Ride The Lightning

A PODCAST TO CALENDAR: GRIMM AND ALLMAN ON RULE 502

On Friday, September 4th, my friends at ESIBytes will be recording a special podcast on Rule 502 with Federal Magistrate Judge Paul Grimm of Maryland and Tom Allman, a well known national e-discovery expert who is very active in The Sedona Conference.The show is moderated by Karl Schieneman, Director of Legal Analytics and Review from JurInnov.

Both of these speakers are well known for their involvement in shaping the evolution of how the risks of waiving privilege with the inadvertent production of privileged ESI can and should be handled.  Judge Grimm’s decisions in Hopkins v. City of Baltimore and Victor Stanley, Inc. v. Creative Pipe have been significant cases to guide practitioners on the sensitive issues associated with handling or mishandling privileged ESI.

This promises to an illuminating podcast. You can download the show for free after 3 p.m. on Friday, September 4th from www.ESIBytes.com. You can also listen in live and text questions by logging in at 12:10 to www.talkshoe.com and searching for ESIBytes in the search bar. This way, listeners can text their questions to the podcast and listen to its recording live. This is a free podcast.

Visit www.ESIBytes.com to listen to a library of over 50 free podcasts on different Electronic Discovery issues including a podcast which John and I did on Electronic Discovery In Everyday Cases.

Keep up the good work Karl! I'll be on a train when it's live, but I'll download for listening while gardening this weekend!

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

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9TH CIRCUIT TAKES A HATCHET TO "PLAIN VIEW" IN GOVERNMENT ESI SEIZURES

Some decisions just make you want to waive pom-poms and cheer. This is one of them.

In the August 26th decision in U.S. v. Comprehensive Drug Testing, Inc.,a search warrant had been granted in a federal investigation into steroid use by professional baseball players. The warrant was limited to the records of ten baseball players as to whom the government had probable cause. When the warrant was executed, however, the government seized and promptly reviewed the drug testing records for hundreds of players (and a great many other people!).

The government did properly seek advance authorization for sorting and segregating the seized materials (the Tracey Directory) off-site. But it ignored the warrant's requirement that any seized items not covered by the warrant be first screened and segregated by computer personnel.

The case agent immediately violated the warrant's terms by giving himself full access to the Tracey Directory without any attempt to engage a specialist who could separate out the data for which the government had probable cause. There was a computer forensics agent at the seizure who made the determination to take the directory because the data could not be separated onsite. But the computer forensics agent wasn't asked to separate the data - it all went to the case agent. Just deplorable.

It was also noteworthy that the government failed in its duty of candor to the tribunal when it failed to disclose that CDT had already agreed to keep this data intact. CDT employees tried to assist the federal agents and give them only the data covered under the warrant, but their assistance was refused.

Under the government's theory, apparently everything which is seized is in plain view. It therefore seizes more rather than less so it can "fish."

This opinion really eliminates the "plain view" doctrine in cases where ESI is seized pursuant to a warrant.This doctrine has clearly been abused in electronic evidence cases, wherever seizable and non-seizable data are co-mingled. If the government doesn't forswear reliance on the plain view doctrine in a warrant application, Chief Judge Kozinski states that the magistrate judges should order that the data be separated by an independent third party under the court's supervision or the warrant should be denied.

The government's behavior in this case was inexcusable. This was an excellent decision and I am waving my pom-poms.

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

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AIR FORCE ONE PHOTO ALTERATION: RACISM ON DISPLAY

We lecture frequently on the alteration and fabrication of electronic evidence. Alteration of photos is quite common, and often done for humorous or satiric effect.

But a recent case of photo alteration put racism on display. Someone had altered a photo of Air Force One to show a tail number which consisted of the “N” word, using a combination of letters and numbers. I’d like to hope it was a sophomoric action rather than a racist one, but for one police dispatcher to send this to another using office police e-mail is just unbelievable. And she used her official e-mail to distribute the offensive photo still further. What are these people thinking?

The two dispatchers are now on administrative leave, having thoroughly embarrassed their respective police departments. The two Ohio police departments involved are North Canton and Uniontown.

Perhaps a little diversity and sensitivity training is in order?

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

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CLOUD COMPUTING FOR LAW FIRMS? THINK IT THROUGH

Sam Glover recently published on Lawyerist a post answering the question, "Can you trust Google Apps (and other SaaS)? If you read the post, in which Sam says that he uses Google Apps and isn't worried about security, privacy or waiving the attorney-client privilege, you might conclude that there is no real cause for concern for lawyers using cloud computing or software as a service (SaaS).

John's response to this post:

"He’s missing the point. Most people are not using SaaS as he states. Even small law firms are running their own Exchange server and not using web-based e-mail. Granted all BlackBerry communications run through Canada, but the data is encrypted from the devices to the end unit. The point is not that Google or Microsoft or whoever is reading your e-mail, the point is that they can and do scan the data contents for marketing purposes. I would never use Google Apps for anything that I really cared about. Remember the security hole in Google docs where you could access the data even after it was supposedly deleted?

Bottom line…you are giving your data to a third party. You don’t know where the data is stored or who may have access to it. Even the RSA says that cloud computing is not secure enough."

As you can tell, he is not a fan.

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

www.senseient.com

http://twitter.com/sharonnelsonesq

NUIX: THE NEW COOL KID ON THE BLOCK IN OUR E-DISCOVERY TOOLKIT

John found a new EDD product that he really likes, so here's his guest post:

"I just love running across something that is spot on. Yesterday, we met with Morgan Sheehy of Nuix. They have a product that appears to kick the pants off of other e-discovery platforms. Nuix processes the data (.doc files, spreadsheets, e-mail, graphics, etc.) by scanning the electronic information at the binary level and creating an index. You then analyze the data by using search methods or observing relationships. It certainly is one of the best e-mail analysis tools I've seen.

The demo is very impressive and now we're throwing live data at it. So far so good. We threw 18GBs worth of PSTs at it this morning and the indexing was done in about an hour and a half. We still have to play with a lot of the features, but it looks like this product will fit in nicely with our other tools. It is not a forensics analysis tool as it handles only logical files.

Well done Nuix. I'm a fan."

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

www.senseient.com

http://twitter.com/sharonnelsonesq

HOW TO SCREW UP YOUR OWN CASE: TEXT A TESTIFYING WITNESS

On August 11th, Miami-Dade Circuit Judge Scott Silverman, after earlier declaring a mistrial, dismissed with prejudice a civil fraud lawsuit involving the sale of a condo tower. What made this decision interesting is his reason: a boss sent text messages to his employee, who was then testifying on the witness stand. This was done surreptitiously as the judge and lawyers conferred in a sidebar conference.

Sky chief executive officer Yizhak Toledano sent the  messages to the company's chief financial officer, Gavin Sussman. In May, the judge ordered a mistrial when a spectator alerted him to the misconduct. Clearly incensed, the judge questioned Toledano and Sussman, who admitted to the texting. The judge then ordered the messages to be read aloud and into the record.

Toledano's texting "was underhanded and calculated to undermine the integrity of this court and the legal process," the judge wrote in his dismissal order. "Regretfully, plaintiff through its unacceptable conduct has reached into the court's quiver of sanctions, drawn the bowstring taut and aimed the arrow at the heart of its own case. This court has justifiably released the string."

He also wrote "Plaintiff waited until the court and the attorneys were preoccupied so that its conduct would go undetected," the dismissal order said. "Plaintiff took what scant few moments it had to try to secretly sway the witness' testimony."

Silverman awarded attorney fees and costs to the defense and referred the financial issue to a general magistrate.

Curiously enough, Sussman appears to be a guy who just doesn’t learn. Two months before the trial, he improperly texted a witness during a deposition and was reprimanded by the magistrate.

Silverman said he took the previous conduct into account. No doubt.

With a nod of thanks to Sir Walter Scott, “Oh what a tangled web we weave when first we practice to deceive.”

IMHO, Lady Justice was well served here.

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

www.senseient.com

http://twitter.com/sharonnelsonesq

DO YOU NEED TO CAT-PROOF YOUR COMPUTER?

Obviously, my recent post about the cat who allegedly downloaded child porn caught fire out there. Because this thread has made me laugh too, let's take one more comment, from friend and litigator Dave Ries from Pittsburgh.

Dave managed to find software called PawSense that actually protects you from whatever criminal activities your cat might engage in while stepping on your keyboard.

Gotta see it to believe it exists . . . who knew there was a need?

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

www.senseient.com

http://twitter.com/sharonnelsonesq

COMMENT RE: THE CAT DOWNLOADED THE CHILD PORN POST

Re: Monday's post about the porn-downloading cat . . . . thanks Steve!

And best to Adrian, who John and I interviewed last year for an ABA article about e-discovery in the U.K.

Dear Mrs. Nelson,

One of your blog followers here.

I believe it is crucial you should mention the important fact that he was ‘allegedly’ downloading music at the time. This would mean a program such as Limewire could have been open as the active window hence allowing this whole misfortune to happen! Obviously without simultaneously making the claim he was illegally downloading music, he must have been using ‘itunes’ or another legal program to download his purchased music. It’s all rather amusing. I would have love to have seen his lawyer's reaction when he was told his defense!

Brilliant story, also an interesting blog.

Many Thanks

Steve Cordon

Stephen Cordon
Computer Forensics Associate
Palmer Legal Technologies

NORTH CAROLINA EXEMPTS COMPUTER FORENSICS EXPERTS FROM PI LICENSING

I'm going to salute North Carolina tonight by eating some Carolina-style barbecue. On July 24th, the Governor signed into law a bill which will, effective October 1, 2009, exempt anyone engaged in computer forensics or computer/network security from the private investigator licensing provisions.

North Carolina, you rock. For the states that haven't fixed this yet (and you know who you are), let's follow North Carolina's lead!

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

www.senseient.com

http://twitter.com/sharonnelsonesq

MAN BLAMES CAT FOR DOWNLOADING CHILD PORN: WHO COULD MAKE THIS STUFF UP?

Ok, the Defendant lives in Florida, so maybe he just had too much sun . . .

The Sun Sentinal reported that Keith Griffin explained to detectives that the 1000 or so child porn images found on his computer were a result of his cat jumping on his keyboard while he was gone from his home.

Remarkably, the detectives were skeptical. Mr. Griffin is now facing 10 counts of possession of child pornography.

This story gives a whole new meaning to "kitten on the keys." Still chuckling . . . I'll bet the detectives will be cadging drinks on that story for some time to come. . .

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

www.senseient.com

http://twitter.com/sharonnelsonesq