Category Archives: e-Evidence Insights

Admissibility, e-Evidence Insights, Strategy

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…

Admissibility, Cases of Interest, Criminal Liability, e-Evidence Insights

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…

Admissibility, Cases of Interest, e-Evidence Insights, eMail, Metadata

e-Evidence Insights: 50% Zuckerberg + 50% Ceglia = 100% Speculation

MP910221032 What we think is not the same as what we know.  I've been following the, "I own 50% of Facebook" lawsuit, but I admit, until I drilled down into the minutia, all I knew for a fact was, Plaintiff had refiled the case and included some damning email messages, and Defendant stated the emails are fake.  Since the suit prominently features ESI, I wanted to better understand the issues.

No doubt about it, this is a true eDiscovery whodunit.  I read a few articles and this is what I've learned.  Ceglia claims he owns 50% (or more) of Facebook.  Facebook claims he doesn't.  That's right.  That's all I know.  I certainly read some fascinating excerpts, though.

However, I can point you to article after article that purports to know more, but doesn't.  Don't get me wrong; unless one is writing a factual piece, there's no journalistic requirement to state only facts.  I actually learned a lot of valuable factual information from the linked article (notwithstanding the reputation of the author).  The problem – for me, anyway – is that law and speculation don't mix.  And opinion?  Expert opinion?

If this case goes to trial, Plaintiff will likely produce at least one expert who claims the ESI in question is genuine.  Defendant will likely produce at least one expert who claims the ESI in question is fraudulent.  Or perhaps experts on both sides can't conclude either way, due to the amount of time that has passed since the emails were exchanged.  Who decides?  Will it become a question of fact for the jury?

I sure would like to give you my answer, but the entire previous paragraph was pure speculation.  As soon as I used the word, "If"…

e-Evidence Insights, Metadata, Sanctions, Scope, Spoliation, Strategy, Technology

e-Evidence Insights: There’s a ‘Party’, but Nobody Came

MP900448558 There's a dispute.  There are parties.  There are third-parties.  There are relevant non-parties.  There's discovery.  There's e-Discovery.  There are requests for admissions.  There are interrogatories.  There are witnesses.  There are depositions.  There are responses and 'non-responses'.  Rinse.  Repeat.  Fast-forward: The RFAs have been answered (or not), the Rogs have been addressed (or not), depositions are complete (or not), discovery is closing…and your client is telling you (or you suspect) that your adversary, et al, has not disclosed all of the relevant information.

I'm not talking about the usual gamesmanship (and I shudder to refer to it as such) that occurs in heavy litigation.  There's always a certain 'cat & mouse' feel to the process, for want of a better term.  I'm also not talking about the more obvious example; when the client says something like, "This email from Tom?  I'm sure this isn't the entire thread.  Some of the conversation is missing."  That is something the client knows.  I'm talking about something that can't be taught, but is more instinctual.

Sometimes, things just don't add up.  The evidence is telling you that you're not getting the whole story.  Maybe you caught a tiny phrase in a depo that contradicted something you thought you'd seen in a document.  Maybe a witness referred to something in the wrong tense, which suggests to you that an incident occurred earlier or later than what was originally claimed.  Maybe you just look at the overall litigation puzzle and a piece is missing.  Maybe – and here's where it gets really tricky – something just doesn't feel right.  Now what!?!?!?

Remember when I said, "Know what you don't know?"

The problem is, attorneys are not allowed to go on 'fishing expeditions'.  A suspicion that evidence has been withheld isn't a reasonable basis to support a demand for more evidence.  So, what do you do?  Well, for starters, you can ask yourself if there are any other independent sources available (keeping in mind a subpoena may be required) where you might search.  After all, you may find the answer through the same documents you received as part of the litigation process.  Why?  Because perhaps what didn't feel right was that the documents you received were, 1) too new, too old or the wrong version, 2) altered in some way, 3) out of order or have pages added or missing, etc.

You'd be amazed what a simple internet search turns up…

Remember; what you discover independently may be the smoking-gun that forms the reasonable basis to go back at a party.

Sanctions, anyone?  How do you think people are caught?

You've seen a lot of discussion about electronic documents in native format?  Well, this is one – among plenty of other reasons – why you would want to receive them that way.  However, while the metadata will hopefully tell you what you need to know, it might not.  You may have a document that matches up properly with its metadata, but how is this going to guide you if you've been given the 'wrong' document – or no document at all?

I could go on and on at length, but the problem is, if you're in this position, you don't necessarily know what you're looking for; you just know something isn't right.  So, you have to trust your instincts and act on them – subject to the buy-in and resources of your client, of course.  Following your instincts isn't necessarily a cheap undertaking.

Ronald Reagan said, "Trust, but verify."  Bill Maher said, "Be more cynical."  I agree with both.  After all, you'll tell me the truth, but you'll probably disappoint me…

Criminal Liability, e-Evidence Insights, Education, Security, Technology, vDiscovery Insights

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 MSNBC.com, 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!

Constitution, Criminal Liability, e-Evidence Insights, eMail

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.

Admissibility, Constitution, Criminal Liability, e-Evidence Insights, Education, Strategy

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.

Cases of Interest, Constitution, Criminal Liability, e-Evidence Insights

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…

Admissibility, e-Evidence Insights, eMail

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.