Courts can demand to see e-mail, voice mail and chat
What you don’t know about electronically stored information can hurt your business or organization — a lot.

Local attorney Derek Witte knows all about that.

The issue has generated a new buzzword in law: e-discovery. Discovery is the legal process in which attorneys obtain evidence held by the other side. “E-discovery” is the term for handing over electronically stored information (known as ESI).

Failing to produce evidence in a timely and thorough manner can be risking disaster, as in the case of the Morgan Stanley investment house. Witte, an attorney with Miller Johnson who specializes in e-discovery, was living in Chicago a couple of years ago and was on a large team of lawyers representing the Coleman company in Coleman v. Morgan Stanley.

Coleman was suing its former financial advisor, but the trial never got to the actual merits of the case because in the discovery phase, Morgan Stanley failed to disclose the existence of thousands of e-mail back-up tapes. For that alone, Morgan Stanley was fined a total of $1.5 billion in compensatory and punitive damages, though the verdict was overturned on appeal in March.

But the verdict in a similar case in Michigan still stands. DaimlerChrysler sued Bill Davis Racing in a federal court in Detroit and won a judgement of $6.5 million in 2006. A jury found that the North Carolina-based racing company had passed confidential information to Toyota. The racing company was penalized for having failed to produce emails from one of their engineers, sent on his private AOL account to a Toyota employee.

In December, the Federal Rules of Civil Procedure were amended to include ESI. The new federal court rules are causing businesses to examine which electronic documents should be saved — and which should be destroyed.

For example, “Bill” down in shipping may have some e-mails the boss isn’t even aware of — e-mails that might play a role in a lawsuit that isn’t even on the horizon yet.

E-mail “is usually where the juicy stuff is,” quipped Witte, because e-mail is how most people at work now communicate. It also has greatly multiplied the sheer volume of communication. Before, a company might have had only a couple of letters and internal documents pertaining to a specific matter, but today, that could be hundreds of e-mails — plus voice mails and instant messages, all of which are ESI.

Electronic communications are much more casual and spontaneous than formal business letters. Until fairly recently, people assumed no one would ever see the content of their e-mails.

“We are creating more evidence” than ever before, explained Witte.

Witte has been getting a steady stream of calls from West Michigan companies that want to know more about the new federal requirements. He has a detailed presentation covering the major aspects of e-discovery, including how to be prepared and the costs involved. He said sometimes the information tends to scare the audience.

“What happens is, I explain what the law is,” Witte said. “Then the in-house counsel looks over at their IT person and says, ‘Where’s our e-mail?’ Sometimes it can escalate into panic.”

Retrieving ESI when faced with a court order can be very expensive. In an emergency, a business or organization may have to hire consultants and buy expensive software programs. In fact, e-discovery is a whole new market within the IT industry.

Witte comes down hard on instant messaging in particular, because of its impromptu nature. Many people can be quite reckless about what they put in an instant message.

“A lot of people think once you close that instant messaging program, it’s gone forever. And that’s just not true. That whole conversation stream can be recovered,” Witte said. “Our advice is: If you have a corporate instant messaging program, get rid of it. It just isn’t worth it.”

Witte said that deciding what ESI to keep and what to destroy is not an easy decision. First, it depends on whether you are currently facing a lawsuit or potential lawsuit. Lawsuits aside, some things must routinely be kept for a specific length of time, such as tax and employee records, certain records of publicly traded companies, etc.

Perhaps the best place to start is to remember that where the law used to state “documents,” it now reads “and electronically stored information.”

Immigration advocate
When Susan Im began her law career in the mid-1990s, she was told there wasn’t enough work in immigration law to keep a Grand Rapids lawyer busy full-time.

Today, immigration law is all Im does.

Immigration is now also a major political hot button in the United States, with an estimate of more than 12 million illegal immigrants, most of them from Mexico.

“I think it is pretty clear that our current immigration system is broken,” said Im. “The borders don’t work. At the same time, some professional people have to wait years to get here. Our immigration laws are out of sync. They don’t reflect the true employer needs of today.”

Im spoke about immigration law recently at Hope College and to Grand Rapids Rotary. Two years ago she was appointed by Gov. Jennifer Granholm’s Advisory Council on Asian and Pacific American Affairs, and served as chair of the Council’s Immigration Committee.

Im’s parents, both of whom worked in the medical profession, came to the United States from South Korea in the 1960s. She was born in Chicago. Then her father, a psychiatrist, accepted a job at the state hospital in Traverse City, so the family moved there, where Im graduated from high school. She did her undergrad work in Asian Studies and political science at the University of Michigan and then earned a law degree at Wayne State University in 1994.

Im began her career at Smith Haughey Rice & Roegge, where she worked in civil litigation, mainly involving insurance defense cases.

“I am grateful to Smith Haughey for what I learned there, but I wanted to do immigration law,” she said. In late 1996, she left to start her own practice. This spring she merged with attorneys Elizabeth Lykins and Tim Ryan to form Ryan Lykins Im PLC.

Although Im does some family immigration work, most of her work is in business immigration, in which she is retained by employers trying to obtain temporary work visas for foreign nationals the companies want to bring here, or trying to get permanent residency status — the coveted “green card” — for an existing employee. Im’s clients are corporations and businesses ranging from aerospace to food service, along with colleges and universities.

Most of the foreign nationals she represents are educated or skilled workers, trying to enter from all over the world.

There are five employer-based categories for green card applicants, with stringent rules for qualification in each category. The number of employer-based green cards issued each year is limited to 140,000 for the entire country. There are also specific restrictions on the number of applicants from China, India, Mexico and the Philippines.

Noting that many top scientific researchers come from China and India, Im said the green card applications from professionals in those countries is backlogged and getting longer.

“An Indian-born physician who begins her green card process today, on a work visa, will wait at least five years,” said Im. “One thing I hear all the time from employers is, ‘I’d love to find a qualified U.S. worker for this job, but I just can’t.’”

Work visas are on a time limit and sometimes expire before a green card can be obtained. Some professionals are then forced to leave the country, while others will change to a student visa status, which means limited or no employment.

“The bottom line is, we need to look at reforming our laws,” Im said. “The biggest obstacle to reform is politics — and emotions.”

A bill introduced last year, H.R. 4437, has passed the House. Im called it “horrible” because it does not address employer needs and does not address the huge undocumented population in the U.S. The proposal sparked protest marches in Hispanic communities across America last summer.

“And I don’t blame them,” Im said.

A Senate proposal, S. 2611, would create a guest worker program and a path to citizenship for some qualifying illegal immigrants already in the U.S. Im said it is “far from perfect, but leaps and bounds better” than the House bill.

Barking up the right tree
Michigan is a leader in “animal law,” and that pleases animal law expert Ginny Mikita.

“Michigan was the first state to have an animal law section added to its state bar association,” said Mikita, an attorney from Rockford.

She is also proud to point out that just four years ago, the Michigan State University College of Law started its Animal Legal & Historical Web Center, where anyone can access more than 700 legal cases and 975 American laws pertaining to animals. (See www.animallaw.info.)

Michigan also recently updated its felony animal cruelty laws to allow a judge to temporarily or permanently revoke a convicted individual’s right to animal ownership.

Mikita predicts that within a few years, there will be new Michigan laws passed allowing people to recover “non-economic” monetary damages for the loss of a pet. She often represents pet owners suing veterinarians for malpractice, and the law currently allows recovery of only the actual dollar value of the pet, plus some expenses. “Non-economic” loss is “the loss you cannot quantify — the emotional involvement” one had with a pet, she explained. Tennessee has passed a law, she said, allowing up to $4,000 in non-economic damages.

Mikita has had a passion for protecting animals since she was in 5th grade. She was walking to school one day when she found a bag of mewing kittens, left like trash on the curb. She took them to school and gave them to the school nurse, who then called Ginny’s mother to come get them.

Mikita was an Air Force “brat” whose parents’ roots were in West Michigan. While earning an economics degree in Florida, she read “Animal Liberation,” a book that impacted her profoundly. She decided to attend law school to qualify to work as an animal lobbyist, and graduated from Notre Dame Law School in 1991.

Early in her career, Mikita was an in-house attorney for PETA, People for the Ethical Treatment of Animals, in Washington, D.C. She eventually realized she did not agree with some of the methods used by PETA, and left the organization.

Later, Mikita went to work for Smith Haughey Rice & Roegge in Grand Rapids. In the mid-1990s, she represented the Ottawa Shores Humane Society, which almost went bankrupt after having to care for 139 starving and neglected animals — including horses and many goats — that had been seized on a Nunica farm. The humane society was also sued by the animals’ owners. Mikita later played a key role in the drafting of a new state law that requires people accused of abusing or neglecting animals to cover the expense of housing and feeding the seized animals, and speeds up the animal forfeiture process if the owners can’t pay.

Mikita says it was that case that led to her being named one of Michigan’s Top Ten Lawyers by Michigan Lawyers Weekly in the late 1990s.

In 1999, Mikita left Smith Haughey to go into private practice in Rockford, in partnership with her husband, attorney Bob Kruse. Most of her legal work now is conventional law dealing with child neglect cases and guardianships. But she is known nationally as an expert in animal law, including “companion animal trusts” and veterinarian malpractice. Last November she spoke at Lewis & Clark Law School in Portland, Ore., one of the first American law schools with an animal law program.

Mikita was also asked to speak about companion animal trusts at a recent meeting of the Institute of Continuing Legal Education, sponsored jointly by the State Bar of Michigan and several Michigan law schools. And she was hired a couple of years ago by the Michigan Humane Society to lobby in Lansing against a state proposal to allow dove hunting. The controversy came to a head in a state referendum last November, in which voters nixed a dove hunting season.

People are really her clients, of course, though sometimes a critter is the focus of all the effort, as in pet trusts. Pet trusts are part of estate planning when owners want to be sure their pets will be properly cared for after the owner has died.

Mikita said that one of her clients has a beagle named Larry, “who’s going to be doing pretty well in a few years.”

Actually, Larry is already doing quite well. He wasn’t available for a Grand Rapids Magazine photo because he was wintering in Florida. GR