ABA Section Journal Addresses Admissibility of Text & Instant Messages

The March Issue of Litigation News (no link available to current issue) contains an article relating to the Admissibility of text and instant messages. According to the article, the major challenge for authenticating the messages is “usually proving the identity of the persons in the conversation.” These challenges are, however, navigable. To wit:

The New York Appellate Division, for example, recently held that the trial court properly admitted an Internet text message that had been authenticated strictly on the basis of circumstatial evidence. People v. Pierre. The sender, a defendant in a murder trial, allegedly transmitted a message to the victim’s cousin, stating that he did not want the victim’s baby. The prosecution did not ask the Internet service provider to authenticate the message, and the witness who testified to its origination did not print or save the message.

Even so, the witness testified that she knew the defendant’s screen name, and she had sent an instant message to that name. The Appellate Division noted that the defendant had sent the witness a reply that would have made no sense unless it had come from the defendant. Most importantly, there was no suggestion that anyone had impersonated him. Thus, the court found that these factors were sufficient to warrant admission.

The article contrasts this situation with a decision by a California court to exclude a text message, because prosecutors failed to properly authenticate it, and circumstances were such that more than one person could have sent it. The Second Circuit recently rejected a court’s decision to admit a chat session’s transcript made by cutting a pasting the text from the chat window into another file format (presumably Word?). The article concludes by emphasizing the need for attorneys to engage experts:

“As a practical matter,” says Steven A. Weiss, Chicago, former Co-Chair of the Section’s Technology for the Litigator Committee, “because of the myriad of devices being used to send and receive electronic messages, lawyers will usually need an IT expert to access and rtrieve IMs and text messages, and to explain to the cour how the information is stored in a particular device and how it was retrieved.”

It was slow in coming, but IT is now speeding its way through the legal world

At least, that is the thesis of an article from the business technology section of Boston.com:

Technology was late to come to the world of lawyers and law firms, long known for quill pens and steno pads. But now that it has arrived, it is spreading briskly.

Modern-day law firms, especially megafirms with offices around the world, rely heavily on a vast array of specialized software that helps them run nearly every aspect of their operations. From docketing cases to tracking hours to managing litigation to calculating bills, most legal practices depend on technological solutions.

“Within the past five years, technology in law firms has really, really advanced,” said Randi Mayes, executive director of the International Legal Technology Association, an Austin, Texas, group that represents 1,700 US law firms and legal departments.

Those of us dealing in legal technology or records management are hardly surprised, but the fact that mainstream articles are now popping up with more frequency shows the extent of the legal world’s transformation.

[HT: EDD Blog Online]

Trends in E-Discovery Point to Bad News for the Unprepared

E-discovery should be the thing which causes IT departments to break out their cub scout books and remember what it means to “be prepared.” A recent article posted by the Wisconsin Technology Network discusses the meanings of emerging trends in electronic discovery:

A CIO who is on top of things will have frequent meetings with staff attorneys, review e-discovery processes, and map out what the organization’s infrastructure looks like - essentially knowing where data “lives” so the organization can react to litigation. The number of hours spent on e-discovery is growing, but the time investment depends largely on a company’s litigation profile.

This will sound familiar to frequent readers. The article notes some general trends:

Even for complacent companies, Phelps said e-discovery case law is providing more answers in three specific areas: litigation holds, obligations to preserve data, and the determination of what information is reasonably accessible.

Of course, sometimes the guidance is conflicting and ambiguous, but what is clear is that indifference to the rules won’t be excused by courts.

Dealing with Search Criteria

A recent post of ours cautioned readers to be careful on formulating, and to use some method of verifying, their initial assumptions. We refer to initial assumptions with respect to EDD as assumptions on keywords, effective date ranges, and data sources that must be preserved for an electronic discovery project.
Law.com has posted an article discussing keyword searches, and calls attention to one danger of not carefully considering the formulation of search criteria:

The results of a recent e-discovery keyword search should have come as no surprise. Working on a case related to a specific transaction, the attorneys requested production of all documents containing the word “buy.” Despite being cautioned against this broad search, they were reluctant to heed the warnings, and many unrelated documents were incorrectly deemed responsive. Unfortunately, it takes a $750,000 mistake like this one for some people to understand the benefits of using a strategic approach to keyword selection.

If this had been my project…well, never mind. As I have said repeatedly, it is essential for the initial assumptions used in extracting data for review to be thoroughly vetted, because the filter ultimately determines what documents the reviewer sees. Searches that are too broad cost time and money. Searches that are too narrow will miss vital data, and could cost the client even more in the long term (by skipping over helpful information or by landing them in hot water with the judge). The importance of the process of building a verifying a list should not be underestimated.

That said, keywords are not the panacea. New technologies, using concept-based ontologies and techniques continue to evolve, and will move us beyond the era of the boolean keyword search.

Between a rock and a hard place

Electronic discovery can be a complex matter. The discretion given to individual courts, the demeanor of opposing counsel, the difference in procedural rules between circuits, the manner in which the relevant data enterprise is structured, and other factors can make the entire process quite confusing. Throw in international rules that serve to prohibit production, and according to a recent article on law.com, counsel can find himself (or herself) damned if he does (produce) and damned if he doesn’t. The article focuses on the case of Columbia Pictures Industries v. Bunnell, in which not only did a district court judge conclude that data stored in “RAM” was discoverable, but that producing the data was necessary although that doing so was, at least for some of it, prohibited under the law of The Netherlands. From the article:

The defendants had objected to preserving and producing the Internet protocol addresses in part because that would violate the law of the Netherlands, where their servers were located — in particular, the Netherlands’ Personal Data Protection Act. But Chooljian ruled that the defendants still had to preserve and produce the data.

Their argument was undercut by the fact that, due to recent operational changes, the data for U.S. users were apparently on U.S. servers. However, even if the data were overseas, Chooljian concluded that “it was not clear that the Netherlands’ Personal Data Protection Act applies.”

Finally, Chooljian found that even if the Dutch law did prohibit disclosure of the information, it did not deprive the court of its power to order production and preservation of the data.

The article opines that the court’s decision to require the production of data held in RAM will not be followed, but is troubled with the idea that the court’s holding on the production of data despite legal prohibitions on doing so may be more in line with general judicial opinion. These conflicts will become more commonplace because of the international scope of business, developments in digital systems, and increased legislation over such matters as data protection. The article ends with some pointers, which are worth thinking about.

EDRM Releases its new Standard for Production

The Standards Group for EDRM released a new, xml-based standard designed to ease migration from one litigation platform to another:

“In the past, there hasn’t been a standard way to hand off [information] from one step of e-discovery to the other,” said Leafstrand. “With no validation tools to make sure you have done it right, it’s been a very hit-and-miss, labor-intensive operation.”

Very true. Perhaps the largest part of “manual” labor that goes into the average project centers on “massaging” the data into the a format acceptable to the recipient’s particular system. Although many of these formats have become de facto standards, there are still often nuances and requests that fall outside the norm. This makes a good data integrator nearly invaluable. If some of the more tedious tasks can be eliminated, I’m all for it. I doubt, however, that the standard will be a panacea for the industry. Keep your experienced data integrators happy; you still need them.

You know e-discovery has hit the big time…

When lawtunes parodies it. From the press release:

Indie music label LawTunes (www.LawTunes.com) has released its latest humorous, lawyer-created, law-related album, “The Lawtunes: Live At Blackacre.” The CD contains ten original rock-and-roll tunes taking on the law, lawyers, and legal practice, including, “(She’s An) Electronic Discovery,” “Lawyers’ Blood Is Typo,” “Della Street,” “LawMan,” “Orderin’ In,” “Cadillac Cab,” “Little Bluebook,” “Livin’ Life In Six Minutes,” “Everywhere There Is A Client,” and “Santa’s G.C.” It provides desperately-needed relief to frustrated shoppers who have lawyers, law students, paralegals, and other law firm or corporate or governmental legal department personnel on their gift-giving lists.

The description of “(She’s An) Electronic Discovery:”

“(She’s An) Electronic Discovery”: There’s probably no “hotter” topic in the law today than the review and production in litigation of e-mail and other electronic documents. But that context and its developing terminology (including data accessibility, preservation, spoliation, retention policies, metadata, embedded images, the recent Federal Rules of Civil Procedure amendments, and the leading Zubulake line of cases) are appropriated with gusto to tell the tale of a lawyer falling in virtual love.

Reminds me of the musical skits from “Whose Line is it, Anyway?”

Electronic Discovery Burden is hardly new

Duane Morris partner Eric Sinrod writes about the “new burden” of electronic discovery for CNET:

Almost a year ago the Federal Rules of Civil Procedure governing the discovery of electronic data were amended. While the changes were designed to reduce litigation costs, we’ve seen just the opposite.

I think he gets off on the wrong foot immediately with this opening paragraph. The changes were not, in my opinion, primarily designed to reduce litigation costs. Rather, they were meant to give guidance to courts and disputants on handling electronic discovery. Part of the amendments were aimed at reducing the burden of data that isn’t “reasonably accessible,” because of, inter alia, high costs. In fact, his essay goes awry even before the first paragraph. The very headline, “The new e-discovery burden,” is inaccurate, at least with respect to legal obligations. Relevant computer records were, even before the new amendments, considered discoverable. If there is a new burden, it is because of a combination of business practices (we will save everything ever generated) and certain technological developments (cheap and efficient storage devices, advances in collaborative and distributive computing technologies, etc…). But the amendments stay true to traditional legal principles.

He does make a nice point about the expansion of the definition of the term “document:”

The amendments broadened the definition of items subject to legal discovery, ranging from “documents” or “data compilations” to include all electronically stored information. Parties in a lawsuit can now demand from each other word processing documents, e-mails, voice mail and instant messages, blogs, backup tapes and database files.

I would argue, however, that the law is merely responding to technology, and it is technology that has truly expanded the definition, and the law is merely staying true to the goals of the discovery process. The article continues with examples from cases on such topics as retention policies and litigation holds, reasonable accessibility, cost shifting and sanctions. All provided with links to those decision.

Survey: Corporate Litigation down in U.S., up in U.K.

According to an annual survey sponsored by Fulbright & Jaworski, U.S. companies are defending, and filing, fewer lawsuits:

Based on interviews with in-house counsel at 250 major U.S. corporations, 17 percent of respondents said their companies had escaped the past year without having to defend a single new lawsuit, up sharply from only 11 percent in 2005-06.

American corporations also appear to have backed off as plaintiffs – 65 percent of respondents said their company had initiated at least one lawsuit in the past year, down from more than 70 percent a year ago and an even steeper drop from 2004, when 88 percent of U.S. companies said they had initiated litigation.

Our brethren in the U.K. have not been as fortunate:

By contrast, U.K. companies have experienced significant increases in both [regulatory and judicial] categories.

The news isn’t all good (or bad, depending upon your perspective); the number of product liability and patent suits are still climbing.

E-Shredding: The View from Down-Under

Australian IT looks at the challenges posed by electronic discovery, and briefly compares the U.S. and Australian responses.

US courts have taken a dim view of failure to produce electronic documents in a timely fashion. Morgan Stanley faced a mind-focusing $US1.45 billion bill - including $US850 million in punitive damages - in a 2005 case. (Although the judgement was overturned in March, it is still subject to appeal.)

Other corporations penalised over electronically stored information non-compliance include UBS Warburg ($US29 million), Microsoft ($US27 million) and Philip Morris ($US2.75 million).

In Australia, the Victorian Supreme Court became the first to make a move, introducing an e-litigation Practice Note in February.

The note deals with the use of technology in litigation, including the electronic exchange of court documents, discovery lists and discovered documents. At present the note applies when the parties agree to it, or subject to a court order.

The article concludes that courts in Australia have not yet come to appreciate the “scale of the problem posed by ESI.” That may be, but a news report out of the country announce that new rules for handling electronic discovery will be released before Christmas.

Seamus Byrne, director of forensic technology at Vincents Chartered Accountants and a member of the court’s working party on e-discovery, said the planned Practice Note would be a turning point.

It is expected to emulate the US model, the 2006 Federal Rules of Civil Procedure, which imposes strict obligations on companies on their handling of electronically stored information and ensuring its availability for commercial litigation.

Mr Byrne said the revised note “will bring e-discovery to the masses”, and re-level the playing field that has in recent years been skewed in favour of large corporations and top-tier law firms.