Social Media: Careful while Handling

From Michigan comes an article that warns about the evidentiary value of data posted to social media sites. The bottom line quote:

“Don’t put anything on a social network page, blog, Web site or in an email,” he said, “that you don’t want printed on the front page of the newspaper.”

Although you’ve heard it before…you’ll hear it again here.

Boom and Bust

According to Michelle Lange, writing in the ABA Journal, we’ve seen an E-Discovery boom…are we now facing a bust? According to the article:

But growth has slowed sharply from annual rates of more than 40 percent just a few years ago, according to Socha’s surveys. And it’s getting much harder to compete profitably in an industry that is coming of age during the worst economic downturn in decades. For one thing, clients no longer are willing to write open-ended checks for services that easily can exceed $1.75 million for an average case.
“Growth has started to moderate and margins have started to decrease,” says Nick Baughan of investment banking firm Marks Baughan & Co. in Cornshohocken, Pa., which advised such deals as
Applied Discovery’s sale to LexisNexis.

One interesting quote is:

“It was almost like a gold rush,” says John Bace, research vice president of Gartner Inc. in Stamford, Conn. “People saw e-discovery as a quick and easy way to make money.”

All I can say to that is that it has been possible to make good money in the industry…but at least for me, it has never been easy.

What happens when the Review Application is Smarter than we are?

According to an article in the Science section of the NY Times, scientists have become concerned that machines may one day outsmart us.

Impressed and alarmed by advances in artificial intelligence, a group of computer scientists is debating whether there should be limits on research that might lead to loss of human control over computer-based systems that carry a growing share of society’s workload, from waging war to chatting with customers on the phone.

Their concern is that further advances could create profound social disruptions and even have dangerous consequences.

I think that there is no doubt that a profound change is occurring here, and that we need to (at least attempt to) proactively manage the change. In our industry, we have seen some displacement of attorneys reviewing documents due to outsourcing. What happens when the review application not only stores the review data, but also actually conducts the review for relevance as well? Yet trying to install limits on the growth of technology is a difficult, and perhaps ill-advised, effort.

The article continues by mentioning scenarios which have machines taking over…or at least foresee the ending of the “human era.” Interestingly, the final passages look at an interesting occurrence in these times:
Despite his concerns, Dr. Horvitz said he was hopeful that artificial intelligence research would benefit humans, and perhaps even compensate for human failings. He recently demonstrated a voice-based system that he designed to ask patients about their symptoms and to respond with empathy. When a mother said her child was having diarrhea, the face on the screen said, “Oh no, sorry to hear that.”

A physician told him afterward that it was wonderful that the system responded to human emotion. “That’s a great idea,” Dr. Horvitz said he was told. “I have no time for that.”

So here, we program a machine to simulate human emotion, alleviating the need for a real human to be supportive. Of all the ways the future can go, I would say that humans attempting to emulate machine-like behavior for the sake of efficiency is the worst choice. We cannot be better machines than machines…we can only maintain a true course in all of this chaos by embracing our own humanity. The doctor above who “had no time” to be supportive needs (ahem) to be re-programmed.

E-Discovery Issue of Law Review Coming Out

In February, I attended, and spoke at, an E-Discovery Symposium in Covington, KY (just across the way from Cincinnati) hosted by Salmon P. Chase Law School at Northern Kentucky University. Panelists included Professors Debra Lyn Basset (U. of Alabama) and Stephen Gensler (U. of Oklahoma) and Steven Bennett of Jones Day.

Well, now the school is publishing a companion issue of the law review, and it is completely dedicated to electronic discovery (no electronic link available yet…the law review site still has the previous issue’s information posted). Table of contents for the issue:

Articles

• Jennifer Anglim Kreder (Prof. Chase School of Law) and Bryce C. Rhoades (JD candidate, Chase School of Law) write…Introduction: Navigating the Changing Ethical and Practical Expectations for E-Discovery.
• Steven C. Bennett (Jones Day) writes…The Ethics of Legal Outsourcing.
• Roland Bernier (your dedicated blogger!) writes…Avoiding the E-Discovery Odyssey.
• Stephen S. Gensler (Prof. U. Oklahoma School of Law) writes…Some Thougts on the Lawyer’s E-volving Duties in Discovery.

Notes

• Robert E. Altman & Benjamin Lewis (JD Candidates, Chase School of Law) write…Cost-Shifting in ESI Discovery Disputes: A Five Factor Test to Promote Consistency and Set Party Expectations.
• Emily N. Litzinger (JD Candidate, Chase School of Law) writes…The Ethical Dilemma of Scrubbing Metadata: The Pathway to a Better Approach.
• Christine M. Steimle (JD Candidate, Chase School of Law) writes…The Decision to Compel Unrestricted Foreign Imaging: A Note Discussing John B. v. Goetz.

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This post will self-destruct in 5…4…3…

If you’re hearing the Mission Impossible theme, then we are on the same page. Science Daily has an article discussing a method allowing content to expire and self destruct. Developed by University of Washington computer scientists, the technology would make it so that even the content’s original sender couldn’t retrieve the data beyond the “expiration date.” Why do this?

“If you care about privacy, the Internet today is a very scary place,” said UW computer scientist Tadayoshi Kohno. “If people understood the implications of where and how their e-mail is stored, they might be more careful or not use it as often.”

Nothing there a surprise to people in this industry. How does it work?

The Vanish prototype washes away data using the natural turnover, called “churn,” on large file-sharing systems known as peer-to-peer networks. For each message that it sends, Vanish creates a secret key, which it never reveals to the user, and then encrypts the message with that key. It then divides the key into dozens of pieces and sprinkles those pieces on random computers that belong to worldwide file-sharing networks, the same ones often used to share music or movie files. The file-sharing system constantly changes as computers join or leave the network, meaning that over time parts of the key become permanently inaccessible. Once enough key parts are lost, the original message can no longer be deciphered.

[...]

Unlike existing commercial encryption services, a message sent using Vanish is kept private by an inherent property of the decentralized file-sharing networks it uses.

A big advantage to the system, is that the user has no need to trust an administrator or service provider. The system takes personal action and discretion out of the equation.

(NJ) Employee’s Attorney-Client Privilege not Waived when Communication was made on a Company Computer

Attorneys at Ogletree Deakins post a case summary in which the court, among other things:

…specifically rejected the idea that a company’s ownership of a computer is the sole determinative factor in deciding whether an employee’s personal communications become the company’s property.

The case is: Stengart v. Loving Care Agency, Inc., No. A-3506-08T1 (App. Div., June 26, 2009)

Preview of MS Office 2010

Microsoft has announced details of upgrades to its office suite, and PC Pro Posts a preview here. Among other things, the article discusses changes to Outlook:

As far as the desktop applications are concerned, the Ribbon interface first introduced with Office 2007 has now been rolled out across every application, including Outlook.

Outlook also sees the introduction of two new email features for office workers drowning under a deluge of email. The Conversation Clean-Up tool will condense long email chains into summaries of the conversation, allowing you to catch up with all the key information without having to open dozens of different messages individually.
…
Outlook will also have a new Ignore Conversation feature that allows users to opt-out of round-robin emails that don’t concern them. Adams gives the example of a long email discussion about a dinner engagement that you know you won’t be able to attend. One click of the Ignore Conversation button will junk any further emails on that topic.

Other changes include an entire line of web-based apps, a la Google; better image editing within Word and PowerPoint; and fewer licensing categories (reducing the number of ‘versions’ of the suite from its current eight to five).

H/T: Slashdot

Eighth Circuit Remands Case and Reassigns Judge who Imposed Sanctions

“That’s it. I’m done. I’m granting the defendant’s motion to dismiss this case for systematic abuse of the discovery process. [Defense counsel], I direct you to prepare a proposed order with everything you’ve put on that presentation. I’ll refine it and slick it up. [Plaintiff] has abused this court, has misled you, has lied in his deposition. It’s obvious he’s lying about that e-mail. This case is gone. I’m dismissing it. What a disgrace to the legal system in the Western District of Missouri. Prepare the proposed order. We’re done. We are done, done, done. What a disgrace. It’s not your fault, it’s your client. He’s coached, he’s ducked, and he’s hid documents. We’re done. Be in recess.”

An outburst from the bench from a Judge reaching the end of his patience has led the Circuit Court to remand the case, reassign the judge presiding over the matter, and vacate the dismissal that that judge had imposed. The Circuit Court did, however, express some empathy for their exasperated colleague while doing so:

The Eighth Circuit vacated the order of dismissal, but not without expressing sympathy for the judge’s position, noting that the parties “provoked” him. The majority was critical of both the plaintiffs’ “evasive” behavior and the defendants’ “fanning the flames of the district court’s discontent.”

The Circuit Court’s opinion may be found here (pdf).

Cell Phone Data becoming a Factor in the Court Room

From the New York Times:

The pivotal role that cellphone records played in [] two prominent New York murder trials this year highlights the surge in law enforcement’s use of increasingly sophisticated cellular tracking techniques to keep tabs on suspects before they are arrested and build criminal cases against them by mapping their past movements.

But cellphone tracking is raising concerns about civil liberties in a debate that pits public safety against privacy rights. Existing laws do not provide clear or uniform guidelines: Federal wiretap laws, outpaced by technological advances, do not explicitly cover the use of cellphone data to pinpoint a person’s location, and local court rulings vary widely across the country.

H/T: Slashdot

Google Unveils Plans for New O/S

The BBC has posted an article announcing that Google will extend its offerings to a new operating system for PC’s:

Google is developing an operating system (OS) for personal computers, in a direct challenge to market leader Microsoft and its Windows system.

Google Chrome OS will be aimed initially at small, low-cost netbooks, but will eventually be used on PCs as well.

Google says that the new o/s will have, as its “key aspects:” speed, simplicity, and security. One industry expert comments on the import of this development:

“Google is coming at this fresh and, because it is based on a set of services that reside on the web, it is the first really post-web operating system, designed from the ground up, and reconceived for a web world,” Mr Enderle told the BBC.