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November 20, 2007

Crystal Ball in Your Court

Though it’s customary to reflect at this time of the year, I thought it would be more interesting to look forward and prognosticate sixteen future developments in electronic discovery.  I expect a couple of these changes to take hold in the next 10 months, but others are looking out as far as ten years.  My predictions follow, along with explanations.  Please post comments to share yours (or debunk mine).

  1. Resurgence of thin client architecture, stoked by rampant virtualization of apps and environments
    Remember thin client computing?  If you’re over forty, you do.  It’s the dumb terminal that connects to the big mainframe.  The new thin client architecture won’t look exactly like its antecedent, but expect to see rapid growth of virtualized applications that run off the corporate network or the Internet.  There’s a good chance you’re already getting data from a virtualized server and don’t even know it.  My e-mail server is virtualized--I literally have no idea where it resides.  The same is true of my calendar and a great many of my documents.  Want to see the future?  Check out Google Apps.

  1. Personal data ceases to be local to machines and lives on portable media and the Internet
    Not long ago, a 60GB hard drive was state of the art.  Now, you’ll see that much storage on an iPod or thumb drive.  Data is the ultimate portable commodity, so it’s odd we don’t take our computing environments with us.  We will.  I see the local hard drive on a desktop machine becoming an increasingly irrelevant place to look for documents and e-mail.  Instead, it will be essential to capture the contents of a user’s personal storage device and Internet space.

  1. Standardized terminology emerges describing the manner and scope of production.
    You say potato and I say quasi-native.  With huge sums riding on the outcome, we all need to mean exactly the same thing when we speak of e-discovery.  Thanks to many fine folks at, e.g., The Sedona Conference and EDRM and Law Technology News, we’re making steady progress.  Do your part.  Next time you hear someone mistakenly refer to “hash values” as “hash marks,” rap them smartly on the knuckles…but best wait until their bailiff isn’t looking.

  1. Standardized (probably automated) harvest mechanisms.
    Though remote search and collection across the network or the Internet is likely to emerge as the norm, I expect to see “Plug and Pry” devices emerge that you will send home or attach to laptops via USB to gather ye rosebuds of digital evidence.

  1. It’ll cost less to store a terabyte of data than to buy a tank of gasoline.
    At the speed with which these two benchmarks are heading in opposite directions, I expect this prediction to come true within three years for the online terabyte.  The local terabyte (i.e., on local hard drive) will cost a couple of SUV tanks.

  1. EDD data volumes per custodian increase by three orders of magnitude (1000-fold)
    No, we won’t suddenly become radically more productive.  For that great a productivity boost, you’d have to eliminate the Internet on the desktop.  The growth in data volume will result from changes in the nature of our messaging (e.g., unified voice), richer content, more complex applications and the fact that storage will continue to so drop in cost that we will all have huge (though largely empty) storage at our disposal.

  1. Routine production of system metadata.
    Almost like a switch were flipped, we will shortly wake up to the fact that system metadata, like file names, paths and dates, are essential to managing electronic records and wonder why we wasted a minute fighting about it.  Don’t worry, we can still bicker about application metadata, at least until the other epiphany kicks in--the one where we wonder why we ever spent so much on TIFF productions when a sensible native (or hybrid) production is so much better and cheaper.

  1. Native and quasi-native production standard, using generic production containers.
    You knew that one was coming.  Did you also know you can tuck a native file inside of a .PDF and have the best of both formats in one generic container?  Makes you think, eh?  And that’s just one way to skin the cat.

  1. Low cost desktop review mechanisms and tools emerge.
    This is the piece of the puzzle that is so obvious I can’t fathom the hold up.  When those generic production containers arrive, you’ll need something to view, search, sort and annotate the contents.  Currently, you have to buy blue chip tools like Concordance and Summation or pay to use online hosted review platforms.  Someday, the industry will figure out that the money is in collecting and processing the ESI and just give the desktop review tools away.  For a model, think Adobe Reader, your Internet browser or whatever software you use to read an e-transcript.

  1. Movement to hosted production, but much more slowly than market anticipated.
    You bank online.  You do your taxes online.  Soon, you’ll receive and review ESI the same way.  It’s just going to take a while to gain our trust, and a while longer if any high profile gaffes hit the papers.

  1. Widespread use of hash based self-authentication and identification.
    I wouldn’t be surprised to see a lawyer’s car sporting a bumper sticker saying, “They’ll get my Bates stamp when they pry it from my cold, dead hands.”  Bates stamping is going the way of blue backs and fax machines.  Hashing isn’t a perfect substitute for Bates stamping; but in some ways, it’s far superior.  Imagine being able to instantly authenticate an electronic record of any size or complexity.  Native production and hashing go together like cereal and milk.  If you do the first, you’ll soon do the latter.

  1. Data footprints of serial litigants maintained routinely and well known to plaintiffs' counsel.
    Just as tract indices have largely supplanted grantor-grantee title searches, companies that frequently find themselves in court won’t rediscover their corporate data footprint with each new case.  They’ll keep track of it on an ongoing basis.  Likewise, smart plaintiffs counsel will share information on corporate ESI in the same way they share data on product defects and experts.  This is a good thing.  Companies have been getting away with not producing electronic evidence for so long, they’ve begun to view it as an entitlement!  You can’t count on the other side being clueless forever.  When that changes, you’ll see that the more your opponent knows about e-discovery, the easier it is to do it efficiently and at lower cost.

  1. Use of key-based encryption to demark and encapsulate attorney-client privileged communications.
    This may be one of those “and we will all drive flying cars” predictions, but hear me out.  We are spending a ton of time and money trying to gin the seeds of privileged communications from of the bales of ESI.  If we could securely encrypt truly privileged attorney-client communications at the time they were created, we could save a bundle.  I know everyone hates having to take any extra steps to send an e-mail, but if the communication deserves special protection, perhaps it’s not too much to ask that we employ special methods.

  1. Backup tape diminishes in importance as cost drops and active sources proliferate.
    Every year someone predicts the demise of backup tape, and every year they eat crow.  Still, I think we really are at the top of the arc and tape is on its way out.  But, it won’t be a quick departure.  Within five years, I predict backup tape usage will drop by thirty percent in favor of network mirroring.

  1. Geographic location data routinely recorded and stored for vehicles and individuals.
    Our cars and our phones track us.  Soon, location awareness will be built into other products.  When that data is relevant, we will need to preserve and produce it.

  1. U.S. data privacy rights move closer to EU model.
    It will take a few more debacles to move us off the dime, but someday we will decide that our electronic selves deserve privacy protection.  In the European Union, data privacy is a fundamental human right; but Europeans lived through being rounded up and enslaved or exterminated on the basis of a record revealing your physical disability or religious/sexual orientation.   Plan on increased privacy push back with respect to harvesting and reviewing employee e-mail and other private ESI.

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Comments

Prediction 17. We should have smart review tools: you feed it the claims and your strategy, and it returns the "smoking gun" documents. If we are talking about data increase by three orders of magnitude, then we will need such tools even more than we do now.

About prediction 6 I wholeheartedly agree. Our DiscoverLite service features paid harvesting and hosting but free review.

In relation to your prediction 13: Use of key-based encryption to demark and encapsulate attorney-client privileged communications.

I think it is a great idea. However, before it can become a reality something else will have to happen. The role (or impact) of Information Security in the e-Discovery process seems to be a very unknown at this time. When I speak to CISOs about their role in e-Discovery their response ranges from “what,” “nothing at all” to “I do not even know who is my GC/LC.”

Clearly sensitive records protected for business reasons using passwords, encryption or rights management will impact the ability to find and evaluate these records, and if found relevant, made available to 3rd parties, some of which may not very friendly to the organization.

Do you maintain the content level protections and provide them with temporary access rights that can be revoked at the end of the process or do you remove any protections and provide the records to them in the clear assuming they will maintain some form of protection?

In your travels, have you come across a bridge that connects the Legal and Security worlds indicating an understanding of how one can help (or hinder) the other?

Since you are crystal balling:

Q1: Where would you position the emerging requirement to demonstrate a “foundation of authenticity” of the ESI offered as evidence BEFORE it is admitted into evidence?
Even though article 9 of the Federal Rules of Evidence require authentication of records “as a condition precedent to admissibility,” recent cases and decisions (i.e., Vee Vinhnee v American Express case and the Grimm decision) indicate that the existing FRE need to be amended to be aligned with the key challenges (vulnerabilities) of ESI.

Q2: Do you predict this will occur? If so when?

Dear Mr. Francoeur:

I figure you're either the Québécois newspaper magnate or the preeminent authority on digital document security with Adobe. I'm leaning toward the latter, what with the first gentleman being deceased and all. Either way, you're slumming intellectually with the likes of me, but welcome, and thanks for your comments! We don't often get the higher level stuff on this side of the tracks and I'm happy to see it.

As a general proposition, the responsive, encrypted items tend to be flushed out by entropy testing and decrypted/cracked before production instead of furnishing the associated authenticators to the other side.

However, my prediction focuses on the items that are not supposed to go across the fence; that is, privileged attorney-client communications. Here, there is little or no need to enable access by the other side. Instead, the encryption lowers the bar for privilege review. In theory, if something slips by, you don't fret because it's strongly encrypted. I gravitate to the idea because it's also a handy way to float privileged documents to the surface, simplifying review. The furthest extent of the concept is that you don't even bother to cull the encrypted privileged items. You simply produce them because you're unconcerned that any interlopers can access them.

Of course, furnishing authenticators from a bevy of custodians during review and processing presents its own challenges, and certainly if lawyers continue to be as piggish about privilege as is the custom (i.e., self-destructively labeling fax transmittal sheets and anything cc'ed to a lawyer "privileged"), I see diminished benefit. To work, we have to presume a high level of integrity in the lawyers and the process. (Please don't laugh).

Insofar as the bridge between legal and security, few see the gulf as well as you do, so fewer still are designing the bridge. Not surprisingly, I see computer forensics as one bridging discipline as it has feet firmly planted in both security (especially incident response) and electronic discovery. Regulation is another bridge, though regulatory schema like HIPAA haven't produced the rush to encryption many foresaw. Finally, the bridge may--and likely will--come from left field--a response to massive identity theft, migration to portable data stores, chip enabled credit cards that also store medical records, perhaps even just cell phones that buy a Coke from a vending machine. Which is to say, I'm not sure. You're the real expert--you tell me!

On your second comment, I'll stick my neck out. No, I don't see the Rules being retooled to address authenticity issues unique to electronic evidence. The exiting framework--supplemented by guidance from folks like Judge Grimm in the Lorraine decision--is still viable and will carry us through.

I think that the problems we see stem from complacency and confusion. In short, lawyers haven't done their homework on how to present the requisite foundation testimony for electronic evidence or have cut corners.

The Vee Vinhnee v American Express case you cite is a good example. The court noted "The declaration did not establish the declarant’s qualifications to testify. Nor did the court perceive testimony that the business conducts its operations in reliance upon the accuracy of the computer in the retention and retrieval of the information in question."

In truth, it's a lousy precedent as the defendant failed to appear and the standard of review was abuse of discretion. Don't ask me how an advocate loses a case where there's no opposing counsel and the defendant didn't show up. Sounds like the judge was in a hell of a cranky mood that day or didn't have enough to do and "filled in" for the absent party's counsel! More likely, AmEx's counsel got cocky and tried to skate on basic evidentiary foundations. Case in point: the record's custodian's testimony included the following cringeworthy phrasing: "You know, I don’t – I couldn’t testify to exactly what – what the model is or anything like that. It’s – you know, our computer system that we’ve used for, you know, quite some time to produce the documents, to gather the information, to store the information and then, you know, produce the statements to the card members. And we – you know, it’s highly accurate. It’s based on the fees that go in. There’s no way that the computer changes numbers or so. It’s all what is presented to it from the electronic feeds from the service merchants or establishments where the charges were made."

So, you know, the existing Rules are, like, you know, still good enough if we, you know, like apply them.

Thanks again for the comments.

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