Electronic Communication and Data Storage Raise New Challenges

DEFENSE NEWS
F i gh ti n g for Just ic e and B alanc e in Civil Cour t s
Electronic Communication
and Data Storage Raise New
Challenges to Privacy
By Matthew W. Daley
Summer 2010
IN THIS ISSUE
So Long,
But Not Farewell
4
Nathan Hale Mock
Trial Team Tries
Eco-Terror Case
7
Pro Se Representation is
Up - and That’s Bad, Say
Judges in ABA Survey
11
Habitat for
Humanity Project
12
1st Annual WDTL
Speakers Foundation
Fundraising Spelling Bee
13
New Members
14
WDTL Officers
18
WDTL Membership
19
Contemporary jurisprudence has endorsed a broad view of the scope
and breadth of civil discovery. Every time we propound discovery
or issue a subpoena, even in civil matters between private parties, we
are invoking the state’s authority. However, the Fourth Amendment’s
protection of our persons, houses, papers, and effects has not proven
equal to halting the march toward greater and greater access to private
information. We may read each others’ journals, medical records, personal correspondence, business records, and other private documents
with only the most modest showing that the information is relevant to
the matter before the court. Our courts have gone so far as to write
that “it strains common sense and constitutional analysis to conclude
that the fourth amendment was meant to protect against unreasonable discovery demands made by a private litigant in the course of civil
litigation.” 1 With due respect to my betters, it strains common sense
and Constitutional analysis to conclude that litigants and lawyers (as
officers of the court) should be permitted to use judicial process and
the discovery tools attendant thereto to pry into the private affairs of
their opponents and witnesses. That having been said, this article is
not intended as a polemic aimed at the breadth of civil discovery.
This article is intended to scratch the surface of the ways in which the
prevalence of electronic communication and electronic data storage has
compounded the invasions of privacy that attend civil discovery. Specifically, two technological side-effects that I find particularly troubling
are addressed. Lastly, this article identifies the Washington State Constitution as a tool to protect our privacy from further erosion, and hope
springing eternal a tool to win back some of our paradise lost.
I want to distinguish between two types of issues. The first type
involves active concealment or spoliation of evidence - the erasure/
destruction of evidence after litigation has become sufficiently foreseeable. While those situations implicate privacy concerns, the counter-
Continued on Page 3
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Gordon Thomas Honeywell
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Ste 2100 1201 Pacific Ave
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The Defense News is published bi-monthly by the Washington Defense Trial
Lawyers, c/o WDTL, 800 5th Ave., Suite 4141, Seattle, WA 98104. All rights
reserved. Reproduction of any material appearing herein without permission
is prohibited. SUBSCRIPTION: Included in dues of all active members.
EDITORIAL POLICY: Defense News is edited for members of the Washington
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2
Summer 2010
Privacy From Page 1
WDTL STAFF
weighing considerations complicate the discussion. Those situations are
being tabled, in favor of the far more common situations - namely the
creation, retention, and deletion of information in the ordinary course
of one’s personal or business life.
A. The Problem of Electronic Retention of Unspoken Thoughts
If privacy and liberty are to mean anything, we must be permitted to
decide which of our thoughts will become affirmations. We have not
developed the technology to read each other’s thoughts, but our
technology can, in some instances, provide the same results.
Electronically created documents contain metadata; that data contains
a wealth of information about the document itself. For example it
includes information regarding: the author, the dates and times that the
document was open on the author’s computer, and information regarding
the changes, additions, and deletions that the author has made.
Assume for example, that you were to receive an infuriating letter; you
sit at your computer and draft an angry response. Being sufficiently
wise to never send a letter angry, you save and close the document. The
next day you revisit the letter and, no longer being angry, you change
the letter’s tone and content. That letter is saved, printed, signed, and
sent. A few years later a dispute arises, your computer files are obtained
in discovery, and through the review of your letter’s metadata, the angry
draft is uncovered.
Member Services
David Penrose
4141 Agate Road
Bellingham WA 98226-8745
Phone: (206) 529-4128
Fax: (206) 202-3776
Email: [email protected]
Accounting
Jackie Mintz
PO Box 27644
Seattle WA 98125-2644
Phone: (206) 522-6496
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Executive Director
Kristin Lewis
800 Fifth Ave., Suite 4141
Seattle WA 98104
Phone: (206) 749-0319
Fax: (206) 260-2798
Email: [email protected]
Continued on Page 5
Summer 2010
3
So Long, But Not Farewell
By Jillian Barron, WDTL President, Sebris Busto & James
So Long, But Not Farewell
The year has flown by quickly, and
already we have reached the time
when other WDTL officers and I
will be handing off our responsibilities to our successors. It has been
a good year for the organization.
Despite trying economic times,
membership has grown, our CLEs have been well received,
we held our first (annual?) spelling bee to raise money for a
new speakers’ foundation, and we are ending the year on a
firm financial footing.
In the past year, we also have made significant progress on
the priorities I set last June. First, we have taken a number of
actions to bring our members into closer contact with, and
increase our recognition by, the state and federal judiciaries.
Our annual judicial receptions in Seattle, Tacoma, and Spokane were all well attended by judges
at a variety of levels. In January, we
were honored to have Judge Robart
of the U.S. District Court in Seattle
speak about federal court practice
at a brown bag seminar. Judge
Pechman, also of the U.S. District
Court, has agreed to speak to us on
the status of ADR and the courts
sometime later in the year. To provide assistance to our judges, whose
funding for Continuing Judicial
Education (CJE) has been squeezed
like other public programs, we partnered with the Washington State
Association of Justice in June to provide a CJE presentation for King County judges on employment-related issues.
We have another CJE presentation, focused on consumer
protection, scheduled for September. These events, as well
as things like WDTL officers’ appearance at King County
Council meetings in support of court funding, have not
only demonstrated our commitment to a strong and collegial relationship with the judiciary, but also provided great
satisfaction to those of us who have participated in them.
state legislators, and to refine and streamline the process for
Board decision-making and action on proposed legislation.
With regard to the first of those elements, the Board met
with State Representative Jamie Pedersen, whose helpful insight into the legislative process added to that already being
provided by WDTL’s legislative consultant, Mel Sorenson.
A Board ad hoc committee plans to follow up on the advice we received, among other things by linking interested
WDTL members with legislators from their district.
We had great success on the second element of the legislative program. With the quick pace of legislative developments in mind, the Board has prepared a revised bylaw
to make Board voting by email more efficient and allow
us to consider it. If we conclude we should do so, we can
take positions on proposed legislation of importance in a
shortened time frame. In addition, our Executive Director, Kristin Lewis, developed an online forum where Board
members can register their votes on
legislation that may impact WDTL
members and their clients. Where
time has permitted, we have also
sent proposed legislation to the
Legislative Committee and the
practice area sections with relevant
expertise for their review and comments.
“While moving on
is bittersweet, I plan
to remain involved,
as Past-President,
in moving WDTL’s
legislative-oriented
processes forward.”
My second and third priorities for the year were interrelated-to increase our interaction with and recognition by
4
These procedures allowed the
Board to take positions on several
pieces of legislation under consideration in Olympia during the
short session this year. Among
other things, we opposed bills that
would have imposed a scheme of new residential construction warranty requirements and associated penalties we
believed was not tailored to best protect and promote the
interests involved; expanded the parties that may recover
damages in wrongful death actions, subjecting public as
well as private entities to greater liability; and significantly
raised the post-judgment interest rate for tort-based judgments. The Board also voted to support some measures,
including one that would have increased the number of
Superior Court judges in Yakima, and another that would
Summer 2010
Continued on Page 9
Privacy From Page 3
Adding another layer, assume that
instead of being infuriated by the
letter you were uncertain as to
how to respond. This time you
sat down to respond and wrote
an affirmative response, changed
your mind and wrote a negative response, then changed your
mind again and wrote a proposed
compromise. Assume that you
ultimately sent the negative
response, and that the electronic
file for your response was produced through discovery in a
subsequent dispute. If we treat
each version as a statement, your
moment of human indecision
becomes self-contradiction or flipfloppery.
Having never been sent, published, or uttered the angry
draft and the indecisive drafts
occupy the same space as unspoken thoughts. They are not the
thoughts that you chose to publicly affirm, and they should not
be available for discovery. 2 This
issue also exists with paper documents, and unpublished hard copy
drafts should also be unavailable
for discovery. The issue is magnified when dealing with electronic
documents because we have no
agency in deciding which drafts
ought to be retained.
B. The Problem of
Electronic Retention of
Deleted Information
Technology exists to recreate
information that has been deleted.
There are ways to more fully delete information, just as shredders
provide better privacy protection
than wastebaskets. However, just
as scotch tape, time, and patience
can foil a shredder, a person with
sufficient know-how and technology can likely recreate information that you believe long deleted.
Lastly, those of us who are merely
functionally literate with technology can never have the level of
confidence for electronic information’s deletion that fire provides
for hard-copy documents. The
point and premise being: the
prevalence of electronic communication and data storage has limited our ability to determine what
information we retain.
As noted above, this article tables
concerns regarding spoliation
of evidence and focuses on the
Continued on Page 15
Summer 2010
5
6
Summer 2010
Nathan Hale Mock
Trial Team Tries
Eco-Terror Case
By Doug Edelstein
The case is compelling: An environmental activist is
accused of firebombing a university research facility
years ago. The building was razed, two firefighters
injured, and years of botanical research lost. Quirky,
sometimes shady witnesses testify for and against the
accused; sharp and savvy attorneys for prosecution
and defense try to sort out the sometimes murky facts
of the case to convict or defend. There is sophisticated legal wrangling over fine points of procedure
and applicable case law, and every legal move and
bit of witness testimony is fraught with drama as the
evidence builds.
If the firebombing case sounds familiar, it should. It
is directly drawn from the May 21, 2001 firebombing
of Merrill Hall, the UW’s Center for Urban Horticulture Building, by the Earth Liberation Front. There
are new witnesses in the mock trial version, and altered circumstances that make the trial more interesting and dramatic.
Even more remarkable about this scene is everyone
involved is a teenager. High school students are witnesses and attorneys. Only the judge, sitting in a
robe in a real courtroom at the King County Superior
Courthouse, is an adult. This is the Y.M.C.A.’s mock
trial league in action, part of its Youth and Government program. The student attorneys and witnesses
are from Nathan Hale, which has fielded a team for
the first time this year. In 14 weeks of intensive practice and training, these students have become skilled
trial attorneys and persuasive witnesses. They will
then compete against the best and most long-established programs in the region - mostly well-funded
programs from private schools, but also a scattering
of public schools such as Roosevelt and Franklin.
Everyone will conduct the same trial of the same
case, but teams of attorneys and witnesses from each
school will compete against each other, prosecution
against defense.
Continued on Page 16
Summer 2010
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8
Summer 2010
Not Farewell From Page 4
have channeled fines under the Public
Records Act to a fund to enhance the
preservation and availability of public
records with only actual damages
being awarded to the individual who
sought the records at issue. Where
the Board decided to take a position
on proposed legislation, Mel, and in
some cases Board members, communicated with legislators on behalf
of WDTL. While much of the credit
must go to other factors, including irreconcilable differences among
the legislators themselves, WDTL’s
positions on several measures were
successful: the residential warranty
and wrongful death bills both failed
to come to final votes; and although
the post-judgment interest rate was
modified for private defendants, the
rate ultimately was only increased
from 2 percent above Federal T-Bills
to 2 percent above Prime, rather than
to a flat 12 percent as provided in the
bill that was originally introduced.
In sum, it has been a productive year
for WDTL in a number of areas. I
have been honored and proud to
Summer 2010
serve as President, to work with Kristin and the Board to increase the organization’s visibility and impact, and
to meet a number of you and others
in the legal community through my
service. While moving on is bittersweet, I plan to remain involved, as
Past-President, in moving WDTL’s
legislative-oriented processes forward.
And I have full confidence that Emilia
Sweeney, our next President, will lead
the organization to further positive
developments in the coming year.
9
10
Summer 2010
Pro Se Representation Is Up –
and That’s Bad, Say Judges in ABA Survey
By David Ingram
A survey of state judges by the American Bar Association indicates that fewer
parties in civil cases are being represented by lawyers, and in the opinion
of most of the judges, the outcomes of
those cases are worse for it. The Coalition for Justice, an arm of the ABA
that focuses on access to the courts,
conducted the survey in an attempt to
measure the impact of the economic
recession. The results, released Monday,
echo warnings from the Brennan Center for Justice and other groups who say
the nation’s judicial systems are increasingly overburdened.
In one question, judges were asked to
compare representation in their courts
in 2009 to representation in previous
years. Sixty percent of judges said fewer
parties had lawyers, while 3 percent said
representation had increased. The rest
said they saw no change.
Asked how the lack of representation affects the parties, 62 percent
of all judges said the outcomes are
worse for a litigant when he represents himself, while 3 percent said
they were better. The rest said there
was no impact. The judges who saw
worse outcomes said the most common problems for pro se litigants are
failure to present necessary evidence,
procedural errors, ineffective witness
examination and failure to object to
evidence properly.
At a news conference, ABA President
Carolyn Lamm said that lack of representation causes problems for the rest
of the court system by, among other
things, consuming more of judges’
time. “Parties not being represented
in fact delays the proceedings of the
court,” Lamm said. “They slow down
the ability of the court to hear cases.”
There were 986 state judges who
completed the survey, out of an
estimated potential pool of 20,400
nationwide, according to the ABA.
Reprinted with permission from the
August 2010 edition of the Defense News
© Summer 2010 ALM Properties, Inc.
All rights reserved. Further duplication
without permission is prohibited.
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Summer 2010
11
Habitat for
Humanity
Project
On a bright sunny cool day in early June,
WDTL members John Lee, Amanda Fernandez, Yale Lewis, Irene Hecht, & Kristin
Lewis volunteered for the Snohomish County
Habitat for Humanity project. The Brush
with Love project was designed to help seniors
with maintenance projects so they can stay
in their homes. On this particular day, the
WDTL volunteers painted, pruned, gardened
and painstakingly scraped paint to prepare the
homes for painting. After spending all day
doing the various projects, the volunteers were
pleased with their progress, and tired as well.
John Lee gardening for a good cause.
The Habitat project leader empties a full gutter.
Irene Hecht stops pruning for a minute.
12
Summer 2010
1st Annual WDTL Speakers
Foundation Fundraising Spelling Bee
Who knew that a spelling bee
would be so much fun? The
launch of the WDTL Speakers
foundation Fundraising Spelling
Bee, which is a hopeful annual
event, was held on May 26. With
four teams entering – Dorsey &
Whitney, Forsberg & Umlauf,
The Law Offices of O. Yale Lewis
III & Stafford Frey Cooper – the
competition was fierce. Michael
Bolasina, from Stafford Frey Cooper, was the very entertaining MC
and kept the whole thing moving
quickly. When the final lightning
round was over and the dust settled, the Dorsey & Whitney team
of Nathan Alexander, Liz Crouse,
Phoebe Pogson & Perry Huang
could claim victory. The individual prize was won by Yale Lewis.
Dates for the 2nd Annual Speakers
Foundation Fundraising Spelling
Bee haven’t been announced, but
the teams are already in training
for the next round.
Mike Bolasina quizzes the last 3 contestants
The winning Dorsey & Whitney team – Perry Huang, Phoebe Pogson & Nathan Alexander
pose with WDTL board member & Dorsey partner, Lisa Marchese
Summer 2010
13
Welcome New Members
WDTL welcomes the following members who have recently joined our organization.
A big THANK YOU to our members who referred these individuals to WDTL.
Yvonne Marie Benson
Betts Patterson & Mines
Robert R. Cole
Referred by Don M. Gulliford
John T. Fetters
Mills Meyers Swartling
Referred by Caryn Geraghty Jorgensen
Janyce Lynn Fink
Fink Law Group PLLC
Referred by Dan Johnson
Timothy J. Repass
Lee Smart, P.S., Inc.
Referred by Edward J. Bruya
Ema K. Virdi
Gierke, Curwen, P.S.
Referred by Mark W. Conforti
Michael Kazuo Rhodes
Barrett & Worden, P.S.
Referred by Kristin Lewis
Chris L. Winstanley
Cole, Lether, Wathen,
Leid, & Hall, P.C.
Jennifer M. Smitrovich
Scheer & Zehnder LLP
Referred by Mark P. Scheer
Vernon S. Finley
Douglas Foley & Associates
Charles A. Henty
Scheer & Zehnder LLP
Referred by Jonathan Dirk Holt
Danny L. Hitt
Hitt Hiller Monfils Williams
Referred by Matthew Kennedy
Katie A. Jones
Staff Counsel for Allstate Ins. Co.
and Encompass Ins.
Referred by Anthony Vidlak
Endel R. Kolde
King County Prosecutor’s Office
Referred by Dan Kinerk,
Linda Gallagher
Philip Lempriere
Keesal, Young & Logan
Markus W. Louvier
Evans, Craven, & Lackie, P.S.
Referred by Everett Coulter
Joshua P. Maurer
Hollenbeck, Lancaster,
Miller & Andrews
Referred by Ward Andrews
Gretchen M. Neale
ReeveShima, PC
Referred by Elizabeth Reeve
14
Summer 2010
Privacy From Page 5
intentional destruction of information that never becomes evidence or
before it becomes evidence. There
is nothing inherently wrongful
about throwing away papers, and
there is nothing inherently wrongful
about deleting electronic information. Before information becomes
evidence we have a right to decide
which information we keep and
what information we dispose of.
This issue existed long before the
advent of electronic communication
and data storage; however, courts
have resolved the issue outside of
the electronic realm.
The United States Supreme Court
held that the Fourth Amendment
recognizes no reasonable expectation of privacy in the contents of
the garbage that is left in front of
a home for collection by sanitation workers. 3 The Washington
State Supreme Court, however,
held that Article I, Section 7 of
the State Constitution recognizes
a reasonable expectation of privacy on the same operative facts. 4
While both these cases arose on
facts related to criminal instrumentalities, rather than information, the reasoning is comparable.
A reasonable expectation of privacy should exist in that information that we intentionally delete. 5
The fact that technology exists
to re-create deleted information
should be no more important than
the fact that technology (albeit
far less sophisticated) exists to dig
through one’s physical garbage.
C. Article I, Section 7 of Washington’s Constitution Should
Stand as a Bulwark Against
Further Infringements of Our
Privacy Rights.
Former Secretary of State and of
War, Henry L. Stimson famously
said, in the context of national
security and intelligence, that
“gentlemen don’t read each other’s
mail.”6 Yet for a nominal filing fee
we allow the courthouse doors to
be thrown open to a plaintiff and
under the auspices of civil discovery,
we let that plaintiff pry into the
most private aspects of a person’s
life. There is nothing civil about
the breadth and scope of discovery
that we permit.
Increasing technology has led to
new issues and questions on civil
discovery, and Washington’s State
Constitution should be used to protect privacy rather than to grant further access into our private thoughts
and our private lives.
It is no answer that choosing to
use technology with all its limitations constitutes assent to the infringements on one’s privacy. For
better or worse, electronic communications and electronic data
storage are realities of modern
life and business. Our legal rules
should be shaped by these realities, rather than have our behavior
conform to legal rules that are not
tailored to modern life
and business.
1 United States v. IBM, 83 F.R.D. 97, 102
(1979).
2 These unspoken thoughts are not even
“statements.” See ER 801(a).
3 California v. Greenwood, 486 U.S. 35
(1988).
4 State v. Boland, 115 Wn.2d 571 (1990).
5 See also, Paul Ohm, The Fourth Amendment Right to Delete, 119 Harvard Law
Review Forum 10 (2005).
6 See Philip Taubman, Sons of the Black
Chamber, N.Y. Times, September 19, 1982
Matt Daley, an associate at Witherspoon
Kelley, has experience in commercial and
business litigation, including contract
claims, business torts and employment
law. He also handles trust and estate litigation. Matt has significant professional
negligence and malpractice experience,
including representation of physicians,
hospitals and pharmaceutical companies.
Matt is also experienced in bankruptcy
and receivership litigation, and has expertise in intra-corporate litigation, including both derivative and direct claims
against corporate officers and directors.
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Summer 2010
15
Nathan Hale From Page 7
Nathan Hale’s new team came
about because of the commitment of Michael Guadagno, a trial
attorney with the Nicoll Black
& Feig law firm. Mr. Guadagno
has spent ten years coaching
mock trial teams, including at the
Seattle University Law School.
He served as a volunteer judge at
Nathan Hale’s annual 10th grade
Lord of the Flies mock trial two
years ago, and noting the students’
enthusiasm for mock trial, stepped
forward and volunteered to start
a real team to compete in the
Y.M.C.A. league.
The result is Nathan Hale’s new
25-member team, which meets
after school as a club. The training has been intensive and rigorous. Mock trial requires a range of
high-level skills - analytical thinking, extempore speaking, research,
drama, information management,
thinking on your feet, and an
incredible amount of dedication,
teamwork and practice. Students
have devoted many hundreds of
hours to achieve the level of polish and savvy they show in the
courtroom now. Mr. Guadagno
has shown an astonishing commitment to the team and to this kind
of rigorous learning and exhibition at Nathan Hale.
10th grade student attorneys in
the Lord of the Flies mock trial. It
is a culture of high-level learning
that will continue to infuse practice at Hale, and is especially well
suited to Nathan Hale’s model
of inclusion, as it offers excellent
challenge for everyone involved.
The team itself represents a variety
of student achievement levels. It
is the nature of the challenge that
brings out the best in everyone.
Hale’s new mock trial program has
earned valuable support from all
communities at the school. Administration has been extremely
supportive, as have the faculty and
parents. Mr. Guadagno has also
been able to fund-raise among
downtown law firms to support
the expenses of starting the team
The team itself is an important
new element of the school academic culture. There is a buzz in
the school about mock trial - it
is fun, intense and an amazing
challenge. Skills learned in mock
trial are central to success in all
higher-level academic activity. The
student attorneys at Hale now are
themselves coaches, training the
16
Summer 2010
- including everything from entry
fees to copies and binders, to working lunches to buying full dress
suits for many of the students who
didn’t have one.
Mock trial is an extraordinary
learning mode, and the Y.M.C.A.
league offers excellent support for
new teams and a community of
experienced coaches who can help
a team get started. The hope and
plan here at Hale is to continue to
grow the program, make it a creditearning class, integrate it into the
school curriculum and find new
ways to apply its excellent lessons
throughout the school culture.
Nathan Hale’s new Mock Trial
Team begins formal competition
this summer at the King County
Courthouse.
Michael D. Calligan
360-387-4147
• Practicing insurance defense law on a
contract basis since 2002; all phases of
litigation, many trials in Superior Courts
of Washington and California. • Practicing insurance defense law in
California since 1965 and in Washington
since 1999. • Staff Counsel, Safeco Insurance Co.
P&C, Law Offices of Donald Skinner,
Seattle 1999-2002
• Member American Board of Trial Advocates
(ABOTA), San Francisco Chapter
• Member Washington Defense Trial
Lawyers Association
Michael D. Calligan
2208 Cleven Park Rd. • Camano Island, WA 98282
(360) 387-4147
Summer 2010
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Summer 2010
Summer 2010
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