Ride The Lightning

RULE 502 IS HALFWAY HOME

On February 27th, the Senate approved by unanimous consent without amendment S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. The bill will now move to the House of Representatives for a vote. The legislation concerns waiver of the attorney-client privilege and work product protection. The language of the bill is identical to proposed Evidence Rule 502, which was approved by the Judicial Conference of the United States and transmitted to Congress for approval in September 2007.

To my knowledge, no serious opposition is anticipated in the House. This is an excellent step forward. As the Committee note says, “It responds to the widespread complaint that litigation costs necessary to protect against waiver of attorney-client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operate as a subject matter waiver of all protected communications or information. This concern is especially troubling in cases involving electronic discovery. See, e.g., Hopson v. City of Baltimore, 232 F.R.D. 228, 244 (D.Md. 2005) (electronic discovery may encompass “millions of documents” and to insist upon “record-by-record pre-production privilege review, on pain of subject matter waiver, would impose upon parties costs of production that bear no proportionality to what is at stake in the litigation”).”

The text of the rule may be found at http://www.uscourts.gov/rules/Hill_Letter_re_EV_502.pdf#page=16

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

ANTIFORENSICS: SLACKER, TIMESTOMP AND SAM JUICER

Strange names, huh? Slacker, Timestop and Sam Juicer are all “antiforensics” software tools designed to foil computer forensic technologists. As we often lament, the criminals always seem to be one step (sometimes miles) ahead of law enforcement. If you are unaware of the many, many tools that now come under the rubric of “antiforensics,” a recent article from CIO will send shudders up your spine.

Hat tip to Jesse Lindmar for sending this to me.

The article may be found at http://www.cio.com/article/print/114550

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

MYSPACE FRIEND REQUEST VIOLATES PROTECTIVE ORDER

In a potentially landmark decision, a New York judge has ruled that allegations that a Staten Island teen broke the law when she used MySpace to reach out to three people she was ordered not to contact may stand and go to trial. The 16-year old made a MySpace “friend request” of a 43-year-old woman and her daughters, who had previously obtained a Family Court order against her. The ruling came in response to a defense motion to dismiss the criminal contempt charge. According to law enforcement sources, the young woman had a long history of making violent threats against the three women. Legal experts have said this is the first such ruling in New York, and possibly the country.

The original story may be found at http://www.silive.com/news/index.ssf/2008/02/staten_island_teen_will_face_c.html

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

BALLING AND GETTING HIGH: EVIDENCE ON MYSPACE

It’s one thing to make a fool of yourself in public, but some folks seem to excel at stupidity in front of the entire world. Recent examples of lawyers using MySpace included one lawyer’s success in admitting the entirety of a plaintiff’s MySpace page. The “about me” section read “balling, getting high, top of the line hoes (no dirty feet).” Oh my, oh my.

In the same set of posts responding to an online ABA Journal article, another lawyer said he got a great MySpace “hit” when he found a supposedly injured plaintiff who posted her post-injury cruise pictures and waterskiing photos. Not sure that lady could spell stupid if you spotted her five letters.

More and more lawyers are cottoning on to social networking sites as a source of useful information – and courts are allowing the information in far more readily, providing relevance and authenticity can be proved. The ABA article about electronic evidence on MySpace may be found at http://www.abanet.org/litigation/litigationnews/2008/march/0308_article_myspace.html

Don’t bogie that joint son.

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

BRITS HIRE “HOTTIE” PIS TO TEST SPOUSE FIDELITY

Imagine this. You are a married businessman on your way home from work. As is your innocent custom, you stop in for a quick pint at the local pub. A very attractive young lady joins you at the bar and begins to flirt with you. Her “availability” is clear. Are you a bastion of chastity? Or do you decide that the easiest way to get rid of temptation is to surrender to it? Be aware that, at least in Britain, your encounter may be videotaped, for whatever use your spouse may choose to make of it. This remarkable “sting” operation is now dubbed “honey trapping” by British PIs, who say business is brisk.

The depressing result is that 80% of the targets appear ready to shuck their marriage vows when opportunity knocks. Of course, since their spouses are already suspicious enough to hire “hottie” PIs, perhaps that percentage is not so surprising.

Will this new PI tactic make it across the pond and provide a new source of electronic evidence in divorce cases? We haven’t seen this kind of aggressive maneuver yet, but we Yanks frequently imitate our English cousins, so we’re waiting for honey trapping to debut here.

So remember guys, if an attractive young lady comes out of nowhere to flirt with you – smile – for you may well be on Candid Camera.

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

POCKET GUIDE TO ESI FOR FEDERAL JUDGES URGES PROACTIVITY

In January 2008, the Federal Judicial Center published Managing Discovery of Electronic Information: A Pocket Guide for Judges.  The primary author is Judge Barbara Rothstein, Director of the Federal Judicial Center, along with Judge Ronald J. Hedges (a former Magistrate Judge in New Jersey, now an e-discovery lawyer with Nixon Peabody), and assisted by Elizabeth C. Wiggins, who often educates federal judges and serves as a Project Director and Senior Research Associate at the Federal Judicial Center. The Guide really emphasizes something that we see all too rarely, federal judges being more proactive in the management of e-discovery, specifically raising ESI points to consider rather than waiting for the parties to identify and argue over matters.

Remember my last post, where the judge suggested that someone amongst the attorneys might be spending time in jail if they couldn’t agree? I’ll wager that that tip is not in the Pocket Guide. But it sure was proactive.

The Pocket Guide may be found at http://www.fjc.gov/public/pdf.nsf/lookup/eldscpkt.pdf/$file/eldscpkt.pdf

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

JUDGE: NO GET OUT OF JAIL FREE CARDS

From the Sensei case files: What a difference a judge makes. After many weeks of poison pen letters exchanged between irate counsel who couldn’t agree that two plus two equals four, much less agree on how to handle electronic evidence, the judge had had enough. He gathered his misbehaving pupils together and gave them a lesson in judicial power. He explained solemnly that they would have two weeks to reach an amiable resolution of their issues. “Failing that (he paused here for dramatic emphasis), someone is going to spend some time in jail.” Funny how a few words from a judge can change the demeanor of legal warriors. Their subsequent meeting was all peaches and cream, with the former adversaries outdoing one another in their courtesy. In the end, agreement was indeed reached and they did everything except toast marshmallows around the campfire and sing “Kumbaya.”

Apparently, no one doubted that this judge was dead serious.

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

EDRM: DOES THE EMPEROR HAVE NO CLOTHES?

One of my favorite blogs is Infogovernance http://infogovernance.blogspot.com by blogger Rob Robinson. One of his recent posts struck me as especially significant. I think it is important to consider the questions he asks about the Electronic Discovery Reference Model (EDRM) and its XML2 (Extensible Markup Language) project. Very appropriately, he gives a lot of credit to George Socha and Tom Gelbmann, founders of the EDRM, who have done a great deal to bring the discussion of ED standards to the forefront.

Nonetheless, there are still hard questions to be asked about the independence of a project which is largely populated by large ED vendors. Is there any true neutrality there? The membership roster certainly suggests that there might be self-interest at stake. Certainly, one would not look at the list and think “yup, these guys are going to be objective.” Small ED companies (yes, absolutely, like ours, so take this with a grain of salt) are wary of the big guys making the rules.

I don’t want to steal Rob’s thunder, so read his thoughtful blog entry and see if you agree that “the emperor has no clothes.” My own feelings are mixed, but I certainly agree that the objectivity of this group is questionable, and unlikely to be accepted by the ED community at large. Not all computer forensics companies are going to conform to this standard. Does that mean you shouldn’t hire them? I am reluctant to see an imprimatur placed on those companies who do conform, when all the rules have been made by the big boys. Call me cynical. You’d be right.

Rob’s post may be found at http://infogovernance.blogspot.com/2008/02/does-emperor-have-any-clothes-on.html

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

MURDER MOST WIRED: SEX AND DEATH IN ITALY

Hello from sunny L.A. and the ABA Midyear meeting, a long and bumpy plane ride from Virginia. I detest planes (gravity is one of the few scientific concepts that I understand) but I do enjoy having the time to simply sit and read. I finally caught up with a lurid story from the December 3, 2007 edition of Newsweek. Yup, I’m that far behind.

Here are the case facts in brief: On November 2, 2007, an elderly housewife in Perugia, Italy found two cell phones in the grass near her home. Knowing that cell phones are used by terrorists to trigger bombs, she called the police.

Phone records led the police to a cottage where they found the body of 21-year-old Meredith Kercher, a British student. Her throat had apparently been slit during a bout of what was termed “extreme sex.” The phones continued to give the police their leads and allowed them to use Skype to find the location of a key suspect, an American student from Seattle, Washington named Amanda Knox, who referred to herself on Facebook as "Foxy Knoxy." Her 23-year-old Italian boyfriend, Raffacle Sollecito is also a suspect, along with Rudy Hermann Guede. Electronic evidence continued to mount up, in the form of creepy YouTube videos, Facebook entries, Net postings about a desire for “extreme sex,” and a search on Sollecito’s computer, after the murder, for the terms “bleach” and “blood.”

The suspects, who are in custody, all proclaim their innocence, but this “murder most wired” may well be solved by CSI style computer forensics. The British tabloids are having a field day with this story. You gotta know the movie script is being written - right here in L.A.

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

POSTSCRIPT TO THE WHOOPS-A-DAISY DEFENSE STORY

Apparently, O’Melveny and Myers is really getting into the electronic evidence world in a big way, and generating a lot of negative press along the way. A reader of Ride the Lightning wrote to add a postscript to my previous posting. My correspondent passed along a post from the blog Above the Law, which said that the firm is furious about comments sent to ATL about the firm’s “poor performance and underhanded layoffs.” This fury reportedly resulted in a modern day electronic witch hunt, with IT folks from within and without instructed to find which associate’s computer was used to transmit the comments. The post doesn’t say that the firm has hired computer forensic folks to aid in the investigation, but that certainly would be logical and likely. O’Melveny associates are now, understandably, reluctant to visit the ATL website at all, and are monitoring it only from home.

All things considered, a lot of O’Melveny attorneys seem to having a very bad day at the office, day after day.

The Above the Law posting may be found at http://www.abovethelaw.com/2008/02/omelveny_myers
_launches_witch.php#more

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