e-Discovery Insights

e-Evidence Insights: Social Media Doesn't Distinguish Between Good and Bad Riots

In the "Be careful what you wish for!" category, first we had the Arab Spring, which was considered to be a positive development for the Middle East - in the West, anyway.  Now we have the UK riots - and the reaction is entirely the opposite.

With the Arab Spring, social media was hailed as a catalyst to facilitate needed change.  And with the UK riots?  Social media is being disparaged as - you guessed it - a catalyst to facilitate anarchy.

That's the problem with revolutions; perspective is skewed based on which side of them you're on.

What's more interesting to me is the difference between the vehicles of change.  With the Arab Spring, it was Facebook, Twitter and YouTube.  With the UK riots, it's Blackberry Messenger (as if Blackberry doesn't have enough public-relations issues right now, including losing yours truly as a customer).

What's driving this decision?  Economics, for one (Blackberries are cheaper in that region) and secrecy (BBM is private).  I don't want to belabor the point - people died in both riots - but we should endeavor to understand these issues.

If this were happening in the United States, we'd be arguing whether this was a Constitutional violation of the Brandenburg standard.  And while we argued, the FBI would be accumulating electronic evidence.

You may consider yourself to be on the 'right' side of the revolution, but make no mistake; either way, someone is tracking you.  This will make a big difference if, in the end, you find yourself on the 'wrong' side.

e-Evidence Insights: Casey Anthony & the #eDiscovery Connection

The last thing I want to do is harp on the Casey Anthony trial; more than is necessary to make my point, anyway.  I only want to discuss one item; the verdict.  Is there an eDiscovery connection?  Yes, if you look at cases holistically and not by their parts.  I see people get so wrapped up in the minutia of what we do, they forget that ultimately, this thing may go to trial!

Why's this important?  Because you can be very successful at the eDiscovery portion - and still lose.  If this case proved anything, it's that anyone who thinks they can handicap a jury is smoking crack.  That goes for you, too, Nancy Grace!

One thing that always adds a wild-card to the deliberations - and this was clearly cited in one of the juror interviews - when the element of it being a capital case is added to the mix, individuals are reticent to be the ones to sign the death warrant, even if they're absolutely certain of guilt (and they weren't even close, here).

It's still a marathon to the finish line, but always bear in mind, eDiscovery is just a single watering-station.

e-Evidence Insights: Key Card 'Chief' in IMF Rape Prosecution

When one thinks about acquiring forensic evidence in relation to a criminal rape charge, I doubt electronic evidence would normally be on the list of items sought.  However, a hotel key card is likely to figure prominently in the prosecution of the now-former-IMF Chief, Dominique Strauss-Kahn.  Is the theory set forth by the information gleaned from the key card likely to be convoluted?  It seems likely, however, this serves as an appropriate reminder that eDiscovery is not just about civil cases.

e-Evidence Insights: bin Laden's Secret Weapon: Cut & Paste

Yes...I'm still here...and I'm about to clear out that backlog of interesting items I mentioned a few posts back.  Funny how Osama bin Laden has already moved to the back pages - unless you're interested in 'his' porn collection.

If we learned one thing from 9/11, it was that we should cast a large net, but the webbing must be finite - lest the minnows pass through.  For our purposes, 'minnow' is a metaphor for 'analog'.  We expected machine guns...instead, we got box cutters.  We expected a sophisticated digital network of operatives...instead, we got bin Laden writing up some text, copying it onto a flash drive, then a courier cutting & pasting it into an email message at a remote location.

Just something to keep in mind the next time you're collecting digital evidence.  Don't jump the shark while overlooking the minnow.

e-Evidence Insights: A Good Senator, Spoliated.

...with deference to Mark Twain...

Recently-former-Senator John Ensign's (R-NV) affair and alleged attempts to cover it up would normally be fodder for the press - and I'd take little notice of it.  However, with the release of the Senate Ethics Committee Panel report, we find this:

"The report also accuses Ensign of deleting documents and files the committee was likely to request. The senator deleted the contents of a personal email account after the investigation was launched, it says." [italics added]

And this:

"The committee's report describes Cynthia Hampton as running up $1,000 in phone bills by texting Ensign while he was traveling in Iraq with a congressional delegation."

I want to distinguish between the first quote and the second.  The former is clearly in the realm of relevance (save for an attempted-but-likely-futile privilege argument against access to his personal email account), but the latter is an example of how 'beside-the-point' ESI becomes relevant.  The affair may be morally wrong, but texts between the two players are private - or at least they would be, except for the likelihood that access to them might lead to relevant evidence that would tend to prove or disprove a material fact.  Examples?  Did they conspire to cover up the affair through means that would be deemed improper?  Plus, who paid the phone bill?

This is how your personal cell, PDA or email account ends up in the hands of your adversaries.  You're not immune.

What do you think the odds are that Sen. Ensign knew, or should have known that destroying evidence after learning of an investigation is at best sanctionable conduct and at worst, a crime?

This is how destruction turns into obstruction.  Time to call "Aunt Judy"...or Judge Judy...

e-Evidence Insights: From Innocuous to Probative

If you'll forgive me my lack of time today,  I'd like to link you to a New York Times examination of the case, Skyhook Wireless v. Google (or as I like to call it, the "Jabbar" case).  The reason I'm singling this out is, if you follow the story, you'll see a great example of how seemingly innocuous statements contained in email messages, laid end-to-end, balloon into something much bigger.

Oh, and if somebody sends you an email - and you feel it would be more appropriate to continue the discussion off-line - walk by their office (if possible) or pick up the phone.  Don't email them back, "PLEASE DO NOT! Thread-kill and talk to me off-line with any questions".

If I saw that in document review, where do you think I'd start digging?

e-Evidence Insights: The Manchurian Blawgger

I've just been informed - by someone who I refuse to reveal - that Donald Trump has dispatched a team of private detectives to California to examine my birth records.  Worse, I'm told he can't believe what he's finding!  So, even I know when the jig is up.  It's time for me to come clean.  I'm a Canadian-based plant, sent here to infiltrate your society.  The election going on up North yesterday?  I did that (I also pre-determined the outcome).  You're a fan of bacon, maple syrup and you say 'eh?' a little too much?  It's not Vermont - and you're not hard of hearing.  It's me. 

I know I've told you I'm an American citizen, but how can that be possible under the following facts?

1. I was born in Northern California.
2. Both, not just one, of my parents is/was a citizen of Canada and neither is/was a dual-citizen.
3. The first three digits of my social security number were issued from a state in which I've neither set foot, nor ever had a mailing address.
4. Furthermore, I wasn't even living in the United States when I legally-procured my social security number.
5. I didn't have a copy of my birth certificate, so I wrote to the State of California to request one - and was sent a short-form "Certified Abstract of Birth", which I then used to request my social security number.
6. No religion or hospital information is listed on the short-form.

Yet, these are the additional facts:  I am an American citizen.  I have a valid social security number.  And - what makes my mother most proud - I can be President of the United States; notwithstanding the pesky requirement that I must somehow convince people to vote for me.

Why do I bring this up?  Because the juror at your next trial might be a birther or a truther.  And before anybody takes offense, I'm using those terms in their broad sense; just as many people were willing to believe that George W. Bush had advance knowledge of the 9/11 attacks.  Quite an interesting time to be discussing it with the recent death of bin Laden.

This is a mindset; conclusion-based thinking.  Like it or not, pre-conceived bias affects judgment.  "I've decided what I want to believe, now I'll allow in all facts in support of that belief while filtering out all those that oppose it".

Do you think that might be why, in a jury trial, attorneys concentrate on demonizing an opponent through hearsay and innuendo?  Oh sure, the opposition objects, but once the jury has heard it, it's too late.  They're already deciding whether it's plausible.  The attorney knows that if he or she succeeds, they've accomplished the following goal:

Filter / On

At least that's what somebody told me...

e-Evidence Insights: Tattoo You

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...

e-Evidence Insights: 50% Zuckerberg + 50% Ceglia = 100% Speculation

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"...

e-Evidence Insights: There's a 'Party', but Nobody Came

There's a dispute.  There are parties.  There are third-parties.  There are relevant non-parties.  There's discovery.  There's e-Discovery.  There are requests for admissions.  There are interrogatories.  There are witnesses.  There are depositions.  There are responses and 'non-responses'.  Rinse.  Repeat.  Fast-forward: The RFAs have been answered (or not), the Rogs have been addressed (or not), depositions are complete (or not), discovery is closing...and your client is telling you (or you suspect) that your adversary, et al, has not disclosed all of the relevant information.

I'm not talking about the usual gamesmanship (and I shudder to refer to it as such) that occurs in heavy litigation.  There's always a certain 'cat & mouse' feel to the process, for want of a better term.  I'm also not talking about the more obvious example; when the client says something like, "This email from Tom?  I'm sure this isn't the entire thread.  Some of the conversation is missing."  That is something the client knows.  I'm talking about something that can't be taught, but is more instinctual.

Sometimes, things just don't add up.  The evidence is telling you that you're not getting the whole story.  Maybe you caught a tiny phrase in a depo that contradicted something you thought you'd seen in a document.  Maybe a witness referred to something in the wrong tense, which suggests to you that an incident occurred earlier or later than what was originally claimed.  Maybe you just look at the overall litigation puzzle and a piece is missing.  Maybe - and here's where it gets really tricky - something just doesn't feel right.  Now what!?!?!?

Remember when I said, "Know what you don't know?"

The problem is, attorneys are not allowed to go on 'fishing expeditions'.  A suspicion that evidence has been withheld isn't a reasonable basis to support a demand for more evidence.  So, what do you do?  Well, for starters, you can ask yourself if there are any other independent sources available (keeping in mind a subpoena may be required) where you might search.  After all, you may find the answer through the same documents you received as part of the litigation process.  Why?  Because perhaps what didn't feel right was that the documents you received were, 1) too new, too old or the wrong version, 2) altered in some way, 3) out of order or have pages added or missing, etc.

You'd be amazed what a simple internet search turns up...

Remember; what you discover independently may be the smoking-gun that forms the reasonable basis to go back at a party.

Sanctions, anyone?  How do you think people are caught?

You've seen a lot of discussion about electronic documents in native format?  Well, this is one - among plenty of other reasons - why you would want to receive them that way.  However, while the metadata will hopefully tell you what you need to know, it might not.  You may have a document that matches up properly with its metadata, but how is this going to guide you if you've been given the 'wrong' document - or no document at all?

I could go on and on at length, but the problem is, if you're in this position, you don't necessarily know what you're looking for; you just know something isn't right.  So, you have to trust your instincts and act on them - subject to the buy-in and resources of your client, of course.  Following your instincts isn't necessarily a cheap undertaking.

Ronald Reagan said, "Trust, but verify."  Bill Maher said, "Be more cynical."  I agree with both.  After all, you'll tell me the truth, but you'll probably disappoint me...