Scientists take another Small Step Toward Quantum Computing

From Yale:

A team led by Yale University researchers has created the first rudimentary solid-state quantum processor, taking another step toward the ultimate dream of building a quantum computer.

What would a Quantum Computer do for you? The article explains:

[I]magine having four phone numbers, including one for a friend, but not knowing which number belonged to that friend. You would typically have to try two to three numbers before you dialed the right one. A quantum processor, on the other hand, can find the right number in only one try.

“Instead of having to place a phone call to one number, then another number, you use quantum mechanics to speed up the process,” Schoelkopf said. “It’s like being able to place one phone call that simultaneously tests all four numbers, but only goes through to the right one.”

Case Summary: Phillip M. Adams & Assocs., On Spoliation and Info. Management

Phillip M. Adams & Assocs., L.L.C. v. Dell, Inc., 2009 U.S. Dist. LEXIS 26964 (D. Utah Mar. 27, 2009)

FACTS: Plaintiffs, and requesting party, Philip M. Adams & Associates, alleged infringement of their patents for technology that detected and resolved defects in the most widely used floppy disk controller, thus preventing data from being destroyed. The patents in question were purportedly assigned to plaintiffs by the original inventor. FDC-related defects gave rise to multiple lawsuits, culminating with the settlement of a class action suit against Toshiba in October of 1999.
Requesting party accused producing party of spoliation, as stated in the opinion:

…first, that ASUS has illegally used Adams’ patented software; and second, that ASUS has destroyed evidence of that use. The first assertion is identical to the liability issue in this case. The second assertion is premised on the first: Assuming ASUS used Adams’ software, ASUS’ failure to produce evidence of that use is sanctionable spoliation. Adams has no direct proof of destruction of evidence but is inferring destruction or withholding of evidence. Since Adams is convinced that ASUS infringed, Adams is also convinced that failure to produce evidence of infringement is sanctionable.

Issues we examine:

1. When did the producing party’s duty to preserve attach?
2. How does the Safe Harbor provision (FRCP 37(e)) factor into the determination of sanctions in this case?
3. What role does producing party’s information management system play in the sanctions calculus?
4. How does the producing party’s lack of produced data on certain subjects in the aggregate balanced against the absence of specific evidence of wrong-doing by requesting party?

Issue 1: Court’s reasoning:
Producing party acknowledges receiving a letter from requesting party’s counsel asserting infringement on February 23, 2005. It does not acknowledge receiving an earlier letter dated October 4, 2004. Thus, Producing Party dates the beginning of its duty to preserve from the date of the February letter, and states that it has complied with that duty from that time forward. Producing party takes the position that a delay in giving notice and bringing suit by requesting party is the reason for the lack of available data from the years 2000 and 2001.
The court noted that both parties agreed that “a litigant’s duty to preserve evidence arises when ‘he knows or should know [it] is relevant to imminent or ongoing litigation.’” The court acknowledged the producing party’s stance that this trigger occurred upon receiving counsel’s letter, but stated that this was “not the inviolable benchmark.” The court cited 103 Investors I, L.P. v. Square D Co., 470 F.3d 985 (10th Cir. 2006) to buttress its argument.
In 103 Investors, the defendant disposed of 50 to 60 feet of “busway” material after a fire had occurred, destroying all but four feet of the busway, and eliminating any of the busway that should have contained a warning label. The court concluded that in that instance, the defendant should have known that litigation was imminent, although the material had been disposed of long before the complaint was filed.
The court described the history of this defect. In 1999 Toshiba paid a large sum to settle a class action related to the floppy drive error in play in the instant matter. That same year, a class action suit was filed against HP for the same defect. In 2000, producing party was working on correcting the issue. Sony became embroiled in a class action in 2000. The court stated that the industry had (or should have become) “sensitized” to the possibility of litigation on this issue.

It appears that this extends the duty to preserve, which is already among the more difficult and costly issues in e-discovery today. By extending the duty’s trigger to occur prior to any direct or specific action against defendants, the court is asking too much of any IT department. It may be that the lack of documents produced by the defendants (this is discussed below) puts the court in the position of trying to fashion a rationale for punishment. But taken literally, the effects of the opinion could set a difficult, perhaps impossible, standards for compliance with the duty.

Issue 2: Safe Harbor?

The court, to the dismay of many commentators, dismisses the effects of the safe harbor provision in FRCP 37(e). Ralph Losey claims the court “mines” the rule into oblivion. I think what is in play here is that the court feels that the producing party would use Safe Harbor as a rationale for not producing data that it should have. Nevertheless, Safe Harbor’s reach, already attenuated, appears to weaken further in this opinion.

Issue 3: What role does producing party’s information management system play in the sanctions calculus?
The court comes down hard on the IG practices of the producing party. It stated that the system’s architecture, possessed of questionable reliability, should not be excused, though it evolved, rather than was deliberately designed to operate as it does. The result is that it operated to deprive the requesting party of access to evidence.
Traits of this system are described thusly:
[Producing Party] extensively describes its email management and storage practices, to explain the nearly complete absence of emails related to the subject of this litigation.

First, [Producing Party] says its email servers are not designed for archival purposes, and employees are instructed to locally preserve any emails of long term value.

[Producing Party] employees send and receive email via company email servers.

Storage on [Producing Party's] email servers is limited, and the company directs employees to download those emails they deem important or necessary to perform their job function from the company email server to their individual company issued computer.

[Producing Party] informs its employees that any email not downloaded to an employee’s computer are automatically overwritten to make room for additional email storage on ASUSTeK ’s servers.

It is [Producing Party's] routine practice that its employees download to their individual computer those emails the employee deems important or necessary to perform his or her job function or comply with legal or statutory obligations.

Second, ASUS employee computers are periodically replaced, at which time ASUS places all archiving responsibility for email and other documents on its employees. During the course of their employment, ASUSTeK employees return their individual company issued computers in exchange for newer replacement computers.

40. The hard drives of all computers returned to or exchanged with the company are formatted to erase all electronic information stored on these computers before they are recycled, reused or given to charity.

41. During a computer exchange, it is [Producing Party's] practice to direct its employees to download those emails and electronic documents from the employee’s individual computer to the employee’s newly issued computer that the employee deems important or necessary to perform his or her job function or comply with legal or statutory obligations.

The court stated that descriptions these data management practices may explain why relevant e-mails were not produced, but it did not establish the Producing Party’s good faith in managing its data. It calls the information management practices of the producing party “questionable” and that although an organization may design its systems to suit its business purposes, the information management practices are still accountable to such third parties as adversaries in litigation. The court opines that: “[a] court – and more importantly, a litigant – is not required to simply accept whatever information management practices a party may have. A practice may be unreasonable, given responsibilities to third parties.

Furthermore, while the court accepts that the Producing Party’s system “evolved” rather than was purposefully designed with the goal of hiding data needed for litigation, it nevertheless quoted the Sedona Conference: “An organization should have reasonable policies and procedures for managing its information and records.”

Finally, the court took aim at the practice of allowing individual users to drive retention practices, when it stated: “[Producing Party's]‘ practices invite the abuse of rights of others, because the practices tend toward loss of data. The practices place operations-level employees in the position of deciding what information is relevant to the enterprise and its data retention needs.”

Issue 4: How does the producing party’s lack of produced data on certain subjects in the aggregate balanced against the absence of specific evidence of wrong-doing by requesting party?

Producing Party turned over executable files of their own invention, but failed to surrender the source code for those executables. They also failed to produce other relevant executables and related source code, or “a single document” relating to the development of the applications under scrutiny. The court expressed concern over the absence of certain types of documents from the production:

[Producing Party's] only response is that it has produced a large volume of documents. That may be the case; but, it has not produced the most critical documents – those that relate to its misappropriation, its copying, and its willful behavior. The only conclusion after all this time is that [Producing Party] has destroyed critical evidence that it simply cannot show did not exist.

By this expression, the court adopted Requesting Party’s argument that Producing Party had “’spoliated the most critical evidence in this case, e.g., test programs and related source code’ “[S]ince [Producing Party] has not produced it, the only conclusion is that [they have destroyed it."

The court also noted, in its analysis of Producing Party's objection to the admissibility of data produced by third parties on grounds of authentication, that the Producing Party, while claiming "a near total absence of evidence...[sought] to eliminate the only evidence available. The court concluded that such tactics should not prevail to “prevent consideration of the best evidence available.”

Requesting Party listed types of documentation that they would expect Producing Party to possess, but never received during production. Communications and documentation from outside sources contributed to a suspicion that such documentation once existed. Indeed, as the court examines the Producing Party’s duty to preserve, it leads off by stating: “[t]he universe of materials we are missing is very large. Indisputably, we have very little evidence compared to what would be expected.”

In dismissing arguments that destruction of the data in question was covered by the “Safe Harbor” provision under FRCP 37(e), the court stated: “[o]ther than the patent application and the executable file, it does not appear [Producing Party] has produced any significant tangible discovery on the topics where information is conspicuously lacking.”

Ultimately the court found that Producing Party had breached its duty to preserve relevant data. It appears from the information above that the dearth of critical documentation from the Defendant’s productions were a significant contributor to the ruling, but the court does not explain the weight to which it assigned this as an element in its ruling.

On the discoverability of voicemail

Mark Sidoti and Paul Asfendis, writing for Law.com, have recently posted an article discussing the different types of voicemail, and the discoverability of each:

Companies today have more options than ever for generating, receiving, storing, retrieving and disposing of voicemail messages.

In the past, voicemails were stored on analog tapes, but increasingly, organizations now use unified, digital systems that integrate telephone and computer systems. While more efficient and flexible, these advances raise a number of electronic data discovery issues.

If your organization is considering an upgrade, it’s imperative to evaluate the effect, if any, that the new system will have on your obligation to preserve, search and disclose relevant voicemail messages.

The authors discuss the differences between analog and digital systems. They also compile a list of “challenges” for the organization deciding to implement a “unified” v-mail system (that is, a digital system that is integrated with the IT Enterprise). Well worth the read.

Comparing Discovery in Canada and the US

Byte and Switch has a nice post discussing the differences between Canadian and US discovery processes. From the blog:

I expected litigation and e-discovery to be closer than it really is. Here is our overview of the situation: The Canadian provinces exert tremendous control over e-discovery practices and procedures in common and civil law. There is no corresponding natural statute such as the U.S. Federal Rules of Civil Procedure, making e-discovery in Canada difficult to affect on a unified national principle.

There are national Canadian guidelines with the publication of Sedona Canada’s e-discovery principles and the Judicial Council’s practice direction for e-discovery in civil courts. (”The Sedona Canada Principles Addressing Electronic Discovery” and “National Model Practice Direction for the Use of Technology in Civil Litigation,” respectively.) These principles and guidelines for court practice are excellent steps forward and provide guidance for provinces that are developing their own sets of e-discovery rules. (British Columbia, Nova Scotia, Alberta, and Ontario have well-developed principles or drafts, and other provinces are no doubt busy as well.) Neither is statutory, and they exist as guidelines to implementation.

The post states that U.S. attorneys can learn from the Canadians’ attempts at reigning in costs, while Canadians could benefit by using proper tools.

EDD Basics: SearchStorage.com breaks down the EDRM to techies

SearchStorage.com posts an article by Alan Radding meant to inform storage techies on the EDRM. From the article:

“For an IT person faced with finding e-discovery tools, the first thing I would do is take the EDRM diagram and go talk with your legal counsel,” said Matthew Todd, CISO and vice president of risk and technical operations at Palo Alto, Calif.-based Financial Engines Inc. The legal counsel should tell you which functions the IT group should do in-house. Then you can start looking at tools.

It’s a good primer, but it contains a complaint I find puzzling: that the EDRM doesn’t list tools (solutions that do the tasks illustrated by the model). The reason for that, of course, is that the model was deliberately built to be technologically-neutral. Of course, coming from the IT side, where one might be completely unfamiliar with the tools of this trade, I can see where a product guide would be helpful. But that is beyond the EDRM’s scope and purpose (although in writing this, I allow myself to put words in the mouths of the model’s creators…without any authorization to do so).

Case Blurb: Relion, Inc; Multiple failures lead to a waiver of privilege

[Post Process: the court applies FRE 502(b) for its analysis of a situation of inadvertent production]

On the basis of this evidence, I conclude that [Producing Party] has not carried its burden of disproving waiver. [Producing Party's] discovery documents were inspected by attorneys and support staff…before they were produced… As the incident involving the re-exam file indicates, there was no surprise or deception on the part of [Requesting Party's] counsel. [Counsel for Producing Party] not only had the opportunity to inspect the documents prior to the arrival of [Requesting Party's] counsel, it had two additional opportunities to do so after [Requesting Party] had reviewed [Producing Party's] documents, as [Requesting Party] provided [Producing Party's] counsel with both hard copies and electronic, text-searchable copies of the documents [Requesting Party] had selected for copying. I conclude that [Producing Party] did not pursue all reasonable means of preserving the confidentiality of the documents produced to [Requesting Party], and therefore that the privilege was waived. The fact that [counsel for Producing Party] did not intend to produce any privileged documents is not dispositive.

Relion, Inc. v. Hydra Fuel Cell Corp., 2008 U.S. Dist. LEXIS 98400 (D. Or. Dec. 4, 2008 ).

NJ Case Blurb: Stengart; Privilege waived when message to attorney created on company computer

The question posited is whether communication between an employee and her attorney through a personal, password protected, web-based E-mail account, but made on the employer’s computer, using and over the employer’s server, during business hours, is protected by the attorney client privilege, given employer’s provisions governing use of electronic communications with company issued equipment, resources and time. The Court finds that when an employee has knowledge of the employer’s electronic communication policy which adequately warns that any and all internet use and communication conducted on the employer’s computer is not private to the employee and warns that E-mail and voice mail messages, internet use and communication and computer files are considered part of the company’s business and client records, such communications are not protected by such attorney client privilege and are then not to be considered private or personal to any individual employee.

Stengart v. Loving Care Agency, Inc., No. BER-L-858-08 (N.J. Super. Ct. Law Div., March 6, 2009).

FTC Unveils New ‘Red Flags’ Website

The Red Flags rule, designed to tighten data security and fight ID theft, come into force on May 1. The FTC has launched a web site designed to help businesses determine if they need to comply, and how to do so.

According to the agency’s “How-to” guide (click here for a pdf version), the Red Flags rule mandates:

• The establishment of a program that includes reasonable policies and procedures
  to identify the “red flags” of identity theft you a business may run across during its day-to-day operations.
• the Program implemented must be designed to detect the specific red flags that have been identified.
• the prorgram implemented spell out appropriate actions that will be taken red flags are detected.
• a process to re-evaluate current policies and programs
• implementation of policies into business practices.

Those institutions who must comply with the new rule include:

• Financial Institutions; and
• Creditors (entities who regularly grant or arrange loans or extend credit to consumers or businesses, or make “credit decisions.”)

The rules were initially slated to become effective on November 1, 2008, but the FTC granted businesses a six-month delay. That reprieve is now ending, however.

Doubts about Self-Regulation

Info World has posted an article casting doubt on the wisdom of using self-regulation to ensure compliance. The article highlights a story in which Macy’s has refused to provide contact information for customers who bought toy necklaces later found to contain lead. From the article:

Macy’s was one of the retailers that pulled the necklaces. But when L.A. Deputy District Attorney Daniel Wright asked for the records of customers who bought the necklaces, Macy’s refused to turn over any information. At issue is the ability to notify parents who purchased the necklaces for their children.

The article speculates that the reason for Macy’s refusal may be that the retailer is not in compliance with Payment Card Industry standards. That aside, the bottom line is that self-regulation is being given a black eye.

A study released in December of 2008 pointed out issues with respect to the EU-Dept. of Commerce Safe Harbor scheme. That study claimed that only 22% of those companies that were “self-certified” as compliant to safe harbor principles were actually compliant. The report’s basic conclusion was that the program had been ineffective.

The operational rationale behind self-regulation is undermined when we see figures such as those reported above. Information Technology’s best practices contain, as a substantial portion of its foundation, the principles embodied in active self-regulation. Recent events, from the collapse of the financial sector, to the misdeeds behind the situation facing mortgagees, illustrate the limits to self-regulation, and recall to our consciousness the maxim: trust…but verify.

Automating Science

Post Process has, in the past, posted small articles on the changes in technology that are transforming society. We pointed to the new field of computational journalism. We also put up a post discussing the “age of the petabyte,” in which we discussed the consequences of having so much data available. In that post, we highlighted a defense attorney’s use of Google analytics to more objectively examine a community’s definition of “obscenity.”

Now, from Wired, comes word that a computer (or robot, if you like) not only stores and analyzes facts, but uses the presence of the data now available to discover laws of physics on its own. That is, the discovery is made by the computer, rather than a human being:

“It’s a powerful approach,” said University of Michigan computer scientist Martha Pollack, with “the potential to apply to any type of dynamical system.” As possible fields of application, Pollack named environmental systems, weather patterns, population genetics, cosmology and oceanography. “Just about any natural science has the type of structure that would be amenable,” she said.

Compared to laws likely to govern the brain or genome, the laws of motion discovered by the program are extremely simple. But the principles of Lipson and Schmidt’s program should work at higher scales.

The researchers have already applied the program to recordings of individuals’ physiological states and their levels of metabolites, the cellular proteins that collectively run our bodies but remain, molecule by molecule, largely uncharacterized — a perfect example of data lacking a theory.

Their results are still unpublished, but “we’ve found some interesting laws already, some laws that are not known,” said Lipson. “What we’re working on now is the next step — ways in which we can try to explain these equations, correlate them with existing knowledge, try to break these things down into components for which we have clues.”

One wonders if the “automation” of scientific discoveries will now bring such a rapid pace of discovery, that we will all be left behind, hopeless swimming against an ever-stronger tide.