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If you're starting to wonder why I, the "Chicken Little of Privacy", didn't jump all over Sony's possible exposure of 75 million customer accounts due to a hack of their PlayStation Network, the reason is simple. I can't keep up!
"Only on PlayStation". Indeed.
Folks, I'm not going to bag on Amazon.com too much for their Elastic Compute Cloud (EC2) failure; I'm sure they're getting enough flack from their customers. However, this is why I dislike any absolute statements when we're dealing with this type of technology. Technically, they're right. You don't have to worry about the cloud. You do have to worry about your cloud.
The cloud may have a backup plan for you. Do you have a backup plan for your cloud?
How long does it take to shred 2.7 million documents? I guess it depends on whether 'Tax Lady' Roni Deutch used machines or simply hit the 'delete' key. Inconsequential; as we already know, destroying documents in violation of a court order will certainly lead to sanctions. However, this time, our new California Attorney General, Kamala Harris, is seeking jail time for contempt.
This is one of two high-profile cases of this type. The other involves a Houston, TX company called TaxMasters, although I'm not aware of any e-discovery-related issues with that case. However, it's no coincidence that these cases receive stepped-up coverage at tax time.
Nevertheless, I'll be following the outcome of the former case. It's not every day an AG calls you a "predator for profit".
I'd have to twist myself like a pretzel to try to make this post about e-discovery per se. It's more about the advice I've given before regarding thinking creatively about where evidence might be hiding - and in what form it might be hiding. In this case, it was hiding in plain sight.
Perhaps the only thing remotely electronic about the evidence at issue is a photograph in a mug book. Tracking suspects through their tattoos is nothing new, however, this is the only time I've ever heard of an alert detective catching a criminal because the very crime scene is detailed on his chest.
Talk about 'body' of evidence...
[This is the 1st time I've retrieved a post from the archives. It was my 28th, from February 4th, 2009. The reason I'm doing so is, this seems to be the most popular article I've written, in terms of republishing, anyway. Maybe people just like the title. I recently granted permission for it to be reprinted for an attorney malpractice CLE course in New Jersey April 26th, and it occurred to me; I didn't really have any subscribers back then, so it's likely almost none of you have ever seen it.]
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I've been looking at Twitter, MySpace and Facebook recently...
"I hate my job!" "I don't want to do this anymore!" "I pay my staff too much!"
Who wrote this? Attorneys! I'm picking on attorneys because they should know better, but my point is simple; live your life online and it'll come back to haunt you, someday. Hello??? You do know this stuff may be discoverable, right?
Since it's fast approaching, here's a President's Day story for you...
An underling wrote to a General - who would go on to be President of the United States - regarding an act of treason. The underling was profligate, rambling on and on about the facts of the case, anecdotal details et al, until finally getting to the point; the request for the General to sign-off on an executive order of execution.
The General was not amused. In his order authorizing the execution, he decided to 'send a message' when he sent the message. His order contained two words:
"So do."
The underling got the message. Upon execution of the order, he sent a follow-up to the General:
"Done."
In the above story, the names were changed to protect the innocent (which means I couldn't find a link to provide, even though I know the story - in some variation - actually occurred. My recollection is that the missive was sent to General Washington during the American Revolutionary War).
Are you getting the message?
Continue reading "From the Vault: e-Discovery 101: Twitter MySpace Away on Facebook" »
I'm squarely on the tech-side today and as you can probably tell by the headline, I want to discuss the value of the process of elimination in detecting - and solving - technical issues. Unfortunately, the main ingredient needed is the one few of us possess - patience. However, we come by that honestly, since usually, a technical meltdown is immediately followed by phone calls, emails, trouble-tickets and any one of our newfangled methods of contact. And they all want one thing. Fix it! Fast!
So, naturally the one thing we need - steady, calm deliberation - is the first thing to go. The problem? You can panic, but it isn't going to solve the problem any faster. I've always looked at technical support as a thankless job. People expect systems to work all of the time. If they do, congratulations. It's not likely anybody will ever thank you. However, if they don't, they're all looking for you - and some are carrying weapons (ok, it's not quite that bad...).
If you've ever received a direct call from the world-wide CEO about something like this, first, congratulations again (you must be important), however, this is an excellent opportunity - once you stop sweating. When this happens to me, I don't delay, I don't mumble, I tell them straight exactly what I know (assuming I know anything), then I tell them exactly how I plan to address it. My experience has consistently been that the execs become more angry when they experience an information vacuum than when you tell them the truth - even if it's bad news.
Ok, so you've leveled with the boss. Next steps? I don't need to lecture you on most of that because you already know. But what if nothing is working, the vendors aren't supporting you because they blame each other, and you're at a dead end?
Then, as stated, you'd be amazed how effective it can be to start at the outside and work your way to the center. Pick off issues one-by-one. Try the 'wrong' devices and see if they work. Maybe that'll isolate a hardware problem, for example. Just remember, there are no shortcuts. It's hard work.
I always remember a particular nightmare scenario. At this particular company, the execs wanted the latest-and-greatest devices hot off the presses, even if we'd never had an opportunity to test them - and in one case I remember very well, Microsoft refused to certify or support a particular device because they hadn't tested it, either. Did this stop the execs? No. They still insisted we swap them out anyway. I'm sure you can guess what happened next.
How did I solve it? I just started eliminating what couldn't be causing the issue. Slowly, hardware and software were eliminated from the mix until finally, it was isolated down to the culprit. Then the issue was figuring out what was wrong with it. Eventually, we did. But speaking of lack of shortcuts, I personally read over 200 technical documents to get from where we started to where we finished - and it took about three days.
That's why I became a lawyer. It's such a stress-free job by comparison...
I don't have any children, but many of my friends and relatives do. Nevertheless, several years ago, I advised the Los Angeles District Attorney's Office on their internet privacy program called 'Protecting Our Kids'. It shocked them when I demonstrated how easy it would be for kids to circumvent all of their 'watchdog' procedures.
So, I thoroughly enjoyed reading this story in which a high school in Connecticut accessed students' non-secure social media pages, then presented some of their findings at an assembly.
I think you can already imagine the reaction of some of the students who were featured.
But the creators of the presentation took care only to use images that would not embarrass or offend anyone. Had they done otherwise, that would be another story.
As it stands, my comment to the offended students - and their parents - is, sometimes, we don't realize the favor someone is doing for us. If those same students think twice the next time they're about to post an item, then the school has accomplished its goal.
Besides...did the message really get through? Here's what some of the angry students did first:
They complained on Twitter.
What we think is not the same as what we know. I've been following the, "I own 50% of Facebook" lawsuit, but I admit, until I drilled down into the minutia, all I knew for a fact was, Plaintiff had refiled the case and included some damning email messages, and Defendant stated the emails are fake. Since the suit prominently features ESI, I wanted to better understand the issues.
No doubt about it, this is a true eDiscovery whodunit. I read a few articles and this is what I've learned. Ceglia claims he owns 50% (or more) of Facebook. Facebook claims he doesn't. That's right. That's all I know. I certainly read some fascinating excerpts, though.
However, I can point you to article after article that purports to know more, but doesn't. Don't get me wrong; unless one is writing a factual piece, there's no journalistic requirement to state only facts. I actually learned a lot of valuable factual information from the linked article (notwithstanding the reputation of the author). The problem - for me, anyway - is that law and speculation don't mix. And opinion? Expert opinion?
If this case goes to trial, Plaintiff will likely produce at least one expert who claims the ESI in question is genuine. Defendant will likely produce at least one expert who claims the ESI in question is fraudulent. Or perhaps experts on both sides can't conclude either way, due to the amount of time that has passed since the emails were exchanged. Who decides? Will it become a question of fact for the jury?
I sure would like to give you my answer, but the entire previous paragraph was pure speculation. As soon as I used the word, "If"...
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