Text Messages and Privacy

Can you have a reasonable expectation of privacy in text messages? This video clip from the CT Summation & Ivize webinar addressed this issue.

The Julia Allison Effect on e-Discovery

It started with JenniCam when I was in college: People crying for attention and utilizing technology to express themselves with a cultish following.[1] Julia Allison has taken this to a new level of Internet self-promotion that highlights a strange effect on litigation.

For those not familiar with her, Julia Allison is one of those self-created “famous” people from the blogsphere. Ms. Allison’s claim to fame is maintaining several websites and documenting her life for all to see. Posting photos of herself with people such as Henry Kissinger, Richard Branson and publicity stunts only keeps people checking in for more.[2]

While Julia has not done anything causing civil or criminal liability, people seeking attention to become “famous” or expressing themselves online may end up in legal trouble.

There are many cases out there highlighting how online activity is landing people in litigation. One such instance was a mother finding herself in a copyright infringement and Anti-SLAPP suit after posting a video of her toddler dancing to the song “Let’s Go Crazy.” [3]

People blogging about their jobs and social lives has also ended careers. In one case, a flight attendant posted photos of herself on her blog in suggestive poses on a company plane. The airline fired her for inappropriate conduct. [4]

There is a growing area of case law of student expulsions for YouTube videos and blogging. In one case, a high school senior was suspended for a YouTube video. The student shot the video footage shot in class when the teacher was not looking. The postproduction work of the footage included a musical score and other effects. After a local TV station found the video on YouTube, the school was contacted. The student’s conduct fell within the school’s sexual harassment policy for secretly recording the teacher and he was suspended for the YouTube video.[5]

Whether it is Julia Allison documenting what party she went to, artists posting their work for self-marketing or people seeking attention on social networking sites, they may cross the line and document activity that constitutes some legal jeopardy. At a minimum, it might show just plain bad judgment.

Blogs, Social Networking sites and YouTube are not a passing fad. The impact of Web 2.0 is something all practicing attorneys must now contemplate in litigation. Lawyers must consider whether their clients or opponents are a “Julia Allison” when it comes to discovery strategy. Interrogatories should include a request for a party to identify all their blogs. Requests for production could include all drafts of a blog prior to posting. Depositions could find court reporters questioning how to mark YouTube or Facebook exhibits. These issues cannot be ignored by any attorneys in the competent representation of their clients.

---

[1] http://en.wikipedia.org/wiki/JenniCam

[2] See, Jason Tanz, “Julia Allison and the Secrets of Self- Promotion,” Wired, August 2008 or Julia Allison’s websites, www.xojulia.com or www.juliaallison.com

[3] Lenz v. Universal Music Corp, 2008 U.S. Dist. LEXIS 44549

[4]  The Issue: A Blog, a Flight Attendant, and a Firing, http://www.businessweek.com/managing/content/jul2008/ca20080715_178680.htm

Last Visited on August 1, 2008

 [5] Requa v. Kent Sch. Dist. No. 415, 492 F. Supp. 2d 1272

The e-Discovery Chase: Strategies to Reduce Electronically Stored Information in Discovery Requests

All of our tools and toys that generate electronically stored information can frustrate law firms with high e-Discovery costs.  Lawyers who choose to have their discovery productions printed can have nearly 10,000 times more paper than 10 years ago.[1]

It is difficult to visualize how “big” ESI can be. WIRED magazine recently gave examples of data size most people can comprehend[2]:

• 1 Terabyte: a Hard Drive with 260, 000 songs

• 20 Terabytes: All the photos uploaded to Facebook each month

• 120 Terabytes: All the data from the Hubble Space Telescope

• 530 Terabytes: All the videos on Youtube

• 1 Petabyte: Data processed by Google’s servers every 72 minutes

• 12 Exabytes: All human produced information[3]

The data explosion can drive up e-Discovery costs for collection, processing and review to rival that of fielding an America’s Cup team.  And like the America’s Cup, if only billionaires can afford access to Federal Courts, then justice is not being served.

Danger of Costs from Overly Broad Requests for Production

Given the sheer volume of ESI, discovery requests need to be focused to avoid opening a Pandora’s Box of data.  For example, a third party request for production demanded the following:

The content of any and all electronic files, e-mail messages (with attachments), Instant Message communications and/or other communication created any time between August 20, 2001 to July 20, 2007 and maintained by Yahoo! related to account holder Jacqueline Hone’s subscription with Yahoo!, Yahoo! mail and/or Yahoo! Messenger.[4]

Even if the court had allowed production of this electronically stored information, how is it a victory to review SIX YEARS worth of email and instant messages?  The cost to collect the information, process it and review time would make the venture questionable.

Lawyers need to employ strategies to reduce the volume of ESI to control costs.  These strategies including requesting what you need, utilizing trusted vendors for targeted collection, and using technology for pre-processing analysis, effective processing and intelligent review.

The Discovery Request

There is no discovery production to review without first a discovery request.  Lawyers should avoid discovery requests such as, “All email to or from the Plaintiff from 1999 to 2008.”  Such requests are rarely granted when challenged, cut “due to the fact” and use “because” due to the fact they are overbroad, unduly burdensome, and often amount to a mass fishing expedition.[5] Moreover, getting 800,000 email messages from one individual would be a Pyrrhic victory considering review costs.

Lawyers should consider timeframes, form of production, specific individuals and other factors to create a narrowly tailored request. This may reduce motion practice and help control production and review costs.

A party responding to such an overly broad request should object and force the demanding party to focus their requests for “all email” or “all information related to the website.”  The petabyte explosion of ESI has not eliminated the discovery requirement that requests be narrowly tailored and reasonably calculated.

Targeted Collection

Information defensibly collected off hard drives should be focused on relevant or responsive electronically stored information.  If representing a contractor in a construction defect case, targeting collection to the housing project at issue will collect less information to review than a mass copying of hard drives.  However, care should be given not to under collect ESI, creating a risk for re-collection if something is missed.  Moreover, this should not undercut any preservation duties.  One might have to mirror image a hard drive to preserve all the data if the facts call for it, but what is collected for review should be focused.

Pre-Processing Analysis

Software tools have been developed for “non-linear” review for “pre-processing.”[6] What this translates into is looking at email messages before they are processed[7] or prepared for a review system[8].

“Pre-Processing” allows a look at email strings and a determination of what needs to be processed for linear review in a product like CT Summation iBlaze or Lexis Nexis Concordance.  This stage can eliminate email messages that are spam or newsletters based on their domains, such as “ebay.com” or “nytimes.com” to reduce what is ultimately loaded into a review platform.

Effective Processing

Processing of electronically stored information is the extraction of metadata and full text in a format readable in a review platform.  The number of native files ESI processing software can process are in excess of 500 to 700 native file formats and growing.

Processing can be “brute force” and literally just included everything that was collected.  However, just because preservations duties may require the mirror image of a hard drive, that does not require an entire hard drive be processed for production.  Processing can be focused with key words, such as names of parties or witnesses, date ranges and other criteria to narrow the information for review.  Such “smart processing” can reduce costs by shortening review time by narrowing the production to a focused production.

Making the Most of Review: Not just a box of paper

Reviewing ESI is not the same war room experience as digging through boxes of paper.  Conference rooms do not need to be commandeered for months with contract attorneys plowing through fields of paper for the smoking gun document.  Technology can help reduce such backbreaking work.

Law firms can avoid the haphazard approach to review with assigning reviewers “review sets.”  A “review set” is saved database search, that can be a DOCID, date range and keyword(s).  The litigation team generally knows some of the basic terms and dates relevant to the lawsuit, and searching based on these terms for review helps focus review.  Reviews can also be set for specific individuals, document types or almost any term appearing in the database.

Review tools allow for issue coding (and also vary by product).  Coding for causes of action, specifically by elements of causes of action, allows for thoughtful review and case preparation.  A reviewer can also consider admissibility issues during the coding stage, identifying any problems before trial.

These are just a few strategies for review.  There are many others.  The main point is not to treat fully searchable electronically stored information as a box paper.  Searching and organizing based on key words can help focus review into what is relevant.

Don’t Drown in Petabytes: Search to Reduce ESI

All of our cool iPhones, laptops and Wii’s are engines of electronically stored information.  Technology has created an excessive amount of ESI in litigation, but technology can solve the problem in reducing ESI so law firms can focus on practicing law, not drowning in data.  

---

[1] John Bringardner, WIRED, “Winning the Lawsuit,” page 112, July 2008

[2] “The Petabyte Age,” WIRED, July 2008, pp 106-107

[3] http://en.wikipedia.org/wiki/Exabyte

[4] Hone v. Presidente U.S.A., Inc., 2008 U.S. Dist. LEXIS 55722 ( N.D. Cal. July 21, 2008 )

[5] See, Hone v. Presidente U.S.A., Inc., 2008 U.S. Dist. LEXIS 55722 (N.D. Cal. July 21, 2008 ), Quinby v WESTLB AG 2006 WL 59521, 1 (S.D.N.Y) (Jan. 11, 2006), and Thompson v Jiffy Lube International, Inc, 2006 WL 1174040, 3 (May 1, 2006).

[6] Companies such as Metalincs both make products for this purpose.

[7] Processing products include IPRO’s eCapture, Needle Finder, LAW Pre-Discovery from Lexis or CT Summation Discovery Cracker, to name a few.

[8] Review platforms as hosted solutions such as Concordance FYI, CT Summation CaseVantage or desktop solutions such as CT Summation iBlaze or Concordance

The Request for Production You Never Saw Coming: Match.com Profiles as Evidence

Dating is not always easy. Dating outside of a marriage is just asking for trouble.

The key evidence in a recent marriage fraud case was the Defendant’s Match.com profile. Now, there was other substantial evidence in the case, but the evidence the court spent the most time on was a witness from Match.com.[1]

The Defendant was a Bulgarian national in the United States on a student visa. The month her visa was to expire, she married a man from Bulgaria. After an investigation by INS, the Defendant was charged with marriage fraud.

The Match.com evidence included the following:

· An updated profile after the marriage for continued dating;

· Profile said “never married;”

· Communicated with others on Match.com after “marriage.”

The evidence was sufficient to show the Defendant knowingly entered into a fraudulent marriage for the purpose of obtaining immigration benefits.

The explosion of online dating, social networking sites and other online activity is fueling a never ending creation of electronically stored information. Effectively using this information is a new challenge for lawyers. For example, if a Match.com or Facebook profile is evidence, how to you capture it? Can a paralegal just print it? Should you save it as a PDF? Do you need an expert to collect the webpage with special software? The answer is: “It depends on the facts.”

More importantly, how do you authenticate this electronically stored information? If you do not want a situation where your paralegal may have to testify, an outside expert may be necessary. This person might be a consultant hired to collect the information from the internet or a witness subpoenaed from the website.

Many lawyers’ heads spin at the idea of an online personal ad being evidence. However, we live in a world where people post their lives online. The electronically stored information is waiting online; whether or not it is relevant is for lawyers to investigate.

[1] United States v. Dimitrova, 266 Fed. Appx. 486, 488 ( 7th Cir. Ill. 2008 )

iProblems with MP3 Players

From

Consider this…

A mother bought her daughter an MP3 player from Wal-Mart.  Mom thought the MP3 player was new, but Wal-Mart sells used MP3 players as new products without disclosing the fact they are used.[1]

The 12 year old daughter started using her “new-to-her” MP3 player.  To her shock, the device contained sixty-two photos and six and a half hours of video of hardcore gay porn.[2]

Mom was not happy and sought legal counsel.  Shortly thereafter, the corporate counsel for Wal-Mart was really not happy.

One MP3 player landed a nationwide corporation in Federal court facing a possible class action suit over selling used MP3 players as new products.

This is but one example of the legal troubles a portable music device can cause.

But wait, there will be more.

If the key evidence in a case is an MP3 player and its data, what do you do with it?  The device is essentially a hard drive that can hold many different types of electronically stored information.  This ESI (Electronically Stored Information) is subject to the Federal Rules of Civil Procedure (FRCP) and Federal Rules of Evidence (FRE).  This makes a media player under an inch long and a few centimeters thick subject to preservation, requests for production, and even spoliation.

The duty to preserve electronically stored information might require an expert to make a mirror image of the data off an evidentiary MP3 player.  Moreover, Courts may treat these situations to copying a personal hard drive, requiring a neutral third party to copy the MP3 player, give the producing party an opportunity to review for privilege, and then produce to the demanding party.[3]

Litigation involving MP3 players is just at its dawn.  Knowing that MP3 players contain ESI and are subject to the Federal Rules of Civil Procedure will empower you to be ready for these cases.

---

[1] Martin v. Wal-Mart Stores, Inc., Slip Copy, 2007 WL 4374175 (N.D.Ill.)

[2] Martin, 1.

[3] See generally, Advante International Corp., et al., v. Mintel Learning Technology, et. al., 2006 WL 3371576 (N.D.Cal) and Ameriwood v. Liberman, Slip Copy, 2006 WL 3825291 (E.D.Mo.)