One, two Princes kneel before you
(That's what I said now)
Princes, princes who adore you
(Just go ahead now)
One has diamonds in his pockets
(That sounds great now)
This one, said he wants to buy you lockets
(Ain't in his head now)
By The Spin Doctors
Judge Andrew Peck this week cast some doubt on the old adage that two heads are better than one in a written opinion released as In re NTL, Inc. Securities Litigation; Gordon Partners, et al., v. Blumenthal, 2007 U.S. Dist. LEXIS 6198.
NTL, Inc. (Old NTL) was popped with a class-action securities suit in 2002. Old NTL and some subs emerged from Ch 11 in September 2002. Through the transforming magic that is bankruptcy, Old NTL was succeeded by NTL Europe (NTL-E) as well as NTL, Inc (New NTL). NTL-E was tasked with 1) selling off certain assets; and, 2) remaining in the securities suit. New NTL was 1) the operational company; and, 2) the party responsible for providing NTL-E access to all of the documents needed to comply with all legal obligations.
In short, NTL-E was on the hook (along with individual defendants) for the class-action suit, and New NTL was supposed to be keeping the litigation related records on behalf of NTL-E.
According to the court's opinion, NTL-E's discovery responses indicated that they would produce responsive documents, but in April of 2006, had produced no responsive documents or emails. Initially, the emails were highly prized by the plaintiffs, given management's heavy reliance on that devilish device. In August of 2005, the plaintiffs fired off a non-party subpoena to New NTL for numerous documents, and received access to some 70 boxes of paper for their efforts. New NTL also claimed that responsive emails did not exist, as they had been lost when the company's servers had been updated following the reorg...
The plaintiffs then deposed NTL-E's CEO in December 2005, where for the first time, plaintiff's counsel began to learn of the agreements stemming from the bankruptcy regarding New NTL's obligations to provide access to the very types of documents being sought by the plaintiffs.
New NTL was scheduled for a deposition on January 25, 2006, regarding its document production issues. On January 24, New NTL indicated it had reviewed 23,000 boxes and offered to provide an index, and because of the exorbitant cost, would make the boxes available to the plaintiffs, on a per-box and per-day cost to be borne by plaintiffs. New NTL also discovered 3 DVD's worth of emails and 46 back-up tapes, all from a server that had been shut down in New York and sent to the UK after the bankruptcy. During the January 25 deposition, it was also disclosed that New NTL's computer gizmo's had been outsourced to IBM in 2002-2003. NTL employees had (in relative terms) significant flexibility over which emails were retained on their workstation (bad, very bad). Many employees had received new computers, and New NTL did not know if preserved emails had been backed up on tape (very, very bad).
In February 2006, the court extended the discovery period so that "non-party" New NTL could produce the documents requested by the plaintiffs. In March 2006, New NTL produced 3 years worth of emails recovered from back-up tapes. However, for the year that the alleged securities violations took place, 2001, no emails were recovered.
As is usually the case, the juicy stuff starts with re-prints of hearing transcripts. As early as December 2005, questions about the relationship between NTL-E and New NTL were raised. Indeed, plaintiff's counsel stated that New NTL was a non party "only in the most mythical sense."
In February 2006, counsel for New NTL attended, for the first time, the scheduled conference. Apparently, the court politely inquired then of New NTL what steps might be taken to speed up production of ESI.
At some point, the plaintiffs filed a motion for sanctions, which cited to the agreement between New NTL and NTL-E regarding the storage of documents. The court learned of this agreement in April 2006. The court ordered that the documents being held in Europe start being produced in the US, within a 5 day period, and at the expense of NTL-E. [In a moment certain to set back the cause of young attorney's anxious to get into the court room early, the defendant's counsel tried to "undo" consent to the judge's order by arguing that the attorney appearing at the conference was too junior to knowingly consent to such an order. Oye ve!] As one might imagine, the court as also not pleased at the thought that the two NTLs, despite opportunities to do so, had not disclosed the agreement.
One of the interesting, and failed arguments raised in an effort avoid sanction was that the defendant did not have possession or control over the documents, because that duty was given to New NTL as a result of the bankruptcy. In a well-written "Poppycock" retort, the court essentially found that NTL-E could not take advantage of the "artificial separation of entities" resulting from the bankruptcy. Not only did the court hand the plaintiffs an adverse inference instruction, but also costs and attorney's fees associated with the sanction motion.
For the Spin Doctors' next album, I will suggest they reprise their song Two Princes, and alter the lyrics slightly so that one Prince has a pocket full of diamonds, and the other Prince has a head full of rocks...
Wednesday, January 31, 2007
One, two Princes kneel before you
Monday, January 29, 2007
If, like me, you have plans to stand out in the freezing weather in order to grab the very first witching hour copy of the new Windows Vista, print this post to read while standing in line to pass the time. Obviously, it can double as a source of heat should you choose to burn it, or in a pinch might be used to handle other personal sanitation emergencies. In any event, this is the first blush at the bankruptcy lawyer's ESI summary of the good, the bad and the "litigation opportunities" rife with the new operating system. For the record, I will not be standing in line for Windows Vista, that is the cover story I am using with my wife so that I can purchase the long-awaited and anguished-over Playstation 3. That is our little secret...
At the reported cost of some $6 billion in development, Windows is ushering us (and our clients, and their creditors, and our litigation targets) into the next era of personal computing. At first blush, the new platform does seem to have some pretty cool bells and whistles, especially in terms of "live icons", looping video for wallpaper, and the uber-cool 3D Flip pages. Some of the highly touted innovations though, consist of nothing more than a re-packaging of existing Windows features; or, in many cases, the features are eerily similar to existing products that others, such as Google, already offer for free.
Despite the predictable re-warming of some older goodies (and despite the fact that my music interface program of choice crashes constantly after I installed the latest version of the rival Windows Media Player), Windows Vista gives me reason to cry and to cringe all at once.
In my previous post, I extolled the virtues of Jack Seward, and those true believers that would be fit to carry his... well, carry whatever that forensic types carry around. While there obviously is a time and place for the men-among-men like Seward, all three people that read my recent article in the Texas Bar's Bankruptcy Section newsletter (thanks Mom) know that I prefer an approach light-heartedly referred to as the Nitro Fish effect. Some cases, and some situations, just wont require the golden touch of a forensic something or other, and this may be especially true in medium sized, and smaller, cases. As a great philosopher of our time once said, "Poor folk have poor ways." (Thanks Dad).
Windows Vista may actually make this approach a little more realistic, thanks to some of its enhanced features. In furtherance of my belief that God favors litigators, Windows Vista is a two-edged sword, in that it may also make it easier to prove that someone wasn't minding the store.
One of the "new" applications in Vista is the Instant Search feature. Imagine combining any Windows Help program with Google Desktop, and that is pretty much Instant Search. The Instant Search appears to index and make searchable everything that is on, or has ever been on, the computer. As soon as a user begins typing in the Search term, Windows automatically pulls up an index matching the letters being typed in by the user. For example, if I want to determine if my wife has been sending fan mail to NHRA pretty boy Ron Capps from my computer, I would enter the letter R into the search menu, and everything from raindrops to Run-DMC might appear in the results screen. As I complete the search phrase, the index results narrow until I get to "Ron Capps" which could contain anything from internet pages visited to emails sent and received, to Word documents containing or related to that phrase.
For bankruptcy lawyers and litigators, here is the practical effect. If Mom and Pops Bakery is about to file Chapter 11, or has just been sued by a trustee, there is a good chance neither Mom nor Pops really know what discoverable information may be on their computer. With Instant Search, counsel can provide a list of search terms and know within mere minutes whether or not that particular computer is likely to contain relevant ESI.
***Important Practice Note and Disclaimer*** In some instances, this type of indexing and searching may result in changes to the hard drive, or may otherwise alter ESI documents. If an intensive forensic investigation is contemplated, find a local disciple of Jack Seward before conducting such a search.
If the case is of a more traditional bent, meaning that a document is a document, and everyone is really interested just in what the documents say... then search away. When it comes time to "meet and confer" (which ultimately may become "meet and geek" conferences), it is much easier to truthfully represent to opposing counsel that a search of a particular computer was conducted, when it was conducted, and what the results were. If a discovery dispute later develops, you can rest assured that your opposing counsel will conduct just such a search. One can imagine the proliferation of motions for sanctions that will read like a modern day Letter of Patrick to the Soldiers of Coroticus if you fail to disclose that which was so readily, and obviously, accessible.
Instant Search has some obvious benefits/threats for bankruptcy lawyers. Here comes the scary stuff...
Many of us unfamiliar with the term metadata still mistakenly use the phrase at cocktail parties by making weird, unhip references to the "mega data pile of paper on my desk back at the office." If that is you, then brace yourself. Instant Search not only indexes and searches the name and content of the documents that it produces as a search result, it also searches the metadata so that its results pull in a broader scope of documents that might somehow be related to the search. In my earlier example, while searching for Ron Capps love letters, if the name Ron is squirreled away in metadata somewhere, that document will be reported in the results, even though the name Ron doesn't actually appear on the face of the ESI document. I have goose bumps...
Now the really scary stuff. Picking up on the internet trend of "tagging" documents, Vista makes it much easier for users to "tag" documents, which is really a hip Seattle way of customizing the metadata attached to an ESI document. By tagging documents, users can make an electronic path connecting various forms and formats of documents, data bases, songs, pictures, videos, web pages and similar applications. Instant Search includes the "tagging" data in its search results. Instant Search can report documents that, on their face, have little or no connection at all; but are connected in some manner important or relevant to the user.
Taking the Ron Capps example a step further (certain to get me into 13 kinds of trouble), consider the following.
1) An unsigned letter confessing true love to an unnamed pretty boy of Funny Car fame. The ESI document is stored as a word document. The author tags the letter as "RON" and also tags it as "true love".
2) A .pdf version of a marriage license. Hidden comments attached to the .pdf include "Oh, Ron, how I pine for you!" The .pdf marriage license is also tagged "true love".
3) A song stored as a Windows Media Audio file, or .wma file, having nothing to do with Ron Capps or drag-racing. A user tags the .wma file as "Ron's song".
4) A spreadsheet containing only reaction times, elapsed times, and race positions but no other identifying information. User tags it "Ron's finishes"
5) Home made video of Ron Capps forming a brand new baseball cap, otherwise untitled. User tags it as "Ron's photoshoot".
Without the tagging, it is likely that many of these different forms of ESI would not be produced in a search for Ron Capps. This feature may make it easier for me, and for my opposing counsel, to find important, related information that might not otherwise be revealed without expensive forensic assistance. My flesh is crawling, especially with the knowledge that metadata can already be customized in existing Windows products. Vista just makes it more "user-friendly" to do so.
In the next post, we will explore some of the networking, security and preservation issues that Windows Vista also brings to the forefront. In the mean time, I will be breaking in that new PS3 I have so longed for...
(Personal disclaimer - My loving wife and I are both huge fans of the NHRA's Ron Capps. We had the great opportunity to be his guests during qualification rounds at last years O'Reilly's Fall Nationals, and loved every moment! Capps is a perfect gentleman, a loving husband, and a proud father. With any luck, he will also pull off a Championship Season this year!)
Posted by R. Lee Barrett at 5:48 PM
Friday, January 26, 2007
Tom Waits has got to be one of the coolest entertainers/performers alive today. Any one as reclusive as he seems to have become must be uber-cool. His official website consists only of a single black and white picture, and a banner with his name. No news, no discography, no announcements, no touring, all unusual given that Waits' newest album "Orphans: Brawlers, Bawlers & Bastards" has more than 50 tracks, at a retail price of at least $55.
While pouring over endless CLE's, articles, books, web sites, pod casts, and other incantations to research an article I recently penned for the Bankruptcy Section of the State Bar of Texas, I realized that precious little has been written for bankruptcy lawyers regarding the proper care and handling of ESI. Mere days after my article was published (and owing to the fact that the ABI ignores my continued pleas for a free subscription to their journal), I discovered the undisputed King of Bankruptcy ESI, the Godfather of E-Bankruptcy, a prophet and visionary so far ahead of the rest of us that even Popular Science hasn't fantasized some revolutionary new way for the rest of us to catch up.
The hardest working man in all of E-Bankruptcy is none other than Jack Seward (who, rumor has it, can be contacted at JackSeward@msn.com ). Jack Seward, a consultant and digital forensic accounting technologist, has also been a long time contributor and editor to ABI as well as several other related publications throughout the industry. Seward is also a co-chair of the ABI's Commercial Fraud Task Force.
Nearly as reclusive as Tom Waits, but clearly far more versatile and talented, Jack Seward may be the coolest thing to happen in the practice of bankruptcy since the introduction of personal computing.
Seward figured out years ago what many bankruptcy attorneys and many self-styled EDD vendors and experts still have not... EDD/ESI issues in bankruptcy are not just for discovery anymore. Jack Seward's published works ought to be required reading for any attorney making an appearance in any bankruptcy court in the country.
To that end, here are citations (and links where possible) to the Seward articles (or articles listing Seward as a Contributing Editor) I have located so far, and will update this post as conditions warrant.
Good to the Last Byte, March/April 2004 Commercial Law Bulletin - Commercial Law League
Beyond the Quill, September 2006 American Bankruptcy Institute Journal
You Need to Know This: Bankruptcy and Attorney-Client in the Electronic Age, Michael D Fielding, December 2006 American Bankruptcy Institute Journal
Straight & Narrow - Empowerment of Creditor Rights: Section 727 Denial of Discharge and the BAPCPA of 2005, June 2005 American Bankruptcy Institute Journal
Straight & Narrow - ETHICS: Protecting Yourself Against E-illiteracy: Avoid Being Duped, September 2004 American Bankruptcy Institute Journal
On-line article featuring Seward/ Now You See It, Security Management Online, Dec 2003 (This one is my favorite so far. The article briefly discusses how Seward discovered that data was being hidden as, or within, mp3 files).
Judge Learned Hand, Please Help Them to Help Themselves, September 2006 American Bankruptcy Institute Journal
Seward, Jack, "The Debtor's Digital Autopsy Or Where's the Money!" . NABTalk, Journal of the National Association of Bankruptcy Trustees, Vol. 19, No. 2, Summer 2003
FEATURE ARTICLE: E-sleuthing and the Art of Electonic Data Retrieval: Part I - Jack Seward and Daniel A. Austin, February 2004 American Bankruptcy Institute Journal
FEATURE: E-sleuthing and the Art of Electronic Data Retrieval: Uncovering Hidden Assets in the Digital Age: Part II - Jack Seward and Daniel A. Austin, March 2004 American Bankruptcy Institute Journal
FEATURE: E-sleuthing and the Art of Electronic Data Retrieval - Uncovering Hidden Assets in the Digital Age: Part III - Jack Seward and Daniel A. Austin, April 2004 American Bankruptcy Institute Journal
You Need Forensic Technology! Or, If the Debtor is Hiding E-Data, Don't You Want to Know About It?, The Bankruptcy Strategist - Law Journal Newsletters Nov. 2003.
Digital Autopsy on Debtor's PixieDust, Seward
Jack Seward, Column, Back to the Future: FRCP and Electronic Discovery in Bankruptcy, 24-1 AM. BANKR. INST. J. 24 (2005).
Jack Seward, Column, Always Look Both Ways--Especially When Using Digital/Electronic Communications, 24-6 AM. BANKR. INST. J. 40 (2005).
FEATURE: Zero Tolerance for Commercial Bankruptcy Fraud: Bankruptcy Metrics Dictate that Forewarned Is Forearmed (citation: ABI Journal, Vol. XXIV, No. 10, p. 1, December/January 2006)
Check back here to learn how to become a founding member of the Jack Seward fan club!
Posted by R. Lee Barrett at 6:53 PM
Saturday, January 20, 2007
By now, virtually everyone with access to a tv, radio, computer or car is aware of the numerous implementations of the "Amber Alert." The Amber Alert system is primarily used to alert the general public when children have been abducted or are missing. Amber Alert tickers are available for desktops and also for websites and blogs. While looking for the code to re-install the ticker, I discovered that the some group also offers for sale an Amber Alert USB Flash Drive, that is being marketed as the Amberstick and is specifically designed to store vital statistics of family members so that such information can be made immediately available to law enforcement personnel.
According to the website, the Amberstick is password protected and encrypted (for reasons hopefully obvious to all). Since the device works as a typical flash drive, not only can you store the vital statistics fro each member of your family, you can also include three .jpg formatted pictures of each family member. Since the Amberstick is USB 1.1 and 2.0 compatible, transferring information to law enforcement is as simple as plugging the drive into the patrol car computer.
The interesting twist is that the Amberstick comes pre-loaded with proprietary software allowing the drive to be used interchangeably with any compatible PC. This allows ease of transfer of data between computers as it is not necessary for the software to reside on a new host computer. One of the functions of the software is that it allows for the instant creation of fliers (which, if printed or converted to a .pdf can be emailed anywhere, anytime).
How then, do we make the Evel Knievel jump from the Amberstick to bankruptcy lawyers? Over the last year, most bankruptcy lawyers only started to become vaguely aware of the existence of the flash drive, and within the last several months have started to consider the possibility that "books and records" of the estate, discoverable data, or even proprietary data might be stored, hidden, or smuggled via means of a flash drive.
The Amberstick embodies the next logical use of a flash drive, as a self-contained software and data delivery device (is there a cigarette-shaped flash drive on the market yet?). The growing list of things that keep litigation associates awake at night included flash-drives as of yesterday. Tonight, the sweat drenched pillow stays moist a little longer after considering more "advanced" application for the flash drive.
In a commercial bankruptcy context, this "active" flash drive should not be viewed solely as another single type of computer-gizmo, but rather another important piece of the digital enterprise. Does the prospective debtor utilize an active, pre-loaded flash drive such as this? If so, might its use result in changes on a host computer, or a server, or a tape backup that will impact preservation? Does the soon-to-be DIP issue active flash drives to employees, and if so, what data is on those drives? Does the DIP possess an active flash drive containing proprietary software from a vendor? What happens if a competitor, a member of the creditor's committee, or a litigation attorney from the US Attorney's office gets hold of the drive? In such an instance, the data (and the software necessary to access the data) are only as secure as the password is strong. If password protection is defeated, or if a disgruntled employee posts the password on his blog, the software and the data might as well be written on the men's room wall at the nearest pub.
Pen drives, flash drives, iPods, portable hard drives... from a lawyer's perspective, they should all be suspect not only as a passive storage area for existing data, but also as the getaway car for a self-contained software package.
From a parent's perspective, the Amberstick is a great idea. So much so that, the first reader who can locate and identify the nearest BACA (Bikers Against Child Abuse) chapter to him or her, will receive a free Amberstick. Winner determined by timestamp and by accuracy of response, so you might want to email your response rather than simply responding directly to this post. Happy hunting.
Posted by R. Lee Barrett at 11:15 PM
Tuesday, January 16, 2007
In the case Quintus Corporation v. Avaya, Inc., 353 B.R. 77 (Bankr. Del 2006), Avaya had purchased the assets of a Chapter 11 debtor the same day the case was commenced. In addition to the $30 million Delaware dollars Avaya agreed to pay at closing, Avaya also agreed to assume certain of the Debtor's liabilities, capped at $30 million. The sale was closed in April of 2001.
Kurt F. Gwynne was appointed as Chapter 11 trustee in January of 2002. As providence would design, the Trustee determined that Avaya failed to pay all of the assumed obligations as promised. After (I am guessing) some sand throwing and hair-pulling, the Trustee filed an adversary in March 2004, and asked to see some "books and records" of the Debtor. The Trustee even asked nicely. Then the Trustee asked not so nicely, and filed a motion to compel production which was partially granted in an October 2005 order.
When the smoke cleared from the discovery, here was the problem in summary format. The "books and records" (testimony of Debtor employees established that the books and records included a general ledger, accounts payable ledgers, other sub-ledgers, and records reflecting disputed and discounted invoices) of the Debtor, now the responsibility of Avaya, had been intentionally destroyed sometime in 2001 or 2002, apparently because Avaya needed the additional electronic storage space for its own books and records. The purchase agreement, outlining Avaya's obligations regarding the assumed debts, was not completely clear about certain debts, but did refer back to the Debtor's books and records as an identifying or limiting source of those obligations. The court did consider the bankruptcy schedules, as well as the proofs of claim, that were readily available to all parties.
An important preservation note: Avaya had a contractual obligation to pay all the assumed obligations based on the obligations reflected in the "books and records". That, at least, implies a duty to preserve those books and records. Since Avaya did not satisfy all of its obligations, it should have (according to the court) anticipated litigation and preserved the books and records. That the Trustee did not tee up the adversary until 2004 did nothing to save Avaya.
After the discovery period ended, Avaya did produce some of the books and records that it claimed supported its position that all assumed liabilities had been paid. Judge Walrath, while not discourteous, was clearly not impressed with Avaya's "too-little, too-late" production.
Finally, the court couched the Trustee's award in the terms of a sanction under Rule 37, and valued that award at the remaining amount of unpaid claims reflected in the schedules and the claims register. However, the court noted that the practical effect was the same as if the Trustee took a favorable judgment for breach of contract. Because the court was issuing such a harsh "sanction", the award of the Trustee's attorney's fees were not made. Assuming that the award in a breach of contract claim would have been at least $1.88 million, and assuming that Delaware law allows for the award of attorney's fees in a breach of contract case (as Texas does), the Court probably ought to have awarded attorney's fees to the Trustee as well. Otherwise, such an approach may entice parties to be "punished" by a spoliation inference, and avoid paying the other side's attorney fees. This is true especially (using my best Lewis Black voice here) where the offending party is being sanctioned for its behavior.
ESI issues are everywhere, and bankruptcy practitioners must be especially careful of all the potential implications. E-Everything, everywhere, every time!
Posted by R. Lee Barrett at 5:40 PM
Sunday, January 14, 2007
While absorbing the effects of the new bankruptcy laws, changes in the Federal Rules of Civil Procedure aimed at modernizing and standardizing the rules regarding electronically stored documents, and how those documents might be used in discovery and at trial, may radically impact the practice of bankruptcy law... even more so than BAPCPA. Truly a glorious era for litigators.
The amendments to the rules of procedure at last address a problem that has been growing in nature since at least the 1970's. Previously, "documents and things" were required to be produced or made available for inspection during the course of litigation. Relative to a spammer's email list, the DMV's electronic database containing my alleged crimes against the driving public, or the "boot-log" of a laptop used to send web-based emails with proprietary information to a business competitor, items such as a written contract or a stack of letters are items easily classified as documents subject to discovery.
A decade ago, Dave Letterman was making fun of the sudden appearance of "www." placed in front of every corporate logo and proper name. Within the last few years, "documents" filed as pleadings in federal court are almost exclusively filed as electronic documents in .pdf format. While explaining this to a particularly cynical client defending a Trustee's lawsuit, he asked if .pdf format stood for "Pretty Damned Funny". Such cynicism aside, this rapid growth, acceptance and implementation of a digital workplace led to increasing problems for courts, and has opened the door to limitless opportunity for litigators. The recent amendments to the rules of civil procedure are to litigators what the Super Bowl XXXV half-time performance featuring N'Sync, Aerosmith and Britney Spears was to pop-culture.
Bankruptcy lawyers are, out of necessity, a different breed. Bankruptcy is an "Alice through the looking glass" type of practice, and we are foot soldiers for the Mad-Hatter. While litigators of all breeds may be licking their collective chops at the opportunity to forge new law, blaze profitable new trails and maybe even have a star named after them, the formal recognition of "electronically stored information" ("ESI" from now on) will likely have far-reaching impacts in the universe of bankruptcy. One lawyer's ESI discovery product is another's set of books and records, AND property of the estate, AND collection of processes necessary to complete monthly operating reports, AND applicable non-bankruptcy reporting and disclosure obligations, AND post-petition managment tool, AND source of significant drain on DIP resources, AND source of significant data for an unsecured committee, AND a wildly unrecognized source for potential malpractice, AND... get the picture?
At the dawning of the Industrial Age, blacksmiths were needed specialists who would eventually outlive their own economic usefulness. Prior to the commercial extinction of the village blacksmith, and contrary to the popular image of the burly smith toiling away with nothing more than a single hammer and burning steel, smithies were often the first to adopt and implement revolutionary methods and processes that were, for a short time, on the cutting edge of technology. Until such time as companies and consumers alike learn to exist without failing, can succeed without the "fresh start" of bankruptcy, our collective lot is not that of the village blacksmith. However, the reach and scope of bankruptcy practice may soon propell our colleagues to the forefront of all things ESI.
Just as Gutenberg made his printing press, this site is intended to serve as a gathering place, a podium for the towne-crier, and a collection point for information and developments related to, well, all things E-Everything for Bankruptcy Lawyers. Enjoy!
Posted by R. Lee Barrett at 9:56 PM