Is Texting Evidence of Criminal Conduct?

Is texting evidence of criminal behavior? That was the issue before a federal judge in U.S. v. Dukins, Dist. Court, ED Tennessee 2012.

In Dukins, the defendants faced counterfeiting charges. One of the issues was a stop and frisk of the defendants by the police. The officer noted, among other factors, that "it was significant that the men appeared to be texting because, in her experience, scammers are often texting someone inside or outside the store who is acting as a lookout during the scam."

To review, police may make a brief, investigatory stop (a Terry stop) if the police have specific, articulable facts that gave rise to a "reasonable suspicion" that the suspect was engaged in criminal activity. Reasonable suspicion is determined in light of the "totality of the circumstances."

ACEDS Annual Conference

The Association of Certified E-Discovery Specialists will hold its annual conference in Hollywood, Fla., on April 2-4. The conference will offer 17 panels, including a session on the pending Florida state e-discovery rules, 13 networking events, and an exhibit hall.  

Among the 32 speakers:

•  Ervin Gonzalez, of Colson Hicks, in Miami, who has been involved in major cases, including the British Petroleum oils spill and Chinese drywall litigation.

• Rafael Bernardino, of Hobson, Bernardino & Davis, who filed the e-discovery malpractice case against McDermott Will & Emery.

• Arnaldo Perez, general counsel of Carnival.

• Professor John Bagby,  information sciences at Pennsylania State University.

• Robert Barth, clerk of courts of the U.S. District Court for the Western District of Pennsylvania.

Image: Clipart.com

Cell Phone Tracking Case Illustrates Lack of Clarity

A recent case from Arkansas suggests that law enforcement could face liability for improperly tracking locations through cell phones. The case is Trice v. Eversole, Civil No. 11-2073, United States District Court, W.D. Arkansas (Marchsewki, M.J.). In doing so, the court illustrates the lack of clarity presented by the recent Jones decision on GPS tracking.

In Trice, the plaintiff filed a civil case under §1983. The allegations were that a police officer tracked him without a warrant by means of his cell phone. When the plaintiff arrived at an empty house, he alleges that he was "jumped on" by the police and unlawfully arrested.

One of the defendant officers moved to dismiss the case (technically, filing for judgment on the pleadings). The defendant's argument was that no warrant was required to obtain cell phone data. The magistrate judge noted that the courts are divided on whether the "government must show probable cause before it can obtain cell phone location data. American Civil Liberties Union v. U.S. Dept. of Justice, 655 F.3d 1, 12-13 (D.C. Cir. 2011)."

Ramifications of Judge Peck's New Opinion

We must remember that decisions of federal magistrate judges carry no weight beyond the U.S. district judge who assigned the matter to them. 

Under Rule 72 (a) of the Federal Rules of Civil Procedure, decisions of a magistrate judge are subject to review and either approval, modification or reversal by a district judge of that court, except in civil cases where the parties consent in advance to allow the magistrate judge to exercise the jurisdiction of the district judge. The last word in the Da Silva Moore case will rest with US district Judge Andrew L. Carter who is assigned the case.

Magistrate decisions by Judges like the Honorable John M Facciola, Honorable Paul Grimm, and Honorable Andrew J. Peck have become the linchpin in the evolution of e-discovery case law. However, it's time to see more U.S. district judges like Shira A. Scheindlin taking the lead in this area.

Image by Clipart.com

From A to Zeta

Exterro adds more credibility to its claim that its Fusion platform provides end-to-end e-discovery with its Zeta product, which focuses on corporate legal departments, argues Jason Krause in his review, "Exterro E-Discovery From A to Zeta."

Zeta provides an early case assessment tool that includes multiple data scanning tools — Quick Scan and DeepScan — that query multiple data repositories. It can also preserve, cull, collect, analyze, and report on electronically stored information, as well as conduct a first-pass review.

One standout feature is its Matter 360 Dashboard, which provides a detailed picture of a corporation's e-discovery efforts from ECA through first-pass to production, writes Krause.

 

Images by Clipart.com

Hot Off the Press: Judge Peck's Opinion in Da Silva Moore

U.S. District Court Magistrate Judge Andrew Peck has just released his opinion in the Da Silva Moore case addressing computer-aided coding.

Read it here: Download DaSilvaMoore 2-24-12 Opinion.

Image: Monica Bay

Siemens Ramps Up Its EDD With Exterro, Recommind

Siemens Corporation, the U.S. subsidiary of German multinational provider of electronics and electrical engineering Siemens AG, is tapping Recommind and Exterro to build up the company's in-house electronic data discovery.

Siemens selection of both Exterro's and Recommind's technologies avoids what Craig Carpenter, vice president of marketing at Recommind, calls the "Frankenstack approach" -- piling up "a completely unmanageable complexity and number of solutions and vendors" -- since the products "seamlessly integrate," according to both vendors.

Industry watchers see the deal as symptomatic of overall trends in enterprise e-discovery. Katey Wood, an analyst with Enterprise Strategy Group, views Siemens considerable e-discovery investment as gearing up for potential regulatory inquiries, noting a survey that finds companies like Siemens with over $1 billion in revenue "driving e-discovery readiness harder internally." David Horrigan, an analyst with 451 Research, notes another trend: "the movement of e-discovery from law firms to corporate clients themselves."

Read my full report: "Siemens Turns to Exterro, Recommind to Build Up Its In-House E-Discovery."

Image courtesy of Siemens

Foreign Cyberthieves Stole 867 Terabytes in 2011

Jaw-dropping article in The New York Times on How Much Have Foreign Hackers Stolen? The takeaway is that as hackers improve their capabilities, and as Americans migrate to a mobile workplace, the problem has grown worse. It is far easier to steal trade secrets when Americans carry them around on their mobile devices.

Tom Kellermann, chief technology officer at AirPatrol, a wireless security company, is quoted in the article as saying: "We never let go of these things. We work with them; we even sleep next to them. That's the dark side of Web 3.0. Once someone hacks your device, they don't just hack the back end, they hack your network. They can turn your camera and microphone on. They can hack your whole life."

See EDD Update, "Mobile Security — Tips to Safeguard Your Devices," and The New York Times article, "Traveling Light in a Time of Digital Thievery."

Image by Clipart.com

Is an Email Worth a Billion? Ask Google

Irony doesn't always get this ironic. Search giant Google inadvertently produced a potentially devastating email during electonic discovery in a billion dollar infringement suit waged by Oracle over Google’s Android platform.

How do things like this happen? According to Henry Kelston, the online search leader's e-discovery search methodology failed to flag as privileged eight additional drafts of the email automatically saved to Google engineer Tim Lindholm’s computer –- even though the content on the drafts was nearly identical to the privileged email.

Among the revealing statements in the email, Lindholm wrote of an attempt to find alternatives to Oracle-owned Java language for Google's Android and Chrome: “We’ve been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need.”

The Federal Circuit recently denied Google’s sixth attempt to claim attorney-client privilege for the offending email. Find out why in Kelston's article for LTN, "Google's EDD Search Blunder in Oracle Case: the $1 Billion Mistake?"

Unified Information Access: Viva Las Vegas

The Data Warehousing Institute held its Business Intelligence Executive Summit this week in Las Vegas. This conference is all about developing an enterprise strategy on handling data and recommended for anyone wanting to see the future of predictive coding.

The buzz is UIA — unified information access — tools that integrate search, text analysis, and buiness intelligence. Bringing previously separate information ecosystems together helps reduce the chaos of multiple interfaces and adds power to analysis.

As we move toward UIA functionality, organizations can reduce the time and difficulty involved in working with different types of data. To that end, we are seeing predictive coding become part of the UIA platform.

Predicitive Coding in Andrew Peck's Court

In what appears to be the first federal case to adopt the use of predictive coding, Magistrate Judge Andrew Peck of the U.S. District Court for the Southern District of New York in Monique Da Silva Moore, et al., v. Publicis Groupe and MSL Group, ordered the parties to adopt a protocol for e-discovery that includes the technology as implemented by Recommind's Axcelerate product.

Paul Neale, CEO of Doar Litigation Consulting and Gene Klimov, vice president of discovery consulting, advised the plaintiffs on developing a protocol for predictive coding that used quality controls by both parties to teach Axcelerate what is relevant and irrelevant through iterative sample sets. Peck agreed that "the [predictive coding] system is only as good as the training that it gets."

See LTN's technology editor Sean Doherty's analysis .

Image by Clipart.com

Thou Shalt Not Commit Adultery on Your iPhone

The smarter smartphones get expect their desirability to grow as treasure troves of digital divorce evidence. According to a post on AllThingsD, a smartphone is a divorce lawyer's perfect partner when it comes to procuring electronic evidence.

A survey by the American Academy of Matrimonial Lawyers finds 94% of the country's top divorce lawyers reporting an upturn over the past three years in the use of iPhones, Androids, and other smartphones as evidence in divorce cases.

Sixty-two percent of the evidence comes from not-so-surreptitious text messages, 23% from emails, 13% from call histories and phone numbers, and a mere 1% drawing on web searches and GPS. Given the number of social media apps on mobile devices, you might expect greater use of social media as smartphone evidence, but social media use may have been folded into another survey

There are no recorded instances of iPhone 4S users having virtual personal assistant Siri testify against its master or mistress, but one message should be clear: Digital evidence doesn't dissolve as easily as many marriages do.

Image by Clipart.com

Cowen Group Leadership Roundtable on IG, the Cloud

The Cowen Group returned to San Francisco this week for its breakfast leadership roundtable series. David Cowen organizes these events around the country to bring together thought leaders to share and exchange ideas on major e-discovery issues.

Corporate participants from Google, Apple, Genentech, McKesson, and major law firms focused on the specific challenges of information governance and e-discovery in the cloud.

The consensus was that the cloud (private, hybrid, and public) is a complex environment with a host of legal issues including security, privacy, and e-discovery. Many companies have been operating private clouds for years and are just now starting to put a legal wrapper around it.

Clustify Offers Tryout

Is concept clustering a concept missing from your company's or law firm's document review? Hot Neuron is offering the opportunity to try out its clustering product Clustify to see how well it speeds the process — free for the month of March.

Clustify's technology uses algorithms to group related documents into clusters, labeling them as categories. The software can then automatically categorize new documents as the project progresses, using predictive coding (aka technology-assisted review). Users can choose whether to cluster documents as similar by concept, similar as near-duplicates, or similar as parts of an email thread.

Hot Neuron CEO Bill Dimm, in a press release, emphasizes this is not an evaluation and urges users to apply the technology to "real case data." Is he trying to hook you past March? Could be. Is there a catch? Participants must sign a licensing agreement and attend a short training session on GoToMeeting. Interested parties can register here.

Press release.

Image by Clipart.com

Decisions, Decisions: EDD Cases in 2011

"Case law has rapidly evolved from the humble pronouncements of just a few technology-savvy federal judges," observes Littler Mendelson shareholder Cecil Lynn III, looking back at e-discovery opinions in 2011

Francisco v. Verizon South, Inc. and Race Tires America, Inc. v. Hoosier Racing Tire Corp. are among a rising number or opinions that address reimbursing the prevailing party's e-discovery costs. Thermal Design, Inc. v. Guardian Building Products, Inc. from the Eastern District of Wisconsin demonstrates judges stressing the need to move away from broad discovery demands towards targeted, more proportional requests.

The recently updated Pippins v. KPMG LLP raised the specter of disproportionate preservation demands and the worry that Southern District of New York Magistrate Judge James Cott's (and now District Court Judge Colleen McMahon's) decision might be misapplied. Other opinions addressed sanctions in the face of egregious misconduct, the production of metadata, and social media discovery.

For the full rundown, read Lynn's article, "The View From the Bench: Opinions on E-Discovery in 2011."

What Does an E-Discovery Project Look Like?

As a lawyer, do you find the concept of project management as alien to your practice and education as the notion of providing your own IT support? In a follow-up to his LTN article, "Right-Thinking in E-Discovery Project Managment," Brett Burney trains his focus on what an e-discovery project looks like to breed a little more familiarity with the process.

As a point of departure, he looks at the Electronic Discovery Reference Model group's Project Management Framework for a broad outline of the logistics necessary to navigate each categorical task in the EDRM.

If you're still in the weeds, he suggests tools that break down the broad framework into more manageable tasks, honing in on tools that are specifically focused on managing e-discovery projects, including Framework from Wave Software, Project Matrix and PHIGRID from eClaris, and Exterro Discovery Workflow. "The goal of all of these products is to give you a standard platform to manage your e-discovery projects and reuse workflows that have been tried and are true," writes Burney.

But remember that the best framework and the most tried-and-true platform fall down without proper communication and documentation. For the full picture, read "Anatomy of an E-Discovery Project."

Guidance Buys CaseCentral

Pasadena, Calif.-based Guidance Software has announced its acquisition of CaseCentral, bringing customers software and services from collection to review in an end-to-end e-discovery platform, report LTN's Sean Doherty and Brendan McKenna.

Before it bought CaseCentral, Guidance had used third party vendors during trial preparation to conduct further review and analysis of its customers' collected data. With San-Francisco-based CaseCentral's focus on hosted review, Guidance can now analyze, cull, and review collected data, de-NISTed using EnCase Forensics, it says.

Guidance will acquire CaseCentral for $17 million under the terms of the agreement and anticipates the acquisition will add $10 million in software-as-a-service growth in 2012.

Read the story, "Guidance Buys CaseCentral to Make End-to-End E-Discovery Platform."

Logos courtesy of Guidance and CaseCentral

The Big Picture in Capturing, Analyzing Data Ecosystems

A torrent of data is created every day by the interactions of millions of people using computers, GPS, mobile devices, and social media. Electronic data has become so prevalent in our culture that we now have data ecosystems developing similar to ecosystems in nature.

Data communities include mobile, social media, transactional, communications, etc. These ecosystems also create a huge amount of so-called exhaust data — data created as a byproduct of other data — like transaction logs, metadata, etc.

The challenge is being able to channel these data communities into actionable information that can be used for business intelligence, investigations, e-discovery, and predicting trends. Currently most data is lost, not used, or partially analyzed in a reactive setting during litigation.

How Over-Preservation Starts and How to Stop It

"Let's keep it anyway, just to be safe." According to Craig Ball, this simple but mistaken mantra for lawyers is a password to open the door to over-preservation.

Looking at email preservation, Ball details how understanding the mechanics of the process can jump-start proportionality in e-discovery before parties ever enter a courtroom. Ball looks at several options parties take when preserving email — from doing nothing and relying on message journaling or archiving systems to custodial-directed holds to "grabbing all mail" in one fell swoop — and weighs their attendant risks, benefits, and potential costs.

What's your firm's approach to email preservation? If your answer is "I don't know," read this month's LTN "Ball in Your Court" column, "What Causes Lawyers to Over-Preserve?" to persuade you to change your response.

Image by biscotte

Pippins Demonstrates Need for Uniform Preservation Rules

In her Feb. 3, 2012 opinion in Pippins v. KPMG LLP, (S.D. N.Y. No. 11 Civ. 377), District Court Judge Colleen McMahon denied KPMG’s request for relief from its obligation to preserve more than 2,500 hard drives of its former Audit Associates in the overtime wage case, at a cost claimed by KPMG to be $1.5 million or more. The plaintiffs sought relief under the Fair Labor Standards Act and New York law.

KPMG’s failure to provide any information about or access to the drives doomed its argument that the value of the drives was disproportionate to the costs. Without any sense of what the value was of the information on the drives, the court could not undertake any balancing of burden vs. value. As stated by Judge McMahon, “KPMG is hoist on its own petard,” (Op. p. 20). In other words, traditional stonewalling tactics can backfire on a party trying to limit discovery by arguing proportionality; even the slightest cooperation would have put KPMG in a much better position.

If there was a silver lining for those who oppose burdensome preservation obligations, it was that the court stated that, “[P]roportionality is necessarily a factor in determining a party's preservation obligations” (Op. pp. 18-19), thereby siding against those who argue that proportionality governs production but not preservation.

Hitting the 'Like' Button for X1 Social Discovery

With Facebook membership passing 800 billion and Twitter at more than 300 million users, that's a lot of data to rummage through. Small wonder that social media discovery is an emerging area of interest for e-discovery practitioners and providers.

Enter X1 Discovery with its flagship product X1 Social Discovery, which was on display at the exhibit hall at LegalTech New York a few months after its October launch.

As John Waters writes, the software was "designed specifically to collect, index, search, and preview social media content generated by the three most popular systems: Twitter, Facebook, and LinkedIn." Among its vaunted features are its ability to preserve chain of custody with social network content and to capture and preserve its metadata.

Waters takes the product for a test drive in his article for LTN, "X1 Social Discovery Collects Data in Social Networks."

Image courtesy of X1 Discovery

KPMG Loses Appeal in Pippins

KPMG has lost its appeal in the controversial Pippins case. Judge McMahon said KPMG must preserve all possible plaintiffs' drives. Full story here.

Consultants Key to Predictive Coding Success

Predictive coding is only as good as the person(s) seeding the initial document set. Identifying, analyzing, and coding the seed document set requires skilled content analytics consultants.

Otherwise there is the risk of unreliable results and statistical uncertainty. Garbage in: garbage out still applies.

To that end, I saw service providers at LegalTech promoting their consulting teams. For example, RenewData launched RDC Analytics, which is a group of forensic linguists, mathematicians, librarians, and attorneys who provide content analytics consulting for legal, regulatory, and business purposes.

The real stars at Legatech this year were the regional service providers driving the technology. As Recommind points out, predictive coding does not replace human review. It optimizes it!

Image: Clipart.com

Who Has Standing in High Court Ruling on GPS Tracking?

The Supreme Court's GPS tracking decision — United States v. Jones — might be one of the most significant Fourth Amendment decisions of the past few years.

Four justices, led by Justice Scalia, adopted a trespass approach to the issue, reasoning that the Fourth Amendment prohibited the attachment of a device to the suspect's car. In contrast, four justices, led by Justice Alito, determined that long-term monitoring by GPS devices violated the Fourth Amendment because a a reasonable person would regard such surveillance as a violation of privacy interests.

Justice Sotomayor's concurring opinion, while agreeing with the Scalia trespass approach, also expressed concern that other forms of electronic surveillance might violate privacy interests even if there was no physical trespass.

The Jones decision left unanswered a threshold question: Who is able to take advantage of this ruling?

EDD in the EU: Proceed With Caution

"Don't assume anything about technology systems when your firm is working outside of the United States," was one insight reporter Evan Koblentz gleaned from the LegalTech New York panel, "A GC's Nightmare: A U.S. E-Discovery Request Into Europe."

The risks and problems that follow from wrong assumptions about multinational e-discovery were laid out in detail by panelists from both the U.S. and the European Union.

"The biggest concern that I have is the competing interests of the U.S.courts versus the EU privacy concerns," said Craig Cannon, discovery counsel at Bank of America.

Read the full article, "LegalTech Panel Examines E-Discovery Challenges in Europe."