Ride The Lightning

FROM THE BIG APPLE: THERE GOES THE BEST EVIDENCE RULE

Hello from New York City, where there are just too many gerbils in the cage. Simply navigating through the crowds on the sidewalk can turn into a military maneuver. I don’t trust any city where you have to look straight up at noon to see the sun!

However, it was a terrific day at ARMA’s E-Discovery and Beyond conference. The crowds were very engaged and we were pleased to be presenting with a very distinguished faculty, including old friends Jody Westby and Tina Ayiotis, and new friends Galina Datskovsky, former judge Ron Hedges, Chris Olsen, Rick Wolf, Jamie Brigman and Kathleen Edmond.

Rick brought with him a terrific video, showing a corporation digging an ED hole for itself in one ethical nightmare after another. Using the video as a base, the audience and fellow presenters chimed in to identify one disastrous element after another. A great way to teach corporate ethics.

My favorite part of Jody’s presentation was her cautionary advice about outsourcing electronic evidence review to China, India and the Philippines (the big three offering this service). These countries do not have privacy laws or breach notification laws. I couldn’t agree more that it is a HUGE risk outsourcing ED review to these counties, when the only controls are contractual. And we all know how easy it is to corral the horse once it is out of the barn.

Ron and Chris had a terrifically engaging session on proving that electronic records are trustworthy.  My favorite line of the day went to Ron, who pointed out, “In the electronic world, there is no “original” anymore – there goes the Best Evidence rule.”

Ron also got the best tip of the day: noting the recent publication of The Sedona Conference® Commentary on ESI Evidence & Admissibility, which can be downloaded at http://www.thesedonaconference.org/dltForm?did=ESI_Commentary_0308.pdf

Thanks to ARMA for a great conference!

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

QUICK, SEND IN THE CLOWNS. DON’T BOTHER, THEY’RE HERE.

Ah, the phrasing of the inimitable Frank Sinatra. Good of him (and Mr. Sondheim of course) to give me the perfect blog posting title.

It refers to the idiots that the White House keeps relying on to explain why they have missing e-mails and why the recovery of those e-mails would be either impossible or way too expensive. It is truly silly season in Washington.

At a February Congressional hearing, Theresa Payton, the chief information office at the White Office of administration testified that a lot of e-mails sent and received from 2003-2005 had been lost when the office transitioned from Lotus Notes to Microsoft Exchange. It’s really hard to imagine anyone keeping a straight face. Funny Theresa, we’ve done that migration many times and, I know you’ll find this hard to believe, but we’ve never lost a single e-mail. Let me put it simply - if this is the extent of your technology knowledge, you really need to look at career alternatives.

Congressman Darrell Issa, clearly wearing his clown paint that day, was delighted to have such a great explanation. A Bush apologist, he went so far as to say that the missing e-mails, given Payton’s explanation, showed no malfeasance by the White House or negligence on the part of the administration’s IT staff, but just a computer glitch that happened when the White House phased out an archaic program. He even characterized Lotus Notes as “wagon wheel” technology. IBM went, understandably, ballistic and secured an “amendment” to the record from Issa.

The EOP’s assertions that massive amounts of time and money would be required to recover the data flatly defy belief. This has become the order of the day. Play fast and loose with facts and then jack the recovery price into the stratosphere to evade having to comply with federal law. The National Security Archive has entered the fray, stating (correctly) that “the costs associated with copying or imaging . . . sources of missing e-mails is not only quantifiable, but is also nominal.” Amen.

Send the clowns back to the circus. No one with even a dim mental wattage believes the White House. Send in a real forensics team and put an end to the nonsense.

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

THE FIDELITY FILES: FIRST THE BLOG POST, THEN THE BOOK

You may recall a February post about British services where attractive females test the fidelity of husbands and the resulting videotapes appear in court as electronic evidence in divorce proceedings. Apparently, that concept is on our side of the pond as well, at least in fiction. The Fidelity Files is a book that will be published by St. Martin’s Press in June of 2008. The author, Jessica Brody, wrote me after reading my earlier blog post: http://ridethelightning.senseient.com/2008/02/brits-hire-hott.html

Check out her book site at http://www.thefidelityfiles.com/. There’s a great video promoting the book. If interested, you can pre-order it on Amazon. Or just wait for the movie to come out on DVD. This seems right up Hollywood’s alley.

For extra fun after watching the video, call 1-866-348-0430. If you were making the call "for real," at the end of what might have seemed like a great night, this call could certainly ruin your day.

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

DUMB AND DUMBER: WHITE HOUSE “EXPLAINS” MISSING E-MAILS

Good grief. The White House, which has always looked dumb in its explanation for its many missing e-mails has inexplicably chosen to look dumber than ever. In its filing with the court on March 21st, the essence of the White House’s argument seems to be that, having failed to comply with the law in the first place, it is now too expensive to go back and try to salvage what e-mails it can find. Disingenuously, the filing also suggests that all the reports of missing e-mail are somehow “conjectural.”

Interesting argument, given the fact that an internal White House investigation said that computer experts could not locate a single e-mail from the office of Vice President Dick Cheney between September 30, 2003 and October 6, 2003 – the week when the Department of Justice launched an investigation into the Plame Wilson leak and set a deadline for administration officials to turn over documents and e-mails to federal investigators that contained any reference to Plame Wilson or her husband, former Ambassador Joseph Wilson. Even more interesting given that the White House admitted that there were at least 400 other days between March 2003 and October 2005 where e-mails could not be located in either Cheney’s office or the Executive Office of the President.

As the noxious cherry on this odorous sundae, the White House has admitted the physical destruction of some of its hard drives, as part of established policy of course. The amazing thing is that this office finds it so difficult to comply with the Presidential Records Act and yet so easy to comply with its policy of tape recycling and hard drive destruction.

And yet the White House has the audacity to bleat about the hundreds of hours and potential monies it will take to conduct a full investigation and restoration effort. The White House has zero credibility in all this – if the court wants the truth here, it may have to order the employment of independent experts to assess the situation and report directly to the court. The White House is apparently much better at losing things than keeping them, especially during controversial time frames. In a world where information management is such a necessity, the White House seems to be specializing in information mis-management.

Don’t change that dial . . . more is sure to come . . . hopefully from an angry court.

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

THE ITALIAN STALLION: JUDGE FACCIOLA TAKES ON WHITE HOUSE

Only because I had the pleasure of lecturing with Judge John Facciola last week at ABA TECHSHOW do I have the nerve to dub him “The Italian Stallion.” I hope his sense of humor is intact because the moniker is really a tribute to his dogged pursuit of the “missing” White House e-mails and his dedication to seeing that federal archiving laws are complied with. In his March 18th show cause order, the judge gave the White House three days to explain why it shouldn’t be required to forensically image certain computer hard drives to ensure that no further e-mails are lost.

A considerable number of e-mails, potentially millions, have been erased and it is as yet unclear how many are still available on backup tapes. As I’ve noted before, any Geeks ‘R Us firm could have handled the White House backup with more professionalism. It is impossible to know whether the White House IT staff is really that incompetent or whether something more malevolent is at work –  it is dismal to contemplate either alternative.

The original suit was brought by the National Security Archive to force the White House to restore missing e-mails and institute a functional archiving system, as required by federal law. Complying with the law isn’t rocket science, to put it mildly. It has occurred to many that the absence of these e-mails seems terribly convenient.

Judge Facciola’s order may be found at http://www.gwu.edu/~nsarchiv/news/20080318/forensic_copy_order.pdf

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

ELECTRONIC PEEPING TOM LAWYER MAY HAVE LICENSE SUSPENDED

Charleston, WV lawyer Michael P. Markins is in a boatload of trouble after improperly accessing the e-mail accounts of another law firm. Now why would anyone do something so stupid? Actually, I can halfway understand his original motivation – he was apparently concerned that his wife was having an affair so he wanted to read her work e-mail. Wrong and illegal, but understandable. However, once he had figured out how to access the e-mails of the lawyers at Offut, Fisher and Nord, he then proceeded to snoop on lawyers other than his wife out of what he termed “selfish curiosity.” How he could have possibly justified this conduct in his own mind defies belief, especially given the fact that the Offut firm was opposing his own firm in a mass litigation involving a flood.

The electronic evidence showed that, from his work computer, he accessed Offut’s e-mail accounts some 165 times in 243 days. At the time that a brief was filed with the state bar’s Disciplinary Board, his home computer had not yet been examined. Nonetheless, Offut’s internal investigation showed home access as well.

So how did he get into the e-mails? He discovered that he could go to the Offut website, click on a link and enter an attorney’s e-mail address and last name – simple as that. No doubt Offut has since improved the security of its e-mail access. As for Mr. Markins, the Disciplinary Board recommended that his license be suspended for two years. Arguments over the appropriate sanctions are scheduled for April 1st in front of the state Supreme Court.

Markins’ lawyer, Mike Callaghan, says “the punishment is excessive for the acts committed.” I take issue with that, to say the least. “Breaking and entering” into the computer network of another law firm is a serious crime and a major ethical lapse. More than a wrist slap is required to discourage this kind of conduct.

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

RECOGNIZING THE BEST OF BREED: EDD UPDATE AND K&L GATES

On the final day of the ABA TECHSHOW, I had all good intentions of composing a farewell post. After deciding to lay down and watch CNN for five minutes, I ended up taking an extended nap instead. So much for good intentions. This was followed by a splendid dinner with former TECHSHOW chairs saluting the hard-working and completely exhausted chair of this year’s show, Tom Mighell. He did a tremendous job and those of us who wear the coveted black “Past Chair” ribbons welcomed Tom into the warm sunshine and sun-drenched grasses of “the pasture.”

One final electronic evidence note: In the always sensational “60 Sites in 60 Minutes” presentation, Craig Ball named his favorite two “informational” ED blogs, EDD Update and K&L Gates Electronic Discovery Law. These are both superb resources for anyone trying to keep current on the blitzkrieg that is electronic discovery. And of course I thank him for naming “Ride the Lightning” as one of his favorite “personal” ED blogs!

So here I am, once again manacled to my keyboard, and Craig (doggone it) is somewhere in the Caribbean. Not fair, distinctly not fair.

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

ABA TECHSHOW - DAY TWO: THE MOST DAMNING THING IS THE HOLE WHERE EVIDENCE USED TO BE

There is no way to adequately report on a day which held the entire e-discovery track. For my own part, I want to thank my co-presenters from two different e-discovery sessions, Judge Herbert Dixon, Judge John Facciola, Browning Marean, and David Ries. The first panel was a report from the battlefront, and offered useful practical tips and some sense of trends in the ED world. The second was on ethics and e-discovery, a constantly evolving subject which has been in the limelight with the Qualcomm decisions. Both were a lot of fun – hope the audience had as much fun as the presenters.

The comedic highlight of the day was Craig Ball’s “E-Discovery Jeopardy,” with three good-natured contestants (who couldn’t remember to answer in the form of a question) and a panel of judges. Laughter and learning did indeed go hand and hand and a good time was had by all. Craig, I have determined that anyone that can create such visual wizardry has WAY too much time on their hands. And by the way, enjoy your cruise, which I hear starts this weekend.

I was then further impressed by Craig and my husband John in their “CSI for Real: The Science of Computer Forensics.” The audience was so engaged that they stayed a full 20 minutes beyond the session’s end asking questions. Most quotable line of the session goes to Craig who talked about spoliation and said that the best evidence in those cases is never the evidence at hand but the damning hole where the evidence used to be. Amen brother.

All in all, a great e-discovery track. I would write more, but John and I are taking an ABA TECHSHOW crew out for sushi as part of the “Taste of TECHSHOW dinners.”  Japanese beer is not all bad either. For a speaker who has had three sessions in one day, I have a feeling that there will be more than one Kirin Ichiban in my immediate future.

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

BANK SECRECY ACT GUNS DOWN SHERIFF OF WALL STREET

In a truly timely keynote presentation at ABA TECHSHOW 2008, the Executive Director of the Electronic Privacy and Information Center analyzed the investigation that finally resulted in the abrupt termination of Elliot Spitzer’s tenure as New York’s governor. Marc Rotenberg is a terrier with a scent for the truth, not always an easy pursuit where government officials are concerned.

This time, a mighty man was undone by an obscure (to most of us) law known as the Bank Secrecy Act of 1970. As originally constituted, the poorly named Act required banks to report on cash transactions of $10,000 or more. Those who wished to evade the Act simply took out or put in lesser amounts in a short period of time. These days, the banks have a formula for determining cash in/cash out in a given period of time. The law requires banks to track politicians more closely as they are “politically exposed persons.” Now, you would think Spitzer would have known this, as he has used bank reports under this law previously to dethrone (I just can’t help myself) the “emperors” of Wall Street.

Now, as a member of the Emperor’s Club (what a tribute to hubris in a name!), Spitzer himself tried to dodge the law by making smaller but frequent cash transactions. He apparently made enough of them to trigger a report to the IRS by his own bank, which subsequently resulted in a wiretap, and oh well, you know the rest.

I’m sure he was delighted to find that his paramour Kristen had a MySpace page, adding further ignominy to a situation that could hardly be worse. Everyone feels for his family of course, but it is hard to have a lot of sympathy for “The Sheriff of Wall Street,” who has now been gunned down by, what else, the electronic evidence that pervades our lives.

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

ABA TECHSHOW - WAHOO!

From Chicago: Speaking at ABA TECHSHOW is a great honor, but getting to listen to some of the best and brightest in the business is always the best part of my annual soujourns to the Windy City. I am far more student than teacher at this conference and the faculty is truly outstanding.

If any readers of "Ride the Lightning" are in Chicago with me, please look me up. John and I will be hosting one of the "Taste of TECHSHOW" dinners Friday night and would love to have any of you come along to talk about "Hot Topics in E-Discovery." Since John is half Japanese, he picked a sushi restaurant, but no worries, there is cooked food as well.

Friday is the all day E-discovery track and I'll be sure to report back after it is over. I'm really looking forward to Craig Ball's "Electronic Evidence Jeopardy" session. Craig missed his calling as a ringmaster, but he gets his chance to shine here. Laughter and learning are sure to go hand in hand.

You can keep up with everything at ABA TECHSHOW at www.techshow.com. Make sure you check out the brand new TECHSHOW BUZZ.

I'll keep you posted!

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