Post Process

Everything to do with E-discovery & ESI

Archive for March, 2011

Off the Beaten Path: Chess Cheats, OOPs no more, and Have You Seen OMG in the OED?

Posted by rjbiii on March 26, 2011

Would You Like to Play a Game?

Everyday we see how technology is used to better our lives. It allows us to do things we couldn’t do in the past. It helps us overcome our limitations. We’ve also seen how folks use it to game the system to their own advantage. Another example of the latter has surfaced in France, where three chess players were caught trying to…game the game:

The French chess federation has suspended three top players for violating sporting ethics at a chess olympiad in Siberia last September.

The trio are alleged to have used an elaborate scheme involving text messages and computer software to help beat opponents at Khanty-Mansiysk

How did the scheme work? Like so:

According to the French federation, while international grand master Sebastien Feller, 19, was involved in a game, Cyril Marzolo followed developments over the internet and used computer software to establish the best next move. The answer was then sent by means of a coded text message to the third member of the team, Arnaud Hauchard.

The third member would then sit himself at a particular table in the competition hall. Each table represented an agreed square on the chess board. This, according to French media reports, was the most delicate part of the operation.

Not sure how that third part worked. How one would do that without drawing attention to oneself is beyond me. All three players deny the accusation.

Carnegie Mellon Changes its CS Program

An interesting change at Carnegie Mellon is occurring. The school is eliminating OOP entirely from its basic curriculum, as stated by one of the CS Professors in his blog, Existential Type:

Object-oriented programming is eliminated entirely from the introductory curriculum, because it is both anti-modular and anti-parallel by its very nature, and hence unsuitable for a modern CS curriculum. A proposed new course on object-oriented design methodology will be offered at the sophomore level for those students who wish to study this topic.

A report from the Department’s Dean provides the following rationale:

The School of Computer Science at Carnegie Mellon University is planning major revisions to its introductory course sequence in ways that will affect not just our own students, but also the many students from across campus who take computer science courses. Major changes include: 1) revising our introductory courses to promote the principles of computational thinking, for both majors and nonmajors, 2) increasing our emphasis on the need to make software systems highly reliable and the means to achieve this, and 3) preparing students for a future in which programs will achieve high performance by exploiting parallel execution.

I remember when object oriented programming was the cool kid on the block. Oy vey.

So can I use OMG in Scrabble?

So the OED is now adding acronyms esuch as OMG, LOL, and IMHO to the official lexicon:

OMG! The exclamatory online abbreviation has won the approval of the Oxford English Dictionary.

The term — short for “Oh my God” or “Oh my gosh” — is one of dozens of new entries in the authoritative reference book’s latest online update.

….

Editors publish updates to the online Oxford every three months. The Internet version of the dictionary, which launched in 2000, gets 2 million hits a month from subscribers and may eventually replace the mammoth 20-volume printed Oxford English Dictionary, last published in 1989.

By the time the lexicographers finish revising and updating a new edition — a gargantuan task that will take a decade or more — publishers doubt there will be a market for the printed form.

I think my old-school English teachers are probably wondering WTH.

Firefox 4 Essentials

Firefox 4 recently made its debut, to great fanfare. One pre-release article gave us 10 Things to Drool over in FF4.

One of my favorite websites, Web Worker Daily, has posted its list of 11 essential add-ons.

Eye in the Sky…or Ear that’s always Near

Finally, a disturbing report from Germany provides a glimpse into the data collected by telecoms. From the article:

But as a German Green party politician, Malte Spitz, recently learned, we are already continually being tracked whether we volunteer to be or not. Cellphone companies do not typically divulge how much information they collect, so Mr. Spitz went to court to find out exactly what his cellphone company, Deutsche Telekom, knew about his whereabouts.

The results were astounding. In a six-month period — from Aug 31, 2009, to Feb. 28, 2010, Deutsche Telekom had recorded and saved his longitude and latitude coordinates more than 35,000 times. It traced him from a train on the way to Erlangen at the start through to that last night, when he was home in Berlin.

“We are all walking around with little tags, and our tag has a phone number associated with it, who we called and what we do with the phone,” said Sarah E. Williams, an expert on graphic information at Columbia University’s architecture school. “We don’t even know we are giving up that data.”

The fabled “expectation of privacy” is getting narrowing all the time.

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

Case Summary: Seven Seas Cruises; Gaps in the Production Examined

Posted by rjbiii on March 24, 2011

Seven Seas Cruises S. De. R.L. v. V. Ships Leisure SAM, 09-23411-CIV-UNGARO/SIMONTON, 2011 U.S. Lexis 19465 (S.D. Fla., Feb. 19, 2011).

Plaintiff Seven Seas initiated the action against multiple defendants, claiming damages from defendants’ “failure to provide proper ship management, care and oversight for several cruise ships…”. Specific accusations included, inter alia: negligent representations, negligence, and breach of contract. After defendants answered, and both sides filed tit for tat motions for summary judgment, the court issued an order granting a motion to compel filed by Plaintiffs. The motion required defendants to:

  • Identify which employees’ systems had been searched;
  • Explain the absence of certain documents from production; and
  • Describe search terms used to conduct ESI searches.

The order allowed that after defendants filed an affidavit with the information required by the order, plaintiffs were free to renew their motion for to compel further discovery. They elected to do exactly that, resulting in this opinion.

Plaintiffs’ position:

Plaintiffs maintain that they have discovered “gaps” in the production by plaintiffs, despite defendants’ repeated assurances to the contrary. First, plaintiffs contend defendants searched (and produced) the ESI for a mere nine employees, failing to search other custodians likely possessing relevant data. Seven Seas had submitted a list of 19 employees/custodians or email addresses that were incorrectly excluded from searches.

Next, Seven Seas argue that the production for those custodians that were searched was incomplete. To bolster their claim, plaintiffs identified specific time frames where ESI was not produced for those custodians. They claimed this was the case for at least four custodians. Plaintiff’s attorneys approach in pressing their case is described by the court:

At the hearing, Plaintiffs chronologically recounted each request made by Plaintiffs through the course of discovery regarding the production of ESI, and also reiterated the representations made by the Defendants in response to those requests. Generally, throughout the course of the ESI discovery, Defendants assured Plain-tiffs that Defendants were conducting complete ESI searches for materials responsive to Plaintiffs’ requests. Plaintiffs contend, however, that each time such production or representation regarding the thoroughness of the production was made, that Plaintiffs later found out that the production was not, in fact, complete.

In addition, throughout the hearing, Plaintiffs pointed to statements made by Defendants in submissions to the Court wherein Defendants repeatedly asserted that all relevant custodians’ computers and laptops had been searched. According to Plaintiffs, as a result of the repeated assurances by Defendants that ultimately proved to not be true, Plaintiffs have no confidence in the Defendants’ ability to conduct proper ESI searches, and further have no faith in the Defendants’ representations regarding the same.

And then they bring it home with this:

Thus, Plaintiffs argue that because the Defendants’ failure to produce all responsive ESI discovery has prejudiced the Plaintiffs and because such omissions are ongoing and intentional, that the Court should strike the Defendants’ pleadings and enter a final default judgment against both Defendants. In addition, Plaintiffs request that the Defendants be ordered to pay the costs associated with Plaintiffs having to bring the Renewed Motion to Compel.

Post Process Comment: From the outside looking in, it really looks like counsel for Seven Seas went about this the right way. We have analyzed, in the past four years, innumerable cases where the court felt the need to admonish counsel for vagueness, or making conclusory statements without backing them up with evidence. Here, counsel went through a round of “attack analytics,” (we’ll look at this in a moment) during which they analyzed the production, documented what they perceived as deficiencies, and presented their findings as argument, while including specific examples for the court to hang its hat on. Of course, we aren’t done…defendants get their chance to speak.

Defendants position:

Defendants “generally took exception” with some of the “missing custodians” included on Plaintiffs list, and supplemented their arguments with specific information to explain the absence of either custodians from the search, or for data missing for specific time periods from produced custodians.

Defendants then acknowledged that not all relevant ESI had been produced, and then conceded that “in hindsight” and e-discovery consultant or vendor should have been retained to assist them.

Post Process Comment: This is a telling admission. It is an implicit acknowledgment that eDiscovery methodologies weren’t solid due to the inexperience of their staff who were engaged in the project.

In an effort to put the best face on things, V. Ships Leisure reiterated earlier assertions (at least to effort…doesn’t seem possible that they continued to claim the production wasn’t deficient in light of their earlier admission). They also noted that they had supplemented production with additional data, and were prepared to hand over more data that very day. V Ships Leisure then noted went to the “volume defense” by noting that they had already produced hundreds of thousands of documents (ESI and hard copy). They also defended their efforts by noting that some of their custodians were overseas, complicating the logistics behind their project.

V Ships Leisure continued their arguments by stating that the bulk of the relevant evidence was contained in correspondence between plaintiffs and defendants, so plaintiffs already had most of the evidence prior to their suit. Defendants complained that Seven Seas had never alerted them to the gaps prior to filing their motion. Although defendants agreed to re-execute the searches on both already produced custodians and on “missing” custodians, they also claimed that no prejudice to plaintiffs had been demonstrated, an argument plaintiffs could not refute.

Post Process Commentary: Defendants fought back hard, but is it enough? Their admissions may be the most significant part of their arguments, but perhaps their efforts in already producing substantial volumes of data, and the potential lack of prejudice to plaintiffs will carry the day.

The court began by reciting the law behind FRCP 37.

Federal Rule of Civil Procedure 37 addresses a litigant’s failure to make disclosures or to cooperate in discovery and sets forth sanctions that may be imposed by a Court. Rule 37 sanctions are intended to prevent unfair prejudice to the litigants and insure the integrity of the discovery process.” Thus, Federal Rule of Civil Procedure 37 gives a district court the power to enter a default, strike pleadings, or render judgment against a party that disobeys the court’s discovery or pretrial scheduling orders. However, the severe sanction of a default judgment is appropriate only as a last resort, when less drastic sanctions would not ensure compliance with the court’s orders. In addition, Rule 37(b) only permits imposition of the ultimate sanction if a party willfully or in bad faith failed to obey a discovery order. It is not justified under Rule 37(b) if a party’s failure to comply with a discovery order was caused by simple negligence or a misunderstanding of the court order. If the party does not provide a credible explanation of how he interpreted an order compelling discovery in a way that excluded certain documents from the scope of the order, the party’s unsupported assertion that it misunderstood the order is insufficient, and it is not clear error for the district court to find that the party’s failure to comply with the discovery order was willful and in bad faith. Further, when a party claims that he was unable to produce documents in the time allowed by the court, but he does not produce any evidence to support the argument, a district court’s finding of willfulness is not clearly erroneous. Nonetheless, a district court is not required to first impose lesser sanctions if the lesser sanction would be ineffective.

Defendants’ Failure to Produce ESI:

The court began by reciting a history of disputes caused by defendant’s failures to produce or thoroughly search for potentially relevant ESI. The court then admonished both parties for failing to conduct an early meet and confer:

[I]t appears that many of the disputes related to the production of e-discovery could have been significantly narrowed, if not totally avoided, had the Parties held an e-discovery conference early-on in the litigation as required by Federal Rule of Civil Procedure 26(f), wherein issues regarding disclosure and production of ESI could have been thoroughly discussed.

Continuing on, the court articulated its first major conclusion:

[I]t is clear that the Defendants have failed to properly conduct complete, thorough and timely searches of ESI responsive to the Plaintiffs’ discovery requests. There is no doubt that the manner and method in which the Defendants conducted their ESI searches were wholly inadequate.

That said, the court noted that because the production gaps had not yet been plugged, the damage done to plaintiff’s case could not yet be determined. The court also applied some blame to Seven Seas, noting that they could have identified missing custodians or data sources earlier. While the court granted that defendant’s deficiencies were more likely due to its staff’s “unfamiliarity” with e-discovery, and not any malfeasance, the continued inability to conduct EDD competently at this point in the game is inexcusable.

On this point, the court stated:

Indeed after this Court’s January 19th Order, if not before, the Defendants should have reasonably known that they needed to retain an E-discovery consultant to ensure that they properly conducted their ESI searches.

Because of this, said the court, sanctions were appropriate. The ordered defendants to engage an electronic discovery vendor to assist in searching and producing ESI from certain custodians included on plaintiff’s “missing custodian list.” Plaintiff’s request to re-execute searches over the data sets associated with custodians whose ESI had already produced was denied, as in the court’s view, the production of this data was sufficient.

The court concluded that the appropriate sanctions were to:

  • Deny defendants motion for summary judgment;
  • Award plaintiffs attorneys costs, to be paid by defendants.

The court declined to enter a default judgment on behalf of plaintiffs, as had been requested in the Motion to Compel.

Post Process Comment: The sanctions imposed might be considered fairly mild, considering some of the language contained within the opinion. The biggest mitigating factor for defendants appeared to be the lack of any evidence concerning damage done to plaintiffs case by the omissions in production.

I’d like to reflect a bit on the evidence and arguments brought by Plaintiffs to demonstrate that deficiencies exist in the production. There are two common methods of attacking document productions. You can impugn the results–that is, the contents in the production dataset–or you can question the methodology that produced the dataset. Here, we see examples of both.

In attacking the production, plaintiffs examined the production and reviewed what custodians might be missing. This can be done by reviewing correspondence. When you get significant email or mail traffic going to or coming from individuals whose data has not been produced, a flag should come up. And that’s what was done here.

Another way to look at custodians or data sources is to obtain knowledge of opposing party’s IT systems to ensure that all repositories were searched. Perhaps a Sharepoint site was established where an implicated project’s documents were stored, but not searched or produced.

By attacking the results, you eventually hope to discover a weak methodology or holes in the workflow…because merely pointing out bad results can sometimes be dismissed by legitimate factors (so-called safe harbor deletions, or data residing in sources which are “not readily accessible”).  Of course, if production results are obviously deficient, then perhaps that in itself can provide sufficient ammunition to warrant sanctions or other measures.

Next, plaintiffs looked at material from those custodians whose data was produced, and analyzed its completeness by focusing on chronology. This “production gap” analysis has proven very effective, in my experience. Sometimes such gaps can be legitimately explained, but their existence, especially across multiple custodians, should be explored.

Posted in 11th Circuit, Case Blurbs, Cooperation Between Parties, Cost of Discovery, Discovery Requests, Duty to Disclose, Duty to Produce, FRCP 26(f), FRCP 37, Magistrate Judge Andrea M. Simonton, Meet and Confer, Motion to Compel, S.D. Fla., Sanctions | 2 Comments »

Who you gonna call? Electronic gear for “ghost busting”

Posted by rjbiii on March 24, 2011

This is a little off-topic, so I apologize in advance. Gizmag has posted an article showing the gear that “paranormal investigators” use when trying “de-ghost” your home or business. It’s a little sad that the subject is taken seriously in some quarters, but consider the following:

In a survey conducted by CBS News in 2005, it was found that 48 percent of Americans believed in ghosts. Other surveys have put the number at anywhere from around 20 to over 50 percent. While such figures certainly don’t imply that ghosts are real, they do suggest that belief in them is relatively common. When someone does suspect that a ghost is present in their home or business, they will sometimes call in “experts” to ascertain if that is, in fact, the case … and what sort of gear do these ghost hunters use to detect said spirits? We decided to find out.

And if you’re tempted (like me) to utter the immortal phrase “I ain’t afraid of no ghost,” allow me to remind you, via video, of the dangers that lurk should we relax our vigil…

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A Bad Idea…

Posted by rjbiii on March 22, 2011

Leaving your thumb drive containing child porn in a computer used by multiple employees isn’t too smart. And if your fellow employees are police officers, it’s a real bad idea.

Posted in Articles, Privacy | Leave a Comment »

Case Summary: Nissan N. Am; Court examines Collection Protocol and Request for Protective Order

Posted by rjbiii on March 21, 2011

Nissan N. Am., Inc. v. Johnson Elec. N. Am., Inc., CIVIL ACTION NO. 09-CV-11783, 2011 U.S. Dist. LEXIS 16022 (E.D. Mich. Feb. 17, 2011).

Nissan had already produced “1.79 million” pages of documents, and 84,000 pages of documents from its non-party parent company. The court had ordered Nissan to supplement this production with information specifically identifying data sources not previously searched because, in Nissan;s view, they were “not reasonably accessible.” Johnson Electric, defendant company, crafted “informal” discovery requests requesting that Plaintiff produce:

  1. a data map showing what data is stored on each of Plaintiff’s systems, who uses the systems, the retention of the data stored and where and how the data is backed up or archived;
  2. document retention policies;
  3. tracking records and/or requests for restores; and
  4. backup policies.

Johnson Electric believed Nissan was obligated to produced the above to comply with the court’s order. Nissan responded by filing for a protective order denying Defendant discovery on:

  1. system-wide searches of Plaintiff’s systems and custodians beyond what has already been provided;
  2. sources identified by Plaintiff as “not readily accessible,” including back-ups;
  3. Plaintiff’s record retention practices or disaster recovery backup policies;
  4. Plaintiff’s tracking records and requests for computer restores to IT and vendors; and
  5. a “data map” to provide information on all of Plaintiff’s systems.

Johnson Electric filed a brief in response, and a cross-motion to compel Nissan’s compliance with the earlier order. Johnson Electric also asked the court to impose sanctions on Nissan, arguing that Nissan had failed to comply with their discovery obligations under that order.

The court began by stating the governing standard for its analysis, and the party’s respective arguments:

Federal Rule of Civil Procedure 26(c) allows the Court to issue a protective order for good cause shown to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. Plaintiff has the burden of showing good cause for a protective order. Plaintiff first asks for a protective order denying Defendant discovery of system-wide searches of Plaintiff’s systems and custodians beyond what Plaintiff has already provided. Defendant argues in response that it has not asked Plaintiff to conduct additional searches. Rather, Defendant argues that it merely asked for confirmation that Plaintiff searched its systems for relevant ESI for forty-one employees who are either members of the Task Force assigned by Plaintiff to the recall issue, or who are listed in Plaintiff’s Rule 26 disclosures.

About those Additional System-Wide Searches…
The court concluded that Nissan was barking up the wrong tree. “Letter correspondence” proved that Johnson Electric did not ask for additional searches, but rather that Nissan merely confirm that the computers, email accounts, network shares, and databases associated with 41 specific custodians had been searched. The court ruled against Nissan here, because it couldn’t deny Johnson Electric something for which it hadn’t asked.

Data Sources that aren’t readily accessible
The court first noted Nissan’s description of its Identification protocol:

[] Plaintiff claims to have searched Outlook email data and PST files; hard drives on individual computers, network shares mapped as various drive letters; and the ANEMS, IDOCS, IDEAS, GCARS, WRAPS, CPIA, VHF, CICS PO system, and Legacy business databases. In addition, Plaintiff states that it identified key custodians who were likely to have responsive information relevant to this case and had their documents searched. Plaintiff also asserts that it requested documents and information from its non-party parent company, and that both it and its parent company searched hard copy files for paper documents, for documents stored on CD, DVD, or other external sources, and for physical parts.

Plaintiff has identified in table format electronic data sources identified by key custodians as being potential sources of responsive information and claims that it identified, processed, and produced responsive information from these systems. (Docket no. 79 at 4-7). Plaintiff contends that the only systems it did not search are its disaster recovery or backup systems for email, network shares, and business databases because they are not readily accessible.

Nissan argued that information on its back-up systems are not reasonably accessible because of “undue burden and cost,” evidently supported by an estimate submitted to court. Nissan further contended that searches over these sources wouldn’t produce any new data “because the information on these systems is duplicative of information on [Nissan’s] main systems,” which have already been examined.

The court quoted FRCP 26(b)(2)(B):

A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue bur-den or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

The court agreed with Nissan that it had shown “that Plaintiff’s backup systems are not reasonably accessible and that Defendant has not shown good cause to search these systems.” Alas for Nissan, however, the court once again stated that Nissan’s argument were off point, stating that Johnson Electric did not appear to ask Nissan to search their back-up systems, but rather, “asked for Plaintiff’s backup policies, and its tracking records and requests for restores, claiming that data that has been restored is reasonably accessible.” The court concluded that Nissan had not shown “good cause” to preclude Johnson Electric from seeking discovery of this data. As Johnson Electric had not asked for searches of back-up systems, there was no reason for the court to grant Nissan’s request on that issue.

Retention Policies

The court quickly denied Nissan’s request to protect it from having to produce its retention policies, stating that Nissan failed to show “good cause” to preclude the production request.

Data Map

The court noted that Johnson Electric had asked Nissan for a data map “to show what data is stored on each of Plaintiff’s systems, who uses the systems, the retention of the data stored and where and how the data is backed up or archived.” The court further noted that Johnson Electric attempted to tie Nissan’s failure to provide the data map to non-compliance to the previously mentioned court order requiring supplemental production from Nissan.

FRCP 26 requires certain mandatory disclosures be made. Nissan claims that Johnson Electric has failed to commit to specific search terms or system limitations. The court warned Johnson Electric that if true, it could see no reason for such a failure. Beyond that, there was no connection between the previous court order and this request from Johnson Electric. This request, the court said, was for new material, separate and distinct from that associated with the earlier order. Although the court could not see compelling production of a data map, it again stated that Nissan had failed to show good cause to preclude production. The court, therefore, denied Nissan’s motion for a protective order, both on this part, and in whole.

Posted in 6th Circuit, Case Summary, Collection Protocol, Data Retention Practices, Duty to Disclose, E.D. Mich., FRCP 26(b), FRCP 26(c), Good Cause, Magistrate Judge Mona K. Majzoub, Objections to Discovery Requests, Protective Order, Reasonably Accessible, Undue burden or cost | Leave a Comment »

Off the Beaten Path (Weekend musings, March 12, 2011):

Posted by rjbiii on March 13, 2011

Data is Beautiful

Flowing Data posts a its review of the latest book in the Beautiful Data series. From the article:

While visualization can get very technical, the authors do a good job of keeping things abstract enough so that you know what they’re talking about even if you’re not particularly experienced in the field. They provide enough detail though that it’s still interesting for others.

A lot of people who are interested in visualization think that’s it’s a matter of learning a bunch of tools, but there’s a lot more to it than that. You’re also learning about data, and learning what questions to ask, and if you don’t know what questions to ask, you just end up with visualization that doesn’t really mean anything. Design also plays a role in in conveying the message you want. So it’s great that there’s a resource that can help you get into the experts’ heads.

If anything, it’s just fun to read about the process of how a graphic or tool gets made. For example, Jonathan Feinberg, who designed the ever popular Wordle, explains what went into the work. Some people like to knock it, but he knows plenty well that the stylized word clouds aren’t the best way to visualize data or extract information, or whatever.

Dude…where’s my car?

You may have seen the news that UCSD researchers had engaged in experiments to take control of your car’s computer using various methods, including this one:

But their most interesting attack focused on the car stereo. By adding extra code to a digital music file, they were able to turn a song burned to CD into a Trojan horse. When played on the car’s stereo, this song could alter the firmware of the car’s stereo system, giving attackers an entry point to change other components on the car. This type of attack could be spread on file-sharing networks without arousing suspicion, they believe. “It’s hard to think of something more innocuous than a song,” said Stefan Savage, a professor at the University of California.

Tagging without permission is…permissible Facebook

Evan Brown, the lawyer behind the blog Internet Cases, posts a summary of the issue of “tagging” information on Facebook. From the article:

The court rejected the mother’s assertion that the photos should not be considered as evidence. She argued that because Facebook allows anyone to post pictures and then “tag” or identify the people in the pictures, she never gave permission for the photographs to be published in this manner. The court held that “[t]here is nothing within the law that requires [one’s] permission when someone takes a picture and posts it on a Facebook page. There is nothing that requires [one’s] permission when she [is] “tagged” or identified as a person in those pictures.”

Linking to Trouble

Well, I’m glad Homeland Security is on top of things like this. I feel much safer now.

In a case against a New York website owner, the Department of Homeland Security (DHS) is claiming that merely linking to copyrighted material is a crime.

DHS, along with Immigration and Customs Enforcement (ICE), seized Brian McCarthy’s domain, channelsurfing.net, in late January. The site has now been replaced with a government warning: “This domain has been seized by ICE – Homeland Security Investigations, Special Agent in Charge, New York Office.”

“It is unlawful to reproduce copyrighted material, such as movies, music, software or games, without authorization… First-time offenders convicted of a criminal felony copyright law will face up to five years in federal prison, restitution, forfeiture and fine.”

The advocacy group Demand Progress has claimed that McCarthy never reproduced copyrighted material, and that his website simply linked to other sites.

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Around the Block (March 10, 2011): EU Privacy laws rankle web-site owners, and Howrey’s possible dissolution caused by E-Discovery Vendors?

Posted by rjbiii on March 10, 2011

Web Operators inside the UK are complaining that E.U. Privacy directives are putting them at a competitive disadvantage. The Government’s Information Commissioner has stated that “explicit consent” must be given by users before sites can place cookies that “track” their activities on their computers. From the Article:

The reaction [to privacy laws] from start ups has been strong and angry. Nick Halstead, CEO of U.K. start up Mediasift, behind the very popular Tweetmeme service, has been vociferous in his condemnation.

“If users are presented with a pop up every time a cookie is going to be set, they are simply going to go to sites outside of Europe that are not hampered in the same way. It will put us at a major disadvantage compared to American sites.

“On our site, if you re-tweet we set a cookie. That cookie remembers other stories you have re-tweeted. Now that should be a useful thing for users. But you could say that is tracking them.”

Mr. Halstead called on governments to tread very lightly…

See a brilliant interactive demo of what the user experience might look like here.

In the chaos now hovering at Howrey, apparently one party being blamed for the firm’s collapse is E-Discovery Vendors. The quote that got my attention:

Another challenge was the rise of third-party document-discovery specialists that could provide litigation support services at substantially lower rates, he said. Howrey, a law firm with many offices in big cities, and thus, higher costs and couldn’t compete, he added.

Perhaps the problem wasn’t competition, but scope creep on the part of the firm. Lawyers should practice law, and manage the process of e-discovery. Competing with technology firms in a technology field when it isn’t a “core business” is a bad idea. The complaint is that vendors were more efficient than was Howrey at processing data. The firm was, therefore, unable to charge above-market prices for its EDD services, and apparently, this was a vital revenue stream for them. My opinion is that the “law firm as technology vendor” model doesn’t work. Howrey is exhibit A.

Leita Walker and Joel Schroeder pen an article on how to locate and use evidence from social media sites. In, Making Your Case with Social Media, they write:

[I]t’s never too early to start poking around. As soon as counsel contemplates suing or believes their client may be sued, they should investigate their opponent’s online presence. Once litigation commences, litigants may restrict their privacy settings — or remove the sites altogether — making it much more difficult to readily access potentially game-changing evidence.

Of course, once discovery commences, lawyers can employ more formal methods of fact-gathering and move to compel that evidence if met with opposition. Interrogatories should seek to identify an opponent’s screen names and relevant social media usage. Requests for production should seek blog entries and social media posts, and requests for admission should be designed to authenticate such information. In addition, counsel should be prepared to talk about social media and its production format at a Rule 26(f) or other discovery conferences.

Finally, before offering such evidence in court, counsel should be prepared to respond to objections related to relevance, hearsay, and authentication. With regard to the latter, the threshold for admissibility is low, and can be satisfied by the testimony of a witness who has personal knowledge that the evidence is what it purports to be. In fact, courts have held that website printouts need not be authenticated by the site’s owner but can be authenticated, for example, by an attorney who testifies that she visited a particular site, recognized it as the opposing party’s, and printed what she saw on the screen. Jarritos, Inc. v. Los Jarritos (2007).

Posted in Articles, Authentication, International Issues, Privacy, Social Media Sites | Tagged: | Leave a Comment »

Case Blurb: McBride, Distinction made between whether to execute a search and “ability to find” data

Posted by rjbiii on March 10, 2011

[Requesting Party] claims that the defendants violated a government-imposed document preservation order if they are not able to produce [certain] e-mails. It is important to keep separate, and not conflate, two distinct concepts: whether an additional search for certain information should be conducted, and whether or not the inability to find certain information should be sanctioned. The first is a question of interpreting the Federal Rules of Civil Procedure, while the second is a matter of the application of the common law principle of spoliation.

U.S. ex rel McBride v. Halliburton Co., 05-CV-828 (D.D.C Jan. 24, 2011)

Read a case summary here, from Bow Tie Law.

Posted in 4th Circuit, Case Blurbs, D.D.C., Magistrate Judge John M. Facciola, Scope of Discovery, Search Protocols | Leave a Comment »

Solid State Drives and the Future of Computer Forensics

Posted by rjbiii on March 8, 2011

John Dunn, in an article on TechWorld, cites a study that claims that firmware built into solid state hard drives (SSD’s) erase data, rendering current forensics technologies effective. From the article:

After examining an SSD for traces of data after it had been quick formatted, the team expected the purging routines to kick in around 30-60 minutes later, a process that must happen on SSDs before new data can be written to those blocks. To their surprise, this happened in only three minutes, after which only 1,064 out of 316,666 evidence files were recoverable from the drive.

Going a stage further, they removed the drive from the PC and connected a ‘write blocker’, a piece of hardware designed to isolate the drive and stop any purging of its contents. Incredibly, after leaving this attached for only 20 minutes, almost 19 percent of its files had been wiped for good, a process the researchers put down the ability of SSDs to initiate certain routines independent of a computer.

For comparison, on the equivalent hard drive all data was recoverable, regardless of the time elapsed, as a forensic examiner would expect.

The study cited in the article may be found here (PDF).

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Around the block-March 8, 2011: Notes on Facebook and Predictive Coding

Posted by rjbiii on March 8, 2011

A few articles of note that affect electronic discovery, forensics, or cyber-security:

Predictive coding has been a hot topic, and at Prism Legal, Ron Friedman posts his thoughts on how it should be handled by courts:

[Courts] should presume that predictive coding is reliable. The burden of proof should shift to predictive coding opponents to show that it is not reliable.” Let the proponents of human review explain to the court why diverging expert views is better than consistent computers.

Agreed. “Relevance” is ultimately determined by the court. In “human review,” a lead attorney formulates a set of guidelines for document reviewers to follow. This formulation is based on his understanding of the case subject matter, the scope of discovery requests or other communications by the opposing party, and any direction he might receive from the court. The attorney’s understanding of relevance is, in theory, based on an honest attempt to obtain an understanding of the court’s definition of “relevance” for the instant matter. The guidelines then sent down to those attorneys reviewing documents is an attempt to accurately propagate this understanding. Obtaining consistency (and of course, accuracy, to the extent that term can be used here) between reviewers is a difficult (and often, costly) process requiring diligence and proper project management.

The larger the review team, the greater the challenge. Predictive coding offers the promise of greater consistency. To test its validity, however, the components that might be scrutinized are: the efficacy of the technology used, any “rules” created that affect the tool’s method of classification, and the methodologies behind any creating “sample” datasets used to “train” the tool on what is relevant and what is not.

EDiscovery map offers a primer in how to collect from EU-based data sources.

There is a serious conflict for US firms with affiliates in EEA countries, when they get involved in civil litigation within the US: On the one hand, Federal and State rules mandate retention and production of all relevant data, even data located outside of the US, with the risk of severe penalties by the Courts in case of “spoliation”, and on the other hand, EU data protection laws (applicable to the EEA) mandate very strict data protection rules for “personal data” of their residents, that seriously restricts processing of personal data and transfer of those data to “non-adequate” countries outside of the EEA, with risks of steep fines in case of transgression.

Continuing on, we’ve argued about this before, but the ABA posts an article explaining why e-discovery is killing legal jobs. Not that I agree with the assessment.

The ACEDS staff takes on the subject of EDD and social media:

One of the important issues involved in social networking evidence is admissibility. The Federal Rules of Evidence require evidence to be authenticated before it can be admitted in court. With nearly everyone having the power to create accounts and claim to be someone else, how can one prove the true identity of a username in court?

To help establish authenticity of information gathered from social media sites and intended for use as evidence, testimony from the person who obtains printed screenshots from the social networking web page should be documented, along with details of how and when the pages were accessed and printed.

I agree with this…but I’m not sure how authentication of social media content differs from that associated with the collection of any other website. On the same topic, we now read of Facebook’s “self-collection” tool, which the company has provided its users:

Now, 500 million users of the most popular social network on the planet (which includes not just individuals, but organizations as well) have a mechanism to “self-collect” their data for their own use and safekeeping. Or, they can “self-collect” for use in litigation. In his article, Craig [Ball] likens Facebook’s download function to Staples’ famous easy button. How can an attorney argue an overly burdensome collection when you simply have to click a button?

Discovery requests for Facebook-related data may become ever more prevalent, if you believe Andre Yee when he says that Facebook is the new internet.

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