Category Archives: Technology

Facebook – Growing Pains or Pains Growing?

Masai Mara National Reserve, Kenya --- Mother and Baby Elephant --- Image by © Royalty-Free/Corbis

I’m posting this New York Times article about Facebook because it takes more of an in-depth look at why the service exists.

I’m sure some would respond, “to allow people to communicate with each other”, but is that really the answer?

For me, the most telling statistic is in the first paragraph; 100 million members as of August, 2008 and now the 200 millionth member is imminent.  That’s some exponential growth!

Yet, none of them pays a dime.

Jurors take the Law, PDAs – and e-Discovery – into their Own Hands

j0314263 Coming soon to a courtroom near you; sequestering with no access to electronic devices, and all movement and correspondence monitored – for the entirety of every trial.  Got any better ideas?

On the heels of my post late last week about “Juror Jonathan“, comes the following story from the New York Times about jurors ignoring their judges’ admonishments and conducting their own online research during trials.

Courts have always operated on the honor system when it comes to non-sequestered juries.  We hold out hope that when a judge issues jury instructions, they will be taken seriously and followed to the letter of the law.  Unfortunately, we also know that individuals violate these rules all of the time.  Sometimes they’re caught – sometimes not.

Now, virtually every PDA comes equipped with the ability to access the internet, so jurors can conveniently misbehave on their breaks!  If our system of jurisprudence can’t get a handle on how to control juror misconduct, here’s the next place they’ll be getting a ‘handle’ on them:

ca. 2002 --- Motel Room Toilet --- Image by © Royalty-Free/Corbis


“Juror Jonathan” Gives Proceedings the ‘Bird’

This 29-year-old juror in Arkansas obviously didn’t read my post yesterday.  He sent ‘tweets’ during a trial in which his jury awarded two Plaintiffs $12.6 million.

When I said evidence can be used for purposes most people don’t think about, this is exactly what I meant.  In this case, the Defendant is making an argument of bias on the juror’s part as a basis for a motion seeking a new trial.

Actually, they raise a fascinating question of law (for people like me, anyway):

“Arkansas law requires defendants to prove that outside information
entered the jury room and corrupted a verdict — not that information
from the jury room made its way out.”

But does it really matter whether the motion is granted or denied?  Look at the mess this juror has caused; in time, cost and possible (although unlikely) reversal.

Let’s face it – “Juror Jonathan” is out of his tree.

Observations on Off-Site, On-Site, Outsourcing & Ownership

j0438776Seems to me there are a lot of companies selling data & e-discovery services with the attitude of, “Place your data responsibilities with us, then sleep well at night”.  Hardware and software are offered in-house, SaaS, appliance, off-site…anything you want can be provided.

My personal opinion; before you start relinquishing responsibility to others, keep one thing in mind – it won’t matter.  You’ll ultimately be responsible in the eyes of the law.

I blogged about this before in my ‘Hot Potato‘ post, among others.  The instinctive thing to do – especially with the added complexity of the e-discovery rules hanging over you – is to contract out and make it someone else’s problem.  Heck, I get that.  I’m a Contractor!  Only thing is, in this case…it won’t work.  Good-faith won’t be enough.

I’m not living in a fantasy world.  Some companies have so much data – including ones I’ve consulted with – it would be virtually impossible to manage in-house.  If I said “Don’t do it!” I would expect you to laugh me out of the room (which would be difficult, since none of you know where my ‘room’ is, exactly).  All I’m suggesting is, before you consider outsourcing data management; whether it be on-site, off-site or a combination of both – or even if you’ve already done so – think about all the risks, especially in these difficult economic times.  Do you have a contingency plan in place?

These are the items I’d be including in a checklist (order of preference is up to you):

Hold on a second.  Let’s begin by answering a fundamental question.  Who will manage this?  You?  The Vendor?

Rural Road from a Car

I know.  Some of you are asking what that means?  After all, regardless of how you proceed, somebody representing the company will be responsible for managing this or serving as liaison, right?  Yes and no.

If you don’t know your ‘stuff’, then aside from serving as liaison, you’ve relinquished your ability to make decisions in the best interests of the company.  Essentially, the Vendor will be advising you, and their interests may conflict with yours – especially if litigation arises.  In the alternative scenario, if you’ve educated yourself – or have hired a knowledgeable representative in-house – you’ll be advising them.

Think this is a distinction without a difference?  Take a look at my checklist and see what you think:

  1. Does the Vendor handle backup, restore, disaster-recovery and/or e-discovery services?
  2. Are all of their products integrated?  (Many Vendors acquired other Vendors to stake a presence in the e-discovery field; it doesn’t mean their products integrate well).
  3. What if the Vendor goes bankrupt?
  4. How will the Vendor respond if/when they’re served with a subpoena as a 3rd-party?
  5. Does the Vendor have their own legal representation?
  6. Who will be responsible for managing the retrieval of data?
  7. How quickly can/will the Vendor respond to a request?
  8. Does the Vendor subcontract any services?
  9. Will an additional Vendor be needed for e-discovery if the 1st Vendor doesn’t have that capability?  Do they already have a secondary Vendor in place?
  10. As we expand – including to other countries/continents – how will the Vendor handle it?

I realize this is a ‘macro’ view.  The list above should open up several more questions, such as how are they backing up your backups?

I would think it would be very important to instruct the Vendor about what you expect, rather than rely on the Vendor to tell you what they’re going to do for you.  There’s no room for ambiguity where e-discovery in concerned.

Alliteration always assists attorneys acting as authors…

Two-Face(d)book: Who Owns your Content ‘Today’?

An globe of the Earth sits perilously on a steel-jaw trapThe latest is a flap between Facebook and their users over who owns the content of their pages.  Facebook quietly modified their Terms of Use policy to state that they own your content.  That didn’t go over well with their user community.  Thousands closed their accounts and others actually prepared to sue over the change.  Then, shock-of-all-shocks, Facebook backed down.

It seems to me this is standard practice lately; quietly modify agreements, then wait to see if anyone notices.  People noticed.  But before you crack open the champagne, two important things to consider:

  • Facebook left wiggle room as to what they’ll do in the future.  To quote from the WSJ article above:

“Because of the feedback we received, we have decided to return to our previous Terms of Use while we resolve the issues that people have
.”  (Italics added)

Resolve ‘what’, exactly?

  • This issue is entirely beside the point because to me, it isn’t about who owns the content, it’s about who has access to it.

Every day that your information is up on Facebook, it may be available to everybody, everywhere.  Maybe you should swap that champagne for tranquilizers…

Tips & Tricks: Internet Archive: Wayback Machine

I’m starting a new ‘Tips & Tricks‘ category today.
Whenever I come across a resource that I think will be useful to my readers, I’ll post it.

WabacFirst things first…many of you will recognize Mr. Peabody and His Boy Sherman, who were part of the Rocky & Bullwinkle Show.

Mr. Peabody was the purveyor of the original ‘WABAC Machine’, which made it possible for he and Sherman to go back in time and visit the past.

Now, Internet Archive has the ‘Wayback Machine‘, which makes it possible for us to do the same.

To put it in their own words, the Wayback Machine allows us to “browse through 85 billion web pages archived from 1996 to a few months ago”.

This has enormous value to those of us who do forensic e-discovery.  Give it a try and I think you’ll agree.


Obama’s CrackBerry Addiction: e-Discovery Intervention?

To My Readers:  No matter what your political leanings may be, today is an example of what’s great about the United States; the peaceful, seamless transfer of power.  So, in honor of the inauguration, I felt it appropriate to jot down some observances I’ve made lately regarding the Presidency, e-evidence, privilege…and why I think they’ve got it all wrong…

Businessman Using a Palm Pilot

e-Discovery Insights:  Keep this on the down-low.  I have it on good authority that Barack Obama’s going to be in the nation’s capitol on Tuesday.  Let’s all plan to get him in a room and confront him on this whole ‘BlackBerry‘ problem.

Readers:  What’s the big deal?  He’s a thoughtful guy.  He’s responsible.  He can control himself.  Why are all of these lawyers making such a big deal out of this?

e-Discovery Insights:  Because PDAs are subject to subpoena, that’s why.

What’s the difference between your PDA and Obama’s BlackBerry?  Absolutely nothing.  You have the same exposure he does!  At least he might be able to invoke Executive Privilege in certain circumstances; meanwhile, you’ll be hoping for ‘run-of-the-mill’ privilege.

Now comes word the White House staff has been told they may not use instant messaging (IM).  Check out this quote – contained in the above link – from Reginald Brown, a former associate White House counsel for President Bush:

“These lawyers — [incoming White House Counsel] Greg Craig in
particular — come out of a law firm environment and knows how onerous
e-discovery has been for clients
,” (italics/bold added).

I’m feeling sooooooooo cool with my career choices right now…

j0438808Seriously though, I’m actually disappointed.  In my opinion, this is exactly the opposite of the approach I would like to see them take.  Why?

Because technology is HERE, it’s not going away, and it’s time we started accepting that fact and adapting to it rather than restricting it.  This administration may prevent their aides from using IM, but someday, it’s going to be used.  Wouldn’t the better way be to educate the staff, put some trust in them, implement policy and let them use the tools that exist solely to make communication easier?

Preposterous?  Inconceivable?  Impossible?  Unattainable?

I’ll ponder that while I watch the swearing-in of the first African-American President of the United States of America.

e-Discovery Resolutions: Technology

Best wishes for a safe, healthy and prosperous 2009!

j0438855I took a few days off, but found myself pondering what a list of New Year’s resolutions for e-discovery professionals might look like.  I tried to make a single list, but as I compiled it I realized that bifurcating it and creating two separate posts – one for law, one for technology – would work better.  How did I decide who went first?  Well, I carefully reviewed the data, factored in the importance of each item, took into account the ego issues that would arise…

…I flipped a coin…Technology won…


Yes, yes, I know; never end a sentence with a preposition.  In my defense, I don’t think that’s really a sentence.  If you insist, I’m just going to have to pull a “Winston Churchill” on you (See #1)…

Let’s face it, you’re running around with a ton of things to do, so nobody actually sits down and draws a map of the enterprise.  And if you’re one of the lucky ones who actually has a map, is anyone keeping it up to date?  (What do you mean I can’t start a sentence with and‘?  See #3)…  I can’t tell you how many times I’ve been hired into an operation, asked for a data map and received one that’s two years old (Never use ‘I’ in business writing?  See #2).


What encompasses ESI at your enterprise?  Where is it?  Do you have access to it?  What if it’s on someone’s personal equipment?  What if it’s on the ‘web’?  This is a good time to think about all of the places ESI may reside.  Remember, you’re not just answering subpoenas here, you’re also looking for exculpatory information.  The blade cuts both ways.


This is no time to be fooling around.  You do not want to be caught without policies in place when litigation arises.  You won’t be able to put the genie back in the bottle, so get together and create sensible company policy, implement it and make sure everyone knows what their role is (don’t make me cite #1 again…).


Regarding resolution #3…hey, I didn’t say it would be easy, did I?  Depending on the ‘buy-in’ at your firm, you may meet a lot of resistance.  People don’t like to change their habits.  This is why you have to create policies that make sense, sell them to management, then make sure management stands behind you.  Otherwise, this will fail.


Everybody has a job to do.  Yes, unless the attorneys have some experience with technology, they may think everything can be produced “yesterday”.  They don’t know about your budget issues, your workload or the limitations of your existing technology.  Your job is to make them understand what you can – and can’t – do, and set reasonable deliverables.  Remember, their licenses are on the line.

What is Electronic Evidence? Answer: A lot more than you might Think!

Part I of a two-part series.  Part II will appear 12/04/08.


A cardinal rule, known to law students everywhere, was broken.  “When on a break from the bar exam, don’t discuss a specific part of it with anyone – and if you absolutely must, ask permission first!”  The reasoning behind this rule; to prevent students from freaking out because inevitably the other student will point out something they themselves missed, thus setting off a chain reaction of worry, panic and distraction.

There I was, on a break from the California Bar Exam, and another student really wanted to discuss the evidence question with me.  We had a pleasant conversation – as pleasant as it could be between two stressed-out bar candidates in the middle of a three-day exam.  We discussed the facts as they pertained to the question and the issue of whether each piece of evidence put before us was authentic.


All was going well until I pointed out the ones that were legit, but weren’t admissible in court.  The pallor of my counterpart changed noticeably.  That’s when he realized that he’d done a great job analyzing whether each piece of evidence was authentic, but forgot the next step – determining whether each was admissible.

Finding evidence is just the beginning.  If all of your dominoes don’t line up properly, it will never be admitted.  The technology gurus have a huge role to play and may not even be aware of it.

A few years ago, if you explained to the average person what electronic evidence – or e-evidence was, then asked them to give you an example, 99% of them would have given you the same answer – e-mail.  We’ve all read news stories about this individual or that one who was caught red-handed through his or her e-mail messages.

Later, another example started showing up more often – text messages.  Just ask the former Mayor of Detroit how that turned out for him…


In law school and on the bar exam, the testers took pride in finding ways to slip a piece of written evidence right by a student by putting it into a form that he or she wouldn’t normally think of as “written”; engraving on a tombstone, label on a medicine bottle, a license plate.  We’re conditioned to think of written evidence as something more mainstream, like a letter, a book or a bill of receipt.

A lot of e-evidence is still written – but now it’s written to computer hard drives, DVDs and cellular phones.  Just like law school students, we have to broaden our thinking and remember that virtually any device that can save, store – or even process electronic information (e.g. RAM in printers/fax machines) may qualify. Then, we have to remember the really tough part – many of these devices are mobile.  They could be virtually anywhere in the world.

Let’s take a hypothetical look at Jane Doe.  She works for a multi-national corporation, “Multi-Corp”.  She has an office in Los Angeles and one in Tokyo, and an apartment in each city as well.  She has a desktop computer in each office, plus a laptop to use when she’s out in the field, at home or traveling.  She stores some of her work on the company file servers.  She’s taken to transferring work from her laptop to her home computers in both Tokyo and L.A. – because she likes them better (the boss doesn’t know).  It’s annoying for her to connect the machines directly, so she either hooks up wirelessly through her router or uses her thumb drive.  She has two cellular phones (one is personal) and a PDA.

Multi-Corp is sued by Uni-Corp, and the Plaintiffs subpoena Jane’s correspondences.  Am I the only one with a headache?  Probably not.

If I’m in the IT department at Multi-Corp, I have to think of every possible device – and the location of each – where relevant data may be stored (let’s hope Jane remembers to tell me about the thumb drive).  Then, once I do, I have to locate the data on the device itself.  What if I need to retrieve it from back-up media?  What happens if a device – and the data it contains – is owned/managed/outsourced to a third party (e.g. the file servers or the cellular phones)?  How do I get them to grant me access when they don’t want to be dragged into a lawsuit?  Do they have to do so?  I might have to ask the legal department.

If I’m in the Legal department at Multi-Corp – or in their outside counsel’s office – I’m depending on the expertise of my IT resources, but I’m also worried about issues that IT doesn’t normally think about; chain-of-custody being a prime example.  I’m looking for data that will exonerate the defendant and relevance is only one issue.  I’m also responsible for making sure it’s admissible and I don’t want it thrown out on a technicality.  How can I impress this and other concepts upon people who don’t work directly for me?

Meanwhile, both departments – and management – are thinking about the costs and whether the Plaintiff’s subpoena is too broad in its scope.

A lot of questions.  A lot of concerns.  I will endeavor to address all of them in tomorrow’s post.