Category Archives: e-Evidence Insights

e-Evidence Insights: The Manchurian Blawgger

MP900439375 I've just been informed – by someone who I refuse to reveal – that Donald Trump has dispatched a team of private detectives to California to examine my birth records.  Worse, I'm told he can't believe what he's finding!  So, even I know when the jig is up.  It's time for me to come clean.  I'm a Canadian-based plant, sent here to infiltrate your society.  The election going on up North yesterday?  I did that (I also pre-determined the outcome).  You're a fan of bacon, maple syrup and you say 'eh?' a little too much?  It's not Vermont – and you're not hard of hearing.  It's me. 

I know I've told you I'm an American citizen, but how can that be possible under the following facts?

  1. I was born in Northern California.
  2. Both, not just one, of my parents is/was a citizen of Canada and neither is/was a dual-citizen.
  3. The first three digits of my social security number were issued from a state in which I've neither set foot, nor ever had a mailing address.
  4. Furthermore, I wasn't even living in the United States when I legally-procured my social security number.
  5. I didn't have a copy of my birth certificate, so I wrote to the State of California to request one – and was sent a short-form "Certified Abstract of Birth", which I then used to request my social security number.
  6. No religion or hospital information is listed on the short-form.

Yet, these are the additional facts:  I am an American citizen.  I have a valid social security number.  And – what makes my mother most proud – I can be President of the United States; notwithstanding the pesky requirement that I must somehow convince people to vote for me.

Why do I bring this up?  Because the juror at your next trial might be a birther or a truther.  And before anybody takes offense, I'm using those terms in their broad sense; just as many people were willing to believe that George W. Bush had advance knowledge of the 9/11 attacks.  Quite an interesting time to be discussing it with the recent death of bin Laden.

This is a mindset; conclusion-based thinking.  Like it or not, pre-conceived bias affects judgment.  "I've decided what I want to believe, now I'll allow in all facts in support of that belief while filtering out all those that oppose it".

Do you think that might be why, in a jury trial, attorneys concentrate on demonizing an opponent through hearsay and innuendo?  Oh sure, the opposition objects, but once the jury has heard it, it's too late.  They're already deciding whether it's plausible.  The attorney knows that if he or she succeeds, they've accomplished the following goal:

Filter / On

At least that's what somebody told me…

e-Evidence Insights: Tattoo You

MP900442430 I'd have to twist myself like a pretzel to try to make this post about e-discovery per se.  It's more about the advice I've given before regarding thinking creatively about where evidence might be hiding – and in what form it might be hiding.  In this case, it was hiding in plain sight.

Perhaps the only thing remotely electronic about the evidence at issue is a photograph in a mug book.  Tracking suspects through their tattoos is nothing new, however, this is the only time I've ever heard of an alert detective catching a criminal because the very crime scene is detailed on his chest.

Talk about 'body' of evidence…

v-Discovery Insights: Everything ‘Pops’ with Pringles – Just ask the FBI…

Pop: (verb – transitive): slang.  To Arrest, e.g. "Johnny got popped selling heroin."

Courtesy of, this video illustrates beautifully (if you can call it that in this context) how easily one may hack into your router – and the amount of trouble you may get into as a result.  This is what cyber-crime really looks like.  Do you want to bank on a competent law-enforcement technician believing your explanation, then doing the legwork necessary to establish that you're not a child-pornographer?

Remember when I said I was going to start posting videos on this blog?  Yeah, me either…it was that long ago that I said it, but obviously haven't done it.  Well, I'm going to do it, but in the meantime, I've been sitting on "v-Discovery Insights", which I was diligently saving for the occasion.  I've decided it would be good to use with all of my posted videos – whether they're mine or not – so that you can select them as a category.  So, there you go.  From now on, all videos posted here will have that tag.

Now comes the hard part – deciding whether I want to go back through 325 posts and tag the prior ones!

Minority Report: Brandenburg, PreCrime and e-Discovery

I’m not sure whether I can write about the shooting of a Congresswoman and nineteen others apolitically; but I’ll make an attempt to do so. Like most of you, I’ve followed the progression of the case, noting various profiles of the gunman that emerged – and the scramble of politicians to exploit one position or another for political gain. What struck me most was the public – and very prolific – profile of the gunman that has emerged. Usually, we’re dealing with a crime or civil wrong, then we go about the business of accumulating evidence after the fact. However, in this case, there was ample evidence that this person was someone who authorities should have been aware of – or have been made aware of by those who crossed paths with him. There’s just one problem:

We don’t arrest people for crimes they haven’t committed, yet.

But what can – and should – we as a society do in these situations, especially when we have the evidence? I’m not saying this tragedy could have been prevented, but at least this person should have been on a few more radar screens.

Now, as to the politicization of the event, I defer to the 1st Amendment of the Constitution. Rhetoric certainly may rise to the level of incitement. But we have the Brandenburg standard and I see a phrase missing from many of the discussions; “imminent lawless action”. Is Sarah Palin’s 'crosshair' map in the news because it’s relevant or because it pulls more eyeballs and sells more newspapers?

If I were still in law school, I suspect a professor would have posed that question. There is no honest assessment without proper context.

e-Evidence Insights: ABC’s Primetime Crime: Inside the Interrogation Room

MP900448352 Many people have absolutely no idea what would happen to them if they were arrested.  In fact, it would shock them if they knew what the police are allowed to do versus what they think the police are prohibited from doing.

Television has conditioned the average person to think like this:

  1. The police 'invite' me down to the station for a chat
  2. I speak to them without an attorney present
  3. I go home

Or, maybe something like this:

  1. They arrest me
  2. They read me my Miranda rights
  3. I ask for an attorney

If only it were that simple.  If you have any interest in seeing an example of how things really might work, watch this 41-minute video from ABC's Primetime Crime (or read the article if you prefer).  I found it to be an excellent – and accurate – portrayal of interrogation tactics.

Hey – I'm not asking you for a lot of heavy lifting at the start of the Labor Day weekend!  Besides, forewarned is forearmed.  Please be safe – and if you're traveling, don't put this post into practice by getting snagged for a DUI.

e-Evidence Insights: Paris Las Vegas

MP900433045 I'm making this another category.  First of all, let me tell you that personally, I found evidence – whether civil or criminal – to be one of the most fascinating subjects in law school.  It was also one of the most complex.  As much as I wanted to get my JD and become an attorney, the problem was that I was in my 40s by the time I took evidence class.  That means, I'd had 40 years to think like a layman; re-programming to think like a lawyer was no mean feat.

But, as eDiscovery professionals, I can't think of anything more important to our clients than how we handle evidence.  It's the basis of everything we do, and not just the collection and processing of it.  There's chain-of-custody, authentication, contamination, etc.  I'm not just referring to physically handling the stuff, I'm referring to how the appropriate professionals should have in their mind a methodology for handling it even before it exists.  One false move and this opens the door to impeachment.

So, it is with great fanfare that I reveal that Paris Hilton has finally made it; to this blog, that is!  Why?  Because of how, as a layman, she handled her arrest for cocaine possession.  Not since OJ Simpson and his "ugly-ass" Bruno Magli shoes has someone – figuratively, this time – put their foot so firmly in their mouth; and in doing so, provided us with another outstanding example of how a bunch of seemingly-unrelated statements, photos and social networking posts may ultimately do her in.

Paris claimed – initially – that the Chanel purse wasn't hers.  What contrary evidence is out there?  Her Twitter post with a snapshot of the identical Chanel purse, exclaiming how happy she is with "my" new purse.  Does this definitively prove it's the same purse?  No; when it comes to criminal proceedings, nothing is that simple – nor should it be when someone's liberty is at stake.  However, if she's convicted, Twitter, TMZ and Radar Online may deserve the lion's
share of the credit.

[This story changes by the minute, but the latest appears to be that Paris now admits it was her purse, but the coke wasn't.  Oy…]

Don't ever tell me that "all publicity is good publicity" and expect me to agree with you…I defer to Miranda and the 5th Amendment.  I – and I suspect Ms. Hilton's criminal defense attorney – wish people would exercise their right to silence more often…

e-Evidence Insights: A Lesson in Context

MP910216452 I've repeated over & over the dangers of improper electronic communications and how they can come back to bite you.  But this article from the latest edition of Inside Counsel does an outstanding job of illustrating how your – seemingly innocent – words may be used against you in a dispute.

If you don't yet have a corporate policy, portions of the article may be an excellent jumping-off point.  Do I think the goal is somewhat utopian?  Yes, since realistically it would be next to impossible to control the social behavior of everybody under your umbrella.  But that doesn't mean a policy shouldn't be crafted and properly promoted in the employee handbook.

There's nothing wrong with a good-faith attempt; especially where ESI is concerned.  Perhaps if more people are made to understand the consequences of their actions (most do not imagine sitting in a courtroom answering questions to be one of them), they'll think twice before sending.