Is Microsoft Listening to Your Skype Calls?

Just when we had enough stories about technology that can turn off your cameras phone during events, courts allowing law enforcement to search your phone during routine traffic stops or tracking technology tied to Skype; now it is revealed that Microsoft filed a patent application back in 2009 called Legal Intercept that can silently record communications on VoIP networks such as Skype.

It has been proffered that the legal rational is to make Skype CALEA capable. The Communications Assistance for Law Enforcement Act requires telecommunications carriers and communication equipment vendors make its networks available for surveillance purposes by federal law enforcement agencies. 

Whatever the reason Microsoft may have for this back door voice interception technology, the privacy and free speech implications are ominous.

Our Orwellian big brother has been busy!

Hat tip to Jeffrey Brandt of PinHawk Law Technology Daily Digest.

Will Apple Turn Off Your iPhone Camera?

Another spin on camera phones has recently surfaced with dramatic privacy and free speech implications.

Mail Online reports that Apple is developing software that will sense when a Smartphone user is trying to record a live event, and then switch off the device's camera. Infrared sensors installed at the venue will prevent pictures from being taken. Apparently, broadcasters are upset that spectators are posting footage of events when they have bought exclusive rights. 

This technology could potentially be used by governments to stop demonstrators from taking pictures of protestors which would have dramatic free speech consequences. We could start to see camera dead zones where photos would not be allowed; like at security check points or near police vehicles. The camera phone is an amazing new democratizing force that has political consequences around the globe.

Do you want big brother censoring when and where you can take pictures with your phone?

Image: Clipart.com

Supreme Court to Decide GPS Case

The Supreme Court on Monday agreed to decide whether the warrantless use of a GPS tracking device on a defendant’s vehicle to monitor its movements on public streets violated the Fourth Amendment.  The case is United States v. Jones, Supreme Court Docket No. 10-1259. The D.C. Circuit had previously held that the use of a GPS tracking device without a warrant violated the Fourth Amendment.

In this case, the defendant was under investigation for suspected drug offenses. As part of the investigation, officers installed a GPS device on his vehicle and tracked his movements for four weeks.

Xerox Seeks E-Discovery Growth Via Acquisitions

Xerox Litigation Services wants to grow its e-discovery catalog -- and grow beyond its parent company's stodgy image. The historic company's legal technology division, which began as a startup called Amici in 2002 and was acquired by Xerox for $174 million in 2006, plans to buy its way deeper into the information management side of the Electronic Discovery Reference Model, division general manager and vice-president Randy Burrows said today.

Scheindlin Withdraws NDLON Opinion

Judge Shira Scheindlin has withdrawn her NDLON v ICE opinion, reports Ralph Losey on his eDiscovery Team blog here. It addresses FOIA, metadata and cooperation. 

Photo: Monica Bay

Will Spy Tactics Backfire/

Today’s Op-Ed by David Shipler in The New York Times by is highly recommended reading for anyone concerned with electronic discovery in criminal investigations.

In this piece, Shipler points to some recent Fourth amendment decisions and positions taken by Congress, including GPS tracking to argue that the Fourth Amendment is being steadily eroded. He writes: 

"These decisions “further erode the privilege of privacy that was championed by Congress and the courts in the mid-to-late-20th century, when the Fourth Amendment’s warrant requirement was applied to the states, unconstitutionally seized evidence was ruled inadmissible in state trials, and privacy laws were enacted following revelations in the 1970s of domestic spying on antiwar and civil rights groups.”

Shipler suggests that current efforts to undermine the Fourth Amendment will one day be viewed similarly to efforts in World War I and following Pearl Harbor — efforts that are not seen today as proud moments in American History.

Image: Clipart.com

 

iPad Doc Review App

Discovery Document Technologies of Los Angeles has debuted its new iPad app, idocument Review, available on Apple's app store for $29.99.

Just like typical desktop doc review tools, idocument Review helps  users to tag, highlight, and redact documents.The app sorts by tags and searches by keywords and image keys.

The app can hold up to 20,000 pages and is designed for an attorney to review efficiently while traveling, idling, or otherwise looking to capture previously unbilled time.

Load files need to be created by Discovery Document Technologies but they will provide them to non-clients for a small service fee. Additional information is available on its website.

Dropbox Exposed Customer Data For Four Hours Yesterday

Security breach at Dropbox! The online file sharing service du jour disclosed that it accidentally made customer files accessible by using any password for four hours yesterday. The company played this down by saying that "much less than 1 percent" of users logged in during that period and that the bug was fixed five minutes after Dropbox discovered it.

Problem is, Dropbox has 25 million customers. So a figure like "much less than 1 percent" -- even if it's only half of 1 percent -- is still 125,000 customers. Also, according to Dropbox, that five-minute fix didn't happen until the bug had been live for almost four hours.

How does a company's authentication system break for four hours, affecting tens or hundreds of thousands of customers, in the middle of the afternoon before the company realizes?

Attorneys would be well-advised to stop using Dropbox until the company improves its security policies and earns a track record of trust.

Congrats to Craig Ball - 7th ASBPE

We just got word that "Ball in Your Court," by Craig Ball, is a finalist in the 2011 American Society of Business Publications Editors awards. (We won't know until the ceremonies later this summer whether he took gold, silver, or bronze in the Northeast region, "Regular Column, Contributed" category.) Here are links to the two columns we submitted in the category: "Ubiquitous Databases," (December 2010) and "Is it Malpractice," (November 2010).

This will mark Craig's seventh ASBPE, and he also has won three similar awards from the Trade Association Business Publications International competition. Congrats!

Our October "E-Discovery Showcase" also is a finalist for best "Special Section" (Northeast region). The showcase was lead off by Anne Kershaw & Joseph Howie's "Crash or Soar," addressing whether the legal community would accept "predictive coding" (a hot topic that will be explored in our August 2011 issue as well). It also included Ball's über-delicious take on the aburd machinations that Judge Paul Grimm had to address in Victory Stanley II ("Blow Out"); as well as Kenneth Jones' "Choose Wisely," on selecting EDD vendors, and Ball's BIYC column, "Executing E-mail."

We are also thrilled that Shane DeLeers' July 2010 cover is a national finalist in the "Tabloid Cover" category. (He also won a design award from GD USA for our December, 2010 cover!)

Image: LTN

Mainstream Tech Players Could Flock to Legal Field

What do Microsoft, Network Appliance, Oracle, Pegasystems, Research In Motion, RightNow, and Salesforce.com all have in common? They could all make waves in the legal technology field. E-discovery, legal-centric CRM, and day-to-day support apps could be their doors into the soul of law tech. Read all about it and comment on who else you think could bring legal tech into the mainstream IT fold.

Supreme Court on Searches (Davis v. U.S.)

The Supreme Court today held that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule –- even when the court later overrules the precedent. The case is Davis v. United States.  You can read it here.

This case involved a major shift in the law about when police could search a vehicle after the arrest of the driver.  In New York v. Belton, 453 U. S. 454 (1981), the Court permitted the police to search the passenger compartment of a automobile incident to arrest of a recent occupants, regardless of whether the arrestee was within reaching distance of the vehicle at the time of the arrest. 

In 2009, in Arizona v. Gant, 556 U. S. ___ (2009), the Supreme Court overruled Belton.  The court adopted a new rule that permitted the police to search an automobile after the arrest of an occupant only if the arrestee was within reaching distance of the vehicle during the search.  (The Court also permitted the search of a vehicle if the police had reason to believe that the vehicle contained evidence of the crime of arrest.)

Compliance, Mobile Devices, & Comedy

These are three words that are generally never spoken in the same sentence, but we have two links that you will find extremely useful covering them. 

First, a group of compliance officers got together in New York recently to find out who is the funniest compliance officer in the United States. Hearing that others lay awake at night worrying about compliance, believe it or not, is pretty funny.  Check out the article and video at the Wall Street Journal:  If You Think Accountants Are Hilarious, Try These Guys Search for America's Funniest Compliance Officer Is Tough; a Whoop for Dodd-Frank.

After seeing how much fun compliance can be, sign up for Virtual Legal Tech, taking place on Thursday, June 16, 2011 and hear a very frank (no pun intended) discussion about the use of mobile devices and smart phones by lawyers. LTN's editor-in-chief Monica Bay and I discuss the tipping point of law firm use of mobile devices, the need for policies and protocols to protect attorney-client communications and offer tips on how law firms can protect against lost or stolen mobile devices.  More information about the program is available here: Compliance and Mobile Computing: What Happens When Your Staff Takes the Firm Home? (CLE Eligible).

Coping with NLRB Rulings on FB Speech

From today's LTN Alert:

• "Losing Face in Facebook, One Security Setting at a Time," by Brendan McKenna.

• "SEC Adds Nexidia Audio Search, Still Evaluating Text Search,"  by Evan Koblentz.

• Pittsburg attorney Jeffrey Gordon discusses how companies can deal with recent National Labor Relations Board rulings on employees' posts on Facebook. (Legal Intelligencer.)

• "How to Handle a Software Audit," by attorneys Paul Beik and Jonathan Day, from Texas Lawyer. 

Image: Clipart.com

New Hampshire Court: Comcast Can Release IP Address

The New Hampshire Supreme Court recently held that internet users have no reasonable expectation of privacy in subscriber information held by internet service providers (ISPs). The case is State v. Mello.

This case was closely watched because, as this article explains, the N.H. Supreme Court has often been willing to interpret its state constitution to provide greater protections of individual rights than the federal constitution. The defendant in this case was charged distribution of child pornography.  He was caught in an undercover police operation when a detective posed online as a 14-year-old boy. The defendant exchanged e-mails and chatted with the detective, and sent to the detective pornographic images depicting male children. 

The detective, using the defendant's e-mail address, determined the defendant's IP address was assigned to Comcast, a New Jersey company. The detective then obtained a search warrant for the defendant’s subscriber information. Using this information, the detective obtained an additional search warrant for the defendant's home computer, and seized evidence that led to his indictment. 

Georgetown Academy Wrap Up

We wrapped up the Georgetown E-Discovery Training Academy (or EDTA as it came to be called) on Friday with a final exam and closing remarks from judges John Facciola and Paul Grimm (right, click to enlarge). 

There were two striking differences between this course and other continuing legal education presentations I have both presented and attended. The first was the mix of technical and legal material. The second was testing: Michael Arkfeld and I both took the “pre-test” given by Craig Ball on Monday morning and even we struggled with the answers. Craig then spent the first two days covering forensic acquisition and review of documents at a technical level that was difficult for even accomplished e-discovery veterans to follow, but was highly successful in conveying the necessary level of information. 

That was followed by two days of lectures from Arkfeld using his outstanding material in his Electronic Evidence and Discovery treatise, which comes with his renowned e-discovery checklists, a set of documents I find invaluable in my consulting practice. And throughout those four days we had additional presentations by  Facciola, Grimm, Jason Baron, and Maura Grossman. (See prior posts below.)

Another Reason Not to Work From Your Car

United States Magistrate Judge Russell Vineyard has issued an opinion that permitted law enforcement to obtain a warrant for a laptop found in a “mobile office.” The case is United States v. Adigun, 2011 U.S. Dist. Lexis 60310 (N.D. Ga. May 4, 2011). (Sorry, I can’t find a public link to the opinion.) The defendants face various fraud and conspiracy charges in connection with an alleged credit card fraud and identity theft ring.

In 2007, a Georgia sheriff’s office investigator, using information obtained from American Express, obtained a search warrant for one of the defendant’s apartment and a car. The car had been driven to a location to pick up a fraudulently obtained credit card, and the suspect ran when confronted by the police. The warrant permitted the seizure of computers, including a laptop computer the police had observed on the front seat of a vehicle. The affidavit seeking the warrant asserted that a “fraudulent credit application . . . was made via internet connection and was very likely done using the laptop visible in the [car].”

The investigator testified before a magistrate that one of the suspects “appeared to be using the [car] as a ‘mobile office’ based on the way he had set up the laptop, the fact that it was surrounded by a day planner and ‘all kinds of paperwork’ in the front seat.” 

The defendants challenged the search of the computer, based on the fact that the affidavit in support of the search warrant did not allege that one of the defendants used the laptop in the vehicle to commit crimes.  Any computer could have been used, they suggested. The court rejected this argument, relying upon the statements about the application being made over the Internet and the car appearing to be a mobile office to establish a nexus between the laptop and the suspected criminal activity. 

Image: Clipart.com

 

 

War Reporting & Lessons for E-Discovery Designers

I stumbled onto this story on Slashdot last night. It's a video presentation from Associated Press editor Jonathan Stray, in which he explains how the Associate Press used cutting-edge pattern recognition and visualization software to sort, evaluate, and report on government documents in the Iraq and Afghanistan wars. Many of the techniques they used are (pun ahead) highly relevant to e-discovery design.

Here's the video:

Investigating thousands (or millions) of documents by clustering from Jonathan Stray on Vimeo

Gasoline on the Fire

Last week, Recommind announced that they had obtained a patent for their PC methods. The company's press release says that " ... Patent No. 7,933,859, covering systems and methods for iterative computer-assisted document analysis and review ... gives Recommind, its customers and its partners exclusive rights to use, host and sell systems and processes for iterative, computer-expedited document review."

I'm no IP expert, but that seems pretty darned broad and over-reaching to me. Ahhh, press releases! At least he didn't call it "revolutionary."

  Evan Koblentz, our new reporter, has been covering the story (see posts below) and I wrote today's LTN Alert Commentary about it as well. We've received quite a bit of back channel comments, and have invited everybody to dive into the "Comments" either here in EDD Update, or on Evan's original story.

"Predictive Coding" is Not a Registered Trademark

Confusion around usage of the term "predictive coding" arose this week after Recommind commented on its patent situation. The skinny: Recommind obtained a patent on predictive coding technology and methods, but the San Francisco company does not have a registered trademark on the term itself, and so anybody can use it freely. Patents and trademarks are completely unrelated to each other.

Recommind applied for a registered trademark on the term a couple of years ago and began using the ^TM symbol. A half-dozen of the many examples are here, here, here, here, here, and here.

"We did it because we anticipated that we would soon change the ^TM to an ®, which turned out not to be the case," said Recommind's general counsel and vice president of marketing Craig Carpenter told me today, following his related remarks yesterday to Christopher Danzig at AboveTheLaw.com and Barry Murphy at eDiscoveryJournal.com. 

Georgetown Training Academy Update

Yesterday was day 4 of Georgetown's Electronic Discovery Training Academy, and it was a star-studded day of presentations. Michael Arkfeld began the day with a morning full of discussions about the litigation hold processs, spoliation and the scope of ESI productions.

After lunch, Jason Baron and Maura Grossman offfered an absolutely riveting presentation on search technology, highlighted by the results from Maura's recent findings as reported in the Richmond Journal of Law & Technology ("Technology-assisted Review in E-Discovery Can be More Effective and More Efficient than Exhaustive Manual Review," vol XVII, No.3). That report discusses how computer-assisted searches are always at least as effective ad human searches, at 30% to 40% less than the cost of human reviews. (Click to enlarge photo.)

The highlight of the day was the closing presentation, a joint performance by Judge John Facciola and Judge Paul Grimm. It was a fascinating discussion of the rule-making process and the thought that has gone into not just the overall e-discovery changes to the rules themselves. but specific discussions about the changes to Evidence Rule 502. They also addressed the ongoing debate about the varying standards of duty and negligence from circuit to circuit for litigation holds and whether that variance requires a further rule change for a uniform standard.

Today is the last day of the course. It will begin with a final exam, and then the class will break into teams and conducting a Meet and Confer under the supervision of either Grimm or Facciola. The day and the class will conclude with final remarks from the judges -- I'll pass along a report when we finish up.

 Photo: Tom O'Connor.

Recommind Flexes Predictive Coding Muscles

Here's some news about e-discovery software provider Recommind. It recently obtained a patent for predictive coding methods, it's going for more patents in that area, and it plans to use 'em. Naturally,  some of the other companies that do predictive coding -- which, by the way, Recommind's GC claims isn't real predictive coding, but close enough that he wants to license his patents to them or sue -- are not amused.

Editor's update: Above the Law blog post here.

Georgetown Training Academy

We are about to start day three of the sold-out Georgetown E-Discovery Training Academy. The first two days have been a rollicking adventure in forensics education. The programs is designed to provide "total immersion in the subject of e-discovery, featuring a highly personalized and interactive approach designed to foster an intense connection between all studnets and a renowned faculty," says Georgetown University Law Center.

The instruction to date has been led by Craig Ball (author of LTN's "Ball in Your Court" column) with assistance from David Neal and Andy Spruill of Guidance Software, as well as yours truly.

As an added bonus, D.C.-based Judge John Facciola (right, click to enlarge) has been with us for portions of each day, including having lunch with the attendees in the school cafteria yesterday.

Day 2 was actually a marathon session as we stayed late to perform a series of hands-on exercises with the EnCase forensics tools. Luckily there were ample amounts of pizza to keep us going.

Today's instruction will be taken over by Michael Arkfeld (also on LTN's board and fellow EDD Update author) with additional sessions by Jason Baron (National Archives' director of litigation) and Wachtell, Lipton attorney Maura Grossman. Later in the week the students will break up into teams who will prepare a Meet and Confer session under the supervision of  Facciola and Judge Paul Grimm.

All in all this is an extremely intense learning experience, with enormous amounts of practical discussions and constant give and take between the students and the world class faculty. In addition to the Meet and Confer team exercise at the end of the week, their will be a final skills test on Friday, a CLE first in my experience.

I'll keep you updated with further reports as the week progresses. 

Photo: Monica Bay (from Georgetown's Nov. 2010 EDD conference.)

Legal Service of Process via Social Media

Social media giants such as Facebook and Twitter may soon become another tool for the long arm of the law. As people become more mobile and start to give up traditional worldly tethers such as  phone land lines, mail boxes, and address listings in phone books, lawyers are looking for new ways to reach out and touch someone with legal papers.  

Courts around the world (Canada, Australia, U.K., New Zealand) are starting to allow virtual service of process and the U.S. courts are not far behind!  However, privacy concerns in countries such as  Germany and France have prevented adoption of using social media to give notice of court proceedings. 

Giving legal notice acceptable to the courts via social media is complicated by legal issues such as how often a user checks his or her account, lawyers "friending" parties to a lawsuit, privacy, and where and how do you post legal notice. All these issues need to be carefully sorted out in order to comply with procedural due process. 

Will social media sites cooperate with the courts and provide a legal notice page upon log on?  Many social media sites already provide law enforcement with information and content about their subcribers and an easy way for downloading content; so why not go one step further and provide an "easy button" for service of process.

Don't be surprised if the next time you log onto Facebook, you are greeted by a friendly message from the court "You Are Being Served."

Editor's note: See also, "The Case for Providing Electronic Notice in Child Welfare Proceedings," by Randall Harris.

Image: Clipart.com

How Is Modern EDD Like 50-Year-Old Computers?

That's the wild question I asked yesterday, and then answered myself: "They're both ultimately replaced by smaller, more agile alternatives." Read all about it and then join the conversation.

Gibson Dunn Schools on EDD Basics

Gibson Dunn has been offering an ongoing series of e-discovery basics, both on its website and as e-mailed alerts. The most recent edition (the fourth in the series) addresses legal holds; upcoming topics will discuss preservation of electronically stored information. Gareth Evans, Jennifer Rearden, and G. Charles Nierlich co-chair the practice group; Farrah Pepper (one of our EDD Update authors) is vice chair.

Image: Clipart.com

DeDuping E-mail Conversations

I turn the mic over to Alex Schiller, senior litigation technology analyst at Chicago's Freeborn & Peters, for a guest post:

Previously, I wrote about concerns of deduplication methods employed across electronic data in litigation cases. (See my 2009 "Deduplication: Custodian vs. Case" article ). Those issues relate primarily to the production of data. But there are as well similar concerns for document review.

E-mail conversation threads
These days to get through thousands of documents as quickly as possible, reviewers may rely on software and review tools that show e-mail conversation threads — the threads of back-and-forth e-mail communications among several e-mail "custodians." This is a great strategy to lump same-subject e-mails, and to read them quickly, and then allocate them together as responsive or non-responsive. But with review by custodian, various custodians’ documents that are part of a conversation thread are missed and must be read later. This is almost tantamount to reading duplicate documents.

Greene: Court Slaps Plaintiff's Counsel for ESI Sanctions

In Greene v. Netsmart Technologies Inc. (E.D. N.Y., Docket 08-CV-04971) District Judge Thomas Platt ordered plaintiff's counsel to pay half the sanctions imposed on plaintiff, in an order entered June 2, 2011. The sanctions were half of the attorneys fees and costs associated with the defendant's motion as well as half of the cost of the vendor that examined the plaintiff's hard drive and recording device.

Platt adopted the "Report and Recommendation" of U.S. Magistrate Judge A. Kathleen Tomlinson on defendant's motion. Tomlinson had recommended the sanctions using an ordinary negligence standard to determine the appropriateness of sanctions. As detailed in that report, plaintiff had deleted voice recordings, destroyed handwritten notes, and not produced documents until defendant learned of them during plaintiff's deposition or as a result of a third-party examination of plaintiff's computer.

Deborah Jillson New VP at LexisNexis

 
 Marc Osborne checks in to advise us that LexisNexis has hired Deborah Jillson as vice president for litigation tools, services and hosting.  

 Her responsibilities also include management of the company’s flagship litigation products and services, including Concordance and Law PreDiscovery, he says. She joined LexisNexis from Wolters Kluwer where she wasa  business leader for iSummation software. Under her direction, the Summation hosting division earned back to back LTN awards. She previously served as director of litigation support project management for Doar Litigation Consulting. She also worked at Milberg, and Clifford Chance.

Image: LinkedIn

Now Hiring: Bryan College (Tempe, Az.)

From Don Gull, chair of Bryan College in Los Angeles, which has developed a technology teaching center in Tempe, Az, for post-grad programs:

"We are looking to fill three key positions. First, we are seeking for a person to head up all our online programs and two program directors, one for a course in eDiscovery Project Manager and a Masters program in Advanced Health Informatics. If you are aware of persons who may be interested, I would be happy to send them more detailed information. These positions pay in the six figures. All of this will be under the auspices of Bryan University, a non-profit school of higher learning. All positions would be located in Tempe. We would prefer to talk with persons already living there but if relocation is necessary and someone is willing, we would like to talk. Please pass this to anyone who may be interested in one of these opportunities.

I am also interested in qualified people to serve on our eDiscovery Advisory Council along with Bill [Hamilton] to provide guidance to this developing organization. If you know of anyone with extensive eDiscovery experience, I would like to visit with them." 

The Race for Social Media EDD Tools

The social media buzz has crated a stir among e-discovery vendors racing to meet the technology challenges of preserving, collecting and reviewing electronically stored information (ESI)  from tweets, Facebook, LinkedIn, instant messaging,  and other social platforms.

Currently, when social media is the target of discovery, preserving and collecting can be problematic.  Attorneys like to see the picture or text in context to the target page, so the primitive method of screen capture is often used to correctly preserve the evidence.  Facebook added a feature called "Download Your Information" for collecting a copy of  wall posts, photos, messaging, friends lists, and etc.  However, these methods do not scale when large amounts of social content is being investigated.

Vendors are developing ways to harvest the ESI in bulk using APIs that directly communicate with the media or search technology to crawl through the sites. 

Once harvested, social media and email can be  reviewed together. To that end, vendors have added features that allow social media to be quickly searched and displayed properly.

Companies to watch include Nextpoint for cloud preservation, X1 Technologies  for collection and processing (release date July 2011) and DCSemap for collection and review.

Image: DSCemap 

Double Exposure

Craig Ball gives advice that might surprise some of his regular readers: In his June 2011 Ball in Your Court column in Law Technology News, the Austin-based litigator/attorney says firms can perform single drive imaging with minimal risk. It's a ministerial task when performed by a a reasonably competent person, says Ball, left.

Intrigued? Read the full story here.

Photo: Monica Bay

FreeEed Open Source eDiscovery Tool Debuts

Mark Kezner of FreeEed (https://github.com/markkerzner/FreeEed) released version 1 of a free open source e-discovery processing tool today. Aimed at the do-it-yourself crowd, law firms looking to bring
data processing in-house, and vendors seeking a way to process client data license-free, it provides an egalitarian alternative to the various solutions already on the market.

Kezner states that "FreeEed software is intended to process any number of electronic documents, extract metadata and text, and cull them based on keywords. It produces a 'load file' containing all available metadata and an output zip file, which contains all of the text extracted from each document, as well as 'native' files."

Image: Clipart.com