Category Archives: Technology

Admissibility, Cases of Interest, Constitution, Criminal Liability, Sanctions, Spoliation, Technology

Case Got Your Tongue? Interceptors, Drug Problems, Home Sweet Home & the Raspberry

J0321090 Ok…so I was gone a little longer than intended…let's get down to business.  We have four cases to examine this month.

United States v. Comprehensive Drug Testing,
Inc., 2009 WL 2605378 (Cal. App. 9 Dist. Aug. 26, 2009).

This is an extremely important fourth amendment case that arises out of the Major League Baseball steroid investigation.  The California 9th Circuit has established new guidelines for the search and seizure of ESI.  A must-read, in my opinion.

In re Weekley Homes, L.P., 2009 Tex. LEXIS 630 (Tex. 2009).

This is a very good case out of Texas regarding an overly broad request for ESI.  The court likened computer data to that held in file cabinets and reasoned (I think eloquently) that it is highly intrusive to expect easy access to employees' ESI when these employees are indirectly-relevant to the litigation at hand.  The court stated that the least intrusive means necessary should always be utilized.

Se. Mech. Servs., Inc. v. Brody, 2009 WL 2883057 (M.D. Fla. Aug. 31, 2009).

There have been a series of decisions from this case and I'm numbering this one "Brody IV".  As you know, I've avoided most sanction cases, however, this one resulted in an adverse inference by the court due to the defendant's intentional and deliberate wiping of BlackBerry data.  We all had to know a case like this was coming…

Gurevich v. Gurevich, 2009 N.Y. Misc. LEXIS 1045 (N.Y. Sup. Ct. 2009).

This case should send shivers down your spine, due to its greater implications regarding privacy and were it to ever be applied more broadly, such as in a business environment.

Wife used husbands password to access his email and found incriminating information to use in their divorce proceedings.  I'll let you decide for yourself what you think of the court's opinion.

Backup & Recovery Systems, Disaster Recovery, Technology

Cloud BURST!

1 Comment

J0438348 The lead paragraph from this Washington Post article says it all:

"A server meltdown over the weekend wiped out the master copies of
personal data — including address books, calendars, to-do lists and
photos — accumulated by users of T-Mobile's formerly popular Sidekick smartphone."

It's a little out of our element, but I touched briefly on the risks of cloud computing back in April.  Well, T-Mobile users are getting a front-row seat to what happens when those entrusted with your data don't endeavor to properly protect it.  And this isn't just any old vendor – this is Microsoft subsidiary Danger, Inc.

There isn't really much to add, except that had this happened to one of my clients under my watch, I would have been fired!

eMail, Media, Metadata, Technology

N-B-C…(See Ya Real Soon…). A-L-G…

MM …gee, ya think maybe you overplayed your hand?  It wouldn’t be fair for me to make a prediction about the NBC/ALG spat without returning to tell you how it’s progressing so far (of course, had it not gone the way I expected, I probably wouldn’t return to tell you how it’s progressing so far).

As you’ll recall, I predicted that NBC’s version of the email message was probably the legitimate one, based on the behavior of the parties.  Since then, ALG has claimed to have a voice mail message of the offending NBC employee that bolsters their version of events.

Did ALG release the message headers of the email?  No.  Did they release the voice mail message?  No.  Do they plan to release either?  No.

Here are two posts on the subject; the first from Politico.com and the second from Scott W. Graves.  What do you think?

This event is a product of society’s attitude, “If it comports to my point of view, I accept it as gospel truth without vetting it.”  For the attorneys out there, I channel Ronald Reagan; “Trust, but verify.”

 

Miscellaneous, Technology

Inflation Takes its Toll (Resume, That is…)

J0387277 As I mentioned in an earlier post, I'm not going to have an article in the November issue of California Lawyer magazine.  However, my next article (which I believe will publish in December) will be about how we leave an electronic trail behind when we manipulate electronic data.

I'm sure you've read about people inflating their resumes, then getting caught, but have you ever thought about prior versions of your resume that are floating around the Internet?  This article at The Recorder points out what happens when a snoopy potential employer searches for – and finds – those old versions.

A program like Wayback Machine, which I posted about this past January, is the type of software that would be integral in a search like this.

What about headhunters?  Any of you had the experience where a headhunter wants you to "polish" your resume to make it more appealing (what they really mean is, "embellish").  Worse, what if they decide to polish it for you (which, to my embarrassment, has happened to me a couple of times).

Resumes may look deceiving even when they're legitimate.  For example, as a consultant, I've worked for more than one client simultaneously.  In a couple of cases, I've worked for the same company as both an employee and a consultant.  Do I list one range of employment dates?  Two?  Do I list those periods as self-employed for Charon Solutions (true) or should I list the actual companies (also true)?

I think you can see the conundrum.  If I broke it out specifically, my resume would be a longer read than War and Peace!  And that begs the other question; in this short-attention-span and time-constrained world in which we live, who will take the time to read it?

Hint: if you didn't make it to this final sentence, you won't be one of those people…

eMail, Media, Metadata, Technology

Somebody’s Gonna be in Trou-ble!!!

J0442223“This one is a little quirky because, based on my research, I’m somewhat uncomfortable with the plaintiff, however, it does well to illustrate
how a case can become a P.R. nightmare even before the defendant files an answer.”

That’s a quote from my September 4th post about the Toyota case.  This time it’s not a ‘case’ and the parties are NBC and ALG, but the P.R. nightmare is at hand.

We have two entities arguing over the true content of an email message.  ALG claims the message they received from NBC contains a racial slur while NBC denies it.  There’s no doubt that only one of the versions can be correct.  Regardless of the posturing going on, it’s simple; the message headers and metadata will easily establish whose telling the truth.

If I were a betting man, I’d suspect NBC’s version of the email is correct.  Why?  Because NBC is being quite forceful and citing a forensic examination.  What is ALG doing?  Claiming the message is on an office computer and they can’t get to it to provide message headers until Monday.

This is a classic example of the type of posturing you might see in a real case (in fact, I have seen it), and when it’s revealed which party is lying, somebody’s gonna be in trou-ble!  If it turns out ALG is the culprit, they will have already scored a P.R. hit by claiming that they – a right-wing group – have been slighted by NBC (also known as ‘the devil’ to their followers).  The debate will continue on in cyberspace long after the truth comes out.

My hint?  I’d never heard of ALG and I suspect neither had most people until now.  Remember the adage, “No press is bad press”…

Technology, Tips & Tricks

Tips & Tricks: snitch.name

J0408911 I've finally got definitive proof.  Santa Claus is a fake!  You ain't gettin' that Maserati for Xmas!

When I speak to litigators, many of them tell me that as part of vetting a claim, a web search on the background of the principal is now standard practice.  And I don't just mean the potential adversary; they search on their potential client as well.

If you're going to perform a search anyway, you might as well do it in as few keystrokes as possible.  Obviously you'll use a search engine like Google, but the reason a "scouring" program like snitch.name is helpful is, not only does it allow you to select multiple platforms to search, when it finds results, it produces them in graphic format on a single page.

It's an excellent companion to standard search.

Miscellaneous, Technology

Facebook Trifecta: “Serious Privacy Gaps”

J0409717 What the heck.  I already have two Facebook posts…might as well add a third…

Canada's Privacy Commissioner says Facebook isn't doing enough to protect the privacy of their subscribers.  I'm posting this for two reasons; 1) I get a lot of international readers and 2) how Facebook operates in Canada is substantially similar to how it operates in the United States.

More than one in three Canadians has a Facebook account…amazing…

Judges, Miscellaneous, Technology

Facebook + Judge = Trouble for Lawyers!

J0436407 Ok…looks like it's time for me to post another reminder about attorneys who use social networks.  In this hilarious article from the ABA Journal (hilarious to me, anyway), judge Susan Criss tells how attorneys who are her Facebook friends lie to her in court but post the truth on Facebook.

Really?  Your father died?  What's next?  My dog ate my motion???

Don't make me come over there…