e-Discovery Insights

Why be Normal?

CIO magazine poses a hypothetical about whether the new normal might 'kill' IT.  Damn...I haven't gotten used to the 'old' normal, yet.  But it is of interest to me, considering I made my decision to go to law school in late 2001 based on my estimation of where I thought IT was headed at that time.  It's great that CIO caught up with me; albeit nine years later.  Here's what I 'saw' in 2001:

IT, in its purest form, was never expected to turn a profit.  I defined it at the time as, "Our job is to make sure that everybody else can do their job."  Unfortunately, many in IT didn't see it that way (i.e. Dilbert comics are funny because they're true, not because they exaggerate).

Even then, cracks in the dike appeared.  Departments started poaching IT talent to be used in for-profit endeavors; not necessarily a bad thing if there were enough resources, but that was rarely the case.  Also, there was a lot of backlash after the dot-com debacle - and quite a bit of it was well-deserved.  Sorry, but take it from me; many of the 28-year-old CEOs at those companies really didn't know what the hell they were talking about.  We can't all be Bill Gates or Steve Jobs, after all (note how I shamelessly covered both PC and MAC so as to avoid hate mail - oh wait, I don't get any mail...).  And no, I'm not a Bill Gates or Steve Jobs, either.  If I were I'd have a nicer car.

But the main thing I thought about was, if you're in IT and you don't add value, you're going to be in trouble down the road because the powers that be made a terrific discovery; outsourcing.  Conversely, I thought, if you're in law and you don't add value, you're going to be in trouble down the road because the powers that be made a terrific discovery; outsourcing, and failing that, the lowly-paid associate.

I think we're seeing a lot of this play out right now as the severity of the recession caused firms to think about what they can do without.  Unfortunately, they can do without a lot.

It's tough making yourself indispensable these days...

e-Discovery California: State & Local Governments get the "Message"

In the, "We've finally figured out that emails, texts and voice mails are in the public-domain." department, state and local governments are taking steps to limit the use of electronic devices during official sessions.

This article is of interest because such a policy is now being proposed in the heart of Silicon Valley.  The California Assembly is also considering a similar rule.

Are politicians doing so out of the kindness of their hearts?  Hardly.  They're responding because public watchdogs are filing lawsuits seeking access to these messages under the California Public Records Act.  And they're not just limiting their requests to public devices; they're going after personal PDAs and laptops as well.

One more step in the continuing game of leapfrog between the limits of individual privacy and the public's right to know...

"I'm Fred B. Ives and I want to be your Friend"

"But you can just call me FBI."

Well, they've been hanging out in chat rooms for years...it shouldn't be surprising that they're doing the same with social networks.

And you thought you only had to worry about an ex checking your Facebook page...

The Bench: CA Superior Court Lays Off 329

I'm starting a new feature called "The Bench".  In keeping with the California-based theme of my blog, I want to update you on notable events occurring within the Superior Court system.  I'll also keep an eye on the Federal District Court.

I recently attended a symposium in which some judges offered a very bleak outlook for the courts in the near-term.  We were informed of the impending first round of cost-cutting measures that I cited in the headline, and as the article mentions, this is just the beginning.

According to additional information I've received, it's estimated that the cuts will ultimately grow to 1,800 - and at an estimated ten employees needed to support each courtroom, that means eventually 180 courtrooms could be shuttered.  Maybe I should say 'shuddered', because that's how several of the attendees reacted as they exited the symposium.

The judges estimated that, by the time all of the cuts are made, civil litigation may take up to four years or more to reach trial.  That's a sobering statistic; especially since the Rules of Civil Procedure don't allow for indefinite delays.  And it's a non-starter in criminal cases (defendants have a constitutional right to a speedy trial).

In four years, I'd expect the litigants to forget what the original dispute was about!

They Know, Whether You Tell Them or Not

Bear with me this week, folks.  My home network is completely down and it looks like it won't be up again until next Tuesday.  In the meantime, I'm a nomad in search of wireless networks...

If you want to take a look into the way information - and evidence - will be compiled in the future, this New York Times article spells it out in chilling detail.  Using a combination of data mining and modeling, individuals - who are a lot smarter than I am, by the way - have proven their ability to profile us by accumulating information from several sources.

I'd read about the Netflix issue before and considered posting about it, but the one that really scares me is the report from two Carnegie Mellon researchers who claimed they "could accurately predict the full, nine-digit Social Security numbers for 8.5 percent of the people born in the United States between 1989 and 2003 — nearly five million individuals."

Keep this in mind as you reveal more and more about yourselves online...

Stunning Development in Law Enforcement Video Capture

I'm wearing my criminal law hat this morning.  The maker of Taser guns has developed a new digital video-capture system that allows a patrol officer to record real-time events using a camera device that fits over his or her ear.

Let's dispense with the obvious theoretical issues that can't easily be addressed in a blog post; misconduct, engaging/disengaging the system at inappropriate times, moral questions, etc.  I'd like to focus on the technology itself.

The data is uploaded to a cloud, specifically the data warehouse evidence.com, so there are the usual security aspects to deal with, but considering I recently covered a criminal case where spoliation sanctions occurred because videotape of an arrest wasn't retained, systems of this type are likely to become more prevalent.

Of course, these devices don't come cheaply, but I learned something I didn't know; an officer-involved shooting may generate $250,000 to $300,000 in evidence collection costs.  Maybe it makes a lot of sense for high-crime departments.

I don't think I need to state the obvious pros and cons (and I suppose in this case, 'cons' is a double-entendre), but if it were me, I'd prefer that a video recording was being created.  It tends to keep people 'honest' - no matter which side of the gun you're on.

Turn your Head & Cough: Digitized Health Records, Privacy & e-Discovery

With all of the discussion of government-sponsored health care these days, lost in the shuffle is a concerted push to digitize health records.  It seems like everyone's getting in on the action; providers, consultants and even the federal government.  In theory, it makes sense for a number of reasons; portability, efficiency, cross-referencing, cost-reduction, and for those who are into 'green technology', lack of paper.  In practice, however...

Let me tell you about my first experience with digitized records.  I've been with an HMO ever since I ventured out on my own.  Save for one short period of time, I've had very competent doctors.  About two - three years ago my provider migrated to digitized records.  The next time I showed up for an appointment, my doctor informed me that she was so frustrated with the new system, she was retiring!

Now, I didn't ask her how old she was (I'd guess late 50s) and as we all know, age-based resistance to new technology is certainly a factor, but there are a host of other worries, such as who's going to be responsible for protecting us from all of this?  The doctors are probably thinking the same thing.  Right or wrong, I doubt they want their records falling into the wrong hands, either.

We know the records are supposed to be confidential, but if the powers that be can't protect our credit card and banking records, how well do we think they're going to do with medical records?  I suppose from the e-discovery side, I should be licking my chops (and perhaps I would be, except that I have medical records just like everyone else!).

Let me tell you about my last experience with digitized records.  I went in for my annual physical and I always have the usual, routine labs.  Unfortunately, all did not go smoothly.  My new, very competent doctor informed me she was having trouble setting up my lab work. 

Why?

The computers were down...

Kroll on the Auction Block for $1.3 Billion

A little business news this morning.  Marsh & McLennan, the world's 2nd largest insurance broker, is reviewing offers for its Kroll security consulting unit.  There's sparse information available, but it's thought that Kroll has never been a good fit for the company, which originally paid $1.9 billion for it in 2004.

Is this a sign of further consolidation in our industry?  Does M&M need to raise cash in this tough economic environment?  Honestly, I don't know the answers.  Perhaps more information will come to light as the transaction progresses.

As a Registered Partner of Kroll's Ontrack unit, I'll be monitoring this story with interest.

e-Discovery LOL: Creative Spoliation

Normally, we think of spoliation - at least in e-discovery terms - as someone negligently or deliberately deleting digital evidence.  Certainly, the idea of someone swallowing evidence isn't a new concept either, although we usually think of it in terms of drug balloons or something of that nature.

This story about a criminal who swallowed a USB drive probably wouldn't have registered on my radar screen save for the headline: "An alleged cybercriminal who swallowed a USB drive thought to contain credit card data to destroy evidence has been charged with obstruction."

You just can't make this stuff up...

Take a Picture...It'll Last Longer...

Privacy is taking another hit to the chops.  A Swedish firm named The Astonishing Tribe has created an application called Recognizr which allows you to snap a picture of a total stranger, then it crawls the web to find information about that person.

Stalker's dream, anyone? 

Well, if you believe the sensationalist media, yes, but in reality, not quite.  It's an opt-in service so what we're really talking about is, people who don't understand the implications voluntarily opting-in (e.g. singles who think it would be a fun way to meet people), unscrupulous entities that opt you in without your consent, or perhaps an employer demanding that their staff opt-in.  You think not?  I saw an ad seeking an employee for Best Buy that required the candidate to have a Twitter account and at least 250 followers.

Based on what we see with social networking, plenty of people don't seem to be too concerned about their privacy so there'll potentially be plenty of 'volunteers' from the 1st group.  My guess is that the 2nd group would quickly be discovered, lambasted from one end of the Web to the other and quickly shut down (Google Buzz, anyone?).  As for the 3rd?  That's a question for the future.

As a lawyer, I certainly can envision practical uses for the application.  I've been to trials where there's a person who sits at the back of the courtroom every day, I know they have an interest in the case (e.g. insurance carrier's attorney) but they won't tell me who they are or why they're there.  Wouldn't I love a tool that would tell me for them...