Monthly Archives: April 2012

Sucker punch

Jeffrey Stern, Esq. of New Jersey law firm Stern Law LLC reports on a recent decision of a Pennsylvania court (Gallagher v. Urbanovich, No. 2010 – 33418, C.P. Mont. Co. Feb. 27, 2012) where the judge allowed a man claiming he was sucker-punched during a work-sponsored soccer game to investigate the Facebook page of his alleged attacker to find information to bolster his civil lawsuit. [Be Careful What You Post…the Court May Be Looking, Stern Law, 15th April, 2012]

The judge ordered the alleged attacker to not delete or otherwise erase any information on his Facebook account.

This sort of order is not new and Gallagher is only the latest in a line of cases which have been reported in my previous musings going as far back as McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010), through Zimmerman v. Weise Markets, Inc., 2011 Pa. Dist. & Cnty. Dec. LEXIS 187 (Pa. County Ct. May 19, 2011) and on to Largent v. Reed, Case No. 2009-1823 (C.P. Franklin Nov. 8, 2011).

Lawyers in this jurisdiction should by now be well aware that what you post on social media sites is disclosable.

To avoid the sucker punch, Stern suggests four rules of thumb:

  • Do not accept “friend” invitations from people you do not know.
  • Adjust the privacy settings on your profiles to private.
  • Do not post anything to your profiles discussing your lawsuit and/or related injuries.
  • Reconsider posting pictures, especially those that will be used to dispute your injuries or tarnish your image.

Simple really! Or as simple as not trying to destroy evidence by deleting emails, but of course, that never happens does it?


sucker punch
1.a sudden surprise punch, esp from behind
2.a sudden unexpected defeat or setback

definition from

Deepwater rafting

This short post contains something new and something not quite so new!

In the “not quite so new” corner, The Times reports (April 25th 2012) that a BP engineer has been charged with allegedly trying to destroy evidence about the true scale of the Deepwater Horizon oil spill.

The interestingly named Kurt Mix is alleged to have deleted at least 300 messages including texts exchanged with a supervisor on the subject of the unsuccessful attempt by BP to cap the Macondo well using a technique known as “top kill.”

The US Department of Justice says that Kurt Mix’s texts show that BP knew that the well was leaking more oil into the Gulf of Mexico than it admitted and the engineer now faces two charges of obstruction of justice.

One text is said to include the message: “Too much flow rate-over 15000.”

Not yet quite on the scale of the Enron debacle but significant in any event. The wider message is not new: don’t assume that by pressing the delete button you can get rid of the material. I suppose the other message lawyers may want to give to their clients is that they should discourage employees from putting sensitive discussions into writing.

While that may not be a new message either, there is a very new development in the Virginia State Court. In the case of Global Aerospace Inc v Landow Aviation LP et al an order approving the use of predictive coding was entered on April 23rd 2012.

The details of the case are apparently complex but Ralph Losey’s report in his e-Discovery Team® blog heralds this as the “second ever order approving predictive coding.” [Second Ever Order Entered Approving Predictive Coding, 24th April, 2012 ]

Judge James H Chamblin’s order may be found by following the link above.

Academia meets the real world

Talking to Patrick Burke of Guidance Software recently I learned that he is an adjunct professor at the Benjamin N. Cardozo School of Law in New York. Apart from being Senior Director and Assistant General Counsel at Guidance, Patrick gives of his time to teach law students about the delights of e-discovery.

It must be a success, to judge from the piece published in Law Technology News earlier this month written by one of his students Lindsay Korotkin:  “Academia Meets the Real World.”  [PDF version here]

It seems pretty obvious that law students need to learn about processes which will assist them in dealing with their future clients and pieces of litigation they encounter. Patrick has set up a LinkedIn group Cardozo E-Discovery and encourages lawyers and potential employers to join in. I have applied!

However, while it seems to happen “over there” it does not appear to happen “over here.” I know of no General Counsel/Director of a software company engaged in teaching British students about the technology available to make litigation more efficient and less expensive.

I hope I am wrong!

E-cigarettes can be bad for you..

I was drawn to the case of the unfortunate Tom Holloway (no relation I assure you) of Niceville, Florida by the headline in “E-Cigarette Blows Up in Florida Man’s Mouth…” Poor Tom was smoking an electronic cigarette at home when it exploded in his mouth, knocking out his teeth and part of his tongue and causing a fire in the room.

It must have been extremely painful and one can only sympathise with him. I am sure he was not comforted in any way by the laconic comment at the end of the report that the Food and Drug Administration does not regulate e-cigarettes.

Whatever debate may be emerging on the benefits and dangers of e-smoking, the past month has  proved to be a most fertile time for e-disclosure/e-discovery watchers. Assiduous readers of this and other blogs and commentaries have enjoyed a veritable feast of cases and comments on the subject.

Mr Justice Akenhead has been active in this arena recently (see [2012] EWHC 668 (TCC) (1) Phaestos Limited (2) Mindimaxnox LLP v Peter Ho (2012) QBD (TCC) (Akenhead J) 16/03/2012) and now he has done it again! By this I mean that he has reached a decision which is important in the overall context of the development of the law surrounding the obligations to give disclosure, rather than that he has “put his foot in it.”

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The wood for the trees

If you become so caught up in the smallest detail that you fail to understand the bigger picture, you may say that you cannot see the wood for the trees. I am NOT about to break my promise to defer further detailed comment on the predictive coding saga rumbling around the US at present. My purpose was to ensure that I did not engender more speculative comment on this site to add to the volumes which exist elsewhere!  However, it was not my purpose to desist from all comment, provided that the comments could be said to add to the debate.

I feel strongly that we need to get away from all the hype about the subject as well as the extraordinary personal attacks on Judge Peck’s integrity contained in the Da Silva plaintiffs’ “paper” submitted to Judge Carter and concentrate on making sense of the various rulings and opinions for our joint edification. If you want to read about what I mean and do not want to go to the source, have a look at Craig Ball’s blog on the subject to get a feel of some of the vitriol – Putting the Duh in Da Silva Moor  [Ball in Your Court, 26th March, 2012].

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Doggett docket and duck

Easter Saturday saw the 158th Annual University Boat race between Oxford and Cambridge. As is now well known, the race resulted in a hollow victory for Cambridge after a self styled anti-elitist campaigner with a degree in contemporary urbanism from the LSE narrowly failed in his bid not only to have his head neatly removed from his shoulders by the passing blades of the Oxford crew but also to be skewered by the bow of their boat.

Describing himself on LinkedIn as: ‘Open-minded, multi-disciplinary, efficient, focused, intelligent, honest, unique,’ (Surely some mistake, Ed?) the swimmer’s dismal failure was captured on camera after his arrest when millions saw his shivering smirk as he was led away covered in a red blanket to appear before magistrates later this month. I have no wish to prejudge the outcome of the case against him but my guess is that he will not suffer a fate nearly as devastating as being hit by the oars or by the boat. What is certain is that he will not be handed over to the crews to deal with nor, as I have seen suggested, will his head be mounted on the blade of the broken Oxford oar and hung outside the OUBC boathouse as a permanent reminder of his stupidity.

As an oarsman in my youth, I have Jack Phelps to thank for making rowing more glamorous than it may first appear. Jack was the boatman at my school and was one of the legendary winners of Doggett’s Coat and Badge.

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Hunger Games

Set in post apocalyptic America now called Panem, Hunger Games is the first book in a trilogy by Suzanne Collins recently made into a film. The plot is complicated but a synopsis can be found in Wikipedia.

For present purposes, Panem consists of Capitol, a rich and powerful city and 12 districts under its firm control (a 13th was previously destroyed). Because of a previous rebellion against Capitol, the districts have to provide “tributes” each year to the Hunger Games. The games are televised live (with compulsory viewing) and the tributes are a boy and a girl from each district aged between 12 and 18 and there are therefore 24 teenagers who have to use their wits in the “Arena” to outwit the others. The winner is the one left alive at the end.

When I first heard about the stories I thought they were a mixture of Gladiator and Rollerball. We all remember Russell Crowe trained to kill in the amphitheatre and I also recall a lethal game called Rollerball involving James Caan where once again the idea was to kill or maim your opponents.

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Troll models

Scandinavian folklore is, to my mind, dark and rather menacing. I am sure that there are exceptions but most of the creatures described are unpleasant and possibly even terrifying; think Tolkien’s Lord of the Rings trilogy and the myriad monstrous creatures depicted and you will understand what I mean.

It is, therefore, not altogether surprising that a troll is not a force for good! Often represented as large slow hairy and dim, it is not easy to like a troll. No Pippi Longstocking he, although trolls can occasionally turn themselves into beautiful creatures, if only to entice humans into their power.

In internet terms a troll has come to mean a person who posts messages on an online community with the primary purpose of disrupting normal discussion. In extreme cases a troll is a person who defaces online tribute sites with the aim of causing grief. Similarly, a  patent troll is a “nonpracticing entity” known in common parlance as a shell company, formed to acquire and enforce patents.

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