Eighth Circuit Remands Case and Reassigns Judge who Imposed Sanctions

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

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

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

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

Cell Phone Data becoming a Factor in the Court Room

From the New York Times:

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

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

H/T: Slashdot

Google Unveils Plans for New O/S

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

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

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

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

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

Scientists take another Small Step Toward Quantum Computing

From Yale:

A team led by Yale University researchers has created the first rudimentary solid-state quantum processor, taking another step toward the ultimate dream of building a quantum computer.

What would a Quantum Computer do for you? The article explains:

[I]magine having four phone numbers, including one for a friend, but not knowing which number belonged to that friend. You would typically have to try two to three numbers before you dialed the right one. A quantum processor, on the other hand, can find the right number in only one try.

“Instead of having to place a phone call to one number, then another number, you use quantum mechanics to speed up the process,” Schoelkopf said. “It’s like being able to place one phone call that simultaneously tests all four numbers, but only goes through to the right one.”

On the discoverability of voicemail

Mark Sidoti and Paul Asfendis, writing for Law.com, have recently posted an article discussing the different types of voicemail, and the discoverability of each:

Companies today have more options than ever for generating, receiving, storing, retrieving and disposing of voicemail messages.

In the past, voicemails were stored on analog tapes, but increasingly, organizations now use unified, digital systems that integrate telephone and computer systems. While more efficient and flexible, these advances raise a number of electronic data discovery issues.

If your organization is considering an upgrade, it’s imperative to evaluate the effect, if any, that the new system will have on your obligation to preserve, search and disclose relevant voicemail messages.

The authors discuss the differences between analog and digital systems. They also compile a list of “challenges” for the organization deciding to implement a “unified” v-mail system (that is, a digital system that is integrated with the IT Enterprise). Well worth the read.

Comparing Discovery in Canada and the US

Byte and Switch has a nice post discussing the differences between Canadian and US discovery processes. From the blog:

I expected litigation and e-discovery to be closer than it really is. Here is our overview of the situation: The Canadian provinces exert tremendous control over e-discovery practices and procedures in common and civil law. There is no corresponding natural statute such as the U.S. Federal Rules of Civil Procedure, making e-discovery in Canada difficult to affect on a unified national principle.

There are national Canadian guidelines with the publication of Sedona Canada’s e-discovery principles and the Judicial Council’s practice direction for e-discovery in civil courts. (“The Sedona Canada Principles Addressing Electronic Discovery” and “National Model Practice Direction for the Use of Technology in Civil Litigation,” respectively.) These principles and guidelines for court practice are excellent steps forward and provide guidance for provinces that are developing their own sets of e-discovery rules. (British Columbia, Nova Scotia, Alberta, and Ontario have well-developed principles or drafts, and other provinces are no doubt busy as well.) Neither is statutory, and they exist as guidelines to implementation.

The post states that U.S. attorneys can learn from the Canadians’ attempts at reigning in costs, while Canadians could benefit by using proper tools.

EDD Basics: SearchStorage.com breaks down the EDRM to techies

SearchStorage.com posts an article by Alan Radding meant to inform storage techies on the EDRM. From the article:

“For an IT person faced with finding e-discovery tools, the first thing I would do is take the EDRM diagram and go talk with your legal counsel,” said Matthew Todd, CISO and vice president of risk and technical operations at Palo Alto, Calif.-based Financial Engines Inc. The legal counsel should tell you which functions the IT group should do in-house. Then you can start looking at tools.

It’s a good primer, but it contains a complaint I find puzzling: that the EDRM doesn’t list tools (solutions that do the tasks illustrated by the model). The reason for that, of course, is that the model was deliberately built to be technologically-neutral. Of course, coming from the IT side, where one might be completely unfamiliar with the tools of this trade, I can see where a product guide would be helpful. But that is beyond the EDRM’s scope and purpose (although in writing this, I allow myself to put words in the mouths of the model’s creators…without any authorization to do so).

FTC Unveils New ‘Red Flags’ Website

The Red Flags rule, designed to tighten data security and fight ID theft, come into force on May 1. The FTC has launched a web site designed to help businesses determine if they need to comply, and how to do so.

According to the agency’s “How-to” guide (click here for a pdf version), the Red Flags rule mandates:

• The establishment of a program that includes reasonable policies and procedures
  to identify the “red flags” of identity theft you a business may run across during its day-to-day operations.
• the Program implemented must be designed to detect the specific red flags that have been identified.
• the prorgram implemented spell out appropriate actions that will be taken red flags are detected.
• a process to re-evaluate current policies and programs
• implementation of policies into business practices.

Those institutions who must comply with the new rule include:

• Financial Institutions; and
• Creditors (entities who regularly grant or arrange loans or extend credit to consumers or businesses, or make “credit decisions.”)

The rules were initially slated to become effective on November 1, 2008, but the FTC granted businesses a six-month delay. That reprieve is now ending, however.

Doubts about Self-Regulation

Info World has posted an article casting doubt on the wisdom of using self-regulation to ensure compliance. The article highlights a story in which Macy’s has refused to provide contact information for customers who bought toy necklaces later found to contain lead. From the article:

Macy’s was one of the retailers that pulled the necklaces. But when L.A. Deputy District Attorney Daniel Wright asked for the records of customers who bought the necklaces, Macy’s refused to turn over any information. At issue is the ability to notify parents who purchased the necklaces for their children.

The article speculates that the reason for Macy’s refusal may be that the retailer is not in compliance with Payment Card Industry standards. That aside, the bottom line is that self-regulation is being given a black eye.

A study released in December of 2008 pointed out issues with respect to the EU-Dept. of Commerce Safe Harbor scheme. That study claimed that only 22% of those companies that were “self-certified” as compliant to safe harbor principles were actually compliant. The report’s basic conclusion was that the program had been ineffective.

The operational rationale behind self-regulation is undermined when we see figures such as those reported above. Information Technology’s best practices contain, as a substantial portion of its foundation, the principles embodied in active self-regulation. Recent events, from the collapse of the financial sector, to the misdeeds behind the situation facing mortgagees, illustrate the limits to self-regulation, and recall to our consciousness the maxim: trust…but verify.

Automating Science

Post Process has, in the past, posted small articles on the changes in technology that are transforming society. We pointed to the new field of computational journalism. We also put up a post discussing the “age of the petabyte,” in which we discussed the consequences of having so much data available. In that post, we highlighted a defense attorney’s use of Google analytics to more objectively examine a community’s definition of “obscenity.”

Now, from Wired, comes word that a computer (or robot, if you like) not only stores and analyzes facts, but uses the presence of the data now available to discover laws of physics on its own. That is, the discovery is made by the computer, rather than a human being:

“It’s a powerful approach,” said University of Michigan computer scientist Martha Pollack, with “the potential to apply to any type of dynamical system.” As possible fields of application, Pollack named environmental systems, weather patterns, population genetics, cosmology and oceanography. “Just about any natural science has the type of structure that would be amenable,” she said.

Compared to laws likely to govern the brain or genome, the laws of motion discovered by the program are extremely simple. But the principles of Lipson and Schmidt’s program should work at higher scales.

The researchers have already applied the program to recordings of individuals’ physiological states and their levels of metabolites, the cellular proteins that collectively run our bodies but remain, molecule by molecule, largely uncharacterized — a perfect example of data lacking a theory.

Their results are still unpublished, but “we’ve found some interesting laws already, some laws that are not known,” said Lipson. “What we’re working on now is the next step — ways in which we can try to explain these equations, correlate them with existing knowledge, try to break these things down into components for which we have clues.”

One wonders if the “automation” of scientific discoveries will now bring such a rapid pace of discovery, that we will all be left behind, hopeless swimming against an ever-stronger tide.