You must understand
That the touch of your wand
Makes my pulse react
That it's only the skill
Of breaking our will
You must try to ignore
That it means more than that
NSA: What's privacy got to do, got to do with it?
What's privacy but a second hand emotion?
What's privacy got to do, got to do with it?
Who needs a code when the code can be broken?
It may seem to you
That I'm acting confused
When you're close to me
If I tend to look dazed
I've read it someplace
I've got cause to be
There's a name for it
There's a phrase that fits
But whatever the reason
You do it to me
I've been taking on a new direction
But I have to say
I've been thinking about my own protection
It scares me to feel this way
NSA: What's privacy got to do, got to do with it?
What's privacy but a sweet old fashioned notion?
What's privacy got to do, got to do with it?
Who needs a code when the code can be broken…
The Guardian US interactive team has posted, “A Guardian guide to your metadata“; and for anyone who is still bewitched, bothered and bewildered by the concept, I urge them to take a look at this interactive demonstration.
What’s also interesting is that one of the examples they use is the Petraeus scandal, just like I did a few months ago. The reason it’s such an excellent learning tool is that individuals tend to worry about their own metadata, completely ignoring their risk of harm by others’ metadata.
Obviously, with the strange happenings at the NSA, this might be the perfect time to understand the world around us a little bit better.
Metadata: Legal and Ethical Challenges:
Avoiding Information Risks With Various File Types,
Electronic Redactions, Location-Tracking, “The Cloud” and eDiscovery.
This is a live,
90-minute CLE webinar/teleconference with interactive Q&A Thursday, May 2nd,
2013 from 1:00pm-2:30pm EDT, 10:00am-11:30am PDT.
And yes, as the subtitle suggests, this is not a 101 presentation. If you're interested in checking it out, click-through to the Strafford web site for more info; and stay tuned. I have many more of these in the pipeline.
Today's General Counsel Institute (Formerly the Executive Counsel Institute) held the San Francisco stop of their "eDiscovery for the Corporate Market" series, nicknamed "The Exchange". Prior to this, I'd only attended in Los Angeles – and only the first day – but I was on a couple of the panels this year, so attended the entire one-and-a-half-day event. The moderators for this location were Browning Marean III, Robert Brownstone and David Kessler.
This format is still working for me, folks. The roundtable approach and ability for all attendees to participate is simply a great way to info-share, and as I've mentioned in prior summaries, the vendor attendees do not overpower the conference with blatant pitches.
Most importantly, I learn something new every single time I attend; and that's the point, isn't it? Let me share with you the sessions that were covered this year:
- Polling the audience (Pain points, role, expected outcomes)
- Data security, social media and the cloud (with a healthy portion of BYOD included)
- Dealing with challenges of legal holds
- Recognize/reconcile the ethical and contractual tensions that can arise between I/C, O/C and providers
- Importance of day-to-day processes, management skills, swimming upstream, info management and governance
- Effective and efficient project management
- Recalibrating the program – unaddressed issues
- Resources and tools
- Search technologies and forward thinking
And most importantly, several coffee breaks…
Every flavor of eDiscovery professional is represented at these conferences, from lawyers to techies to support staff; and each brings to the (round)table their real-world perspective of what they see on a daily basis. Practical information, not theory!
I encourage you to check it out the next time the conference is in your area.
Last week, I attended day one of the Executive Counsel Exchange in Los Angeles, as has been my custom the past three years. Just to clarify, this conference is sometimes referred to as the Executive Counsel 'Institute', but the actual program is called, "The Exchange" and the theme is, "e-Discovery
for the Corporate Market".
This year, the primary moderators were Browning Marean III of DLA Piper, my old pal Robert Brownstone of Fenwick & West and David Kessler of Fulbright & Jaworski. This is one of my favorite programs because it's a roundtable.
The reason this particular conference is so beneficial is that attendees share their day-to-day experiences confronting the many eDiscovery challenges we know so well. I've always considered the practical much more important than the theoretical – mostly because people, situations and budgets don't tend to comport to the (IMHO) wishful thinking that appears in many overly-optimistic project plans.
Take a look at the agenda. If these look like the kinds of issues you see, think about attending. The next event will be held in late March in San Francisco.
That said, I’ve certainly been following the messy Patreaus developments, becoming more and more interested in the Gmail connection to all of it. None of the initial stories answered my question; if a woman was allegedly being harassed by Paula Broadwell, why did they need to monitor her (Broadwell’s) Gmail account, since the victim would be the recipient of all of the emails, and have them in her possession? It suggested to me – and probably to some of you – that the harassing emails were probably being sent anonymously and had to be traced back to the source to specifically identify who was behind them (Broadwell).
This morning, we received confirmation. Naturally, the situation is going from bad to worse faster than you can say, “October surprise”, but for our purposes, the interesting link is the metadata (specifically rich location-data) gleaned from the victim’s inbox, which provided the trail back to Broadwell by linking her physical whereabouts to the devices that were the sources of the emails; which ultimately led back to Petraeus through clandestine emails in Broadwell’s – not his – inbox.
Got all that? Good. And what are the things that bother me (I refuse to utter the oft-annoying “raises questions”)?
- What in the world is the Director of the CIA doing with a Gmail account?
- If any of these messages were sent via mobile technology, why didn’t the sender disable GPS monitoring (recall my recent post about location-privacy)?
- Apparently some of the correspondences between Broadwell and Petraeus were pretty racy. Did they really think it would remain private?
Considering both Petraeus and Broadwell apparently set up anonymous Gmail accounts specifically to facilitate carrying on their affair, it once again calls into question the very knowledge, training – and self-awareness – of those who we charge to protect this country and its secrets.
Simply put, if even Petraeus doesn’t get it, who the he** does???
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"…
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…
Nothing like a Friday afternoon to examine six volumes of law & technology statistics from the ABA. I was somewhat amused when I accessed their page and discovered that they’d received an endorsement – from yours truly. Somebody apparently liked something I said about last year’s survey and quoted me.
The ABA provided me with some excerpts, so I reviewed them and picked out a few that I thought would be of interest.
percent of survey respondents report the availability of e-book readers at
their firms. Solo respondents are most likely to report their availability
(16%), while large firm respondents are least likely (4%).
WINDOWS 7 vs. VISTA
Usage of newly released Windows 7 (9%) has
already surpassed that of Vista (8%, compared with 9% in 2009 and 4% in 2008)
as the second most frequently reported operating system on respondents’ primary
Metadata removal software is available at 59% of
respondents’ firms, up from 46% in the 2009 survey. Large firm respondents
report the highest availability (92%, up from 86% in the 2009 survey), followed
by respondents from firms of 10-49 attorneys (64%, up from 51% in the 2009
survey). This increase in availability in metadata removal software is likely
due to the numerous ethics opinions addressing sender’s responsibility
regarding metadata exposure.
When asked whether they have a virtual law
office/virtual law practice (i.e., do not typically meet with clients in
person, and primarily interact with clients using Internet-based software and
other electronic communications software), fourteen percent of respondents
responded affirmatively. Of counsel and solo respondents were most likely to
report having a virtual law office/virtual law practice (27% and 19%
When asked whether they personally maintain a
presence in an online community/social network such as Facebook, LinkedIn,
LawLink, or Legal OnRamp, overall, 56% of respondents answered affirmatively,
compared with 43% in the 2009 survey and 15% in the 2008 survey.
WESTLAW vs. LEXISNEXIS
Eighty percent of respondents (compared with 88%
in 2009) report using fee-based online resources to conduct legal research.
Fifty-four percent of respondents report using Westlaw most often (compared
with 61% in the 2009 survey), followed by LexisNexis (32%, compared with 28% in 2009).