Ride The Lightning

HOW MANY PAGES PER GIGABYTE? PICK A NUMBER – ANY NUMBER

Yesterday, we were asked a fairly common question: “Do you have any sort of citable estimate of how many pages = a rough equivalent of a gig of data? Is there an industry standard for that?”

This is a question perfectly engineered to make my partner John go ballistic. The electronic discovery industry has been making a fortune charging by page equivalencies per GB, which rarely bares any correlation to reality or to effort.  Since the questioner was a friend, he gave her a candid and blunt response, which I thought was worth quoting here:

"Nobody worth their salt would quote a number. The equivalent is all over the place and is very dependant on the application software, the version and how the software is used. Having said that…a lot of idiots usually quote a number of 50,000 – 75,000 pages per GB. Here’s a link to Craig Ball’s article, which blows the numbers away even more. Some folks talk about 22,500 per Gig and ExxonMobil thinks the number is 500,000 pages. Go figure and then pick a number, any number."

http://www.lawtechnews.com/r5/showkiosk.asp?listing_id=1606423

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

FEDERAL ACTION ON ESI IN ONE PLACE

Wouldn't it be great to have all the U.S. District Court rules on ESI in one place? Colleague and friend Tom O’Connor, the Director of the Legal Electronic Document Institute, kindly sent along a link to a page on the website of K&L Gates, detailing all of these rules. At least 32 United States District Courts have enacted special rules addressing electronic discovery.  The site provides an updated and current collection of United States District Court local rules, standards, guidelines and forms that specifically address e-discovery issues. Thanks K&L Gates and thanks Tom! The site may be found at http://tinyurl.com/2qrxm4

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

THE COVER OF THE ROLLING STONE? FUGGETABOUTIT - CRAIG BALL IN THE NEW YORK TIMES!

One of our dearest friends in this business is the inestimable Craig Ball, one of the finest forensic technologists (and lecturers) in the country. So what a happy surprise to find that handsome face in the New York Times with a very cool digital photo. The article highlights “fresh starts” and Craig’s transformation from a trial attorney to forensic technologist. As Craig correctly points out, while CSI solves all the cases in 60 minutes, the true work is often long and tedious. Immediately upon seeing the article, I wrote Craig a congratulatory e-mail and he wrote back with his customary humor, noting that his mom was extremely proud as she believes that the NYT is a holy scripture. Way to go Craig! Next stop Hollywood. The article may be found at http://tinyurl.com/ytdf7g 

FAQ: WHAT ARE THE STATES DOING ABOUT ESI RULES?

In the last several conferences at which we have spoken, attendees have asked how ESI is being handled by the states. States have been steadily adopting the new federal rules relating to the discovery of ESI, often altering them to conform with state procedures. New rules in Idaho and New Jersey took effect in 2006, while rules in Indiana, Minnesota, Montana and New Hampshire became effective this year. Arizona's rules are effective starting on January 1st, 2008. Proposed rules are on the horizon in Maryland, Nebraska and Ohio. Studying the issue are (and there are probably more) committees at the California, Illinois and Tennessee courts and the Washington State Bar Association and the Boyd-Graves Conference and the Advisory Committee on Rules of the Judicial Council in Virginia.

Related old news: As my friend Jeffrey Allen reminded me at a recent conference, a lot of folks missed the fact that the National Conference of Commissioners on Uniform State Laws/Uniform Law Commission approved a new act, the Uniform Rules Relating to Discovery of Electronically Stored Information. The Act was approved on August 2nd and the text of the Act may be found at http://www.law.upenn.edu/bll/archives/ulc/udoera/2007am_final.htm

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

JURY FOREMAN SPEAKS: MAYBE QUALCOMM HAS NO CLOTHES?

The blogosphere is an interesting place. Yesterday, I blogged about the Qualcomm attorneys who recently had to explain their apparent electronic evidence misconduct in a hearing. Two fascinating things immediately happened. First, I received an e-mail from an attorney following the case suggesting that my post wasn’t entirely accurate. With a little further research, I agreed and revised the post. Second, and even more fascinating, the jury foreman in the original Qualcomm v. Broadcom trial wrote me. His name is David Ingraham, and his perception of the case was markedly different from what has been published, and he is clearly no fan of Qualcomm.

With his permission, I have reprinted his e-mail in full below:

"I gather from the Esq that you must be a lawyer and I am not.  However, I may be more familiar with the case than you are as I was the jury foreman.  I find it interesting that in the aftermath of the discovery that massive amounts of documents were withheld, the only parties being brought to account are the outside counsel.  I guess that is the way the law works and those within Qualcomm are shielded from accountability.  What a shame!

From the jury's perspective we were absolutely certain that several of the Qualcomm employees who gave testimony during the trial had lied under oath.  We actually joked in the jury room about the strange case of corporate amnesia which had blanketed Qualcomm.  However, no one asked for our opinion on the question of perjury or who might have been guilty of orchestrating the incredible series of lies which were presented to us.  The assumption that Qualcomm has clean hands in this matter is so naive as to be laughable.

Finally, isn't it ironic that none of the evidence which was withheld was needed to prove the findings in favor of Broadcom?  This was not a hard case to decide.  Qualcomm's case was baseless and represented a cynical attempt to gain an economic position based solely on a jury verdict.  And the final irony is the statement by Qualcomm's General Counsel immediately after the trial that they had nothing to lose and everything to gain.  Now he is out of a job, his company is discredited, they have to pay Broadcom's legal expenses, and their outside lawyers face sanctions.  I guess they did have a little to lose after all.  And yet sadly it seems that Qualcomm is able to shield it's own involvement in this disgraceful mess behind the pretext of client privilege."

David Ingraham

Well, there you have it. As usual, all is splendid confusion. Guilt there is, but whose? One party? Which party? Both parties? Stay tuned. Fog generally lifts.

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

THE LAWYERS HAVE NO CLOTHES? THE QUALCOMM SAGA CONTINUES

Apologies for my absence. I was attending a conference in Puerto Rico, a country which had a downside (every house and shop seems surrounded by bars in deference to the crime rate) and two considerable upsides (the siesta and the fact that many bars sell superb mojitos by the pitcher!).

Back to business . . . remember the Qualcomm attorneys who were accused of all manner of ESI misconduct? My earlier post may be found at http://ridethelightning.senseient.com/2007/08/quaking-in-thei.html

Well, they've had their day in court to explain their actions to the judge. From the standpoint of the attorneys, it probably wasn't their happiest hour. Thanks to my old friend David Isom for making sure I updated the status of this case!

On October 12th, U.S. Magistrate Judge Barbara Major made it eminently clear that she was not happy with the attorneys from the Day Casebeer Madrid & Batchelder and Heller Ehrman firms. The attorneys' failure to turn over hundreds of thousands of relevant documents during discovery, according to the judge, represented "gross misconduct on a massive scale." She asked, "If there isn't some kind of sanction, there's no deterrence. How can this possibly be tolerated in the age of digital evidence?" Good question judge.

Counsel for the attorneys said their clients couldn't explain their actions because of privilege issues, as Qualcomm refused to waive the attorney client privilege. They asked the court to order the privilege waived, but the court refused. This left a conundrum in which the truth was shrouded by fog and Qualcomm appeared bent at pointing fingers at its former counsel and former counsel appeared bent on pointing fingers at Qualcomm. The only thing that seemed clear, at the end, is that ESI misconduct, on a grand scale, took place. Judge Major indicated that she would issue a written opinion, but did not say when. Though most folks hope she displays a "no tolerance" policy towards ESI misconduct, she has quite a Gordian knot to unravel in light of the circumstances!

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

FULBRIGHT & JAWORSKI: LITIGATION TRENDS SURVEY

There are few publications I look forward to as much as the Fulbright & Jaworski Litigation Trends Survey. As the Southerners say, they have "no dog in the hunt," but provide essential and unbiased information for anyone following the trends of big-time litigation. It is not an e-discovery survey per se, but it always provides solid gold nuggests regarding electronic evidence. I would have read the 4th annual survey already and reported the highlights, but I am in Puerto Rico, happily drinking mojitos and contributing to the local economy in the casino. For those of you who do not have such delightful distractions to tempt you, the survey may be downloaded at http://www.fulbright.com/index.cfm?fuseaction=correspondence.LitTrends07. Thanks to old friend Toby Brown for sending me the announcement.

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

FROM RUSSIA WITHOUT LOVE: MALWARE WRITERS THRIVE

From time to time, we are asked to help nail down the source of malware. All too often, this is like climbing the Matterhorn. Once we trace things back to Korea, China, Romania, Russia, etc., we shake our heads. The sad truth is that law enforcement in those counties have very little incentive to assist. Once in a while, Interpol receives some cooperation but that is a slow and very high level process. It was interesting to read an article by security writer Bill Brenner about just how well Russian malware authors are doing. Russia's economy is lousy and its law enforcement is lax - budget issues and lack of training in electronic evidence and computer forensics are often cited as reasons for the failure to properly conduct investigations. Cynics might suspect, in light of the well known growth of the Russian Mafia, that some authorities are simply on the take. There is a heck of a lot of money in writing malware. Many Russian malware writers take the view that they write the code, but criminals execute it and the code authors are therefore not to be blamed. Interesting disconnect. If you build the bomb, but don't press the button, you apparently have no complicity. Only China now trumps Russian in the amount of malware production, rather a dubious achievement. The full article may be found at http://www.tiny.cc/RqUZ9

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

KANSAS FEDERAL COURT GUIDELINES FOR ESI DISCOVERY

Thanks to my pal Jim Calloway (a/k/a "The Cowboy") for sending me a link to the Guidelines for Discovery of Electronically Stored Information which have been published by the U.S. District Court for Kansas. The guidelines may be found at http://www.ksd.uscourts.gov/guidelines/electronicdiscoveryguidelines.pdf

For those of you who may not know, Jim and I collaborate on a podcast called "The Digital Edge," which you can find on iTunes or on the American Bar Association's Law Practice Management site. The latest podcast is on "Ethics in the Electronic Era: Staying Out of the Briar Patch." As noted in other blog entries, we are seeing an increasing number of ethical lapses by attorneys when it comes to the handling of ESI. The latest podcast may be found at http://www.abanet.org/lpm/ltt/articles/vol1/is7/digitaledge/index.shtml

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

JUDGE ASKS: "WHAT, I DON'T GET TO KEEP THE ROBOT?" THE IROBOT-ROBOTIC FX CASE

The robots aren't entirely running the courtroom - yet. But they have taken center stage, zigging and zagging around the courtroom and demonstrating their functionality in the IROBOT-ROBOTIC FX case. Even the judge asked wryly at the demo's end: "What, I don't get to keep the robot?"

Though the facts in this patent infringement/misappropriation case are calling Hollywood's name, from an electronic evidence standpoint, the shenanigans are almost too many to count. Evidence hurled into a dumpster, files wiped, disks shredded, hiding a wiped laptop under a bed - the charges of spoliation abound. There are claims and counter claims and a sizeable military contract in the offing (approximately $280 million), so the sparks are flying. If you want to read the whole convoluted mess, the links are below.

Thanks to my friend Andy Simpson for alerting me to this high tech thriller and providing the following links:

http://www.xconomy.com/2007/09/25/robotic-fx-founder-admits-destroying-data-but-says-some-evidence-might-have-been-planted-hearing-will-resume-monday/

http://www.xconomy.com/2007/10/01/potentially-planted-evidence-memory-lapses-and-unwanted-memorabilia-the-latest-from-the-irobot-robotic-fx-files/

http://www.xconomy.com/2007/10/03/robots-drive-around-courtroom-but-still-no-decision-as-witness-testimony-ends-in-irobot-robotic-fx-case/

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