Post Process

Everything to do with E-discovery & ESI

Archive for July, 2008

Vista SP1 Incompatible with Linux Bootloader in Dual Boot Systems

Posted by rjbiii on July 31, 2008

Hmmm. Trouble for those with dual boot systems who are not using Microsoft’s Vista bootloader:

[T]he update performs a “chain of trust” integrity check on the system’s boot sequence, from the onboard TPM chip, through the MBR and into the operating system itself. In a dualbooting scenario where the Vista bootloader has been replaced (eg: with GRUB or LILO), the integrity check fails and the update aborts, halting the service pack installation.

Microsoft Technology Advisor Michael Kleef finds a silver lining:

“However, it’s actually a very good thing that the update and the servicing fail in this scenario, because you can just imagine the implications if the update automatically reinstalled the Vista MBR to restore boot integrity – we’d be flooded with complaints.”

Posted in Articles, Technology | Tagged: , , , | Leave a Comment »

PI Licensing Laws in Texas and Michigan Continue to get Press

Posted by rjbiii on July 31, 2008

This time, the CEO (and former litigator) of Catalyst, John Tredennick, writing in Law Technology Today (reg’n may be required) passes comment:

Two states have recently enacted statutes that make it a crime for unlicensed individuals to engage in computer forensics. Texas passed a law that would give regulators the power to impose up to a year in jail and a $14,000 fine on people doing “computer investigations.” Michigan went a bit further. On May 28 th of this year, Governor Jennifer Granholm signed into law a bill that makes unlicensed computer forensics work in Michigan a felony punishable by up to a four-year prison term, damages of up to $25,000 and a criminal fine of up to $5,000.

Read the article for details, but Tredennick summarizes the Texas law thusly:

As I read these [Regulatory Agency] opinions, there is some comfort for people doing routine electronic discovery collection but not if there is a forensic or testimonial aspect to the collection. There is a strong suggestion that experts who are called to testify in Texas courts regarding examinations of electronic files better be licensed in Texas. If you don’t have a license, you might be pulled off the stand and escorted to the hoosegow for an extended visit.

Seriously…not the hoosegow!

With respect to Michigan:

How far does this reach?

Good question. If I were a forensics expert and offering testimonial services, I would be pretty nervous about this law. The Act seems to focus on:

Computer forensics to be used as evidence before a court, board, officer, or investigating committee.

Most electronic discovery is focused on collection rather than forensics and an argument could be made that your eDiscovery efforts are not about forensics but rather the collection of relevant evidence for review. But do you want to make this argument to some Michigan criminal court? I wouldn’t.

Post Process has previously blogged on this issue (here, here, here, here, here, and here).

Posted in Articles, Data Collection, EDD Industry, Forensics, Laws, Michigan, Privacy, Texas, Vendor Liability | Tagged: , | 2 Comments »

Case Blurb: Faber (II); Limitations on Discovery under FRCP 26(b)(2)(C)

Posted by rjbiii on July 26, 2008

Rule 26(b)(2)(C) limits otherwise permissible discovery if the court determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.

Peskoff v. Faber, 2008 U.S. Dist. LEXIS 51946 at *4 (D.D.C. July 7, 2008 )

Posted in 4th Circuit, Case Blurbs, D.D.C., FRCP 26(b), Magistrate Judge John M. Facciola, Scope of Discovery | Leave a Comment »

Case Blurb: Faber (II); Cost Shifting Good Cause Determination

Posted by rjbiii on July 26, 2008

The following factors guide the “good cause” inquiry required under Rule 26(b)(2)(B): “(1) the specificity of the discovery request; the quantity of information available from other and more easily accessed sources; (2) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; (6) the importance of the issues at stake in the litigation; and (7) the parties’
resources.” Fed. R. Civ. P. 26, advisory committee’s notes (2006).

Peskoff v. Faber, 2008 U.S. Dist. LEXIS 51946 at *3-4 (D.D.C. July 7, 2008 )

Posted in 4th Circuit, Case Blurbs, D.D.C., FRCP 26(b), Good Cause, Magistrate Judge John M. Facciola | Leave a Comment »

Case Blurb: Cunningham; Relevancy, and Who has the Burden to Prove it

Posted by rjbiii on July 21, 2008

[P]ursuant to Fed.R.Civ.P. 26(b)(1), any discovery sought must be relevant. Relevancy is broadly construed, and a request for discovery should be considered if there is “any possibility” that the information sought may be relevant to the claim or defense of any party. See, e.g., Sheldon v. Vermonty, 204 F.R.D. 679, 689-90 (D.Kan.2001). “When the discovery sought appears relevant, the party resisting the discovery has the burden to establish the lack of relevancy by demonstrating that the requested discovery (1) does not come within the scope of relevance as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure .” Simpson v. University of Colorado, 220 F.R.D. 354, 350 (D.Colo.2004) (citations omitted). Further, the objecting party cannot “sustain this burden with boilerplate claims that the requested discovery is oppressive, burdensome or harassing.” Id. (citation omitted). However, when a request for discovery is overly broad on its face or when relevancy is not readily apparent, the party seeking the discovery has the burden to show the relevancy of the request.

Cunningham v. Standard Fire Ins. Co., 2008 WL 2668301 (D. Colo. July 1, 2008 )

Posted in 10th Circuit, Case Blurbs, D. Colo., Discovery Requests, FRCP 26(b), Magistrate Judge Kristen L. Mix, Objections to Discovery Requests, Overly Broad Request, Relevance | Leave a Comment »

Social Sites becoming Databases for Prosecutors

Posted by rjbiii on July 20, 2008

An AP article discusses a case in which photos of a party posted on Facebook ended up haunting the defendant in a drunken-driving case:

PROVIDENCE, R.I. – Two weeks after Joshua Lipton was charged in a drunken driving crash that seriously injured a woman, the 20-year-old college junior attended a Halloween party dressed as a prisoner. Pictures from the party showed him in a black-and-white striped shirt and an orange jumpsuit labeled “Jail Bird.”

In the age of the Internet, it might not be hard to guess what happened to those pictures: Someone posted them on the social networking site Facebook. And that offered remarkable evidence for Jay Sullivan, the prosecutor handling Lipton’s drunken-driving case.

Sullivan used the pictures to paint Lipton as an unrepentant partier who lived it up while his victim recovered in the hospital. A judge agreed, calling the pictures depraved when sentencing Lipton to two years in prison.

The Judge on the case said that the photos did affect his decisions with respect to the sentence he passed down.

Post Process has previously taken notice of the trend in this post. One thing to note, the defendant himself didn’t publish these photos…another party-goer did.

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

Case Blurb: Cason-Merenda; Cost-Shifting Motions Should be Brought before Production, not After

Posted by rjbiii on July 19, 2008

I am persuaded that the instant motion [to allocate 50% of Producing Party’s cost to Requesting Party] is untimely in two respects. First, the courts Scheduling Order of April 23, 2007 provides, in pertinent part, that “[a]ll motions … for protective orders … must be filed within 14 days of receipt or notice of such disputed discovery.” Second, the provisions of Fed.R .Civ.P. 26(b)(2)(B) and 26(c) plainly contemplate that a motion for protective relief (including cost shifting) is to be brought before the court in advance of the undue burden, cost or expense from which protection is sought.
The Rule [26(b)(2)(B)], if it is to be sensible and useful, must be read as a means of avoiding undue burden or cost, rather than simply distributing it. Indeed, Fed.R.Civ.P. 1 provides that the Rules are to be “construed and administered to secure the just, speedy and inexpensive determination of every action and proceeding.” (Emphasis added).

This interpretation is further reinforced by Fed.R.Civ.P. 26(b) (2)(C)(iii) which provides that the court must limit the frequency or extent of discovery otherwise allowed by the rules if it determines that “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the party’s resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” (Emphasis added). Again the clear objective is the avoidance of undue cost rather than merely the apportionment of it.
On the theory that the information in question was not inaccessible within the meaning of Rule 26(b), [Requesting Party] invokes the court’s broad authority to protect a party from “undue burden or expense” under Rule 26(c).
The rule provides, in pertinent part, that “[t]he court may, for good cause, issue an order to protect a party or person from … undue burden or expense, including one or more of the following:
(A) Forbidding the disclosure or discovery;
(B) Specifying terms, including time and place, for the disclosure or discovery;
(C) Prescribing a discovery method other than the one selected by the party seeking discovery;
(D) Forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
Fed.R.Civ.P. 26(c)(1). The clear import of the language employed is that the court has wide discretion to prevent undue burden or expense.

Cason-Merenda v. Detroit Med. Ctr., 2008 WL 2714239 (E.D. Mich. July 7, 2008 )

Posted in 6th Circuit, Case Blurbs, Cost Shifting, E.D. Mich., Magistrate Judge Donald A. Scheer, Undue burden or cost | Leave a Comment »

Case Blurb: Ed Schmidt Pontiac-GMC Truck, Inc.; Elements for Spoliation as a Cause of Action in Ohio

Posted by rjbiii on July 19, 2008

In Ohio, the elements of a spoliation claim [i.e., a claim for interference with or destruction of evidence] are:
(1) pending or probable litigation involving the plaintiff, (2) knowledge on the part of defendant that litigation exists or is probable, (3) willful destruction of evidence by defendant designed to disrupt the plaintiff’s case, (4) disruption of the plaintiff’s case, and (5) damages proximately caused by the defendant’s acts.

Ed Schmidt Pontiac-GMC Truck, Inc. v. Chrysler Motors Co., LLC, 2008 WL 2704859 (N.D. Ohio July 7, 2008 )

Posted in 6th Circuit, Case Blurbs, Judge James G. Carr, N.D. Ohio, Spoliation | Tagged: , | Leave a Comment »

Case Blurb: Ed Schmidt Pontiac-GMC Truck, Inc.; Failure to Implement Lit Hold not an element of Ohio Spoliation Cause of Action

Posted by rjbiii on July 19, 2008

First, I agree with Chrysler that failure to implement a litigation hold is not an element of a spoliation claim. Nor, in my view, would such implementation be an affirmative defense to such a claim. While whether a party implemented or failed to implement an implementation hold, or whether its directive to its employees was comprehensive and sufficient might be evidence of culpable intent, no liability results simply from either failure to implement a litigation hold or defects in its scope and substance.

In this case, to be sure, a jury could find that no litigation hold was in place for the year between Chrysler’s initial awareness of possible litigation and filing of this suit. But that, alone, is not sufficient to impose liability on Chrysler for spoliation of evidence. A jury might also conclude, if it credited Schmidt’s version of the insufficiency, that the litigation hold, whatever it was, was not sufficiently specific and comprehensive to ensure retrieval and retention of pertinent data. But on the basis of the present record, that’s a decision for the jury, and not for me to make by granting Schmidt’s motion for summary judgment.

Ed Schmidt Pontiac-GMC Truck, Inc. v. Chrysler Motors Co., LLC, 2008 WL 2704859 (N.D. Ohio July 7, 2008 )

Posted in 6th Circuit, Case Blurbs, Judge James G. Carr, N.D. Ohio, Ohio, Spoliation | Tagged: , | Leave a Comment »

Tech Update: A Mish-mash of Developments

Posted by rjbiii on July 18, 2008

Some things of interest, in the realm of technology:

Will the increased utilization of touch-screens and the progress with facial recognition technology mean, as the BBC reports, the death of the mouse?

It’s nearly 40 years old but one leading research company says the days of the computer mouse are numbered.

A Gartner analyst predicts the demise of the computer mouse in the next three to five years.

Interestingly, the article cites Guitar Hero, for its innovative interfaces. I agree that the game’s designers have done a great job with that aspect of the game. On the other hand, one reason for the emergence of the generic controller was to prevent gamers from having to buy new controllers for every new video game bought. As far the death of the mouse, well not all mouse-makers are sweating it:

Logitech is the world’s biggest manufacturer of mice and keyboards and has sold more than 500 million mice over the last 20 years.

“This just proves how important a device the mouse is,” said Mr Dooley.

But he also agreed that the number of ways people can interact with a computers were rising and that his own company was manufacturing many of them.

William Schneier, a computer security expert, and his team, have found some holes in TrueCrypt’s “invisibility cloak,” a feature that seeks to hide the existence of files on a computer from unauthorized parties:

This “deniability” feature is a sort of extreme file-protection function that first encrypts the file and then hides it within an encrypted area on the disk drive like an invisibility cloak. But Schneier, chief security technology officer with British Telecom and researchers from the University of Washington found that Microsoft Vista, Word, and Google Desktop each can blow the cover of files using this so-called “deniable file system” (DFS) feature.

The researchers were able to get around DFS in versions 5.0 and below of TrueCrypt’s encryption-on-the-fly tool, and will present their findings on the hack at the Usenix HotSec ’08 summit next week in San Jose, Calif.

TrueCrypt says that its latest release fixes the issues, but Schneier remains skeptical.

ZDNet Australia has posted an article warning Facebook users that the site is tracking their transactions on affiliated sites, even when the users are logged out, or have opted out of the tracking scheme:

Researchers at software vendor CA have discovered that social networking site Facebook is able to track the buying habits of its users on affiliated third-party sites even when they are logged out of their account or have opted out of its controversial “Beacon” tracking service.
Responding to privacy concerns, Facebook has since moved to reassure users that it only tracks and publishes data about their purchases if they are both logged in to Facebook and have opted-in to having this information listed on their profile.

But in “extremely disconcerting” findings that directly contradict these assurances, researchers at CA’s Security Advisory service have found that data about these transactions are sent to Facebook regardless of a user’s actions.

An article in Computer World discusses improvements in on-line office applications and asks whether they are ready to challenge Microsoft’s dominant office suite?
Web-based office suites are coming into their own at last.

For quite a while, Web-based suites — which offered word processing, spreadsheets, presentations, and other tools associated with desktop office suites — were extolled not because they did these things well, but because they could do them at all. But the three major competitors, Google Docs, ThinkFree, and Zoho, have all made major improvements in recent months. They’re becoming both broader, with more applications, and deeper, with more features and functionality in existing apps.

The question is: Are these three applications really ready to take on a desktop-based heavy hitter like Microsoft Office?

Ever wanted to know the real name behind a gmail account? One blogger has uncovered a way to get to any Gmail user’s real identity:

I came across a an interesting blog post showing how to get the name of a Gmail account. Since the bug was visible through Google Calendars I hoped that it was maybe limited to users who had signed up for Google Calendar. This is not the case.

Not good news, if you intended this to be private information…

Posted in Articles, Technology, Trends | Leave a Comment »