Ride The Lightning

Photo Alteration - Can You Detect It?

Sometimes, sure. Law.com published a useful article on "Detecting Photoshop Fraud" last week. Unfortunately, it's much more than Photoshop we have to deal with. There are tons of programs that will alter photos and they require little to no sophistication on the part of the user.

Happily, most photo alteration is so clumsily done that there are often visual clues:

• The lighting is wrong
• Orphan shadows and reflections
• Varying levels of color density and hue
• Blurred edges on objects and figures

If the fakes are good, you're going to have to examine the photo at the pixel level and look for things like anti-aliasing (the way graphics programs smooth jagged edges in images by averaging the colors of the pixels at the edge). Unless the person is fairly competent, the edges will look rough.

There are also the sometimes hilarious "baroque anatomies" with large heads on small bodies, extra appendages - often comically unintended freak shows. If Photoshop disasters amuse you, feel free to waste a little time at the website Photoshop Disasters. This is why I hire experts. I know I could create a disaster without half trying.

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

www.senseient.com

http://twitter.com/sharonnelsonesq

 

 

FLAME! Bigger and Badder Than Stuxnet

The story of the new malware known as Flame spread like (sorry) wildfire across the Net yesterday. Apparently, it is a whole lot bigger and badder than Stuxnet.

This malware is slick, sophisticated and massive. It was discovered by the Russian anti-malware firm Kasperky which said that Flame has been infecting targeted systems in Iran, Lebanon, Syria, Sudan and other Middle Eastern and North African countries for at least two years.

It is believed to be a coordinated, ongoing and state-run cyberespionage operation. Flame is designed primarily to spy on users of infected computers and can puroin data, including documents and recorded conversations. Its astonishing capabilities are well-documented in the CNN story link at the beginning of this post.

Here is a piece of that story:

"Kaspersky Lab is calling it "one of the most complex threats ever discovered." Among Flame's many modules is one that turns on the internal microphone of an infected machine to secretly record conversations that occur either over Skype or in the computer's near vicinity; a module that turns Bluetooth-enabled computers into a Bluetooth beacon, which scans for other Bluetooth-enabled devices in the vicinity to siphon names and phone numbers from their contacts folder; and a module that grabs and stores frequent screenshots of activity on the machine, such as instant-messaging and email communications, and sends them via a covert SSL channel to the attackers' command-and-control servers.

The malware also has a sniffer component that can scan all of the traffic on an infected machine's local network and collect usernames and password hashes that are transmitted across the network. The attackers appear to use this component to hijack administrative accounts and gain high-level privileges to other machines and parts of the network.

Flame does contain a module named Viper, adding more confusion to the Wiper/Viper issue, but this component is used to transfer stolen data from infected machines to command-and-control servers. News reports out of Iran indicated the Wiper/Viper program that infected the oil ministry was designed to delete large swaths of data from infected systems."

(If you're not saying "holy cow," you don't follow infosec. We've never seen anything remotely like Flame.)

"Stuxnet is believed to have been written through a partnership between Israel and the United States, and was first launched in June 2009. It was likely designed to sabotage centrifuges used in Iran's uranium enrichment program. DuQu was an espionage tool discovered on machines in Iran, Sudan, and elsewhere in 2011 that was designed to steal documents and other data from machines. Stuxnet and DuQu appeared to have been built on the same framework, using identical parts and using similar techniques."

But Flame doesn't resemble either of these in framework, design or functionality.

Flame is 20 megabytes in size, compared to Stuxnet's 500 kilobytes. and contains a lot of components that are not used by the code by default, but seem to provide the attackers with options to turn on post-installation.

Though experts looked to find similarities between Flame and Stuxnet, they came up empty, except for two things. An export function which allows the the malware to be executed on the system and the ability to spread itself by infecting USB sticks.

Is this a case of "that which is old is new again?" Same players??? Most journalists are being a bit coy about naming the nation-state(s) involved, but their words are suggestive.

Unlike Stuxnet, however, Flame does not replicate automatically. Spreading mechanisms must be switched on by the attackers before the malware will spread. Why do that? To control the spread of the malware in the hope that it will go undetected. Stuxnet was discovered relatively easily through quick spreading.

The vulnerabilities that Flame exploits were patched by Microsoft so Flame checks to see whether targeted machines are running updated versions of anti-malware programs. Kaspersky estimates that Flame has infected about 1,000 machines.

Flame has no "kill date" but those who control it can execute the kill module which searches for every trace of the malware on the system, including stored files full of screenshots and data stolen by the malware and erases them.

Iran's Computer Emergency Response Team (who knew it had one?) announced on May 28th that it had developed a program to detect what it called "Flamer" (also Symantec's term for Flame) and a tool for removing it.

My personal comment: The U.S. needs to be very, very careful in the deployment of cyberwarfare tools. Clearly, we must be prepared, but where and how to deploy is much trickier, especially when we originate "attacks." We didn't like it much when we were labeled "The Ugly American" - we now risk becoming "The Ugly Cyber-American."

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

www.senseient.com

http://twitter.com/sharonnelsonesq 

New Book: Electronic Discovery for Small Cases

My friends and e-discovery colleagues Bruce Olson and Tom O'Connor have written a marvelous new book entitled Electronic Discovery for Small Cases. They are, as many readers will know, both e-discovery veterans. Bruce is the President of ONLAW Trial Technologies, LLC, which offers computer forensics, e-discovery and trial presentation services. Tom O'Connor is the Director of Professional Services for e-discovery firm Avansic and, like Bruce, he is a nationally known consultant, speaker and writer on e-discovery subjects.

Why do I call this book "marvelous?" Because attorneys with small cases have been confounded by e-discovery and how to handle it. In this book, which will only take you an hour or two to read, you get an incredibly helpful overview of the products that are out there to help you with small cases. Need to collect evidence, review it, store it in the cloud, produce it and present it in court? There are affordable products for all of these functions and the authors take you through them one by one.

Very helpful indeed are all the screenshots, which allow you to see not only what the product can do but give you the sense that, "Hey, I can do that." Prices are clearly stated along with the capabilities (and limitations) of each product. If you are an attorney with "garden variety" cases involving e-discovery, this book is indispensable.

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

www.senseient.com

http://twitter.com/sharonnelsonesq

Electronic Discovery and the Rise of Smartphones

Routinely, I go through the intake forms associated with new digital forensics cases to see what is coming in on what kind of cases, from what sources, etc. Recently, I have been struck by the sheer volume of cases involving the recovery of deleted data (primarily text messages) from smartphones.

We bought some expensive equipment recently to broaden our ability to acquire and analyze smartphones and my director of digital forensics told me that it would just about pay for itself in a week. While that made me happy, it underscored just how many smartphones are in our lab.

There are certainly profound e-discovery implications for businesses and e-discovery firms resulting from the rise of the smartphone. According to Money magazine, 50% of U.S. mobile subscribers own a smartphone and 81% are projected to own one by 2015. At the senior levels of business, just about everyone has one.

Surprisingly, 25% of smartphone users rely solely on their phones to access the Internet. One user was quoted as saying "The smartphone basically manages my entire life."

Though we hear a great deal about the security risks of smartphones, there is much less buzz about their evidentiary implications. Judging by our lab, an increasing percentage of important ESI is to be found in smartphones.

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

www.senseient.com

http://twitter.com/sharonnelsonesq

IBM Opened Pandora's Box When It Embraced BYOD

John and I loathe BYOD. It is a security nightmare. While most business agree, many have felt compelled to embrace BYOD (bring your own device) because, frankly, employees (and sometimes senior management) demanded it.

Reading the story of IBM's experience with BYOD is unnerving. It is sometimes argued that BYOD will save a company money. IBM's CIO, Jeanette Horan, says it doesn't save money - it just creates headaches because employees' devices are full of software that IBM doesn't control.

While IBM has given BlackBerrys to 40,000 of its 400,000 employees, 80,000 other workers now connect to internal IBM networks using other devices, including those they purchased themselves. When IBM surveyed employees about security risks using mobile devices, many were "blissfully unaware."

So IBM has its hands full. It has a list of banned apps including Dropbox, already a suspect in one law firm breach. It turns off Siri, afraid that spoken queries may be stored somewhere. Mobile devices (now) cannot connect to IBM's networks unless the IT folks have configured them for remote wiping.

IBM is by no means alone - businesses across the country are struggling with BYOD. But as much as John I dislike it, we agree with IBM's Chief Technology Officer for Mobility who said simply "The genie is out of the bottle."

No wonder there are now more than 40 mobile device management companies. These should be cash cows for the foreseeable future.

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

www.senseient.com

http://twitter.com/sharonnelsonesq

Da Silva Moore: EDD's Version of Keeping Up with the Kardashians

Except, apparently, you can't keep up with e-discovery's version of a reality show.

I did not anticipate the flood of e-mails and phone calls that followed my last post. As readers know, I did not go looking for this story - it came to me through someone who had documents related to the case who could not be publicly involved. Little did I realize that many more people would come forth with information of their own - and some of them are big names in the e-discovery world.

All of the comments I received were positive. I am grateful for the support of so many. This case has engendered a "Kardashian" response amongst those who follow e-discovery, so much so that I was even sent this cartoon (which is only available if you belong to the LinkedIn group on Technology-Assisted Review) so I have posted it here. There have been a number of blog posts and I thank all of the authors for their kind words.

With a good deal of reluctance, I came to the conclusion that I needed to write again about Da Silva Moore after hearing from so many with knowledge of pertinent facts. I am not anxious to do so again after today.

Everything I write here has been confirmed by a minimum of two sources - all (for various good reasons) do not wish to be identified. I found the sources credible - if I had not, I would not be writing.

Here is what I have learned:

• ACEDs contacted Judge Peck to speak at one of its conferences. Judge Peck seemed to indicate his interest in doing so, but when he asked for a teaching fee which ACEDS declined to give him, he withdrew. Several of those who contacted me suggested that ACEDS might therefore have a personal motive for, as they put it, "going after Judge Peck." Other possible motives were suggested by others in my previous post. ACEDS has investigated a critic previously and has been described as a bully (among the nicer words). Its prominent role in investigating Judge Peck and the conclusion that many have drawn that ACEDS is working with the plaintiff drew harsh criticism that a certifications body has acted in a very unseemly manner by inserting itself into a controversial case in which it may have an interest in the outcome.
• Several law firms have told vendors affiliated with ACEDS that they should not be affiliated with it because the law firms have the perception that ACEDS is going after a federal judge, which they see as inappropriate for a certifications body. One vendor confirmed this. It is distancing itself and considering terminating the relationship.
• One brave soul said I could quote him by name to indicate his support for certifications in general, but also to say that ACEDS was disingenuous in at its conference suggesting to attendees that Verisqil was an independent certification body when it is clearly not. He had some interesting things to say and I have reprinted his note in full at the end of this post.
• At least two sources confirm that they know that Judge Peck was paid teaching fees by five or more vendors for LegalTech. As I have noted previously, such fees are ethically permissible though there are restrictions. Nonetheless, my own conlusion is that there has been no ethical violation. The question is whether these fees give rise to an appearance of impropriety given the number of such fees paid by vendors over time in a case in which predictive coding is very much in issue.

Clearly, there are folks not happy with ACEDS.

But do they think Judge Peck should recuse himself? All but one of those who contacted me said yes. Their reasons varied. Most believe that he wants it too much, that he wants to be the judge who validated predictive coding and that the teaching fees present a big public image problem. As one e-discovery specialist said,  "in order to find the appearance of impropriety, you need to find smoke, not fire . . . and there's plenty of smoke here."

Many said that Judge Peck has joined a growing club of judges who enjoy being "rock stars." That is their conclusion, not mine, but I understand the perception.

One noted e-discovery expert thought Judge Peck should stay in the case and worried that judges might feel a "chilling effect" and hesitate to participate in legal education conferences based on all the controversy surrounding this case. I am sympathetic to this argument and hope this is not the result.

In the end, as I've stated before, I think there is enough "smoke" that Judge Peck should recuse himself. He is now a lightning rod for criticism - and this hurts a technology which holds great promise.

Here is the thoughtful e-mail I received from Chad Kime which makes some very interesting observations about ACEDS:

Dear Ms. Nelson,
 
Thank you for such a thought provoking and well balanced blog. The relationships between ACEDS and the Intriago group are portrayed publicly at the ACEDS conference (at least in 2011 when I attended), however, Verisqil was portrayed at the convention as an independent organization providing certification. As you put it with regards to Judge Peck, "perhaps it just doesn't look right..."  The unfortunate part is that for industry certification, we now are forced to choose between vendor-backed (and biased) certification or certification from an entity that did not disclose that their verifying 3rd party appears to be themselves...
 
As someone with an extensive marketing and finance background, I tend to follow the money and seek a potential for bias. From a qualitative perspective (that might be backed up with more research that I have time for), the amount of revenue generated by selling eDiscovery service is large, but the software vendors themselves often portray the review as a much larger expense- Catalyst Repositories pegs the review portion of cases at 76% of the costs. Assuming this number is somewhat accurate implies the review industry has three times the revenue and presumably three times the marketing budget as the technology vendors, so it would make sense for ACEDS to court the document review industry for funds more than technology vendors. This slant certainly is demonstrated in their advisory board which includes three review outsource and eDiscovery companies (BDO Consulting, Pangea3, Robert Half Legal) and only two technology oriented companies (TLO, Computer Generated Solutions) that are not directly related to eDiscovery. For completeness the others are: law firms (6), government (1), a former judge (1), corporations (5), other eDiscovery associations (WiE, ALSP), and Lex Aperta (eDiscovery legal advice and consulting).
 
Yet, there is yet another reinforcing aspect- ACEDS needs to certify more people so that their certification starts to be viewed as a legitimate certification. The document review companies often are associated with service provider eDiscovery companies (mine is no exception) and certification is one method to show legitimacy to the customers who want some assurance of competency before committing their funds. Technology companies are so focused on tool development, they do not want or benefit from CEDS certification. ACEDS can afford to treat them as secondary citizens so long as their convention and certification process is funded primarily by the larger pool of attorneys and eDiscovery vendors.
 
Personally, I believe independent certification would be beneficial in providing standards for the eDiscovery industry, so I want to believe ACEDS is truly independent. However, your column rightfully and justifiably exposes a bias that I had not considered and that MUST be considered by us on the outside as well as those within ACEDS if they wish to truly establish themselves as an association and certifying entity.
 
I look forward to reading more of your blogs!
Sincerely,
 
Chad Kime
Business Development Manager
Ji2 eDiscovery Tech

Chad, thanks for writing me - and for going on record.

With luck, I will actually get to do some Sensei work today!

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

www.senseient.com

http://twitter.com/sharonnelsonesq

Morgan Lewis Releases Unredacted Hot Info on Goldman Sachs

Goldman Sachs has got to be furious. It has been reported (with a link to the documents) that after years of fighting to keep certain information secret, the cat has now bolted from its bag.

The e-mails accidentally released by the law firm of Morgan Lewis seem to prove that Goldman Sachs was indeed engaged in the practice of naked short selling as alleged by Overstock.com. If you are as dim about the stock market as I am, naked short selling, in essence, is selling stock you do not have. If you don’t have to actually locate and borrow stock before you short it, you’re creating an artificial supply of stock shares. That definition comes from Matt Taibbi of Rolling Stone - you couldn't prove it by me.

The betting money is that this very damaging information was released because the Morgan Lewis partner - or someone working for him - attached the unredacted version of a document to a pleading rather than the redacted one.

Lessons: Name your documents carefully - "redacted" or "unredacted" should be in the name. Before hitting send, look at the attachment's name. If you're really anal, open it up to be sure.

Hat tip to Jennifer Ellis for sending me the story.

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

www.senseient.com

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Da Silva Moore and the Role of ACEDS

You may recall my glum assertion that no one wants to be on the record with respect to the Da Silva Moore case, which has certainly generated more “reality show” characteristics than any case I’ve previously seen.

So it was no surprise when some documents appeared in my Inbox from someone else who doesn’t want to be identified (with good reason), adding to the ever-growing crowd of people who have some knowledge about relevant facts, but due to the toxicity of the case have no desire to have their name affiliated with it.

I have placed a link to the documents I received here.

The documents are these:

1. A request made by ACEDS: “Request for Examination of Report Filed by a Judicial Officer or Judicial Employee.” The request is for the reports filed by Judge Andrew Peck and is signed by Robert Hilson who lists his occupation as “legal reporter.” His LinkedIn page shows his occupation as Editorial Director for Association of Certified E-Discovery Specialists at The Intriago Group. This company does not appear to have a website – the URL for the domain name (intriagogroup.com) forwards to Microline PV, which has a holding page as a company funded by U.S. Equity Holdings. On LinkedIn, they have six employees identified, including Mr. Hilson.The Request for Examination appears to have been signed on February 27, 2012 and faxed to the Administrative Office of the U.S. Courts on February 29, 2012.
2. A letter from ACEDS, also signed by Robert Hilson, that is dated February 28^th, 2012 and was faxed on February 29, 2012, to the Office of the Committee on Financial Disclosure of the Administrative Office of the United States Courts which apparently accompanied the request form and specified that he was requesting "…financial disclosures for 2008, 2009, 2010 and 2011. If possible, please be sure to include all disclosures and/or compensation for “honoraria” and “teaching fees.”"
3. A check for $8.20 written to the Administrative Office of the United States Courts dated March 9, 2012 – presumably the request fee. The check came from Verisqil. According to the ACEDS website, “The crucial service that associations formed by Verisqil provide is a rigorous certification process, including a proctored psychometrically-sound examination that validates the specialized knowledge and skills of the specialists who work in the pertinent fields.” Charles Intriago is the co-founder of ACEDS and is listed on the ACEDS Verisqil page.
4. The Memorandum of Law in Support of Plaintiffs’ Motion for Recusal or Disqualification.
5. An article which appeared on ACEDS dated April 19, 2012 and captured on April 29, 2012 entitled “Plaintiffs move to recuse Peck in predictive coding case, now suggesting his financial link to Recommind.”
6. A detailed timeline entitled “Involvement of ACEDS in Peck Recusal Motion” which was prepared by the person who sent me the documents.

As I have noted previously, a comprehensive assembly of all documents in the case has been prepared by our friend Rob Robinson and is available here. News stories about the case may be found here. Vendors offering technology assisted review may be found here.

As readers will know, I am slow to judge. I determined that I should share these documents because the person who sent them raises questions – and I have some of my own.

First, let me observe that I have been critical of some of Recommind’s actions in the past. I have also expressed some concern about what Judge Peck has said about this case (statements may be found in the Memorandum of Law). Anyone who goes to e-discovery conferences has noted that there is a certain clubby atmosphere between national lecturers and the judges. Though I do not know Judge Peck, I do know Ralph Losey (counsel for the defense) as a friend and colleague and it is impossible for me to imagine Ralph doing anything unethical. But that does not solve the problem of the atmosphere created. And to see Judge Peck and defense counsel on the same panels at multiple conferences talking not about Da Silva Moore, but about predictive coding, which lies at the heart of the case, is disquieting to many. This is why the phrase “appearance of impropriety” is used so often – no impropriety may exist, but perhaps it just doesn’t look right.

I spoke to Charles Intriago on Tuesday about the documents I received. It struck me as odd that ACEDS, a certification body, would aggressively investigate a judge and make a number of calls to vendors inquiring about whether “teaching fees” had been paid to the judge. Several sources have told me that Judge Peck requests reimbursement of travel, hotel and meals (sometimes including his wife) and, frequently, teaching fees of $1500.00.

Epiq Systems confirmed that it paid Judge Peck that amount to speak on a LegalTech panel it sponsored in January. This was stated in the ACEDS article as though it were part of the Plaintiff’s brief, but I do not see it there and think it likely that ACEDS made that call. It is unknown (at least by me) whether other vendors also made payments. I confess I’d like to see Judge Peck’s report on “teaching fees” paid in 2011 and by whom – and would like to know what vendors may have paid “teaching fees” for LegalTech and how much. I understand full well that gossip runs amok in cases like these, but if multiple payments by vendors were made to Judge Peck for his appearances at LegalTech, he would clear the air considerably by being forthright about any payments made to him. I certainly have a feeling that Judge Carter may take an interest in such payments.

Mind you, I am all in favor of judges participating in conferences generally – the situation here is very fact-specific. Canon 4 of the Judicial Code of Conduct specifically blesses such activity. Canon 4(H) also indicates that spousal reimbursement may be appropriate and that compensation and reimbursement of expenses are permitted “if the source of the payments does not give the appearance of influencing the judge in the judge’s duties or otherwise give the appearance of impropriety.” This is where the facts in this case give rise to the possibility that the appearance of impropriety may exist.

Turning now to the other side of the case, I asked Charles why ACEDS was acting as an investigator in this matter, because some folks have suggested that ACEDS is sharing information with the Plaintiffs and vice-versa. The tone of the conversation was not particularly civil – and it takes a lot for me to make even that mild statement. I will attempt to neutrally convey that small portion of the conversation which Charles will allow me to relate. I really wish I could recount the entire conversation but I have to respect the boundaries that Charles set forth.

His major points were these:

1. ACEDS has no dog in the fight and doesn’t care who wins this case.
2. ACEDS has an obligation to its members to produce news and analysis, which requires investigation of the facts in the case.
3. ACEDS provides training and certifications.
4. ACEDS provides a community for its members.

I take Charles at his word, but am still perplexed that a certification body would want to be so heavily involved in an investigation of a judge in a very controversial case. Having spoken to a number of others, they share my view that the ACEDS reporting has been pro-Plaintiff by any fair reading and wonder why ACEDS seems to take this case so personally. Several of ACEDS affiliate members are temp agencies which represent contract lawyers who do e-discovery review – and their jobs may be threatened by technology-assisted review. Is this a possible motivation?

Another fact of interest: Special Counsel, an e-discovery staffing firm, was highlighted by ACEDS as the first such firm to require ACEDS certification, perhaps buttressing the notion that there may be an interest in slowing the adoption of predictive coding.

Charles appears, according to various Internet sites, to have his fingers in a lot of pies and seems to have business relationships with ACEDS, Verisqil, The Intriago Group, Asset Forfeiture and Recovery Resources, Inc. (originator of the fax transmissions), the International Association for Asset Recovery, Asset Recovery and Risk Associates, Asset Recovery Watch, Inc. and the Association of Certified Financial Crime Specialists. They all appear to share the same street address and suite number. It is interesting that ACEDS, as a certification entity, and Verisqil, which provides the certification process, are really comprised of the same principals. The mission of the Intiago Group, as stated on its LinkedIn page: “The professional team at The Intriago Group create, build and promote certification associations that provide specialized training on legal, regulatory, governmental and technology subjects.” I am not sure what to make of all this, but it is certainly striking.

A colleague said (and I agree) “This case has become a circus – and it is hurting the promise of the new technology.” This is really the point that hits home to me – it is a perfect summary – and a great shame.

Never have I seen a case with such animus. Toxic or not, I hope those who have solid information about this case will step forward. My hope is simply to get this laundry out in the sunshine in a public forum.

What do readers think? Should a certification body be conducting these sorts of investigations?

Do you think ACEDS and the Plaintiffs are working together - and is there proof of that?

Has ACEDS received documents from the Plaintiffs before they were available on systems such as PACER?

Do you have knowledge of teaching fees or honoraria paid to Judge Peck? Do you believe such fees or honoraria create the appearance of impropriety or in any other way run counter to Canon 4 of the Judicial Code of Conduct, which explicitly allows such payments in certain contexts?

Do you share my sense that there is, legitimately, a sense of a cozy atmosphere (however innocent and unintended) between some speakers and judges that might give a party to a lawsuit pause? Do the facts of this case rise to the level of the appearance of impropriety?

I will always (sigh) think of the day that my Inbox caused me to lose most of two days to Da Silva Moore, but I want to conclude by thanking those who spoke to me off-record (and I do understand their reasons). If the facts would all come out (a slim hope of that, I know), the circus could leave town and we could get on with discovering the benefits and limitations of technology-assisted review.

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

www.senseient.com

http://twitter.com/sharonnelsonesq

eDiscovery Overkill in Family Law Cases

This is a repost of a guest post in NextPoint’s “frank” blog. Thanks to Jason Krause for asking us to write it!

Like a lot of small computer forensics companies, about 25 percent of our cases involve family law. Emotions often run high in family law matters, especially when adultery is a factor (and it is almost always present).

Regardless of who is cheating, the aggrieved spouse is generally some unhappy combination of angry, sad and bitter. As people increasingly live their lives online, especially with the advent of social media, the amount of discoverable data has exploded. Unfortunately, the concept of proportionality in eDiscovery just goes out the window when parties are emotional. The tendency is to want to “nail” the cheater, to unearth every last e-mail, incriminating Facebook photo or posting, and text message. The issues that supersede money are often child custody and visitation rights. If one parent truly shouldn’t have custody or should have only supervised visitation, we understand that spouses will want to spend whatever is necessary to obtain proof. Alcoholism, drug addiction, violence, pornography, gambling, dissipation of assets–all of these have a bearing on custody and visitation. While some people try to prove these things when they do not exist, it is understandable that folks are willing to spend whatever money is needed to get solid proof.

If the question is just allocating property, attorneys and experts can play a helpful role in diffusing emotions and helping parties, especially parties of modest means, to understand that eDiscovery should be proportional to the assets involved in the case. Most experts and attorneys do attempt to do this, though there are always some who are happy to gin up the passions and thereby make more money out of the ensuing battles.

The old adage “the customer is always right” is often ironic. So sometimes, we have to take the instructions of our clients (or attorneys) when they make little sense. There is little experts can do (after tendering good advice) except shake their heads and follow orders.

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

www.senseient.com

http://twitter.com/sharonnelsonesq

Is Disclosure Part of the Answer to the Da Silva Moore Issues?

From the mailbag:

Ms.  Nelson,

I read your post and felt compelled to respond. First, I should note that I think you’ve shown courage in even addressing these touchy issues openly.

Some thoughts:

I spent many years investigating and in some cases prosecuting people for doing improper things, often in “white collar” settings. I have seen what innuendo can do in the professional realm. Therefore, I really have to take issue with “juicy” anonymous tidbits when it comes to reputations. Experience dictates that a good policy to enforce is "either stand and announce yourself, and your claims, or say nothing" (I have resisted using the “get off the pot” admonition). It is one thing to claim that judicial decisions are subject to objection related to claims of well-intentioned bias; it is quite another to allege things untoward. While I do appreciate the sometimes tough positions zealous advocates of clients must take in litigation, such as in Da Silva Moore, whispering campaigns of this nature should not be part of the debate in the public square.

In response to the underwriting point addressed by the writer you quoted in the post:

“Let’s look downstream from a successful recusal motion, if it should come to that. Do we really want a world where the judges cannot speak at conferences? Or have to pay their own way to attend? Do people realize how much money most of them are giving up by sitting on the bench instead of remaining in private practice?”

Actually, there is a third way, one based upon the federal judiciary's disclosure system which addresses seminars geared predominantly towards judges. It involves disclosure by both vendors and judges. I referenced the federal disclosure system in my blog here. The federal policy statement clearly lays out its goal of providing a middle road that accommodates the competing concerns of education and transparency. Although it would appear that the disclosure requirements don't apply to general ediscovery conferences, the disclosure system could serve as a good template for allowing robust involvement by judges in ediscovery education, while appropriately putting all parties on notice in cases where, for instance, a particular vendor's technology-assisted review approach was the subject of contention between litigants.

And, by the way, observers may be surprised that these competing concerns are not the exclusive province of 2012 or of the e-discovery industry. The disclosure system arose in part because of a dust-up over a decade ago that focused on industry conferences and environmental litigation.

With regard to the writer’s objection to judicial education, I believe that he or she missed the point. Having judges educated in technological and statistical principles is indisputably beneficial, indeed necessary, for the adoption of improved litigation processes. I believe though that the objection went to the judge’s findings as being akin to some form of judicial notice of facts and conclusions that were based exclusively upon his knowledge in the area. I believe that the objections are based, in part, upon the recognition that the technologies and associated processes are -- right now -- more novel, complex and open to legitimate critique then the court appears to appreciate, and much too novel, complex and open to legitimate critique, to even preliminarily approve, without formal expert input in an adversarial setting.

Thanks for opening the shades a bit.  

Gerry

Gerard J. Britton,
Topiary Discovery LLC
2500 Plaza 5, 25th Floor
Jersey City, NJ 07311
www.topiarydiscovery.com

Thanks for writing Gerry - and writing for attribution!

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