang (like “how violent it is”) you can never have too much. (I’m currently handling an appeal on a case where something like 10,000 pages of discovery was provided regarding the gang my client was allegedly trying to promote or benefit by getting into a fist fight. Several — not just one — gang experts cops, including a Royal Canadian Mounted Police Officer, testified to almost everything in those pages, too. So you see how much 352 means when it’s the prosecutor proffering the evidence.) And, trust me, you don’t need much of a “foundation.” Gang experts cops are allowed to rely on hearsay, so “someone told me it was the defendant in the video” probably provides all the foundation needed.

All in all, Gilliland is at least correct about this one important point: social networking evidence can be important in court.

Oh, my title? As they say, “Meh….” It comes from a quote attributed in Williams to a co-defendant. He was apparently inviting the rival gang members to follow him to an area where no one would be able to see what was about to go down. I liked it for the title because when it comes to social networking, it’s getting harder to find such places.

Expert witnesses: preparation

Tue, 02 Mar 2010 13:09:06 GMT

How do lawyers use Expert Witnesses in Environmental Litigation? Here’s an outline from one of Dianne’s seminars: A. Picking Your Expert 1. What kind of expert do you need? 2. Which expert should you choose? 3. Which expert correspondence is privileged? 4. Is it “science”? 5. Is there a conflict of interest? B. Preparation 1. How do you teach an expert to testify? 2. How [...]

How do lawyers use Expert Witnesses in Environmental Litigation? Here’s an outline from one of Dianne’s seminars:

A. Picking Your Expert

1. What kind of expert do you need?

2. Which expert should you choose?

3. Which expert correspondence is privileged?

4. Is it “science”?

5. Is there a conflict of interest?

B. Preparation

1. How do you teach an expert to testify?

2. How do you deal with weaknesses?

3. How do you get an expert to speak plain English?

4. How can you help your expert survive cross-ex?

5. How well does the expert need to know the legal case?

C. Direct-Examination

1. How do you “qualify” an expert?

2. What are the rules for giving opinion evidence?

3. When are you required to use a hypothetical?

4. How do you use visual aids?

5. How do you survive re-examination?

D. Attacking the Opposing Expert

1. When should you attack an expert’s qualifications?

2. How can you use your expert to help you cross-examine the other party’s expert?

3. How can the lawyer prepare for cross-ex?

4. How do you deal with hostile witnesses?

5. How do you attack hypotheticals?

E. Impact of Expert Evidence

1. What can the court do with the expert evidence?

2. Does the court have to accept uncontradicted evidence?

3. What is the difference between admissibility and weight?

4. What will the court do with expert evidence relating to the ultimate issue?

5. Did the judge understand any of it???

The Use of Expert Witnesses in Environmental Litigation

Questions and Answers

A. Picking Your Expert

1. What kind of expert do you need?

The expert’s area of expertise must relate directly to the technical issues in the lawsuit. He or she should know enough about the specific issue, however, the area of expertise must be sufficiently broad because an expert may not testify beyond his/her area of expertise.

2. Which expert should you choose?

There are a number of important qualifications:

a. education, technical background, and work experience,

b. unimpeachable reputation (i.e., someone who is well respected in the field and cannot be easily attacked),

c. strong communication skills – the expert must be able to take something complicated and make it comprehensible.

3. Which expert correspondence is privileged?

4. Is it “science”?

How do you determine if the “expert’s” field of expertise is admissible scientific evidence or inadmissible “junk science”? Unlike in the U.S., Canadian courts have not tried to formulate a single rule for admissibility of new scientific evidence. Rather, the SCC has adopted a flexible approach to the admissibility of novel scientific evidence. Essentially, it asks if it is reliable and necessary to assist the trier of fact. Note: the closer the evidence approaches the ultimate issue, the stricter the application of this principle.

See: R. v. Mohan, [1994] 2 S.C.R. 9

5. Is there a conflict of interest?

B. Preparation

1. How do you teach an expert to testify?

Giving an opinion in a courtroom is very different than giving an opinion elsewhere. Explain to experts some of the differences:

the difference between scientific proof and legal proof;
the difference between scientific and legal causation;

2. How do you deal with weaknesses?

Encourage the expert to be honest with you so that you can discover any weaknesses in advance and develop an approach for dealing with it.

Determine in advance if the expert is relying on accepted scientific procedures, industry practices and techniques. If not, find out why.

3. How do you get an expert to speak plain English?

Work with the expert in advance to encourage him or her to be as clear and simple as possible, to use basic language, explain basic principles, avoid jargon and technical explanations. Encourage them to use analogies or examples, use pictures and demonstrative evidence.

4. How can you help your expert survive cross-ex?

Experts are accustomed to being respected for their opinion and treated with deference. In cross-examination, the other side will try to chip away at your expert’s evidence. Practice with him or her before and work with the expert to help him or her avoid damaging his or her own evidence. Teach them to: listen very carefully to the question asked; to be sure that they understand it before answering; to ask for clarification if the question is unclear; to answer only the question asked, and never to volunteer further information; to stay calm; and to stick to his or her area of expertise.

5. How well does the expert need to know the legal case?

The expert needs to know more than just his or her part of the case. The expert needs to know and understand the entire case, including all expert reports, including the other party’s expert reports.

C. Direct-Examination

1. How do you “qualify” an expert?

You must demonstrate that the expert has special knowledge or experience in the area in which he/she will be testifying. It may be through education and/or experience. You must qualify the expert for everything that she/he will be testifying on, otherwise, the other party may object if the expert testifies on a matter beyond the scope of expertise for which he/she was qualified.

See: Sopinka, John, et al, The Law of Evidence in Canada, 2^nd Edition, Buttersworth, 1999, “The Opinion of Experts”.

2. What are the rules for giving opinion evidence?

In addition to providing basic information of scientific and technical issues, an expert is allowed to state his/her opinions and conclusions. To give an opinion the expert must meet the test set out in R. v. Mohan [1994] 2 S.C.R. 9:

(1) the evidence is relevant to some issue in the case;

(2) the evidence is necessary to assist the judge (i.e., the information to be provided is likely outside the experience or knowledge of the judge);

(3) the evidence does not violate the exclusionary rule; and

(4) the witness is a properly qualified expert.

This test is relatively straight forward if it is a traditional science (e.g. chemistry, physics), but more complex if it involves a possible “junk science”.

3. When are you required to use a hypothetical?

If the expert lacks personal knowledge of the matters in issues or the opinion is predicated on facts that are in dispute, the opinion may be elicited only through hypothetical questions. Hypotheticals need not be used when the expert has first hand knowledge of the facts or when the factual basis of the expert’s opinion is not in dispute.

Rationale: if the opinion is predicated on facts that are in dispute, absent a hypothetical, the expert would be required to weigh evidence, access credibility and form an opinion, which is the job of the judge.

The hypothetical put to the expert must be clear, simple, and uncontradictory, with sufficient assumed facts to enable the witness to give an answer.

See: Bleta v. R. [1964] S.C.R. 561 and A. Maloney, “Expert Evidence”, Law Society of Upper Canada Special Lectures (Toronto, Deboo, 1969).

4. How do you use visual aids?

5. How do you survive re-examination?

D. Attacking the Opposing Expert

1. When should you attack an expert’s qualifications?

If you do not believe than an expert is qualified, you should object right after the expert is “qualified” by his or her counsel; otherwise, you may not object as to the expert’s qualification at a later time. Any questions of qualification during cross-examination will only speak to weight, not the admissibility of his/her testimony. You will also want to object to any statement made by an expert that is beyond the scope of expertise on which the expert was qualified.

2. How can you use your expert to help you cross-examine the other party’s expert?

Provide the other party’s expert’s report or affidavit to your expert to review and comment and criticize. Use your expert to help you phrase technical questions to ask the other side’s experts.

3. How can the lawyer prepare for cross-ex?

The lawyer needs to be quite familiar with the experts subject area. The lawyer will have to understand the experts report and should assistance for his or her own experts. The lawyer will need to be able to ask intelligent follow-up questions on both direct and cross-examination. The lawyer will also need to know the area well enough to know which questions not to ask.

4. How do you deal with hostile witnesses?

5. How do you attack hypotheticals?

E. Impact of Expert Evidence

1. What can the court do with the expert evidence?

2. Does the court have to accept uncontradicted evidence?

3. What is the difference between admissibility and weight?

See: Sopinka, John, et al, The Law of Evidence in Canada, 2^nd Edition, Buttersworth, 1999, “The Opinion of Experts”.

4. What will the court do with expert evidence relating to the “ultimate issue”?

There is no longer an absolute rule barring a witness from testifying on the very point or issue the court has to decide, but the court has the discretion to reject such testimony.

See: Graat v. R. [1982] 2 S.C.R. 819.

5. Did the judge understand any of it???

See more at http://www.economica.ca/ew04_2p2.htm.

10 Minute Attention Rule lecture at U.F.

Tue, 23 Feb 2010 20:52:27 GMT

Many experienced presenters and educators have found that people tend to get bored after ten minutes of listening to the same thing. The brain seems to be hard-wired to receive new stimulus after that time and it is hard for most people to focus their concentration longer than that. This is especially true for arcane [...]

Getting Divorced-Stay Off Facebook!

Mon, 22 Feb 2010 05:09:35 GMT

The American Academy of Matrimonial Lawyers issued a recommendation that people going through or contemplating divorce stay off Facebook and other social networking sites.

As reported in the Arizona Divorce and Family Blog:

"Going through a divorce always results in heightened levels of personal scrutiny. If you publicly post any contradictions to previously made statements and promises, an estranged spouse will certainly be one of the first people to notice and make use of that evidence," said Marlene Eskind Moses, president of the AAML. "As everyone continues to share more and more aspects of their lives on social networking sites, they leave themselves open to much greater examinations of both their public and private lives in these sensitive situations."

While this certainly seems like obvious advice, I am always amazed about how otherwise sophisticated people forget or just do not care that their estranged spouses are following their Facebook “status updates” –the danger being that their updates may undermine or contradict their litigation positions.

For example, it would be absurd for a party claiming that he/she is indigent to have recent profile photos showing them polishing a brand new expensive car or showing details of an exotic vacation. Likewise, it would be damaging for a parent engaged in a custody dispute to have profile photos showing them abusing alcohol or drugs or engaged in some scandalous activity.

Even if the posts are not legally damaging, updates bragging how well they are have adjusted to their newly single life or discussing plans with members of the opposite sex, could inflame their ex’s feelings of jealously, making it more difficult to settle a divorce.

In criminal cases, litigants are told they have the right to remain silent. People going through divorce should similarly exercise that right. It is better to err on the side of caution and stay off social networking sites until your divorce is final.

Why the (Not So) Dead Hand Is Quicker Than the Legal Eagle Eye

Wed, 17 Feb 2010 17:33:29 GMT

More evidence, if we needed it, that eyewitness testimony isn't as reliable as we thought. According to scientists at the University of Edinburgh, "[P]eople looking at pictures often failed to detect deliberate alterations, such as objects becoming bigger or disappearing. Professor John Henderson of the School of Philosophy, Psychology and Language Sciences said: 'We think our eyes show us the world in sharp detail all the time, but in fact this is not the case. "Our studies show that our eyes do, in fact, miss a great deal. Our research gives us insight into how people see the world and ultimately how the brain processes information.'" BBC1's program Bang Goes the Theory highlighted the research.

And Abracadabra! That's how David Copperfield disappears.

For more from Dr. Henderson, see also Peter Lamont and John Henderson, Correspondence: More attention and greater awareness in the scientific study of magic, Nature Reviews Neuroscience 10, 241 (March 2009), in response to Stephen L. Macknik, Mac King, James Randi, Apollo Robbins, Teller, John Thompson & Susana Martinez-Conde, Science and society: Attention and awareness in stage magic: turning tricks into research, Nature Reviews Neuroscience 9, 871-879 (November 2008).

Electronic Discovery - cover of the third book on the subject by Ralph Losey

Tue, 16 Feb 2010 15:19:30 GMT

My new book has just been published by West Thomson and is called Electronic Discovery: New Ideas, Trends, Case Law, and Practices. This is my third book in as many years and is, I think, my best. It is 448 pages and provides a good reference for anyone in the world of e-discovery. The new [...]

Toyota Cars, Recalls and Lobbyists

Fri, 12 Feb 2010 14:30:22 GMT

There is an interesting story here about how Toyota hired former staff members from NHTSA the federal branch of government charged with Highway safety. They then turned around and used their influence and knowledge to bury or limit investigations into known problems with Toyota's cars. The report says that two former NHTSA agency staffers helped bury four open investigations into accelerators which were sticking on some Toyota 2002-2003 Camrys and Solaras.

If you look at the NHTSA website it is now offering a Consumer Advisory for Toyota owners.

This information was discovered as a result of a Michigan lawsuit. Once again the legal system has shown its ability to get to the truth, and expose glaring problems with enforcement when left to the bureaucrats. I am reminded of a similar problem which was "uncovered" regarding the lack of responsibility in regards to the safety practices of regional air carriers like Colgan Air . Families of those killed in the crash of Flight 3407 are now going after the airline for damages.

Families of those killed due to bad Toyotas will soon be following in their tracks. I wonder how many Toyotas have crashed because of bad brakes and accelerators?

The unfortunate truth about these types of disclosures is that the loss of 27 Billion in stock value to investors at Toyota because of its defective products, bad brakes, sticking accelerators, will be the catalyst to product improvement, and not the loss of lives and mangled bodies. What about the loss in vehicle market value to owners? Once again the same old theme arises in Corporate America: Profit over People.

In my opinion a Product Recall like the recent ones involving Toyota vehicles is as close to finding the "smoking gun" as possible. It is very strong evidence by the manufacturer that its product is defective for some reason. It is what is called in law an "admission against interest" and is like a legal confession. Here is a good website for recent recall info of all kinds.

No wonder our government is not trusted. Trying to keep big corporations from hiring government employees to grease the skids is not working. Big Business is too powerful and until the people elect representatives willing to stop this, it will keep getting worse.

Can Video Surveillance Be Used in a Divorce

Tue, 09 Feb 2010 05:51:45 GMT

When one spouse suspects the other of having an affair, the knee jerk reaction is to hire a private detective to get the"smoking gun.” It is permissible to hire a detective to “snoop around” even when the spouse having the affair has an obtained an order of protection against the other.

“The hiring of a professional licensed private investigator in a matrimonial action to gather evidence is for a proper and legitimate purpose.” Anonymous v Anonymous

According to the Court opinon:

The husband had the right to gather evidence up to the date of trial in defense of the matrimonial action and in support of his own counterclaims. The husband was not required to accept that the wife had necessarily ceased her extramarital affair merely upon her assurance to him that she had. In fact, such representation proved to be false as the wife does not controvert that the private investigator disclosed as the result of his investigation that she was continuing to have an affair with Father L. Under the circumstances, the hiring of the private investigator, in and of itself, was not an unlawful intrusion upon the rights of the wife secured by the order or protection.

While obtaining proof of the affair is not objectionable, what you do with it can be problematic. In Anonymous, the husband reluctantly turned over the video of his wife having an affair with the priest to the church-the church wished to investigate the scandalous allegations. But, if the husband had the wife followed and recorded by a private investigator for the purpose of gathering embarrassing material to deliver to her employer with the intention to cause her to lose her employment his conduct according to the court could be considered harassment –“conduct which alarms or seriously annoys another person, and serves no legitimate purpose.”

In sum, it is permissible to obtain surveillance tapes to be used as evidence in court. The surveillance “evidence” cannot be used to simply to embarrass a party or to cause them, for instance, to lose their job without possible consequences.

e-Discovery: Did You Know?

Fri, 05 Feb 2010 03:23:49 GMT

Here it is, as promised, my “movie” with Jason R. Baron. Turn on HD (upper right corner of the viewer) and view in full screen mode (lower right corner) for best results. Also, suggest you play the music loud on quality speakers. This 6 minute 42 second video, entitled e-discovery: Did you know?, premiered yesterday in New [...]

Court rules on evidentiary issues relating to willfulness and damages

Thu, 04 Feb 2010 22:16:48 GMT

Cordis Corporation v. Boston Scientific Corporation, et al., Civ. No.03-27-SLR, January 28, 2010.

Robinson, J. The court rules on several pretrial evidentiary issues.

In discussing the application of Seagate to a trial setting, the court notes discomfort in characterizing administrative and court decisions as “objective evidence” for presentation to a jury, since a jury is likely to give such evidence great weight, even when the bases for those decisions are not apparent to the jury. Thus generally only evidence regarding the prelitigation landscape of the dispute will be admitted. Proposed evidence must still pass muster under Fed. R. Civ. P. 403. The parties’ stipulation expanding the trial record to include “the entire record in the above-captioned action” and “[a]ll decisions by this court or by the Federal Circuit” is denied. The court agrees to summarize the procedural history of this case as set forth in the order. No statements issued in any re-examination proceedings will be admitted. The court further provides guidance as to damages. With respect to royalty rates, consistent with the court’s past practice, royalty rates for litigation settlement agreements will not be admitted. A proffer on the issue of copying will be permitted.

Malcolm Gladwell

Sun, 31 Jan 2010 18:43:23 GMT

This is a continuation of my interview on ESI Bytes by Karl Schieneman. The first part of the interview discussed the upcoming première of my video with Jason Baron at Legal Tech on December 3rd, and e-discovery specialization. It is found just below this blog, and if you have not already read it, you should start there. [...]

Data Integrity and Evidence in the Cloud

Fri, 29 Jan 2010 18:09:09 GMT

How does cloud computing affect the risks of lost, incomplete, or altered data? Often, the discussion of this question focuses on the security risks in transmitting data over public networks and storing it in dispersed facilities, sometimes in the control of diverse entities. Less often recognized is the fact that cloud computing, if not properly implemented, may jeopardize data integrity simply in the way that transactions are entered and recorded. Questionable data integrity has legal as well as operational consequences, and it should be taken into account in due diligence, contracting, and reference to standards in cloud computing solutions.

Consider a traditional business data transaction such as recording a customer order or a new hire. Sales or human resources staff, or possibly data entry clerks, type required information into an application hosted on premises. The data may be stored in multiple local databases. For example, the customer screen presented by an ERP (enterprise resource planning) system may automatically populate fields in separate order fulfillment, accounting, and customer relationship management systems, and perhaps in a marketing database as well. The new hire screen may feed relevant data to human resources, accounting, and payroll systems or modules.

The interaction between the data entry system and the multiple databases is normally effected through database APIs (application programming interfaces) designed or tested by the database vendors. The input is also typically monitored on the fly by a database “transactions manager” function designed to ensure, for example, that all required data elements are entered and are within prescribed parameters, and that they are all received by the respective database management systems.

Cloud computing solutions, by contrast, are often based on data entry via web applications. The HTTP Internet protocol was not designed to support transactions management or monitor complete delivery of upstream data. Some cloud computing vendors essentially ignore this issue, while others offer solutions such as application APIs on one end or the other, or XML-based APIs that can monitor the integrity of data input over HTTP.

Since the 1980s, database management systems routinely have been designed to incorporate the properties of “ACID” (atomicity, consistency, isolation, and durability). The question for the customer is whether a particular cloud computing solution offers similar fail-safe controls against dangerously incomplete transactions and records.

With apologies to IT professionals who understand this subject much better than I do as a lawyer, here is what is entailed in ensuring data integrity in a database management system:

Atomicity means that the transaction is aborted unless all required data elements are successfully recorded in all required systems. The transaction must entirely succeed or entirely fail. As a consequence, no payment will be sent without an associated taxpayer identification number, and HR records will not miss any personnel that show up in the payroll system. Human error, device failure, software bugs, communications or power outages – whatever the source of a failure, if all the required data are not recorded by all of the systems for which it is intended, then none of them are; the transaction fails and must be restarted. This is relatively easy to control when all of the input comes through a single data entry system with defined APIs and is distributed simultaneously to the relevant on-premises database applications. But in cloud computing, the data are typically entered via web browser and may go to separate vendors – for outsourced HR information management and payroll services, for instance – and there may be no immediate cross-check between them. Data successfully recorded on one of the systems may nevertheless fail to be recorded on the other, and the error may not be discovered immediately.

This may be a good reason to use a single cloud service provider for related applications, or to employ a cloud services aggregator that offers some intermediate transaction management functions.

Consistency means that a database remains in a consistent state before and after the transaction. If a data field (say, Social Security Number) requires nine digits, the database must contain only nine-digit numbers in that field before and after the transaction. If other data records refer to that field, it cannot be deleted without deleting those records or taking some other action that maintains the consistency of the database schema.

Using separate vendors in the cloud to manage different but related databases may result in inconsistencies, particularly where one data record necessarily refers to another.

Isolation is the principle that one operation in a database system should not affect others until the transaction is complete, so that one function is not confused by an intermediate step in another function. This is why database management systems use scheduling algorithms to isolate functions and process them in the proper sequence.

Cloud computing should not threaten this principle so long as a complete transaction is processed on the same device or array, or at least subject to the same scheduling algorithm.

Durability means that the transaction record will persist once it is successfully created and the user is so notified. A common way of ensuring this result is to create a transactions log, which allows the database manager to return the database to a pre-failure state.

A cloud solution should similarly offer the capability of logging user transactions, even if the transaction data are then sent on to different locations or vendors.

Cloud computing is new enough that not all vendors have satisfactorily incorporated these data integrity principles in their solutions. Moreover, customers sometimes use such a variety of service providers that no single one of them takes responsibility for ensuring data integrity at the level of data entry and transaction management.

Over time, more cloud service providers may refer to developing standards such as the SNIA Cloud Data Management Interface (CDMI) specification and other SNIA cloud storage standards, the Data Integrity Field (DIF) standard (which, among other things, verifies input-output addresses to avoid misplacing data entered in the cloud), WS-Reliability (an OASIS standard for reliable message delivery in web services) and WS-Transaction (OASIS protocols for coordinating distributed applications), as well as XML-based solutions that add some transaction management functionality to web applications. As these standards and solutions mature, it may be appropriate to make them contractual.

These approaches would help the customer feel more confident that good data gets into cloud databases, stays there, and comes out of the cloud in the same shape.

The lawyer in me recognizes that this sort of confidence must also be communicated to government agencies, courts, and juries. Records processed and stored in the cloud may become evidence, and the strength of evidence depends largely on its reliability. I was involved once in litigation over a web marketing campaign, where the website transaction logs were so badly maintained and so insecure that it was nearly impossible to ascertain what the customer really owed the marketing company under the contract.

Reliable business records are necessary to collect a bill, prove an obligation, comply with government requirements, or establish a sequence of disputed events. If there are serious questions about data integrity in the systems routinely used by the business, the company may find its position badly undermined.

Once litigation is launched or threatened, the cloud customer will need to put a “litigation hold” on relevant data, even if it is in the hands of an outsourced service provider, and the customer will typically need the service provider’s assistance in locating and producing electronically stored information (ESI) stored outside the party’s premises. (See my colleague Tanya Forsheit’s recent discussion on preserving and retrieving ESI in the cloud.) But the service provider may be needed not only to help find, preserve, and deliver relevant records as ESI but also to establish their bona fides.

Parties presenting claims or defenses in court have long relied on the “business records exception” to the hearsay rule, a descendant of the English common law “shop book rule,” to present records of transactions in court. The principle is reflected in Rule 803(6) of the US Federal Rules of Evidence and in similar state provisions. Rather than bringing witnesses into court to testify from direct experience and memory about every material aspect of a disputed transaction, a party can produce the records that it routinely keeps in its business, and these are presumed to be reliable. The presumption can be rebutted with evidence to the contrary -- which conceivably could occur in the case of a badly executed cloud computing strategy with poor assurances of data integrity.

Business records are not entirely self-authenticating, and there are sometimes disputes over their source and custody, or whether they have been altered. Typically, business records must be introduced from the party’s custody along with testimony that identifies the records and authenticates them as records regularly made and kept in the course of the party’s business.

Thus, it could become necessary in some cases to call for testimony from an employee of the cloud services provider to authenticate data produced from an outsourced application and a shared data storage facility, and to counter any challenges about the possibility of lost or altered data. The cloud computing service provider should be able to demonstrate that its procedures for recording transactions, associating them accurately with the author, date, and time, and storing the data securely, are consistent and effective, and that they comport with industry standards or common industry practices.

These issues are not entirely new or restricted to cloud computing, of course. To take an example, email has been central to business communications for more than twenty years, and emails are often used as evidence of transactions, conduct, and intentions in a wide variety of civil and criminal legal proceedings. Yet emails are not always reliably sourced or date-stamped, and they often reside in multiple locations, including individual’s laptops, desktops, and phones, servers on the premises of the sender’s and receiver’s organizations, and the facilities of third-party service providers, ISPs, and webmail operators. In each case, the messages may or may not be backed up or archived onto other computers or storage media. As a result, investigators and lawyers are often in the position of searching out and comparing multiple instances of what appears to be the same email, and courts sometimes have to rule on the likelihood that a critical message was in fact sent by the purported author, received by the intended recipient, retained or deliberately deleted, or even altered in substance. (Celebrated cases involving Martha Stewart and the White House come to mind.) Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007) is an example of a court losing patience with parties that merely attached emails to court papers without authenticating testimony to establish their source and reliability.

As transactions databases and other kinds of business records follow email into the cloud, we are likely to see more disputes over records authentication and reliability. This suggests that customers should seek out cloud computing service providers that offer effective data integrity as well as security. Customers should also consider inserting a general contractual obligation for the service provider to cooperate as necessary in legal and regulatory proceedings -- because sometimes integrity must be proven.

Collecting electronic evidence in divorce and parenting cases: Is it legal and/or admissible?

Tue, 19 Jan 2010 12:00:00 GMT

Before the advent of the internet, finding proof of infidelity often fell to the hands of the private investigator and a telephoto camera lens. Yet, with today’s technology, from spyware to GPS trackers, spouses can play private investigator themselves. Software such as Spector Pro and E-Blaster, that captures chats, instant messages, emails, websites, keystrokes, and screen shots and are either saved to the computer or sent to a remote location, can be easily installed on home computers. GPS trackers, costing between $100 and $400, can provide incriminating information on a spouse’s whereabouts. Evidence obtained through these methods, such as graphic emails confirming an extramarital affair or a log of a spouse’s visits to a new lover’s home, can make or break a fault divorce. Additionally, the evidence may be useful for other matters in a divorce, as Jason Brown of the Minnesota Divorce & Family Law Blog points out. Attorney Brown highlights on his blog that information about who your spouse is exposing your children to can be extremely valuable in assisting the court in determining the best interests of your children. Child support and alimony cases can also benefit from information about your spouse's employment and work patterns.

But is the evidence that you collect admissible in court? And even more importantly, is gathering information in this manner legal?

New Hampshire is one of 15 states to pass anti-spyware legislation. RSA 359-H criminalizes knowingly causing a computer program or spyware to be copied onto the computer, on which the person is not an authorized user, and using the program or spyware to collect personal information “through intentionally deceptive means, such as through the use of a keystroke logging function, and transferring that information from the computer to another person.” However, the statute does not provide for a blanket exclusionary rule with regard to whether this intercepted information may be used as evidence at a civil trial. Whether the evidence comes in is left to the discretion of the court.

Other states have upheld a trial court’s ruling to exclude the evidence. In Florida, a wife, using the Spector program, secretly installed the spyware on her husband’s computer and was able to capture entire conversations the husband had had with another woman. The husband discovered the program, and asked the court to prevent the wife from using the evidence. The trial court ruled, and the appellate court agreed, that although the state and federal wiretapping statute did not have an exclusionary rule, the court had the discretion to exclude the evidence because it was obtained illegally.

Whether the evidence will come before the court comes down to the facts surrounding how the evidence was obtained. Was the spyware installed before or after the separation? Was the spyware on a family computer that both spouses used or had access to? Arguably, evidence obtained from spyware installed by an “authorized user” onto a family computer prior to a separation would be admissible. However, installing spyware onto a spouse’s workplace computer would probably produce evidence that would be excluded because it was obtained illegally.

GPS trackers on the other hand are not covered by a specific law such as the wiretapping or spyware statutes. However, some law enforcement agencies have taken the position that placing a GPS tracker on a spouse or ex-spouse’s vehicle is stalking and have brought criminal charges against the tracker installer. The Nashua Police recently charged Kevin Merritt with misdemeanor stalking after he installed a GPS tracker on his estranged wife’s vehicle and used the information to follow her to various locations. Whether the police would prosecute and the court would allow the information to be used as evidence would come down to the specific facts of the case, including how the information gleaned from the tracker is used and who owns the vehicle.

In the end, the muddy waters of electronic information gathering require the advice of an experienced attorney to help navigate the specifics of your situation. Contact Crusco Law Office, PLLC to schedule an appointment to discuss your New Hampshire case.

Idaho Court of Appeals Says Child's Exposure to Sexual Activity May Be Admissible - Or Maybe Not

Tue, 19 Jan 2010 01:26:16 GMT

In a decision by the Idaho Court of Appeals, it may be that evidence of a child's prior exposure to sexual behavior is admissible to answer the implicit question in every sexual prosecution: "how would a ten year old kid know about that sexual behavior?" If you have to defend against such charges, evidence that the child knew from a source other than the alleged sexual act may be proof that the child has fabricated the allegations. Still, whether the evidence will actually be admitted will depend upon the facts specific to the case.

In Idaho vs Molen, the Petitioner complained that the trial court had twice rejected his offer of evidence that the purported victim had been exposed to sexual behavior by her mother, thus making it more likely that she made up the story and had its building blocks from that prior exposure. To be clear, Molen's defense at trial rested on his assertion that the victim "SZ" made it all up, perhaps at her mother's insistence. The Court stated:

"Molen's offer of proof does not demonstrate that S.Z. had previously observed such conditions or behavior. The offer of proof indicated the evidence would show that S.Z.?s mother exposed S.Z. to “a constant, graphic, sexually charged lifestyle . . ., including openly having sex with multiple partners with [S.Z.] in the home, openly discussing sex toys and pornography in front of [S.Z.], and openly disrobing in front of other family members in the presence of [S.Z.]” These assertions are too vague and general to establish an alternate source of knowledge from which S.Z. could have fabricated her description of Molen?s acts.

So Molen's evidence, according to the Court, was not relevant - because it was not specific enough to meet the prosecution's allegations. I suppose this means that when a child alleges intercourse, evidence of prior exposure to intercourse would be admissible but not evidence of some other sexual act.

But the rules provide that any evidence making the existence or nonexistence of a fact in issue is relevant evidence. Isn't it relevant evidence if it answers the underlying "how would she know about that" question? Apparently not - according to the Court of Appeals.

There is one other nugget to mine in this decision - the Court held that the prosecutor erred by commenting on the Defendant's invocation of his right to remain silent when she asked him if he had waited to tell his story until after he had heard all the witnesses testimony. Error? Yes. Result in reversal? No. The error was deemed to be harmless so the Petitioner did not get a new trial.

Whether you agree or disagree, this most recent decision is important to any defendant facing an allegation of sexual battery or lewd acts. These charges are so difficult to defend against that your lawyer needs to read this case - and soon! Call your lawyer and tell him or her about this decision.

TENAFLY BERGEN COUNTY NEW JERSEY DIVORCE LAWYER MEDIATOR ARBITRATOR

ccaesq@att.net (Charles C. Abut) — Fri, 08 Jan 2010 20:09:41 GMT

In New Jersey divorce law, hearsay evidence is generally not admissible. This includes expert reports and certifications. Richard C. Shue and Helen Shue, his wife per quod v. Bureddad et. al., New Jersey App. Div., January 11, 2010

In New Jersey divorce law, hearsay evidence is generally not admissible. This includes expert reports and certifications. Richard C. Shue and Helen Shue, his wife per quod v. Bureddad et. al., New Jersey App. Div., January 11, 2010

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Mon, 04 Jan 2010 17:17:18 GMT

On the last day of law school this Fall I attempted to summarize what we had been studying all semester. This blog shares another video excerpt of that class. A key component of our studies was the Electronic Discovery Reference Model (their new version is shown above). Professor Hamilton and I use information from both [...]

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Sat, 02 Jan 2010 23:29:32 GMT

Many significant cases today are won or lost by email, text messages, and instant messages. These kind of informal, quick communications are a gold mine of useful information. They often reveal what people were really thinking and doing, and contradict what they later say they were thinking and doing. Electronic communications are a gold mine because [...]

A Key Objection You May Be Overlooking In Anti-SLAPP Motions

Sat, 02 Jan 2010 23:03:34 GMT

Some people have complained lately that I've been way too focused on anti-SLAPP law here. Well, there's a reason for that.

It's because SLAPP law plays an important part in just about every defamation case involving matters of public interest. It would be like talking about the Lakers without talking about Lamar Odom or Pau Gasol. Sure Kobe is the star of the team, but the other players invariably play a key role in each game (can you tell that I'm a Lakers fan?).

But I digress.

What I'd like to talk about today is a type of evidence that is routinely introduced by one party in support or opposition to an anti-SLAPP motion, and yet, the receiving party RARELY objects to this type of evidence!

What am I talking about?

I'm talking about judicially noticed court documents and/or declarations.

“ ‘Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.’ [Citation.] The court may in its discretion take judicial notice of any court record in the United States. (Evid.Code, § 451.) This includes any orders, findings of facts and conclusions of law, and judgments within court records." '

Kilroy v. State (2004) 119 Cal.App.4th 140, 145.

Therefore, while courts make take judicial notice of any "orders, findings of facts and conclusions of law," they may not consider hearsay statements in court records "for their truth unless an independent hearsay exception exists." North Beverly Park Homeowners Assn. v. Bisno (2007) 147 Cal.App.4th 762, 777.

As my Civil Procedure professor used to say, let's take an example and "flesh this out a bit." Suppose you are a plaintiff who is suing a defendant for defamation based on allegations that you had embezzled money from a publicly traded company. Defendant made the alleged defamatory comments on a forum dedicated to discussion about the publicly traded company.

Defendant files an anti-SLAPP motion and accompanying request for judicial notice of a shoplifting conviction on your record from over 30 years ago (during your misguided/misspent youth). There is a police report and several witness statements included in the court records.

Can the court consider the conviction for its truth? YES, according to the evidence code.

Can the court consider the statements in the police report and witness statements for their truth? NO because they are hearsay and require an independent hearsay exception in order to come in.

See the difference?

This is vitally important because whether you win or lose on an anti-SLAPP motion may depend on evidentiary rulings made by the judge.

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A Key Objection You May Be Overlooking In Anti-SLAPP Motions