Monday, December 19, 2005

Contemporaneously Entered (And Computerized) Time Records:

In this latest decision in the case of Cobell v. Norton from Judge Royce Lamberth of the United States District Court for the District of Columbia, a subject near and dear to my heart. Admissions were made as to ministerial changes after the fact. No cogent challenge was made as to the "currency" of the entries, as most attorneys lack the understanding of the ephemeral nature of digital data necessary to proffer same.

Link to the decision page:

Here now, an excerpt from the decision, issued December 14, 2005:

Defendants urge the Court to reject the Interim Fee Petition on the grounds that plaintiffs
failed to submit “contemporaneous records of exact time spent on the case, by whom, their status and usual billing rates, as well as a breakdown of expenses such as the amounts spent copying documents, telephone bills, mail costs and other expenditures related to the case.” Opposition, at 8 (quoting Cmty. Hearing & Plumbing Co. v. Garrett, 2 F.2d 1143, 1146 (Fed. Cir. 1993)).

Defendants take issue, for example, with plaintiffs’ stated practice of transferring time entries from hard copy to computer. The record reveals that Gingold recorded his time in a diary and then input the information into his computer, Gingold Aff., at &¶ 1 and 2; Keith Harper, John Echohawk, and Lorna Babby maintained daily records that were subsequently entered on a eekly or monthly basis on a computer database, Harper Aff., at & 2, Echohawk Aff., at ¶ 2, abby Aff., at ¶ 2; and Stacy Gingold Bear “maintained [her] time records in an annual hard copy diary . . . . [f]rom this diary, . . entered [her] time electronically into a Quattro Pro software application.” Gingold Bear Aff., at ¶ 2.

Defendants next accuse plaintiffs of improperly “modifying,” Opposition, at 10, “editing,” id., and “altering” id. n.4, their time records. Defendants cite to those entries where plaintiffs “added clarity where contemporaneous entries had been made in abbreviated, coded, short-hand, or summary form,” Gingold Aff., at ¶ 2 (August 16, 2004); or, “slightly modified some of the descriptions to clarify the task completed,” Babby Aff., at ¶ 3; or “edited some of the original description to fix obvious recording errors . . . . because of the need for increased clarity . . . [and] slightly modified some of the descriptions so as to clarify the task that I was completing,” Echohawk Aff., at ¶ 3; or “edited some of the original descriptions to fix obvious recording errors . . . . because of the need for increased clarity . . . slightly modified some of the descriptions so as to clarify the task that [he] was completing,” Rempel Aff., at ¶ 4; or “added
clarity where contemporaneous entries had been made in abbreviated, coded, short-hand, or summary form.” Gingold Bear Aff., at ¶ 2.

The Court finds defendants’ objections to plaintiffs’ practice of transferring records from one medium to another and clarifying records to facilitate judicial review, meritless. In the first instance, defendants put forth no evidence supporting their challenge. “[A] respondent to a fee application must file affidavits in opposition [] where the respondent challenges the factual accuracy of the fee petition. Joy Mfg. Corp. v. Pullman-Peabody Co., 742 F.Supp. 911, 915 (W.D. Pa. 1990). Defendants, having been present at all proceedings and having reviewed all filings could easily have “submit[ted] to the District Court any evidence challenging the . . . the facts asserted in the affidavits submitted by respondents’ counsel,” Blum v. Stenson, 465 U.S. 886, 892 n.5 (1984) (citing City of Detroit v. Grinnell Corporation, 495 F.2d 448, 472-473 (2d Cir. 1974)). Instead, defendants offer only innuendo and speculation.

Beyond this, defendants’ interpretation of the “contemporaneous time records” requirement is draconian. A time record is “contemporaneous” if its descriptions are both “accurate and current,” In re Hudson & Manhattan R. R. Co., 339 F.2d 114, 115 (2d Cir. 1964), and includes “for each attorney, the date, the hours expended, and the nature of the work done.” New York Assen for Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d Cir.1983). While the need to “maintain contemporaneous, complete and standardized time records which accurately reflect the work done by each attorney” is “particularly apt” in EAJA petitions since “the fee requirements will be satisfied from the United States Treasury,” In re Donovan, 877 F.2d 982, 994 (D.C. Cir. 1989), this Court does not share defendants’ obsession with the medium in which plaintiffs’ time records were entered or with the fact that abbreviated notations were clarified and mistakes corrected to assist the Court’s review.

What is significant is that plaintiffs’ time entries do not constitute “casual after-the-fact estimates.” Action on Smoking and Health v. C.A.B., 724 F.2d 211, 220 (D.C. Cir. 1984). The Court has no reason to question the veracity of plaintiffs’ sworn affirmations that they clarified abbreviated notations and shorthand to allow “this Court to make an informed decision about the relevance and appropriateness of the entry,” (Gingold Bear Aff., at ¶ 2), or that they were
“diligent to check the time claimed with contemporaneous records, briefs or memoranda to ensure against recording errors.” Echohawk Aff., at ¶ 3. In short, the Court finds defendants’
exceptions to plaintiffs’ entries on the grounds that they do not constitute contemporaneous records to be without foundation.
Wikipedia alternative aims to be 'PBS of the Web'

"No no," says Mr. Wiki. "Yes, yes," the upstart rejoins, "we're the *real* authority for meaning in the digital world. Don't listen to those other people behind the curtain. They're wrong. Why? We have PhD's from Phoenix University, that's why. And because we say so, and we're the *real* authority" nauseum.

Well, maybe. At least for this week.

Real academics. True recursivity. How refreshing.

In the TV world, PBS is the abbreviation for "Public Broadcast System." A well respected informational source that takes pride in it's devotion to vetted information.

In the virtual world, and keeping in mind that on the Internet, no one knows you're a dog, this more readily dilutes into (and Wikipedia will have the definition as soon as someone posts it anonymously) "Public Bull---- Site."

More techno-babble, is all. article here:

Bah. Humbug.

Ebeneezer Grinch
Out of the Frye-ing Pan

In the case excerpted below and just decided by the Florida Third District Court of Appeal, digital evidence in the form a GPS reading was deemed admissible by the trial Court and affirmed on appeal. What is noteworthy here is *not* that the GPS data on the car's location (via Onstar) was admissible, but that the Court appears to have taken pains to provide a substantial amount of "in any event" justification for ascertaining a defendant's whereabouts at a time and place. It almost appears that the Court doesn't want to stick it's neck out too far, and finds other ample an convincing evidence to affirm.

From Still v. State of Florida, (Fla. 3rd DCA December 14, 2005) Case No. 3DO3-2970

An interesting note. The NY citation following the phrase "generally accepted" on page 3 and the word "used" at the beginning of page 4 do *not* appear on the viewable pdf at that location. That cite does appear on the next page. So, an obvious error of some sort, but this is a published opinion, and other "errors" might not be so obvious. Or as admissible under a Frye analysis.


We turn next to Still’s second point on appeal that the trial court erred in failing to conduct a Frye hearing regarding the testimony of OnStar Computer Service, the operator of an in-vehicle telecommunication system. We find that the trial court correctly found that it was not necessary to conduct a Frye hearing to determine the reliability of OnStar’s evidence. Novel scientific evidence is inadmissible unless it meets the test set out in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Courts only use the Frye test in cases of new or novel scientific evidence. See Brim v. State, 695 So. 2d 268, 271-72 (Fla. 1997). The evidence involved in this case is nothing more than commonplace global positioning satellite (GPS) technology, a technology which has been generally accepted and
, 695 N.Y.S.2d 244 (1999). used for years. The OnStar system is not new or novel scientific evidence; it is basically a tracking system that uses GPS technology. Florida courts have allowed evidence obtained from GPS systems. See Hicks v. State, 852 So. 2d 954, 957 (Fla. 5th DCA 2003). Other jurisdictions have held such tracking technology admissible without conducting a Frye hearing. See State v. Vermillion, 51 P.3d 188 (Wash. 2002); People v. Cortorreal
Furthermore, even if the trial court erred in admitting the OnStar evidence, it was harmless error because Still was not prejudiced by not having a Frye hearing. The evidence indicated that the subject vehicle had Still’s fingerprints on it, Still told his uncle the subject vehicle belonged to him, and the subject vehicle was found at Still’s aunt’s house. Moreover, an eyewitness made a positive identification of Still and saw Still leave the subject car. No expert in this case was necessary because of the overwhelming evidence tying Still to the vehicle.
Wikipedia: Mass Opinion As Fact

Wikipedia seems destined to become the non-academic's attempt to fashion the universe as s/he, rather than the spin-meisters, see it. Righto. A refreshing view, if occasionally (if not almost always) wrong. Who cares about a high error rate, it's a *collective* hind-mive, er um I mean hive-mind effort. Isn't it clear by now that facts are what a majority express them to be? With Wiki, we know what the majority thinks something is. Comforting thought.

Here now, in a link from The Register, a different, and patently unfair, critique of Wikipedia. Why? Well, when I think of a Wikipedia, my mind wanders to those halcyon days when I would make some Margaritas with whatever Tequila was available, pop in a Jimmy Buffet CD, and lounge under the Tiki hut at the beach. After about five or six margaritas, I reckon I'd have been primed to contribute to wild world of Wiki under the Tiki.

Now, lessee if there's an entry for Sox compliance...