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Archive for June, 2008

Is VoIP the Next Frontier in E-Discovery?

Posted by rjbiii on June 30, 2008

The New York Law Journal On-line has posted an article warning of the dangers companies adopting Voice Over IP might encounter with e-discovery:

Depending on the VoIP system in place, the manner in which such data is retained may be under the direct control of the company and its IT professionals, as opposed to the phone company. Further, VoIP data will likely be subject to a company’s or client’s backup and retention policies. Unlike traditional voicemails, VoIP data may prove difficult to delete. Instead, as is common with e-mails, redundant backup systems will ensure that additional copies may continue to persist at many levels. As an added complication, VoIP messages cannot easily be searched by subject or text. In fact, searches may be limited to such parameters as caller ID information, recipient, and date and time of call.

Without proper planning, a client or company may be faced with hundreds or even thousands of hours of audio data that cannot be easily parsed if production is required. This situation poses a significant problem in light of recent amendments to the Federal Rules of Civil Procedure that expressly define “sound recordings” as “electronically stored information” and impose new requirements for disclosure, case management, planning, and form of production of all electronically stored information.

What is VoIP? you ask. Ah. The article does a nice job of explaining:

VoIP, also known as IP Telephony, is the real-time transmission of voice signals using the Internet Protocol (IP) over the public Internet or a private data network. In simpler terms, VoIP converts the voice signal from a telephone into a digital signal that travels over the Internet, rather than over the traditional phone company-owned PSTN. As the caller speaks, the analog sound signal from his or her voice is rapidly converted into a series of small chunks of digital data commonly referred to as “packets.” Rather than routing the data over a dedicated line (similar to the way the PSTN functions), the data packets flow through a chaotic network along thousands of possible paths in a process called “packet switching.” Compared to the traditional PSTN, packet switching is very efficient because it lets the network route the packets along the least congested and cheapest lines.

The article goes on to advocate incorporating legal considerations of e-discovery into the design of any corporate VoIP system.

This is a specific example for my popular general thesis that data is everywhere, and the world is nothing more than a huge database. Data sources will continue to multiply and become ever more varied, so although experts love to discuss the “commoditization” of the the basic e-discovery process, at the upper levels of the profession, there is just such a maze of problems, and an arsenal of solutions.

Posted in Articles, Data Collection, Data Management, Data Sources, Trends | Tagged: , | Leave a Comment »

Blogging LegalTech West 2008: Searching and Sampling ESI

Posted by rjbiii on June 30, 2008

I was only able to attend one course on this second, and last, day of the convention. It was, however, the one I really wanted to attend. In light of recent cases in Creative Pipe and O’keefe, I expected their to be interesting discussion centered around the subjects of formulating searches and how to sample the data to verify search criteria.

The presentation was named The Match Game: Searching and Sampling ESI. Panelists were Patrick Oot of Verizon, Phil Strauss of H5, Joe Utsler of Lexis Nexis, and Ralph Losey of Akerman Senterfitt. We began with a few questions in the style of the old game show, The Match Game, where the host (Patrick Oot played the role of Gene Rayburn). I’m not sure, but I think Ralph played Charles Nelson Reilly. Although the panel tried to make the theme (apparently dreamed up by Craig Ball, who chaired the EDD track this year) work, hilarity was limited. E-discovery, it seems, just isn’t that funny.

Once the corny theme was put aside, however, the discussion ventured into interesting territory. Mr. Oot began by talking about an interesting study in which Verizon has engaged. Verizon is taking a set of documents that had been reviewed for an earlier case, and applying “computer review” techniques to compare the results between the computer technologies and the human reviewers. Two forms of computer review is being used: Taxonomies and ontologies, and machine learning.

Let me digress from the presentation briefly to explain the terms. Taxonomy is the science of classification. So in the context of EDD, it concerns methods of organization based on principles of the science. Or at least it should, I found one reference to taxonomy arguing that use of the term has been so diluted as to be rendered useless:

The term taxonomy has been widely used and abused to the point that when something is referred to as a taxonomy it can be just about anything, though usually it will mean some sort of abstract structure

Often called a parent-child relationship (Human to male; Human to female), items are often illustrated as in a hierarchical structure.

Ontology looks at a set of items, the properties of those items, and the relationships between the items.

Machine learning is fairly intuitive; it concerns a part of artificial intelligence associated with the concept of computers learning. A common focus of efforts in machine learning deals with extracting information from massive data sets, which would be the obvious need here.

Patrick then disclosed that to the attorney “eyes on” review and taxonomy approaches had an 85% agreement rate, while the attorneys and the machine learning methods agreed 84% of the time.

Finally, to wrap up discussion on the experiment, it was disclosed that a “statistically sound” representative sample of 10,000 documents was retrieved from the total, to be “reviewed and coded” by Verizon’s General Counsel. This would act as something of a control. Patrick then discussed the difficulty of finding an objective “gold standard” with respect to “responsiveness.”

Commentary: Of course, responsiveness is directly related to relevance. And relevance, as Ralph mentioned, is the terrain of the judge. So relevance is something of a moving target. Any two judges will rule differently over the course of a case, if each one had to make a call on each of a thousand documents. Consider next that relevance is highly dependent upon the matter being litigated, and is therefore very much an equation built on facts of the case. No two cases are identical, so relevance is not exactly easy to pin down.

The discussion then turned to the subject of keyword searches and their dominance in discovery search protocols. The panel touched on the difficulty of tailoring lists of keywords to fit the need. Keyword searches are basically guesses, and the quality of the data returned by the search is, of course, highly dependent upon the accuracy of those “guesses.” As they say, garbage in, garbage out. It is also difficult to adjust keyword searches to account for items such as:

  • Misspellings
  • Foreign Languages
  • Local slang
  • Vague content
  • Abbreviations
  • “Noise” words
  • Encryption

Some of the above can be found out through other methods, others will be more difficult. Next, we were introduced to the following graphic:
Precision Recall

It’s fairly intuitive, and the point is to be able to plot the effectiveness of a search protocol in finding data. The goal of the “Precision” component is to minimize false positives, while the goal of the “Recall” component is to minimize false negatives.

Commentary: I directed a question to the panel, seeking some discussion on the importance of the timing of certain elements of the search protocol. In other words, I felt that in terms of effectiveness, applying search term criteria should be done as late as possible, both for the sake of comparing the results of attorney review with elements of the search criteria, and for the sake of preservation. Unfortunately the panel misunderstood the point, and boiled it down to “preserve broadly, review less so,” or some such axiom. The point was a little more nuanced than that. Basically, judicial opinions are beginning to demand justification for search term selections, and verifications of search criteria accuracy. Therefore, we will begin to more frequently employ sampling and other forms of statistical analysis.

The panel discusses “iterative processes,” which is a methodology requiring adjustments to the search criteria based on information gained in downstream processes (likely attorney review decisions). Effective design of a process needing multiple adjustments requires that those modifications be relatively easy to make. The earlier in the discovery process that any filter is used, the more difficult it will be to implement modifications based on attorney review to the filter.

If you load everything into a processing platform, for example, and then apply the filter, dealing with consequences resulting from modifying the filter should be a simple matter of executing additional queries and creating review data sets. If you collected data based on the filter, then an entire re-collection is necessary. If you retained data based on the filter, you must again re-collect data, and concern yourself with the possibility of data destruction.

The problem with doing it the way I suggest is that it is expensive under most vendors’ pricing models. At least with respect to loading and analytical engine pricing.

Finally, Ralph Losey discussed Creative Pipe and its ramifications. Interestingly, he feels that Creative Pipe will end up standing for the need to build strong search protocols, and extensive documentation around them. I tend to agree, for as Ralph said, there is much in the matter opinion that attorneys can use to draw distinctions with their own cases.

Posted in Uncategorized | 3 Comments »

Blogging LegalTech West 2008: Litigation Holds

Posted by rjbiii on June 29, 2008

The second, and for me last, presentation of the day was “Ready…Set…Preserve: Navigating the Legal Hold Process and Technology. The panel consisted of Patrick Oot of Verizon, Kraft’s Chief Counsel Theodore Banks, and American Electric Power’s Kamal Kamara.

The rule of thumb that triggers a legal hold is (say it with me class), the date when litigation may be reasonably anticipated. The very last date that can be justified for the issuance of a legal hold is the date the complaint is actually filed. The first step to implementing a legal hold is to determine the identity of the key players. However, before the hold is even necessary, some preemptive actions should have been addressed. Litigation readiness best practices suggest that record management training for all employees is important. These rules apply:

  1. The guidelines employees study must be related to their jobs.
  2. Information on how to comply with relevant policies should be easy to find. They should have access to manuals, or intranet web sites with the necessary guidelines.
  3. Training should be consistent, and reinforced periodically.

The purpose of the legal hold is to stop destruction of potentially responsive information, identify that data, and save it. Employees should understand the consequences of failing to comply, and where to get help when they have questions.

Mr. Banks explained that for Kraft, the legal hold was triggered later than would be appropriate for some others, because of the nature of the complaints his company confronted, and the design of its information system. Much of the data needed was historical information that was preserved anyway, often for reasons of compliance with federal retention laws.

Mr. Kamara described his company’s home-built lit hold solution as being similar to e-vite. All three companies used custom built solutions rather than “off the shelf” products.

Some important points: acknowledgment by recipients is an essential component to a lit hold system; audit trails and the availability of reports is important.

I enjoyed this presentation more than the previous session. The panelists were good, but I also got to see screenshots of various systems, which I found interesting. The next step now is to see how technology can be used not only to issue notice of a hold, but to also take action to prevent actual destruction of information.

Posted in Best Practices, Data Custodians, Document Retention, Duty to Preserve, Industry Events, Litigation Hold, Trends | 1 Comment »

Legal Challenge to Texas’ PI Law emerges: Standing up for the Computer Technician

Posted by rjbiii on June 28, 2008

The Institute for Justice, with a newly opened Austin chapter, has decided to challenge the new Texas statute that appears to mandate that some computer techs must obtain a private investigator’s license:

Under the new law enacted in 2007, Texas has put computer repair shops on notice that they had better watch their backs any time they work on a computer. If a computer repair technician without a government-issued private investigator’s license takes any actions that the government deems to be an “investigation,” they may be subject to criminal penalties of up to one year in jail and a $4,000 fine, as well as civil penalties of up to $10,000. The definition of “investigation” is very broad and encompasses many common computer repair tasks.

Interestingly, the article doesn’t mention anyone in this industry, which is also greatly threatened by the statute’s impact. Think I’ll talk to the attorneys involved, perhaps providing them with this information. If I get hold of them, I’ll let you know what they say.

Post Process will follow the progress of the lawsuit and blog what we hear. You’ll recall that we’ve discussed the Texas law (here) and the Michigan law (here).

Another approach is for the industry to take an active role in discussing these proposed laws as they begin to surface in the state legislature. I haven’t heard of any activity on that front, yet.

Posted in Articles, Legislation, Texas, Trends | 5 Comments »

Blogging LegalTech West 2008: Building an e-discovery task force

Posted by rjbiii on June 28, 2008

As mentioned in the previous post, there were three main tracks of courses to choose from. My associates and I glanced over them to divide the subject matter up between us, and I ended up on the “Corporate Perspectives” track, which suited me.

What was less than satisfying was that the first event was a panel discussion centered on building an E-Discovery task force inside the company. Not a particularly interesting topic for me; not because it’s unimportant, but rather because I have already attended a number of similar presentations, read much of the literature on it, written about it in my own papers, and dealt with the subject extensively in my own work. So it’s “old hat” to me, as they say.

Nevertheless, a colleague of mine and I found good seats and settled in. The panel consisted of Kroll Ontrack’s Linda Sharp (who acted as moderator), Cynthia Nichols from Taco Bell Corp., Michael Kelleher of Folger Levin & Kahn LLP, and Joel Vogel o Paul, Hastings, Janofsky & Walker LLP.

Most of the information presented was standard, and no new ground was covered (at least for me), however, it was well-done and all panelists contributed significantly to the discussion. No new ground was covered, but in all likelihood, the needs of the target audience were met.

The meeting began with a discussion outlining the need for the proactive implementation of pre-litigation measures to deal with issues presented by in the era of “ESI.” With Ms. Sharp leading the way, it was noted that 50% of corporate America has no policiy with respect to managing ESI, and 75% feel they lose time due to inefficient or non-existent ESI policies.

The panel then turned to the question of what elements and constituencies should comprise an E-Discovery team? Depending upon the size and internal structure of the company, the panel listed the following possibilities:

  • Corporate Counsel
  • IT
  • Human Resources
  • Records Management
  • Corporate Security
  • Trial Counsel
  • Discovery Counsel
  • Outside Vendor(s)

Obviously, the nature of the matters that confront any particular corporation, and the relationship the company has with outside law firms and vendors are factors in building the right team.

The discussion then moved the task force’s need to educate themselves on their company’s data infrastructure. Questions the task force should address are: where does company data reside? How is it maintained? How is it accessed, and by whom? When (and how) is it destroyed? Here, some recommended that a systems information directory be generated and maintained by the team. Others argued maintaining the document was inefficient, and that this could best be addressed by updates as needed (i.e., as new legal matters arise). I tend to lean toward maintenance on a regular basis, although I can see some situations in which the contrary view would be a better fit.

The discussion then looked at Discovery Response Checklists, and what elements should constitute it. Some of these items included: the issuance of hold statements, discontinuing data destruction and back-up tape recycling policies; and handling e-mail archiving.

Overall, a fairly pedestrian, but useful presentation. The panelists were articulate and knowledgeable, and laid out the issues in an organized and effective manner. If you’re interested in the subject, and other ideas for proactive measures, one article that I liked on the issue is:., Renee T. Lawson, Taming the Beast—Implementation of Effective Best Practices for Electronic Data Discovery, 747 PLI/LIT 305, (Oct-Dec 2006).

Posted in Best Practices, Data Management, Discovery, Industry Events, Trends | Leave a Comment »

Blogging LegalTech West 2008: Keynote Speech by Chevron’s Charles James

Posted by rjbiii on June 27, 2008

First, if you aren’t able to attend LegalTech, you can watch a live feed, including an occasional interview, at a live feed provided by Orange Legal Technologies.

The Keynote speech was made by Charles James, VP and General Counsel of Chevron Corp. Mr. James received his bachelor’s degree from Weslayan, and earned his law degree from the National Law Center at George Washington University.

Mr. James discussed his role in helping to modernize the legal department, and to help it navigate the choppy waters caused by the emergence of ESI and electronic discovery as a substantial factor in litigation. He pointed to three major areas that had been affected by the modernization: legal billing, the incorporation of an e-discovery processing platform into in-house IT processes, and the implementation of a document management system. While Chevron is justifiably proud of its progress, Mr. James said that the process had been very difficult; more difficult than he had imagined that it would be when he started the overhaul.

He listed the three major “failings” for which Chevron had been responsible during the process:

  1. The desire to elicit input from all constituencies caused confusion and created something of a politically charged atmosphere where turf wars broke out, and decisions devolved into contests that parties “won” or “lost.” In retrospect, more guidance from technical experts was needed.
  2. He and other leaders were “overly seduced” by the lure of the idea of automation. By striving for maximum automation and minimal human intervention, Chevron’s managers produced convoluted workflows that needed a “dose of reality.”
  3. Finally, Chevron underestimated the scope of change management necessary to implement the new systems. Mr. James noted that the average attorney at Chevron at the time he assumed his position was 52, and that to have expected these lawyers to have an hour of training, and adapt to the new environment was unrealistic.

He listed his top three frustrations with vendors in the eDiscovery space:

  1. The common practice of “grossly overselling” practicality, functionality, and inter-operability of our solutions. He said that the three phrases had come to loathe are: “seamless integration;” “complete enterprise solution;” and “that functionality isn’t included now, but it’s coming in the next upgrade, which will be in beta…soon.”
  2. The lack of inter-operability between different programs, residing in different areas of the EDD workflow. Quoth Mr. James, “as Rodney King said, can’t we all just get along?”
  3. Finally, he wished that vendors would quote realistic conversion and implementation costs.

His final remark was a challenge to vendors: he said that after the country’s legal system “is fixed,” effectively ending the e-discovery gold rush, he hoped that vendors would put as much zeal into crafting KM solutions as they currently do with EDD.

The three main tracks available for attendees today were:

  • Evolving E-Discovery Issues and Methods;
  • Corporate Perspectives on EDD; and
  • Advanced IT

There were also tracks on Practice Management and Emerging Technology. I attended presentations on the Corporate Perspectives track for the first two blocks of time, and then had to leave for a couple of events with clients. I’ll blog more about those presentations (“Building a Discovery Task Force,” and “Navigating the Legal Hold Process and Technology”) later.

Posted in EDD Industry, EDD Vendors, Industry Events | Leave a Comment »

Blogging LegalTech West 2008

Posted by rjbiii on June 26, 2008

Sorry for being inactive; I’ve been traveling. I’m currently in L.A. at LegalTech West, and have attended a couple of presentations on the first day. I’ll post my impressions later tonight. First, however, duty calls in the form of dinner with a number of clients…sometimes the duty isn’t half bad!

Posted in Industry Events, Site News | Leave a Comment »

Mirror, Mirror, on the wall…

Posted by rjbiii on June 24, 2008

Wired has a set of twin articles out addressing life in the age of the Petabyte. A Petabyte is 1024 Terabytes, which is 1024 Gigabytes.

The internet came into being as a tool to enhance communication and collaboration. And it has. But it has also changed the behavior of its users, and many of those actions are now logged and stored. Combine that with a growing array of tools that record and store representations of human activity (CCTV, PDA’s etc…) and you can see that more than ever, there is a growing mass of data logging the details of individual, group, and global behavior. In the vernacular of copyright, records of our actions are now, more than ever, “fixed in a tangible medium,” and available for all sorts of purposes that wouldn’t have been possible in even the recent past.

Wired’s article on the “Petabyte Age” has a chart illustrating the differences in size between a Terabyte, with various data points in between. To cut to the chase, a Terabyte is viewed as a $200 hard drive that holds 260,000 songs, while a Petabyte is the total information “processed by Googles servers every 72 minutes.” If you have a moment, click on the above link…there are some interesting data points noted.

While the first article is interesting, the second article, The End of Theory, brings home the cogent point. The article proposes that the availability of statistics based on real behavior, rather than on imperfect models, will transform science:

Sixty years ago, digital computers made information readable. Twenty years ago, the Internet made it reachable. Ten years ago, the first search engine crawlers made it a single database. Now Google and like-minded companies are sifting through the most measured age in history, treating this massive corpus as a laboratory of the human condition. They are the children of the Petabyte Age.

In the words of the article, More is not just more, “more is different.” Google research director, Peter Norvig, is quoted as saying that “All models are wrong, and increasingly you can succeed without them.” The world is becoming a great big database.

Or perhaps just a series of smaller databases. The question we face in e-discovery concerns the rapid identification, organization, and cataloging of disparate types of data. In light of discussion over the effectiveness of search terms by Judge Grimm in Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D.Md. May 29, 2008 ), it seems certain that judicial scrutiny of search criteria formulation, and the objections to that formulation from the opposition will only increase.

Wired describes our brave new word as one in which:

[] massive amounts of data and applied mathematics replace every other tool that might be brought to bear. Out with every theory of human behavior, from linguistics to sociology. Forget taxonomy, ontology, and psychology. Who knows why people do what they do? The point is they do it, and we can track and measure it with unprecedented fidelity. With enough data, the numbers speak for themselves.

The use of these statistics in the legal arena will be something to follow closely. Could they be used to measure “community standards,” for example? Lawrence Walters, a defense attorney in a Florida obscenity case, argues that they can be used to help clarify what in the past was purely subjective. A New York Times piece has the details:

In a novel approach, the defense in an obscenity trial in Florida plans to use publicly accessible Google search data to try to persuade jurors that their neighbors have broader interests than they might have thought.

In the trial of a pornographic Web site operator, the defense plans to show that residents of Pensacola are more likely to use Google to search for terms like “orgy” than for “apple pie” or “watermelon.” The publicly accessible data is vague in that it does not specify how many people are searching for the terms, just their relative popularity over time. But the defense lawyer, Lawrence Walters, is arguing that the evidence is sufficient to demonstrate that interest in the sexual subjects exceeds that of more mainstream topics — and that by extension, the sexual material distributed by his client is not outside the norm.

In the movie, The Neverending Story, the hero (named Atreyu) is forced to view his reflection in a mirror that reveals to him “who he really is,” stripped of all flattering notions. The Age of the Petabyte gives us a mirror, of a sort, to look into and reveal things about ourselves that we might have otherwise disputed. Mr. Walters is trying to use that mirror, and hold it up for the Florida jurors. Whether his mirror is sufficiently objective is a discussion for another time, but we will see these methods used more frequently over time. Atreyu handled it. It will be interesting to see what we do with it.

Posted in Articles, Data Manipulation, Data Sources, Search Protocols, Trends | 1 Comment »

Trial Presentation Systems in the Spotlight

Posted by rjbiii on June 23, 2008

Legal Times has an article discussing how attorneys use technology in the courtroom. The piece is composed mostly of quote snippets by lawyers. Examples:

How do trial lawyers use litigation technology today? What works well?

“It’s the rare case that you wouldn’t try to present something electronically. It so expedites the presentation of evidence. Jurors like it. Judges like it. When you have to approach the witness, publish the exhibit, tell the jury to turn to tab 12 in the notebook, that slows things down. It is so much easier and effective to present that documentary evidence on a monitor.” — John Hall, head of the trials group, Covington & Burling

“[I’ll use] medical animations [that] show how a heart bypass procedure is done or a fractured tibia is repaired. [These run] in conjunction with a witness describing what they do. Everyone is able to see and hear at the same time.” — Patrick Regan, plaintiffs lawyer, Regan, Zambri & Long

Do trial lawyers dream of an even more technological future? What would they like to see?

“[A simple way of] blowing up low-resolution photographs so that they’re easy for jurors to see.” — Wayne Cohen, plaintiffs lawyer, Cohen & Cohen

“When you’re showing videotaped testimony, what you can do is split the screen to show the document and the person talking about the document. [But] often the witness is shrunk down too much. [They could also improve] the ability to show scrolling text and the video and the document all in one place for the jury to see. People today are very comfortable digesting like that — like the ticker on CNN — observing someone speak and observing the data around them.” — Gregg LoCascio, partner focusing on complex commercial disputes, Kirkland & Ellis

Posted in Articles, Trial Presentation Systems | Tagged: | 1 Comment »

Case Summary: Harding, Earley; The “do’s” and “don’ts” of Website Captures

Posted by rjbiii on June 22, 2008

Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, 497 F. Supp. 2d 627, 650 (E.D. Pa. 2007)

Healthcare Advocates (“HA”), a patient advocacy group that helps its members deal with health care providers, brought an action against a competitor alleging trademark infringement and misappropriation of trade secrets. The competitor was represented by Harding, Earley, Follmer & Frailey (“Harding”), a “boutique” law firm specializing in intellectual property matters. Harding began investigating HA, and part of that investigation consisted of using the internet to do searches and view the the group’s website. Harding also used a tool known as the “wayback” machine to look at materials that had been posted to the web in the past.

The wayback machine, maintained by the Internet Archive, stores screenshots from websites that can be looked up by any interested internet surfer. This allowed Harding to HA’s website pages as they would have appeared before the litigation began. Harding printed some of these pages, and some of these prints were during the course of the litigation. Harding did not save any of the images to hard drives.

HA had placed a file, named Robots.txt, on its website server to direct indexing engines and the wayback machine from pages that HA did not want accessed or displayed by the public. On this occasion, however, this protective measure failed, and the wayback machine displayed “forbidden” content to Harding. The failure was due to an issue with the wayback machine’s servers, and not with any action taken by Harding.

Nevertheless, HA brought this action against Harding, alleging, inter alia, that Harding had: violated provisions of the Digital Millenium Copyright Act (“DMCA”); infringed upon their copyrights by printing and unknowingly saving copies of the archived web pages in temporary memory, and distributing copies of the pages to co-counsel; committed spoliation by failing to preserve the copies in temporary memory, violated provisions of the Computer Fraud and Abuse Act (“CFAA”) “by intentionally exceeding their access and obtaining information from protected computers used in interstate commerce;” and violated Pennsylvania laws with respect to conversion and trespass.

Harding requested summary judgment in its favor on all counts.

Copyright Infringement: The court found that HA had established both elements for infringement. HA had a valid copyright on the materials found on its website, and had demonstrated that Harding had “reproduced” and “publicly displayed” these materials. The court then conducted an analysis to determine whether Harding’s actions were permissible under the Fair Use Doctrine.

The court began by listing the factors considered for Fair Use:

  1. “the nature and character of the use” by the alleged infringer;
  2. “the nature of the copyrighted work;”
  3. “the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and”
  4. “the effect of the use upon the potential market for or value of the copyrighted work.”

The court then continued its examination. For the first factor, although it noted that the display and copying of the website content was in pursuit of a profitable activity, that it nevertheless cut in favor of the law firm. The court noted that “[Harding] copied these materials as supporting documentation for the defense they planned to raise for their clients against the allegations,” and stated that “[i]t would be an absurd result if an attorney defending a client against charges of trademark and copyright infringement was not allowed to view and copy publicly available material, especially material that his client was alleged to have infringed.”

The court held that the second factor also cut in favor of Harding, because the the data copied was of an informational nature.

The third factor cut in favor of HA, as Harding copied and displayed the entire website, however, because the information was relevant in a pending litigation, and the firm had a duty to preserve such material, “the substantiality of the portion used does not militate against a finding of fair use.”

The fourth factor “militate[d] in favor of a finding of fair use.” Harding’s actions in copying and displaying the material were for the use in a lawsuit, and not for the purpose of “gaining a competitive advantage.” The court’s analysis concluded with a determination that Harding’s “infringing use is excusable under the doctrine of fair use.” The court granted Harding’s motion for a summary judgment with respect to HA’s copyright infringement claim.

Spoliation of Evidence: With respect to the specific case of the data copied to temporary files, the court noted that HA had not presented any evidence of what had been copied. HA argued that it deserved a “spoliation inference” because the Harding’s duty to preserve existed with respect to this data. The court began by discussing the three factor test used in the third circuit for spoliation determinations. “The considerations are: (1) the degree of fault of the party who altered or destroyed the evidence, (2) the degree of prejudice suffered by the opposing party, and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and where the offending party is seriously at fault, will serve to deter such conduct by others in the future.”

In examining the facts in the context of the first factor, the court found that because the files were deleted automatically, and not by an affirmative action on the part of Harding, the factor weighed in favor of Harding. The court was not convinced by HA’s argument that Harding’s failure to immediately “remove the computers from further use” did not “shock the conscience.” Nor did the court find persuading HA’s argument that Harding should have taken measures once it received a subsequent letter demanding all evidence be preserved, as the firm felt that nothing relevant had been saved onto the hard drives of its computers.

The second factor, likewise, weighed in favor of a finding against spoliation, because the court concluded that HA suffered no real prejudice from the loss of this data.

The court determined that the final factor cut the same way as the other two, when it stated: “[t]he Harding firm did not purposefully destroy evidence. To impose a sanction on the Harding firm for not preserving temporary files that were not requested, and might have been lost the second another website was visited, does not seem to be a proper situation for an adverse spoilation inference.”

The Claim under the DMCA: The court then turned to examine HA’s claim that Harding had violated the provision in the DMCA under 17 U.S.C. § 1201(a)(1)(A), prohibiting the circumvention of a technical mechanism designed to protect copyrighted material. Here, HA argued that Harding bypassed the protection of the “robots.txt” file, and thus was in violation of the measure. The court found that, “in this situation,” the placement of the file on the website constituted an anti-circumvention technological measure as defined under the DMCA. The court emphasized, however, that “this finding should not be interpreted as a finding that a robots.txt file universally qualifies as a technological measure that controls access to copyrighted works under the DMCA.”

The court continued by noting that the defect was with Internet Archive’s server, and that when used by Harding, it was as though the protective measure was not present. Harding accessed the data, but not by circumventing the protection, and was therefore not in violation of the DMCA. Harding’s motion for summary judgment on HA’s DMCA claim was granted.

HA’s claim under the CFFA: HA argued that Harding’s viewing of the content prohibited by the Robots.txt file constituted a violation of the CFAA. The court concluded that Internet Archive’s computers were used in interstate commerce, and were protected under the act, and that the costs accrued by HA in investigating the unauthorized access, estimated in excess of $9,600, met the statutory threshold. However, merely using a public website does not create liability under the act, and HA was unable to present evidence of prohibited activity, and Harding’s motion for summary judgment on the CFFA claim was granted.

HA’s claims for trespass to chattels and conversion: The final two claims arose under state law, and the court concluded that these claims were preempted by the federal copyright claims under 17 U.S.C. § 301(a), that the court had already examined. Harding’s motion summary judgement with respect to the state law claims was also granted.

Posted in 3d Circuit, Case Summary, Computer Fraud and Abuse Act, Conversion, Copyright Infringement, Data Sources, Digital Millenium Copyright Act, Duty to Preserve, Duty to Produce, E.D. Pa., Judge Robert F. Kelly Sr., Spoliation, Trespass to Chattels, Website Capture | Tagged: , | Leave a Comment »