Reasons Emerge for E&Y's Cataphora Acquisition

Accounting giant Ernst & Young has announced its acquisition of the electronic discovery division of Cataphora for an undisclosed amount. The deal better equips E&Y to market to the legal field, differentiate itself from its competition, and upsell additional services, the consulting company said in the release.

Industry observers were quick to assess the move:

"If the threat of Dodd-Frank's impact on international business comes to pass (for example), it could be boom times ahead for the Big Four accounting firms in responding to global regulatory investigations from whistle-blowers," said Katey Wood, an e-discovery analyst for Enterprise Strategy Group, in an interview by e-mail today. The consultancy is based in Milford, Mass.

"What you have here is a services-based organization buying what is primarily a software shop," observed George Socha, of Minnesota's Socha Consulting (and a member of Law Technology News' Editorial Advisory Board. "It probably means that if you want to use Cataphora's software, you are going to be buying Ernst & Young's services as well. Depending on your perspective that could be a good thing or a bad thing,"  Socha added. (Consultants Socha and Tom Gelbmann offer Apersee software that helps users evaluate EDD vendors.)

The deal closed on May 27 and represents the third significant e-discovery deal in three weeks, said E&Y. Autonomy acquired Iron Mountain's digital division on May 16 and Symantec bought Clearwell Systems on May 19.

E&Y told us they'll have much more to say Wednesday (6/1) morning, so be sure to check back on our main site at www.lawtechnologynews.com and here!

Update 6/1: Full story is available here.

Image: Clipart.com

Lack of Data Security and Protection in E-Discovery

Each day we read about cybersecurity threats and data breaches that cost companies and governments millions of dollars in lost intellectual property and trade secrets. Just today, the Huffington Post emphasized the seriousness of the problem in an article about how cyber attacks that originate abroad can qualify as acts of war that could merit a military response by the U.S.

With amount of electronically stored information (ESI)  leaving companies firewalls for processing and review increasing at an alarming rate, there is a need to develop uniform data security standards around e-discovery. Most companies do not pay attention to data security issues when working with a vendors and do not have any internal e-discovery security policy.

International data protection laws have brought awareness to protecting privacy and some security standards have developed to address those privacy laws. In the U.S., federal regulations such as FTC red flag laws, HIPAA, Gramm-Leach-Bliley, state security breach laws, and the electronic communications privacy act have also had a positive impact on data security awareness. However, significant security policy gaps remain in e-discovery.

The Science of Legal Search

Maura Grossman's law review article provides the best explanation yet of the science of legal search. Grossman, well known e-discovery lawyer, has co-authored an important article with computer scientist and professor, Gordon Cormack, that is a must read for those of us trying to understand the science behind legal search, especially TREC Legal track. Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, Richmond Journal of Law and Technology, Vol. XVII, Issue 3, Article 11 (2011).

The second half of my blog this week explains and tracks the highlights of the Grossman and Cormack article. The first half is kind of a Memorial Day inspired overview of the damaging parts of the Information Explosion. It sets the stage for the search artilce. I quote Alvion Toffler, the author a best selling book in 1970, Future Shock. We are now living his then-future and suffering from what he called "Information Overload."

This all seems to worry the former CEO fo Google, Eric Schmidt, as I also describe in this fairly lengthy blog this week. Eric thinks kids today can no longer do deep reading, just little twitter thoughts. He seems to be a pro-paper kind of guy. But I think Eric misses the point of the malady. The problem we suffer from Information Overload and Future Shock is an inability to focus, period. We cannot concentrate long and hard enough. The problem is not paper vs. digital. It's concertration. The ability to do in-depth prolonged study. (ou know, the kind it takes to get through my e-Discovery TeamTraining course. Anyway, read all about it my my blog this week, entitled The Information Explosion and a Great Article by Grossman and Cormack on Legal Search.

Image: Clipart.com

E&Y Buys Cataphora

LTN's Evan Koblentz will be filing an article shortly about Ernst & Young acquiring Cataphora.

For now, here's the  press release.

Image: Courtesy Cataphora

Sutherland Asbill Snares Robert Owen

Robert Owen has left Fulbright & Jaworski, and moved his practice to  Sutherland Asbill & Brennan, based in its New York office.

The firm also has offices in Washington, D.C., Atlanta, Houston, and Sacramento, he says. "I have joined that firm as a senior litigation partner and have agreed to take an immediate leadership role in the continued growth and development of Sutherland’s New York office."

Owen joined Fulbright's New York office in 2002, and focused his practice on litigation and EDD. He served as co-head of the firm's "E-Discovery and Information Management" practice group along with David Kessler (who joined the firm last year).

Owen is a member of Law Technology News' Editorial Advisory Board, and also is active with The Sedona Conference.

Photo courtesy of Robert Owen

Boxing In Music?

The music industry, through the RIAA (the Recording Industry Association of America) has been at the forefront of e-discovery issues.

The primary target for the RIAA has, historically, been peer-to-peer networks such as Napster and LimeWire. A few weeks ago, the RIAA obtained a $105 million settlement from LimeWire for alleged copyright infringement by users.

Now, the RIAA is going after electronic data stored in the cloud. News reports suggest that the RIAA has filed subpoena to get information from Box.net. The subpoenas apparently seek to determine is users are storing music on the service, and then allowing others to access and copy the music.

According to Rolling Stone, the information sought by the RIAA is limited to information about specific users who are suspected of copyright infringement. 

The actions of the RIAA could become more interesting — and perhaps push the EDD legal envelope — if/when the RIAA starts making broader requests for information from cloud storage providers.  As the popularity of these services grow, more people are using the services to store and share photos and documents. For example, my sister-in-law just set up a page for us to share photographs from a recent family vacation. The request to Box.net by the RIAA could be the start of a strategy to make broader requests from cloud providers for information stored by a large numbers of users in an effort to identify copyright infringements. 

Twitter in Europe

Twitter in Europe presents the latest example of discovery of information about social media users colliding with free speech concerns. 

The issue involves a much reported affair between a British soccer player and a reality TV star.  British coverage is extensive – see here and here for a start. 

An article in The New York Times suggests that this “has quickly become another test over how far the rights to privacy and free speech extend online, where social media operate in countries with vastly different laws.”

The issue arose when the player obtained an injunction from a British court preventing the media from reporting the story of the alleged affair. Many Twitter users responded by repeatedly posting his name. The electronic discovery issue arose when the player sought a court order compelling Twitter to reveal the identities of the users who had posted his name. 

Social Media: Pursuit of Truth Trumps Privacy

Non-public portions of Facebook are now fair game if relevant information may be present during discovery.  In Zimmerman v. Weis Markets, Inc. the plaintiff sued his former employer over a forklift accident.  He sued for lost wages, lost future earning capacity, pain and suffering, scarring and embarrassment over the scars left by the injury.  At his deposition, Zimmerman claimed he never wore shorts after the accident because of the scars. 

Based on what was observed on the publicly available portions of Zimmerman’s Facebook and MySpace pages, Weis Markets believed there may be other relevant information as to Zimmerman’s damage claims on the non-public portions of his Facebook and MySpace pages. Zimmerman argued that his privacy interests outweighed the need to obtain discoverable material.

Relying on Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (Suffolk Co. 2010), the court ruled that since Zimmerman placed his physical condition in issue, Weis Markets was entitled to discovery. The Romano court citied Leduc v. Roman, 2009 CarswellOnt 843 (February 20, 2009):

The Struggle for Context

The real problem in e-discovery is not the ever increasing mountain of data; but what caused it.  Besides the ongoing struggle to boil down the ocean of ever increasing electronically stored information (ESI) with new technology, the real pain point is putting all this potentially relevant evidence into context.  

E-mail by nature is inherently out of context. We send and receive literally hundreds of e-mails each day without putting context to it.  Litigators use this as a strategic weapon by manufacturing doubt when there should be no doubt and to create knowledge of or intent when none exist.

In the days of hard copy, we would take time and careful consideration when drafting correspondence.  Each letter would normally be carefully dictated or handwritten, sent to a secretary for transcription, the draft checked and approved, finalized, returned for signature, sealed and sent out via U.S. mail and finally filed away. This process by nature assured proper context, avoided unnecessary conversation, made authentication easy and kept the amount of written evidence to a minimum.

Now e-mail and text messages are instantly forwarded on a whim without comment, replied to with a simple yes or no, drafted without thought and left among hundreds of other correspondence in the inbox. 

Motor Fuel Discovery Skirts 1st Amendment Objection

Tenth U.S. Circuit Court of Appeals In Re: Motor Fuel Temperature Sales Practices Litigation held that court-ordered discovery does not violate First Amendment rights of motor fuel retailers where the defendant objecting to the discovery request failed to make a prima facie showing of the privilege's applicability.

In this case, plaintiffs seek damages and injunctive relief based on defendant retailers' maintenance of a volumetric pricing system for retail motor fuel that does not account for expansion of the fuel's volume due to temperature increases. The plaintiffs allege that when the temperature of motor fuel increases, its volume expands but its energy content remains the same.

Regardless of the outcome of this case, I have always heeded the advice of a Minnesota farmer: pump your gas early in the morning when the reservoir is cool and keep the jet stream of the pump slow and even.

Discovering a Sense of Digital Modesty

Michael Roach, Law Technology News' San Francisco-based associate editor, in today's LTN Commentary, explores the concept of "digital modesty," as proposed by lawyer Douglas Good:

Good, a partner at Ruskin Moscou Faltischek, "puts forth "a modest proposal" to stem this tide of electronic data: "Without a showing of extraordinary circumstances by the requesting party, treat electronic communications like conversation and eliminate production of electronic communications in either electronic or hard copy format." Good may be taking matters to extremes "in the tradition of Jonathan Swift," but he wants the reader to stop and consider the size and scope of discovery requests legal professionals are making to produce that elusive "Aha moment" on which a case might turn," writes Roach.

Read the full commentary on our website, here. 

Image: clipart.com

Gartner v. SocMann

Research firm Gartner has predicted that the e-discovery market (which it valued at $889 million in 2009) will spike to $1.5 billion in 2013, Evan Koblentz reports here. 

"Upcoming trends in vendor consolidation, industry standards, and a focus on data integration will all be signs of a maturing and increasingly mainstream market, Gartner analysts John Bace and Debra Logan said in their May 13 report, 'Magic Quadrant for E-Discovery Software," writes LTN staff reporter Koblentz, who just joined our team last week. 

"The analysts see five leaders in e-discovery: Autonomy, Clearwell Systems, FTI Technology, Guidance Software and kCura. Autonomy and Clearwell both expanded further last week, with the former buying much of archiving specialist Iron Mountain's product lineup on Monday for $380 million and the latter being acquired by data management giant Symantec on Thursday for $390 million," he noted.

Interestingly, the Gartner figures don't match the assessment of George Socha & Tom Gelbmann, who in their 2010 annual LTN report  estimated the 2009 EDD market was already at at $2.8 billion — up about 10% from turbulent 2008 figures. Socha and Gelbmann said consumers and providers expect the market will expand between 10% and 15% for 2010, and the same for 2011. It will be interesting to see SocMann's upcoming August 2011 LTN report and compare the two analyses!

Update: I stand corrected! See my colleague Evan Koblentz' explanation in the comments.

Image: clipart.com

Symantec Buys Clearwell for $390M

Law Technology News' recently-hired staff reporter, Evan Koblentz, picked up on the news that information management giant Symantec is in the process of buying e-discovery specialist Clearwell Systems for $390 million -- another significant move in the EDD consolidation game. It follows the news from earlier this week that Autonomy will acquire Iron Mountain's digital service products.

Read the Symantec-Clearwell story on the LTN website.

Court of Appeal Fed Circuit Examines Rambus' Spoliation

In a series of district court cases from around the country, Rambus has been bludgeoned for its intentional destruction of evidence. The destruction resulted from implementation of a comprehensive records retention/destruction policy. Rambus was a relatively new company when it implemented the policy, which is when a new records retention policy should be rolled out. Unfortunately for Rambus, the policy was intertwined with its strategy to enforce technology patents. Every court that has analyzed the “real” reasons behind Rambus’ document retention/destruction policy, except one, has concluded that Rambus’ intent was nefarious.  The one court has now been overruled.

Rambus’ records retention policy roll out was examined in detail in two companion cases decided by the U.S. Court of Appeals for the Federal Circuit: Hynix Seminconductor Inc. et al. v. Rambus Inc., 2011 U.S. App. LEXIS 9728 (Fed. Cir. May 13, 2011) (affirming in part, reversing in part and remanding to the Northern District of California) and Micron Technology, Inc. et al. v. Rambus Inc., 2011 U.S. App. LEXIS 9730 (Fed. Cir. May 13, 2011) (affirming in part, reversing in part and remanding to the District of Delaware). The Federal Circuit has jurisdiction over matters involving patents, so it reviews cases from across the country.  Here it examined a case from the Northern District of California and one from the District of Delaware in two overlapping opinions.  We will post a link to the decisions soon.

Here are the short answers.

1.  The court vacated a Northern District of California decision holding that Rambus did not spoliate evidence as it implemented a comprehensive document retention policy in the late 90’s.  This also wiped out the court’s patent rulings on the merits of the dispute.  (As an aside the Northern District's holding has been used as a teaching tool in most litigation hold discussions to demonstrate how fact specific litigation hold decisions can be.  While the fact specific nature of the analysis remains the same, the case is off the teaching tool list).

Baptisms & Reunions

Los Angeles — One of the joys of LegalTech is finally getting to meet some of our new writers who are contributing to Law Technology News and the EDD Update blog. Joshua Engel (left) vice president and general counsel of the Lycurgus Group, has been an enthusiastic contributor to our recently revived blog, and has already penned two articles for our LTN website, all addressing his favorite topic: the Fourth Amendment.

Here's a link to his April 29 article about police searches of cell phones incident to arrest; this link takes you to his article about police using GPS devices.

I was delighted to see Engel in action today, as he provided a grand tour of recent case law to an intrigued audience during his very first LegalTech presentation. Congrats, Joshua, on your "baptism" into the LegalTech speakers' cult!

It was also a special treat to finally meet John Waid, tax counsel with California's State Board of Equalization. We've had some great "pen-pal" e-mail conversations and his suggestions and comments have always been a delight. Of course, having a chance to brainstorm about potential articles with our "usual suspects" — George Rudoy, Al Barsocchini, John Jablonski, and  Tom O'Connor, just to name a few —  is always relished. (Watch out, we just might start singing Kumbaya any minute now :)

Today's sessions also included a thoughtful keynote from Manny Medrano, right, who has both prosecuted high profile cases as a trial lawyer, and covered high profile cases (starting with the O.J. Simpson trial) as a legal analyst for KNBC. His presentation reminded me of the early days of ALM's Court TV, as he recapped many of the arguments for live cameras in courtrooms, and detailed how social media tools have been wrecking a little havoc on voir dire. (See  my LTN website commentary here.)

Finally a quick tip from our for those of you who have downloaded the LegalTech mobile app from our support team: "Be sure to click on the 'Data Sync' button at the top right of the Home screen. This will ensure that you have all of the latest information."

So as we wrap up LTWC, special thanks to all the wonderful speakers who helped educate attendees about trends and developments, and to the vendors who demonstrated new products and services in the busy exhibit hall, and to everyone who took time off from busy schedules to attend. We hope you enjoyed all the synergies.

No matter how many social media and devices we embrace, you can never replace good old-fashioned social networking. There's just nothing better than sharing a coffee, a beer, or a tasty meal with new or well-established colleagues and friends.

Safe travels home.

Photos: Monica Bay/LTN  Click images to enlarge

Back to the Future: LegalTech @ the Bonaventure

There's an upbeat mood at LegalTech West Coast, both on the show floor and in the conference halls. The medium may be the message all right, but being in a comfortable venue seems to enhance our ability to receive and process all that information!

Everybody seems really happy to be back in the cozy confines of the Westin Bonaventure hotel, rather than the cavernous halls of the L.A .Convention Center — where we always seemed to share the building with the happy occasion of the swearing in of hundreds of ecstatic new citizens. LTWC 2011 changed its dates somewhat abruptly, so some of the usual EDD suspects had scheduling conflicts (most significantly with the Guidance Software über user group meetings in Orlando) but the exhibit hall was jumping and the keynotes and plenary sessions were crowded.

 
The kick off keynote address was presented by Meetup.com's top lawyer, David Pashman (left, with ALM's senior vice president Kevin Vermeulen who introduced him). See LTN's associate editor Michael Roach's report here. 

I was honored to moderate the plenary session, "The Corporate Perspective: Why the Legal Industry Needs to Embrace Technology," featuring Tim Hart (below left), of McKesson, and Brian Renken (below right) of Dell. Both offered  sage insight from Hart's large "enterprise" perspective to Renken's small-and-midsized business  services point-of-view. We focused primarily on how organizations struggle to provide users with the most beneficial technology, while keeping work environments secure to minimize risks and keep the organization agile enough to respond to e-discovery and compliance demands.

During the discussion I gave the audience a "sneak preview" of our upcoming June issue cover story, "Catch Me If You Can," about how CIOs and other law firm leaders are rethinking security protocols in the wake of the recent insider trading charges filed against attorney Matthew Kluger, who allegedly made $32 million in profits by trading on information he acquired while working at  Wilson Sonsini;  Skadden; and Cravath. Pashman, in attendance at the plenary panel, told the group he had been aboard Wilson Sonsini when Kluger was there, generating a gasp from the audience. Of course, he immediately assured everyone that he did not participate in any of the mischief. 

If you are in the Los Angeles area, it's not too late to head over the LTWC Day 2! This morning's 9 am keynote speaker is Manny Medrano, and you can get an hour's worth of CLE credit for his presentation," Trial by Sound Byte: Law in the New Millennium." And EDD Update regulars Joshua Engel, Tom O'Connor, John Jablonski, Bobby Malholtra, and George Rudoy will be presenting today. Get your complimentary pass to the show. We'd love to see you!

Photos: Monica Bay/LTN  Click images to enlarge

 

Leadership, One Meal at a Time

Los Angeles — Like a white-hot Hollywood agent, David Cowen, head of The Cowen Group, knows how to orchestrate a good dinner party. There is an art to such events -- to really take off, they need the right food, the right lighting, the right service (attentive but unobtrusive, an almost impossible combination), the right table, the right music (or lack thereof), the right alcohol, and of course, most importantly --  the right number and combination of people, strategically seated (too many and no one can really hear, too few and it gets boring fast).

Cowen does a series of breakfasts and "Signature Dinners" across the country, as he builds his headhunting and management consultancy. Last night's dinner was held at Drago Centro, and sponsored by Clearwell Systems. The off-the-record conversation dove right into some of the difficult dilemmas faced by law firms and general counsel as everybody tries to cope with e-discovery and compliance demands.

Cowen always makes sure the invitation list assures some polite conflict, which makes the discussion valuable to all. Last night's guest list included both BigLaw and BigCorp folks, including Ron Best, director of legal information services at Munger Tolles; Eric Lieber, director of legal technology at Toyota; Isis Miranda, records and e-discovery manager at Farmers Insurance; George Schroeder, director of risk management at Cedars-Sinai Medical; Bowe Kurowski, practice support project coordinator at Proskauer Rose; and associate GC Gary Sedlik of Toshiba, among others.

Autonomy Acquires Iron Mountain EDD assets

Announced today: Autonomy has agreed to buy Iron Mountain's online backup and recovery, digital archiving, and e-discovery assets.

(Note: Weil Gotshal is counsel to Iron Mountain Incorporated in the sale of its online backup & recovery, digital archiving and eDiscovery products for $380 million in cash to Autonomy) 

Here is the un-edited press release: 
 
Iron Mountain Continues to Advance Its Strategic Agenda by Signing Definitive Agreement to Sell Certain Digital Solutions

Boston, MA – May 16, 2011 –  Iron Mountain Incorporated (NYSE: IRM), the information management company, continued to advance its strategic agenda with today’s announcement that it has entered into a definitive agreement with Autonomy Corporation plc (LSE: AU. or AU.L) under which Autonomy will acquire Iron Mountain’s online backup & recovery, digital archiving and eDiscovery solutions for $380 million in cash.  The acquisition is subject to regulatory review and customary closing conditions and is expected to close within approximately 45 to 60 days.

Reed Smith Raids K&L Gates for New EDD Team

Man oh man, I'm offline on a six-hour flight to LA (for LegalTech West Coast) and land to tons of news!

First, Reed Smith snagged 14 professions and formed a new e-discovery and records practice. See next post for #2.

Jamie Moss brings us the 411 about Reed Smith (unedited): (Link to press release here)

"Reed Smith LLP today announced the addition of 14-members to its new e-Discovery practice.  The group will work from the firm’s Global Customer Care Center in Pittsburgh. A majority of the group begins  working today, the remaining members are wrapping up current projects and  facilitating the transition and are expected to be in-house shortly."

"The  Practice Group is led by David R. Cohen, who joined Reed Smith in early May  from K&L Gates, where he formerly co-founded and served as co-chair of  that firm’s e-Discovery Analysis and Technology Practice. Cohen has more  than 25 years of complex commercial litigation experience, with a long-term  focus on e-discovery, automated litigation support and records management  issues All members of the team were formerly  part of the e-Discovery Analysis & Technology (e-DAT) Group at K&L  Gates in Pittsburgh.

The Tipster

The First Circuit Court of Appeals decided an interesting case last week on the value of passwords.  The case is United States v. D’Andrea.

In this case, a woman, whom the court refers to as (the "Tipster," called a child abuse hotline operated by the Massachusetts Department of Social Services. The Tipster, who wished to remain anonymous, stated that she had received a message on her mobile phone containing photographs of the defendants performing sexual acts on the Tipster’s eight-year-old daughter.  She provided to the agency a certain phone number and password used to access the photos.

LegalTech West Coast Presentation

I am glad that I don’t have to match George’s Conference Marathon.  Like George, I will be presenting at LTWC, but my flights from Ohio now seem easy in comparison.

I hope folks will stop in to the discussion on social media and electronic discovery.  The use of social media sites for both civil litigation and criminal investigations has been heavily in the news recently.   For example, an article in the May 15, 2011 New York Times discussed the use of Facebook and other social networks in divorce case.

My focus at LTWC will be on criminal investigations.  By way of a preview, news reports suggest that social media plays in large role in the current Grand Jury investigations regarding the Wikileaks case.  The government is apparently attempting to establish that Wikileaks founder, Julian Assange, violated the Espionage Act by publishing military and intelligence secrets.  In order to make this case, the Government will have to show that Assange encouraged  government personnel to leak the classified information.   

M.J. Foschio departs from Scheindlin in Steuben Foods

Gibson Dunn's May 13 Alert reports that "another court within the Second Circuit has now declined to follow Pension Committee's per se gross negligence and inference of spoliation rule. In Steuben Foods, Inc. v. Country Gourmet Foods, LLC, 2011 WL 1549450 (WDNY Apr. 21, 2011), the plaintiff's corporate counsel implemented a litigation hold orally through conversations with the company's President, Vice President of Business Development and six other managers and officers. Id. at *1. Relying on Pension Committee, and pointing to a mere three missing emails, the defendant argued that relevant documents that were not produced should be presumed lost and sanctions imposed."

"In an opinion by Magistrate Judge Leslie Foschio, the court denied the defendant's request for sanctions because "in this case, the record fails to reveal any evidence that Plaintiff was responsible for the destruction or loss of any relevant evidence." 

"The court distinguished the facts of Pension Committee, where the plaintiffs had been under a fiduciary duty to conduct due diligence on their investments and therefore documents "surely must have existed," yet the "paucity" of documents produced led "inexorably to the conclusion that relevant records ha[d] been lost or destroyed."

Read more on Gibson Dunn's Alert: bit.ly/eddu514.

Image: clipart.com

Front Page News

In a recent article on police use of GPS tracking devices, I mentioned a case in Ohio where GPS was used to discover the suspects in a series of burglaries. One of the cases against the men remains on appeal.

The men were also charged in a neighboring county. They raised the GPS issue before the trial court there, as well. Earlier this week, the judge ruled that the police could use GPS devices without a warrant.  According to the new reports, the judge wrote that "a reasonable expectation of privacy" does not exist for those parking and traveling on public roads.” He explained: “The device was attached to a vehicle found on public property . . . [and] monitored their travel in public and at no time did the defendant attempt to shield the vehicle from the public.”

The most notable aspect of this case is that the decision was front page news in Columbus. The attention paid to this subject suggests that the public’s concern about the use of GPS tracking devices may be greater than the judiciary’s.

Image: Clipart.com

 

Conference Marathon

It seems that a few times a year the e-discovery conference coordinators conspire to put their conferences so close to each other, they easily turn into a conference marathon.

I am on my way back home from this year’s London Information Retention & e-Disclosure Summit for a short break before heading to Guidance Software's Computer Enterprice and Investigations Conference (CEIC 2011) this Sunday, and will finalize my marathon with the long-planned and anticipated LegalTech West Coast in Los Angeles. At CEIC I will be discussing the ever-popular Early Case/Data Assessment topic with George Socha. At LTWC I am moderating three Wednesday (May 18) panels on the Integration of Legal Technology track, including "A Survival Lesson: Integration and Consolidation of Legal Technology as a Response to the Recent Economic Changes in Law Firms," with Hugh Todd (Gibson Dunn) and Jason Straight (Kroll Ontrack).

While the London Summit seemed a bit small by U.S. standards, it attracted quite a few instantly recognized names from the judges’ panel — U.S. judges Andrew Peck, (right), John Facciola, and Paul Grimm and U.K.-based Master Steven Whitaker and Judge Simon Brown. They presented on “What lies ahead?  Meeting judicial expectations and providing effective leadership in the face of emerging eDisclosure challenges” (moderated by Patrick Burke of Guidance Software).

Hidden Digital Records

News that the iPhone created a file with historical location data has been a significant news story the past few weeks. According to news reports in the United States and Europe, researchers announced towards the end of April 2011 that they had discovered a file created by the iPhone when it syncs with a user’s computer containing historical location data. An LA Times editorial captured the mood nicely:

"The most talked-about feature of Apple's iPhones and iPads these days isn't a clever new software application. It's a hidden digital record on every device of the locations where it has been used — a numerical travelogue that effectively traces its owner's movements by noting the times and places it has been used."

Credit for the discovery was claimed by Alasdair Allan, senior research fellow in astronomy at the University of Exeter, and writer Pete Warden.  The original announcement of the discovery is, I think, here.

On a recent Lawyer2Lawyer Podcast, I suggested that law enforcement may have known about this file for some time. 

Usually, law enforcement and national security agencies like to keep techniques quiet.  I can’t rely on my personal experience with investigations because that is, of course, confidential.  But I wanted to provide some links to reporting about this possibly long-standing use.  In a PC Magazine article, one forensic examiner claims to have accessed the file “hundreds” of times for law enforcement investigations.  An article by CNET also raised the possibility that law enforcement was aware of this file before, and had obtained information users through forensic analyses of their computers.  And computer forensics expert interviewed by NPR stated, “I really don't see it as a problem, I see it as, you know, a bonus. We're making the life of law enforcement easier.”

The fact that law enforcement (somewhat) admits to having known about this long ago should make everyone wonder what else they know about that the public does not.

Image: Clipart.com

 

Court Denies Request to Track Adversary's ESI

You knew it was going to happen: Tracking electronically stored information, after disclosing it to the requesting party. In re Facebook PPC Adver. Litig., 2011 U.S. Dist. LEXIS 39830, at *9-10 (N.D. Cal. Apr. 6, 2011).

We have not seen the last of this issue. However, in denying the request it was a bit odd the court did not raise the attorney work product privilege issue.

After disclosing their ESI discovery, Facebook decided to track the opposing party's review of their discovery. This included when and who reviewed their documents, printing preclusion, setting expiration dates (if you did not review them fast enough, they were not available) and making documents non-searchable and non-annotatable.

Need a Social Media Subpoena?

The Electronic Frontier Foundation has a handy list of law enforcement guides for the various social network sites. The information was obtained via FOIA requests. If you need information about how to subpoena one of the sites this is a great place to start.

https://www.eff.org/fn/directory/9210/419

Image: clipart.com

Murder Conviction Reversed: MySpace Authentication Issue

The Maryland Court of Appeals has reversed and remanded for a new trial the defendant's murder conviction for failing to properly authenticate MySpace pages.

In a lengthy opinion, the court found the trial judge abused his discretion in attempting to authenticate the social networking site's web pages of defendant's girlfriend through the lead investigator's testimony only.

On the girlfriend's web page it stated, "FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!" The defendant argued . . . (read more)

Image: clipart.com

10th Circuit: 3 Discovery Strikes & You're Out

A discovery-focused opinion worth a read was issued this week by a federal judge who is not named Scheindlin: Lee v. Max International, LLC, issued by the U.S. Court of Appeals for the 10th Circuit and authored by Judge Neil Gorsuch. The opinion affirms a trial court's dismissal of an action after repeated discovery violations — three, in fact — by the plaintiffs.

The errant behavior in question was a failure to produce the same documents at three separate junctures: first in response to document requests and subsequently in response to two separate court orders compelling production (where the latest order expressly warned that further problems could result in dismissal).

While the opinion focuses on discovery, rather than e-discovery per se, the language appears to apply with full force regardless of whether the "e" is involved. The opinion is full of colorful nuggets, such as the following:

• "Our justice system has a strong preference for resolving cases on their merits whenever possible, but no one, we hold, should count on more than three chances to make good a discovery obligation."

A Bit More on Cell Phones....

A little bit more on cell phones, searches incident to arrest, and passwords.

In this post, I tried to briefly answer the question that keeps recurring about police efforts to search cell phones when they arrest people:  "What if you need a passcode to enter your cellphone and refuse to provide it to the police to search the phone?"

A new law review article on this issue by Professor Adam Gershowitz of the University of Houston was brought to my attention. Gershowitz is one of the first to study the unique legal implications of smartphones.  Way back in 2008, he examined the search incident to arrest doctrine and cell iPhones and asked, “What happens . . . when the arrestee is carrying an iPhone in his pocket? May the police search the iPhone's call history, cell phone contacts, e-mails, pictures, movies, calendar entries and, perhaps most significantly, the browsing history from recent internet use?”  His answer was yes.  (My answer, two years later, was maybe no.)

Gershowitz’s new article is titled: “Password Protected? Can a Password Save Your Cell Phone From the Search Incident to Arrest Doctrine?  It will be published in the Iowa Law Review, and is available online here.

In this article, Gershowitz argues that an arrestee to disclose his password is a statement covered by the Fifth Amendment right to remain silent.  This is because knowledge of the password can demonstrate control and possession of the electronic device. 

That's Incriminating!

I recently wrote an article on  police searches of cell phones that was published on the LTN website. It focused on whether the police can search the contents of a cell phone when they arrest someone — even for a minor traffic offense.  

One of the commenters asked an excellent question:  "What if you need a passcode to enter your cellphone and refuse to provide it to the police to search the phone?"

The answer depends on whether the Fifth Amendment privilege against self-incrimination protects a person from being compelled to provide the passcode. The Fifth Amendment prevents the government from forcing a person to make any statements that can be incriminating.  

Restating: in order for the Fifth Amendment to apply, there must be a (1) statement that is (2) incriminating.

A New Way to Hide Data?

According to a report in Information Week, researchers have identified a technique for passing off encrypted data as "noise" that appears to be random disk fragmentation. The upshot: It could keep data hidden from forensic investigators.

The technique first came to light in a paper released early this year, "Designing a cluster-based covert channel to evade disk investigation and forensics," by researchers from the University of Southern California in Los Angeles and the National University of Science and Technology in Islamabad, Pakistan.

The amounts of data that could be hidden using the technique aren't trivial; the researchers estimate that a 160 GB drive could store about 20 MB of hidden data.

Says Information Week's Matthew Schwartz: "The technique works by exploiting how operating systems handle groups of consecutive sectors on a disk, which together form the clusters that store file and directory contents."

Could this have an impact on e-discovery? Read on.

Image: Clipart.com

Reed Smith Hires David Cohen, Launches EDD Unit

Reed Smith today announced that it has established  a new practice group that focuses on e-discovery and records management, lead by David Cohen, who joins the firm today as a partner. He previously was co-chair of K&L Gates' e-discovery and technology practice group.

"With the increased prominence of e-discovery issues in litigation, we determined that the addition of an e-discovery practice group would both complement our existing litigation practice and provide additional value to our clients," said Colleen Davies, chair of the firm's  global litigation department.

Cohen is based in the firm's Pittsburgh office, and will now serve as national discovery counsel in many cases, represent companies in complex litigation matters and counsel clients on records management and litigation readiness, the firm explains.

He is past chair of the Allegheny County Bar Association's Technology Utilization Committee and past chair of the litigation technologies subcommittee of the litigation section of the American Bar Association. He serves on the advisory board of Georgetown's Advanced E-discovery Institute.

See also: Reed Smith Creates E-Discovery Practice With Hire of K&L Gates Partner (The Legal Intelligencer)

Photo: Reed & Smith

EDD Webinars

Two e-discovery webinars are available for your consumption: 

1. Cherie Estrin checks into let us know that the Organization of Legal Professionals is hosting a Master of eDiscovery webinar Tuesday May 3,  with Craig Ball, Mary Mack, and Anthony Diana, at 1 p.m. EDT. Topic: "Contemporary Productions and Metadata for 21st Century Disclosures." Says OLP:

"Judge Shira A. Scheindlin’s recent ruling cited the court’s expectation for 'contemporary standards' to be followed for FOIA and Rule 34 document productions undefined including the disclosure of metadata if it is relevant to the claim, not privileged, and reasonably accessible. In a subsequent memorandum, the government argued that the ruling causes irreparable harm. [The panelists] will discuss the practical impact this ruling will have on e-discovery and FOIA responses and the nature of the controversy. Attendees will also learn how to improve the speed and quality of productions by applying Intelligent Redaction, exemption codes, and Optical Character Recognition, and generating output formats that are in line with 21st century capabilities and standards."

Panelist bios and registration info here. It's free for OLP members and $89 per phone line for all others.

2. Did you miss Planet Data's "E-Discovery 2020: The Next Generation of Innovation" during LegalTech New York? You can listen to the broadcast (and access PPTs) here. It features Judge Michael Baylson (U.S.D.C. - Eastern PA); Andrew Horne (Kirkland & Ellis); Mark Yacano (Hudson Legal), John O'Tuel (GlaxoSmithKline); Ian Hochman (WIlkie Farr) and Howard Reissner (Planet Data). [Hopefully next time they'll have a gal on the panel as well!]

Image: clipart.com