Ride The Lightning

AUTHENTICATING ELECTRONIC EVIDENCE: TEXT MESSAGES AND E-MAILS

I read with interest Josh Gilliland's recent post on the admissibilty of text messages in State v. Loye, 2009 Minn. App. Unpub. LEXIS 660, 1 (Minn.Ct.App. 2009), in which the court ruled there was no error when the lower court failed to admit a handwritten transcript of text messages.

Handwritten is pretty unusual, but printed copies of e-mails and text messages are fairly routinely accepted as evidence in most courts. Why? Because no one objects. If the attorneys are smart, and they want to use paper, they stipulate as to authenticity before they set foot in a courtroom. More commonly, they aren't that prepared - but in the absence of an objection, the evidence usually comes in anyway. Courts take the practical view that "it is what it purports to be, unless there is some reason to believe it is not."

The clear exception is in Chief Magistrate Judge Paul Grimm's courtroom, which all those who follow electronic evidence cases will understand . . .

Back to the real world: Where there is an objection, you have to be ready to lay a proper foundation. "Did you send this e-mail?" "Did you receive this text message?" The trouble generally comes when one party or the other says that a printed e-mail or text message is not an accurate representation or, indeed, an outright fraud - as often happens with spoofed e-mails in divorce cases.

This is where it is invaluable to have the original electronic evidence. This doesn't always involve computer forensics, but when it does (especially where e-mail or text messages were deleted), you need your expert present to testify as to the methodology and software used, supporting the authenticity of the offered evidence.

It pays to come to court prepared.

E-mail: snelson@senseient.com      Phone: 703-359-0700

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DIVORCE ATTORNEYS SUED OVER E-MAILS GLEANED FROM SPYWARE

I've been waiting for this case. It was just inevitable that attorneys (as opposed to spouses) would one day be sued for using evidence obtained from spyware.

A two million dollar lawsuit has been filed in Tennessee against the law firm of Berke, Berke and Berke (think they're related?). Allegedly, the firm used or tried to use e-mails intercepted by "eBlaster," a popular spyware program, in violation of federal and state wiretap laws. Individual attorneys were sued along with the firm itself.

This is the first such case I've run into - but I've long predicted it would happen. The attorneys say the suit will be "vigorously defended." No kidding. $2 million doesn't qualify as chump change. But if they really did what they are alleged to have done, they may also have an ethics problem with their state bar.

I shall watch this one with great interest.

E-mail: snelson@senseient.com     Phone: 703-359-0700

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THE RIAA VERDICT: DID THE JURY SMELL A WEASEL?

By now, everyone has heard about the Jamie Thomas-Rasset case, in which the jury awarded the RIAA nearly $2 million for the illegal download of 24 songs.

I was quick to say that the decision was outrageous - and in many ways, it was. Were the 24 songs she was charged with illegally downloading really worth $80,000 each? Of course not.

So why the verdict? I think the jury didn't like her. Not one little bit. Three facts in this case particularly struck me when I read the full story.

First, she supposedly downloaded about 1,700 songs, though she was only charged with downloading 24 of them.

Second, she apparently deliberately gave the RIAA the wrong hard drive during discovery in an attempt to hide her actions. Yup, seen that before. Pisses me off no end when they do that.

Third, it took her three years to suddenly hone in on her ex-husband as the possible infringer.

The jury no doubt saw a guilty weasel running for cover. Thomas-Rasset was probably her own worst enemy. No matter how silly the ultimate verdict, this defendant proves something all litigators know - if the the jury doesn't like or trust the defendant, your case is in trouble.

And from my foxhole, one thing juries hate most is any attempt to conceal evidence. They tend to skewer anyone they believe guilty of playing "hide and seek."  Beware, those who are prone to hiding or spoliating evidence - you may do so at your own peril.

E-mail: snelson@senseient.com      Phone: 703-359-0700

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GOVERNOR SANFORD'S E-MAIL: WHY DO FOLKS DO THIS TO THEMSELVES?

You would think people would get it by now. Don't e-mail anything you don't want to see in the New York Times, on a billboard on I-95, or in St. Peter's hands.

The minute I heard that S.C. Governor Sanford was hiking for days on the Appalachian Trail and had left no contact info, I turned to John and said, "I wonder who she is. We'll probably find out soon." John was more generous and thought perhaps he really was hiking to get away from it all. I should have bet him. :-)

The jig is up for Governor Sanford, whose Presidential aspirations have just vanished in a puff of smoke. As is customary for politicians, he has embroiled his family in a public nightmare where nothing will be allowed to play out privately.

Compounding the mess, The State newspaper has published e-mails between Sanford and his mistress. While their authenticity has not been proven, Sanford's office has not denied that they are genuine.

I have no idea how the paper got the e-mails, but I can tell you from experience that e-mails are almost always the smoking gun in electronic evidence cases - and very frequently in family law. And they can end careers in one heck of a hurry.

If you wouldn't want your mom to read it, don't send it. Period.

E-mail: snelson@senseient.com      Phone: 703-359-0700

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ELECTRONIC EVIDENCE IN EVERYDAY CASES: ESI BYTES PODCAST

Yesterday, John and I had the pleasure of doing a podcast with Karl Schieneman of JurInnov, Ltd. Karl has been very successful at rounding up EDD lumanaries forJurInnov's ESI Bytes podcasts. Readers should check out his impressive roster of guests by clicking on the podcast link below.

After talking with Karl, we determiined that one topic that hadn't been covered thus far was EDD in small cases.

Among the subjects we cover in the podcast are finding a good expert, how to save money where the budget is tight, proper preservation, litigation holds, production formats and some of the worst errors we've seen attorneys make (that, of course, could have an entire podcast by itself!).

Thanks for letting us join the club Karl - and don't forget to send along our membership cards and secret decoder rings.

E-mail: snelson@senseient.com      Phone: 703-359-0700

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WEST VIRGINIA ISSUES METADATA OPINION

On June 10th, the West Virginia Lawyer Disciplinary Board issued an opinion on metadata entitled, What is Metadata and Why Should Lawyers Be Cautious? A bit of an odd title, I thought, but it basically plows the usual ground.

It notes that there is no specific prohibition against reviewing and using metadata in the Rules of Professional Conduct. However, some of the ethical rules may come into play. Notably, the duty of competent representation may require a lawyer to remove metadata in order to maintain confidentiality.

On the other hand, if a lawyer knows (this is the part that troubles me, since I don't understand how "knowledge" could be proven) that privileged information was inadvertently sent, it might be an ethical violation for the receiving lawyer to review and use it under Rule 8.4(c). In this respect, the opinion concludes that "it is always safer to notify the sender before searching electronic documents for metadata." Oh sure, that will happen when pigs fly.

The opinion also notes that Rule 3.4 prohibits altering, destroying or concealing material having potential evidentiary value. Therefore, metadata may not be destroyed in e-discovery and must be produced when requested if not objected to.

E-mail: snelson@senseient.com     Phone: 703-359-0700

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EXCELLENT E-BOOK ON MEET AND CONFER AVAILABLE

I am always (and usually with good cause) skeptical of vendor publications. But the recent "Considering Meet and Confer" issued by Orange Legal Technologies is a gem. I loved the "Meet and Confer Checklist" - and there are other useful forms and commentary as well.

Click on the link above and start reading!

E-mail: snelson@senseient.com    Phone: 703-359-0700

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LAWYER E-FILING GOOFS HAVE CATASTROPHIC RESULTS

A recent Law.com article warned lawyers to be wary of the appellate pitfalls of e-filing.

In one case, the law firm meant to file a notice of appeal, but mistakenly filed the wrong document. Oops. The court had no mercy - the right to appeal was lost. In the other case, a lawyer claimed he never received a court e-mail notifiying him of an adverse, appealable order. No mercy and no appeal once again.

In response to these two catastrophic cases of lawyers making an error in e-filing (it gives you the willies thinking of the possible malpractice claims, doesn't it?), my friend and colleague Andy Simpson posted the following suggestions to the ABA Solosez listserve.

Here's what I do:

I have ECF set up to send email notices of filing to myself, my paralegal and a special, efiling-only Gmail address.  The notices to both me and my paralegal would prevent the problem of only one person getting the email and deleting it accidentally. The separate Gmail account ensures that I can get web access to my ECF filings if my email server is down. (Especially important if a technical problem, hurricane or other disaster knocks out my local ISP such that I wouldn't get email for awhile.) But it also would offer evidence as to whether a failure in delivery of an ECF email occurred on my end or the government's end. I rarely access my ECF Gmail account. I just let the email notices build up (with 2 GIGS of storage, who cares)? So it simply serves as an archive for me, just in case.

If you are a true solo, you could have a similar system in a couple of ways. You could check your special ECF Gmail account on a weekly basis to review it for anything that was missed. Alternatively (and especially if you lack the discipline to actually check that account every week), you could have ECF set to send email notices to both your office account as well as your personal email account.  That wouldn't be practical for a high volume practice, but 99% of true solos probably don't have a high volume litigation practice (because almost by necessity it requires the hiring of staff -- I get an average of 10-15 ECF notices a day and couldn't possibly keep up if I tried to do it without staff)

The problem of filing the wrong document can probably best be avoided by having someone actually open the document that has been e-filed after you receive the ECF notice.  I do this as a matter of course since we save a copy of every document in its as-filed condition to the electronic file for the proper case. Hopefully, my paralegal would notice that the efiled document didn't match the document name on the ECF email -- I'm going to raise that as an issue to look for in a firm meeting next week. Certainly for any mission critical document, after reading this article, I am now going to personally review the as-filed document to ensure that no error was made.

Andy Simpson
Andrew C. Simpson, P.C.
5025 Anchor Way, Ste. 1
Christiansted, St. Croix
U.S. Virgin Islands 00820-4671
http://www.coralbrief.com
t:  340-719-3900 x101
f:  340-719-3903
e: solosez@gmail.com

Excellent advice Andy - and thanks for allowing me to post this. Hopefully, adopting policies such as these will help someone out there from inadvertently stepping into legal quicksand.

E-mail: snelson@senseient.com      Phone: 703-359-0700

www.senseient.com

http://twitter.com/sharonnelsonesq

SECURELY LOCKING DOWN PDFS REDUX

Last week, I posted advice from John about how to securely lock down a PDF document.
 
It was good advice. Except that a vendor, who wants you to PAY for a secure lock-down wrote me in part: 
 
"I would like to just say that this method, and most methods used to attempt to protect PDF documents this way DO NOT work.  What's true today, will not be true tomorrow as technology approves (sic). Eventually, it will be hacked.
 
We provide a surefire way of providing not only document protection, but we also make it extremely easy for people to share those documents without any fear of them being altered."
 
Hey, I understand that folks have a product to sell. But trying to invalidate a good (and free) methodology doesn't seem quite right to me. I asked John for his response, which was: 
 
"Technically the statement is correct. Eventually you could crack a 180 character password with a grid computer system running non-stop for four centuries. I’m just kidding about the password length and time, but the point is that given enough time and resources a password can be cracked. That’s the technical answer; however, I’d like to think that we need to be practical and not try to scare the consumer into using overkill methods when what they already have will meet their needs.

The point of using a two password system for PDFs is to prevent all of those free and low cost crackers from accessing the PDF decryption scheme.

Most of the vendors want you send an unsecured file to their servers. Where's the security in that? Talk about a fertile field to lift client data. That’s the same way the TJX data got compromised - they lifted the credit card data BEFORE it was encrypted."

I'm standing by my man on this one.

E-mail: snelson@senseient.com      Phone: 703-359-0700

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ELECTRONIC EVIDENCE AND DISCOVERY: WHAT EVERY LAWYER SHOULD KNOW NOW

It's always a pleasure to salute fellow authors who undertake the daunting subject of e-discovery and do it credibly. Those interested in EDD should take a look at the new book Electronic Evidence and Discovery: What Every Lawyers Should Know Now by Michele Lange and Kristin Nimsger (ABA 2009).

Both of the authors work for Kroll Ontrack, but there's no shilling in this book. It is thoughtful and informative - and completely vendor-neutral. The authors take a look at the federal rules and their practical implications, discovery technology, computer forensics, and even electronic disclosure in the U.K.

The book contains digests of some of the top e-discovery cases, which will no doubt provide fodder for lawyer/blogger Ralph Losey, who is prone to disagree with Kroll's selection of top cases. I look forward to Ralph cheerfully pointing out cases that he believes were unfairly excluded and those who should have remained on the cutting room floor.

There are a handful of forms, including preservation letters, interrogatories, a request for the production of documents and a couple of sample orders. Finally, there's a helpful glossary.

Mind you, this book is not for the faint of heart. The subject is technical and the material may be hard for many lawyers to get through, especially if they are technophobic.

But there is a lot of good information here, so it may be worth downing a pot of expresso on a Saturday afternoon and doing some concentrated reading.

E-mail: snelson@senseient.com        Phone: 703-359-0700

www.senseient.com

http://twitter.com/sharonnelsonesq