Did the owner of the phone and recipient of the texts ever see them displayed on the screen?

“Do you recognize the subject matter of this picture?”  ”Yes, it’s my cell phone.”
“How do you know it’s your cell phone?”  ”I was there when it was photographed.”
“Can you describe what is displayed on the phone?”   ”It’s a text message.”
“Were you the recipient of this text message?”  ”Yes.”
“Is it displayed on the phone here just as it was when you received it?”  ”Yes.”
“Is this a fair and accurate representation of the text message as it appeared on your phone?”   ”Yes.”
“Please read the text message for the Court.”   ”It says, ‘I want to touch you in a way that’s illegal in at least 11 states.’”
“Can you tell when the message was sent?”  ”Yes.”
“How?”  ”It’s displayed along with the message.”
“And when was it received?”  ”It was received on April 1, 2011, at 1:23 p.m., just as it says on the screen.”

And I was done.

But I was talking to a tech guy and he scared me.  He took his phone and, in about 30 seconds, sent me a text from another person’s phone entirely.  I’m not sure how he did it but I now know that it’s very easy to send texts to somebody while making it look as if the texts were coming from somebody else.

Many lawyers face the problem of a client who calls many lawyers and can’t evaluate which one is best for the situation.  So if you can’t take their call right then, they move on.  Well the Mother of all Hamsters was talking about this and she described how a good legal assistant handles it:

A good secretary will establish rapport with the caller and find a way to suggest to them that, to paraphrase, “I know you’re eager to find somebody to help you with this, and you’re probably flipping through the phone book (or visiting lawyers’ websites), but do yourself a favor and don’t hire anybody else until you talk to (THE BOSS).  He does a really good job in Court, and he prepares thoroughly for every case, even something relatively straightforward like a [.....] Every single case is different, and I’d hate to see you go to one of those law firms where they show up and act like your case is the same as everybody else’s, with hardly any recognition that you may have a circumstance that the lawyer needs to be sure to make the judge aware of.  So give him just a little while, please, to call you back. He’s at lunch but I expect him pretty soon. In the meantime, can you fax (or email) the paperwork to me so I can pull the statute for him?”

MOAH says that how your assistant says it will depend on the person’s presentation on the phone, but an intuitive secretary will find just the right tone of voice and speech pattern to create some urgency for the client to come see YOU and not the guy down the street.

• Name, job title, etc.
• Are you an authorized representative of company X, with personal knowledge of   knowledge of the records/documents identified in the SDT
• Are the records you provided copies of records maintained in the ordinary course of the business of your company?
• Are you the custodian of the records [or a person familiar with and with access to the records] that you provided?
• How are the records maintained, what software is used to maintain/access computer records, who has input access, what record does the system keep of who is inputting what?
• What efforts were used to find the records?
• What efforts were used to locate the records that can’t be located?
• If ESI is involved, than ask them to describe the process of their electronic search?
• Was the record was made at or near the time by — or from information transmitted by — someone with knowledge;
• Was the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
• Was making the record was a regular practice of that activity;
• Did you bring the records related to the issues identified in the SDT
• Are the records you brought are true and accurate copies
• Are the records deponent brought are every record that company X has that  are related to the issues identified in the SDT

Identify each document as an exhibit on the record as needed.

The first thing for Holly to do is get a new accountant and sue in court for an Accounting. She will probably also have to ask for a receiver so Holly can install her own manager in place of Mary. I would check the uniform state LLC code since that takes the place of written agreements when there is none (as in this case). I would also look to local common law for various breaches of fiduciary duty, fraud, breach of contract, indemnity for the IRS taxes owed and punitive damages.

Mary will also probably need an IRS tax specialist to help negotiate with the IRS to reduce or eliminate the penalties and avoid (to the extent possible) joint and several liability for the taxes. The accountant is also vulnerable too. S/he should be cooperating to avoid being named as part of the coverup. The accountant may also have malpractice insurance.

One thing for sure: this will be a very expensive and unpleasant trip down what a friend calls “agony lane.” It’s ugly. Worse, I’ve never found any way to convert this type of case into a contingency case and (too often) Mary will have spent the loot so Holly can’t even recover it.

I’m in the middle of this case now and it has lasted over a year already with no end in site.

That is the question for you and your cyber-protection provider to consider before you let another employee go out the door with a portable device. Ask your cyber guys if cloud security is your best bet for keeping your data safe.

P.T. Barnum’s sign “See the Egress” got many of the gawkers out of Barnum’s museum so he could get more paying people in. So when you design your training program to protect your company software and data, keep in mind that employees are a lot like those gawkers. If you pitch the program for their home data first and add in the company alongside it, your employees are more likely to show up, learn and put the practices you want them to use in place.

So go ahead, invite everyone in the company to participate in these programs. They will thank you for taking the time to help them protect themselves never realizing that as they protect themselves, they will be protecting your firm.

See http://www.abajournal.com/news/article/law_firm_police_depts._struggle_to_get_back_online_after_claimed_anonymous_/

While the names are funny as hell, the issue is not, especially when first responders are targeted. I am not sure how one protects a network from these attacks which are happening world wide. I do know that it is a really big issue that every internet user needs to address.

Key quotes: “[C]onfidential information that seemingly was obtained in the hack attacks is getting all too much exposure. Confidential email from the Puckett & Faraj website appears to be posted on YouTube, among other sites.”

Things could have been much worse though. We should all be careful.

• If she/he is still feeling threatened, be prepared to call the bully back. Tell the bully that if he calls, texts or Facebooks your kid again, you will call the cops.
• When the bully does any of these things, then follow through and bring in the police.
• Once the police are involved, a police mediator will come forward to work with all the parents and their children. Keep telling your child that she or he is doing the right thing.

Throughout all of this, be strong for your kid. Make sure your kid understands that by making a complaint to the police she/he is taking away the bully’s power. Teach her/him to be strong as she enters adulthood.

Here are a few suggestions that may help.

1. As soon as your child enters school, write down the name, phone and email of the school counselor for his or her grade. Update it annually.
2. Find out the cyber-bully number in your state (if there is one).
3. Take your child seriously when he/she tells you that someone is telling lies about her or him.
4. Find out how she or he is being attacked. Is it by texts, phone calls, Facebook, or in person?

• If the attack is on Facebook, tell your kid to let Facebook know about the bullying. Then have your child un-friend whoever is making these comments. Have her print out what was said for the record going forward.
• If the attack is by phone text, tell her not to respond to the texts at all. Then print out the messages, again, for the record going forward. If you back up the phone on a computer (like an iPhone on iTunes) you will have a complete set of all texts sent and received.
• If the attack shifts to the attacker calling her on the phone to tell her he/she is not threatening her, these are also threats. Tell her or him not to answer the phone call. Make a record of the calls and any messages which are left. Contact your cell phone provider for a full list of calls made and received by your teen’s cell phone. These can document a pattern of abuse.
• Then call the counselor and tell him what is going on. This is for the record.

If this works and the bully backs off, great. You can breathe a sigh of relief and feel great about teaching essential survival skills to your kid.

• As a parent, expect your child to be vulnerable to attack. Here is a limited list of what kinds of attacks to expect. Physical, Mental – exclusion from groups, Social Media – by phone call, text message or Facebook slams.
• And, as a parent, you may wonder why your kid? Well, for no reason at all. Or maybe it’s because your kid is swimming in a pool of different social groups at school. Your kid is (or is not) a member of a socially sanctioned group. (Sanctioned by peers anyway.)

As parents, we all want to punch the bully for hurting our kid. If you are not as aggressive as I am, then at least you want to haul her/him to the authorities. If the bullying incident is on school grounds then the school automatically gets involved. And, hopefully, the bully will be disciplined. (Probably not but you can hope.)