Category Archives: Computer Forensics

Electronic Evidence Workbook 2022

13 Thursday Jan 2022

Posted by in Computer Forensics, E-Discovery, General Technology Posts, Uncategorized

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I’ve released a new version of the Electronic Evidence Workbook used in my three credit E-Discovery and Digital Evidence course at the University of Texas Law School, UT Computer Science School and UT School of Information. I prefer this release over any before because it presents the material more accessibly and logically, better tying the technical underpinnings to trial practice.

The chapters on processing are extensively revamped. I’m hell bent on making encoding understandable, and I’ve incorporated the new Processing Glossary I wrote for the EDRM. Glossaries are no one’s idea of light reading, but I hope this one proves a handy reference as the students cram for the five quizzes and final exam they’ll face.

Recognizing that a crucial component of competence in electronic discovery is mastering the arcane argot of legaltech, I’ve added Vital Vocabulary lists throughout, concluded chapters with Key Takeaway callouts and, for the first time, broken the Workbook into volumes such that this release covers just the first eight classes, almost entirely Information Technology.

Come Spring Break in mid-March, I’ll release the revamped omnibus volume adding new practical exercises in Search, Processing, Production, Review and Meet & Confer and introducing new tools. Because university students use Mac machines more than Windows PCs, the exercises ahead employ Cloud applications so as to be wholly platform-independent. The second half of the course folds in more case law to the relief of law students and chagrin of CS and IS students. The non-law students do a great job on the law but approach it with trepidation; the law students kiss the terra firma of case law like white-knuckled passengers off a turbulent flight.

Though written for grad students, the Workbook is also written for you, Dear Reader. If you’ve longed to learn more about information technology and e-discovery but never knew quite where or how to start, perhaps the 2022 Workbook is your gateway. The law students at UT Austin pay almost $60,000 per year for their educations; I’ll settle for a little feedback from you when you read it.

A Dozen Nips and Tucks for E-Discovery

03 Monday Jan 2022

Posted by in Computer Forensics, E-Discovery, Uncategorized

≈ 2 Comments

Annually, I contribute to an E-Discovery Update presentation for top tier trial lawyers and annually I struggle to offer a handout that will be short enough for attendees to read and sufficiently pointed to prompt action. Ironically, predictably, the more successful the lawyers in attendance, the less moved they are to seek fresh approaches to discovery. Yet, we would be wise to observe that success tends not to depart abruptly but slips away on little cat feet, or as Hemingway described the velocity of a character’s path to bankruptcy, “Gradually, then suddenly.” A few nips and tucks may be all that’s needed to stay in fighting form. Accordingly, I wanted my list to be pithy with actionable takeaways like “have a production protocol, get a review platform and test your queries.” That may seem painfully obvious to you, Dear Reader, but it’s guidance yet to be embraced by leading lights in law. Here’s my 2022 list:

  1. Forms from a decade ago are obsolete.  Update your preservation letters and legal hold notices.  Remember: preservation letters go to the other side; legal hold notices to your clients.
  2. Custodial holds don’t fly.  Just telling a client, “don’t delete relevant data” isn’t enough and a misstep oft-cited by courts as attorney malfeasance.  Lawyers must guide and supervise clients in the identification, preservation and collection of relevant evidence.
  3. Be sure your legal hold process incorporates all elements of a defensible notification:
    i. Notice is Timely
    ii. Communicated through an effective channel
    iii. Issued by person(s) with clout
    iv. Sent to all necessary custodians
    v. Communicates gravity and accountability
    vi. Supplies context re: claim or litigation
    vii. Offers clear, practical guidance re: actions and deadlines
    viii. Sensibly scopes sources and forms
    ix. Identifies mechanism and contact for questions
    x. Incorporates acknowledgement, follow up and refresh
  4. Data dies daily; systems automatically purge and overwrite data over time.  The law requires parties promptly intercede to prevent loss of potentially relevant information by altering purge settings and otherwise interdicting deletion.  Don’t just assume it’s preserved, check to be certain.
  5. No e-discovery effort is complete in terms of preservation and collection if it fails to encompass mobile devices and cloud repositories.  Competent trial lawyers employ effective, defensible methods to protect, collect and review relevant mobile and cloud information.
  6. The pandemic pushed data to non-traditional locations and applications.  Don’t overlook data in conferencing apps like Zoom and collaboration tools like Slack.
  7. You should have an up-to-date ESI production protocol that fits the data and workflow. Know what an ESI protocol does and what features you can negotiate without prompting adverse outcomes.
  8. Don’t rely on untested keyword queries to find evidence.  Embrace the science of search.  TEST!
  9. Modern litigation demands use of review systems dedicated to electronically stored information (ESI) and staff trained in their use. Asked “What’s your review platform?” You should know the answer.
  10. Vendors paid by the gigabyte lack incentive to trim data volumes.  Clients will thank you to have sound strategies to cull and deduplicate the data that vendors ingest and host.  Big savings lie there.
  11. Courts demand an unprecedented level of communication and cooperation respecting ESI.  Transparency of process signals confidence and competence in your approach to e-discovery.
  12. There are no more free passes for ignorance.  Now, learn it, get help or get out.

Then his head exploded!

28 Tuesday Sep 2021

Posted by in Computer Forensics, E-Discovery, General Technology Posts, Uncategorized

≈ 2 Comments

In the introduction to my Electronic Evidence Workbook, I note that my goal is to change the way readers think about electronically stored information and digital evidence. I want all who take my courses to see that modern electronic information is just a bunch of numbers and not be daunted by those numbers.

I find numbers reassuring and familiar, so I occasionally forget that some are allergic to numbers and loathe to wrap their heads around them.

Lately, one of my bright students identified himself as a “really bad with numbers person.” My lecture was on encoding as prologue to binary storage, and when I shifted too hastily from notating numbers in alternate bases (e.g., Base 2, 10, 16 and 64) and started in on encoding textual information as numbers (ASCII, Unicode), my student’s head exploded.

Boom!

At least that’s what he told me later. I didn’t hear anything when it happened, so I kept nattering on happily until class ended.

As we chatted, I realized that my student expected that encoding and decoding electronically stored information (ESI) would be a one-step process.  He was having trouble distinguishing the many ways that numbers (numeric values) can be notated from the many ways that numbers represent (“encode”) text and symbols like emoji.  Even as I write that sentence I suspect he’s not alone.

Of course, everyone’s first hurdle in understanding encoding is figuring out why to care about it at all.  Students care because they’re graded on their mastery of the material, but why should anyone else care; why should lawyers and litigation professionals like you care?  The best answer I can offer is that you’ll gain insight.  It will change the way you think about ESI in the same way that algebra changes the way you think about problem solving.  If you understand the fundamental nature of electronic evidence, you will be better equipped to preserve, prove and challenge its integrity as accurate and reliable information.

Electronic evidence is just data, and data are just numbers; so, understanding the numbers helps us better understand electronic evidence.

Understanding encoding requires we hearken back to those hazy days when we learned to tally and count by numbers.  Long ago, we understood quantities (numeric values) without knowing the numerals we would later use to symbolize quantities.  When we were three or four, “five” wasn’t yet Arabic 5, Roman V or even a symbolic tally like ||||. 

More likely, five was this:

If you’re from the Americas, Europe or Down Under, I’ll wager you were taught to count using the decimal system, a positional notation system with a base of 10.  Base 10 is so deeply ingrained in our psyches that it’s hard to conceive of numeric values being written any other way.  Decimal just feels like one, “true” way to count, but it’s not.  Writing numbers using an alternate base or “radix” is just as genuine, and it’s advantageous when information is stored or transmitted digitally.

Think about it.  Human beings count by tens because we evolved with ten digits on our hands.  Were that not so, old jokes like this one would make no sense: “Did you hear about the Aggie who was arrested for indecent exposure?  He had to count to eleven.”

Had our species evolved with eight fingers or twelve, we would have come to rely upon an octal or duodecimal counting system, and we would regard those systems as the “true” positional notation system for numeric values.  Ten only feels natural because we built everything around ten.

Computers don’t have fingers; instead, computers count using a slew of electronic switches that can be “on” or “off.”  Having just two states (on/off) makes it natural to count using Base 2, a binary counting system.  By convention, computer scientists notate the status of the switches using the numerals one and zero.  So, we tend to say that computers store information as ones and zeroes.  Yet, they don’t.

Computer storage devices like IBM cards, hard drives, tape, thumb drives and optical media store information as physical phenomena that can be reliably distinguished in either of two distinct states, e.g., punched holes, changes in magnetic polar orientation, minute electric potentials or deflection of laser beams.   We symbolize these two states as one or zero, but you could represent the status of binary data by, say, turning a light on or off.  Early computing systems did just that, hence all those flashing lights.

You can express any numeric value in any base without changing its value, just as it doesn’t change the numeric value of “five” to express it as Arabic “5” or Roman “V” or just by holding up five fingers. 

In positional notation systems, the order of numerals determines their contribution to the value of the number; that is, their contribution is the value of the digit multiplied by a factor determined by the position of the digit and the base.

The base/radix describes the number of unique digits, starting from zero, that a positional numeral system uses to represent numbers.  So, there are just two digits in base 2 (binary), ten in base 10 (decimal) and sixteen in base 16 (hexadecimal).  E-mail attachments are encoded using a whopping 64 digits in base 64.

We speak the decimal number 31,415 as “thirty-one thousand, four hundred and fifteen,” but were we faithfully adhering to its base 10 structure, we might say, “three ten thousands, one thousand, four hundreds, one ten and five ones.  The “base” ten means that there are ten characters used in the notation (0-9) and the value of each position is ten times the value of the position to its right.

The same decimal number 31,415 can be written as a binary number this way: 111101010110111

In base 2, two characters are used in the notation (0 and 1) and each position is twice the value of the position to its right.  If you multiply each digit times its position value and add the products, you’ll get a total equal in value to the decimal number 31,415.

A value written as five characters in base 10 requires 15 characters in base 2.  That seems inefficient until you recall that computers count using on-off switches and thrive on binary numbers.

The decimal value 31,415 can be written as a base 16 or hexadecimal number this way: 7AB7

In base 16, sixteen characters are used in the notation (0-9 and A-F) and each position is sixteen times the value of the position to its right.  If you multiply each digit times its position value and add the products, you’ll get a total equal in value to the decimal number 31,415.  But how do you multiply letters like A, B, C, D, E and F?  You do it by knowing the letters are used to denote values greater than 9, so A=10, B=11, C=12, D=13, E=14 and F=15.  Zero through nine plus the six values represented as letters comprise the sixteen characters needed to express numeric values in hexadecimal.

Once more, If you multiply each digit/character times its position value and add the products, you’ll get a total equal in value to the decimal number 31,415:

Computers work with binary data in eight-character sequences called bytes.  A binary sequence of eight ones and zeros (“bits”) can be arranged in 256 unique ways.   Long sequences of ones and zeroes are hard for humans to follow, so happily, two hexadecimal characters can also be arranged in 256 unique ways, meaning that just two base-16 characters can replace the eight characters of a binary byte (i.e., a binary value of 11111111 can be written in hex as FF).  Using hexadecimal characters allows programmers to write data in just 25% of the space required to write the same data in binary, and it’s easier for humans to follow.

Let’s take a quick look at why this is so.  A single binary byte can range from 0 to 255 (being 00000000 to 11111111).  Computers count from zero, so that range spans 256 unique values. The following table demonstrates why the largest value of an eight character binary byte (11111111) equals the largest value of just two hexadecimal characters (FF):

Hexadecimal values are everywhere in computing.  Litigation professionals encounter hexadecimal values as MD5 hash values and may run into them as IP addresses, Globally Unique Identifiers (GUIDs) and even color references.

Encoding Text

So far, I’ve described ways to encode the same numeric value in different bases.  Now, let’s shift gears to describe how computers use those numeric values to signify intelligible alphanumeric information like the letters of an alphabet, punctuation marks and emoji.  Again, data are just numbers, and those numbers signify something in the context of the application using that data, just as gesturing with two fingers may signify the number two, a peace sign, the V for Victory or a request that a blackjack dealer split a pair.  What numbers mean depends upon the encoding scheme applied to the values in the application; that is, the encoding scheme supplies the essential context needed to make the data intelligible.  If the number is used to describe an RGB color, then the hex value 7F00FF means violet.  Why?  Because each of the three values that make up the number (7F 00 FF) denote how much of the colors red, green and blue to mix to create the desired RGB color. In other contexts,  the same hex value could mean the decimal number 8,323,327, the binary string 11111110000000011111111 or the characters 缀ÿ.

ASCII

When the context is text, there are a host of standard ways, called Character Encodings or Code Pages, in which the numbers denote letters, punctuation and symbols.  Now nearly sixty years old, the American Standard Code for Information Interchange (ASCII, “ask-key”) is the basis for most modern character encoding schemes (though both Morse code and Baudot code are older).  Born in an era of teletypes and 7-bit bytes, ASCII’s original 128 codes included 33 non-printable codes for controlling machines (e.g., carriage return, ring bell) and 95 printable characters.  The ASCII character set follows:

Windows-1252

Later, when the byte standardized from seven to eight bits (recall a bit is a one or zero), 128 additional characters could be added to the character set, prompting the development of extended character encodings. Arguably the most used single-byte character set in the world is the Windows-1252 code page, the characters of which are set out in the following table (red dots signify unassigned values). 

Note that the first 128 control codes and characters (from NUL to DEL) match the ASCII encodings and the 128 characters that follow are the extended set.  Each character and control code has a corresponding fixed byte value, i.e., an upper-case B is hex 40 and the section sign, §, is hex A7.  To see the entire code page character set and the corresponding hexadecimal encodings on Wikipedia, click here.  Again, ASCII and the Windows-1252 code page are single byte encodings so they are limited to a maximum of 256 characters.

Unicode

The Windows-1252 code page works reasonably well so long as you’re writing in English and most European languages; but sporting only 256 characters, it won’t suffice if you’re writing in, say, Greek, Cyrillic, Arabic or Hebrew, and it’s wholly unsuited to Asian languages like Chinese, Japanese and Korean. 

Though programmers developed various ad hoc approaches to foreign language encodings, an increasingly interconnected world needed universal, systematic encoding mechanisms.  These methods would use more than one byte to represent each character, and the most widely adopted such system is Unicode.  In its latest incarnation (version 14.0, effective 9/14/21), Unicode standardizes the encoding of 159 written character sets called “scripts” comprising 144,697 characters, plus multiple symbol sets and emoji characters.

The Unicode Consortium crafted Unicode to co-exist with the longstanding ASCII and ANSI character sets by emulating the ASCII character set in corresponding byte values within the more extensible Unicode counterpart, UTF-8.  UTF-8 can represent all 128 ASCII characters using a single byte and all other Unicode characters using two, three or four bytes.  Because of its backward compatibility and multilingual adaptability, UTF-8 has become the most popular text encoding standard, especially on the Internet and within e-mail systems. 

Exploding Heads and Encoding Challenges

As tempting as it is to regard encoding as a binary backwater never touching lawyers’ lives, encoding issues routinely lie at the root of e-discovery disputes, even when the term “encoding” isn’t mentioned.  “Load file problems” are often encoding issues, as may be “search difficulties,” “processing exceptions” and “corrupted data.”  If an e-discovery processing tool reads Windows-1252 encoded text expecting UTF-8 encoded text or vice-versa, text and load files may be corrupted to the point that data will need to be re-processed and new production sets generated.  That’s costly, time-consuming and might be wholly avoidable, perhaps with just the smattering of knowledge of encoding gained here.

Ten Tips for Better ESI Expert Reports

24 Monday May 2021

Posted by in Computer Forensics, E-Discovery, General Technology Posts

≈ 5 Comments

A lawyer I admire asked me to talk to her colleague about expert reports.  I haven’t had that conversation yet, but the request got me thinking about the elements of a competent expert report, especially reports in my areas of computer forensics and digital evidence.  I dashed off ten things I thought contribute to the quality of the best expert reports.  If these were rules, I’d have to concede I’ve learned their value by breaking a few of them.  I’ve left out basic writing tips like “use conversational language and simple declarative sentences.” There are lists of rules for good writing elsewhere and you should seek them out.  Instead, here’s my impromptu list of ten tips for crafting better expert reports on technical issues in electronic discovery and computer forensics:

  1. Answer the questions you were engaged to resolve.
  2. Don’t overreach your expertise.
  3. Define jargon, and share supporting data in useful, accessible ways.
  4. Distinguish factual findings from opinions.
  5. Include language addressing the applicable evidentiary standard.
  6. Eschew advocacy; let your expertise advocate for you.
  7. Challenge yourself and be fair.
  8. Proofread.  Edit.  Proofread again. Sleep on it. Edit again.
  9. Avoid assuming the fact finder’s role in terms of ultimate issues.
  10. Listen to your inner voice.

Most of these are self-explanatory but please permit me a few clarifying comments.

Answer the questions you were engaged to resolve.

My pet peeve with expert reports is that they don’t always address the questions important to the court and counsel.  I’ve seen reports spew hundreds of pages of tables and screenshots without conveying what any of it means to the issues in the case.  Sometimes you can’t answer the questions.  Fine.  Say so.  Other times you must break down or reframe the questions to conform to the evidence.  That’s okay, too, IF it’s not an abdication of the task you were brought in to accomplish.  But, the best, most useful and intelligible expert reports pose and answer specific questions.

Don’t overreach your expertise.

The standard to qualify as an expert witness is undemanding: do you possess specialized knowledge that would assist the trier of fact in understanding the evidence or resolving issues of fact? See, e.g., Federal Rule of Evidence 702.  With the bar so low, it can be tempting to overreach your expertise, particularly when pushed by a client to opine on something you aren’t fully qualified to address.  For example, I’m a certified computer forensic examiner and I studied accounting in college, but I’m not a forensic accountant.  I know a lot about digital forgery, but I’m not a trained questioned document examiner.  These are specialties.  I try to stay in my own lane and commend it to other experts.

Define jargon, and share supporting data in useful, accessible ways.

Can someone with an eighth-grade education and no technical expertise beyond that of the average computer user understand your report?  If not, you’re writing for the wrong audience.  We should write to express, not impress.  I love two-dollar words and the bon mot phrase, but they don’t serve me well when writing reports.  Never assume that a technical term will be universally understood.  If your grandparents wouldn’t know what it means, define it.

Computer forensic tools are prone to generate lengthy “reports” rife with incomprehensible data.  It’s tempting to tack them on as appendices to add heft and underscore how smart one must be to understand it all.  But it’s the expert’s responsibility to act as a guide to the data and ensure its import is clear.  I rarely testify—even by affidavit–without developing annotated demonstrative examples of the supporting data.  Don’t wait for the deposition or hearing to use demonstrative evidence; make points clear in the report.

Too, I’m fond of executive summaries; that is, an up-front, cut-to-the-chase paragraph relating the upshot of the report.

Distinguish factual findings from opinions.

The key distinction between expert and fact witnesses is that expert witnesses are permitted to express opinions that go beyond their personal observation.  A lay witness to a crash may testify to speeds based only upon what they saw with their own eyes.  An accident reconstructionist can express an opinion of how fast the cars were going based upon evidence that customarily informs expert opinions like skid marks and vehicle deformation.  Each type of testimony must satisfy different standards of proof in court; so, to make a clear and defensible record, it’s good practice to distinguish factual findings (“things you saw”) from opinions (“things you’ve concluded based upon what you saw AND your specialized knowledge, training and experience”).  This  naturally begets the next tip:

Include language addressing the applicable evidentiary standard.

Modern jurisprudence deploys safeguards like the Daubert standard to combat so-called “junk science.”  Technical expert opinions must be based upon a sound scientific methodology, viz., sufficient facts or data and the product of reliable principles and methods.  While a court acting as gatekeeper can infer the necessary underpinnings from an expert’s report and C.V., expressly stating that opinions are based upon proper and accepted standards makes for a better record.

Eschew advocacy; let your expertise advocate for you.

Mea culpa here.  Because I was a trial lawyer for three+ decades, I labor to restrain myself in my reporting to ensure that I’m not intruding into the lawyer’s realm of advocacy.  I don’t always succeed.  Even if you’re working for a side, be as scrupulously neutral as possible in your reporting.  Strive to act and sound like you don’t care who prevails even if you’re rooting for the home team.  If you do your job well, the facts will advocate the right outcome.

Challenge yourself and be fair.

My worst nightmare as an expert witness is that I will mistakenly opine that someone committed a bad act when they didn’t.  So, I’m always trying to punch holes in my own theories and asking myself, “how would I approach this if I were working for the other side?”  Nowhere is this more important than when working as a court-appointed neutral expert.  Even if you’d enjoying seeing a terrible person fry, be fair.  You stand in the shoes of the Court.

Proofread.  Edit.  Proofread again. Sleep on it. Edit again.

Who has that kind of time, right?  Still, try to find the time.  Few things undermine the credibility of an expert report like a bunch of spelling and grammatical errors.  Stress and fatigue make for poor first drafts.  It often takes a good night’s sleep (or at least a few hours away from the work) to catch the inartful phrase, typo or other careless error.

Avoid assuming the fact finder’s role in terms of ultimate issues.

Serving as a court Special Master a few years back, I opined that the evidence of a certain act was so overwhelming that the Court should only reach one result.  Accordingly, I ceased investigating the loss of certain data that I regarded as out-of-scope.  I was right…but I was also wrong.  The Court has a job to do and, by my eliding over an issue the Court was obliged to address, the Court had to rule without benefit of what a further inquiry into the missing evidence would have revealed. The outcome was the same, but by assuming the factfinder’s role on an ultimate issue, I made the Court’s job harder.  Don’t do that.

Listen to your inner voice.

In expressing expert opinions, too much certainty—a/k/a arrogance–is as perilous as too much doubt.  Perfect is not the standard, but you should be reasonably confident of  your opinion based on a careful and competent review of the evidence.  If something “feels” off, it may be your inner voice telling you to look again. 

Final Exam Review: How Would You Fare?

28 Wednesday Apr 2021

Posted by in Computer Forensics, E-Discovery

≈ 6 Comments

It’s nearly finals time for the students in my E-Discovery and Digital Evidence course at the University of Texas School of Law. I just completed the Final Exam Study Guide for the class and thought readers who wonder what a tech-centric law school e-discovery curriculum looks like might enjoy seeing what’s asked of the students in a demanding 3-credit law school course. Whether you’re ACEDS certified, head of your e-discovery practice group or just an e-discovery groupie like me, consider how you’d fare preparing for an exam with this scope and depth. I’m proud of my bright students. You’d be really lucky to hire one of my stars.

E-Discovery – Spring 2021 Final Exam Study Guide

The final exam will cover all readings, lectures, exercises and discussions on the syllabus.
(Syllabus ver. 21.0224 in conjunction with Workbook ver. 21.0214 and Announcements).

  1. We spent a month on meeting the preservation duty and proportionality.  You undertook a two-part legal hold drafting exercise.  Be prepared to bring skills acquired from that effort to bear on a hypothetical scenario.  Be prepared to demonstrate your understanding of the requisites of fashioning a defensible legal hold and sensibly targeting a preservation demand to an opponent.  As well, your data mapping skills should prove helpful in addressing the varied sources of potentially relevant ESI that exist, starting at the enterprise level with The Big Six (e-mail, network shares, mobile devices, local storage, social networking and databases).  Of course, we must also consider Cloud repositories and scanned paper documents as potential sources.
  2. An essential capability of an e-discovery lawyer is to assess a case for potentially relevant ESI, fashion and implement a plan to identify accessible and inaccessible sources, determine their fragility and persistence, scope and deploy a litigation hold and take other appropriate first steps to counsel clients and be prepared to propound and respond to e-discovery, especially those steps needed to make effective use of the FRCP Rule 26(f) meet-and-confer process.  Often, you must act without having all the facts you’d like and rely upon your general understanding of ESI and information systems to put forward a plan to acquire the facts and do so with sensitivity to the cost and disruption your actions may engender.  Everything we’ve studied was geared to instilling those capabilities in you.
  3. CASES: You are responsible for all cases covered during the semester.  When you read each case, you should ask yourself, “What proposition might I cite this case to support in the context of e-discovery?”  That’s likely to be the way I will have you distinguish the cases and use them in the exam.  I refer to cases by their style (plaintiff versus defendant), so you should be prepared to employ a mnemonic to remember their most salient principles of each, e.g., Columbia Pictures is the ephemeral data/RAM case; Rambus is the Shred Day case; In re NTL is the right of control case; In re: Weekley Homes is the Texas case about accessing the other side’s hard drives, Wms v. Sprint is the spreadsheet metadata case (you get the idea).  I won’t test your memory of jurists, but it’s helpful-not-crucial to recall the authors of the decisions (especially when they spoke to our class like Judges Peck and Grimm). 

Case Review Hints:

  • Green v. Blitz: (Judge Ward, Texas) This case speaks to the need for competence in those responsible for preservation and collection and what constitutes a defensible eDiscovery strategy. What went wrong here? What should have been done differently?
  • In re: Weekly Homes: (Texas Supreme Court) This is one of the three most important Texas cases on ESI. You should understand the elements of proof which the Court imposes for access to an opponent’s storage devices and know terms of TRCP Rule 196.4, especially the key areas where the state and Federal ESI rules diverge.
  • Zubulake: (Judge Scheindlin, New York) The Zubulake series of decisions are seminal to the study of e-discovery in the U.S.  Zubulake remains the most cited of all EDD cases, so is still a potent weapon even after the Rules amendments codified much of its lessons. Know what the case is about, how the plaintiff persuaded the court that documents were missing and what the defendant did or didn’t do in failing to meet its discovery obligations. Know what an adverse inference instruction is and how it was applied in Zubulake versus what must be established under FRCP Rule 37€ after 2015. Know what Judge Scheindlin found to be a litigant’s and counsel’s duties with respect to preservation. Seven-point analytical frameworks (as for cost-shifting) make good test fodder.
  • Williams v. Sprint: (Judge Waxse, Kansas). Williams is a seminal decision respecting metadata. In Williams v. Sprint, the matter concerned purging of metadata and the locking of cells in spreadsheets in the context of an age discrimination action after a reduction-in-force. Judge Waxse applied Sedona Principle 12 in its earliest (and now twice revised) form. What should Sprint have done?  Did the Court sanction any party? Why or why not?
  • Rodman v. Safeway: (Judge Tigar, ND California) This case, like Zubulake IV, looks at the duties and responsibilities of counsel when monitoring a client’s search for and production of potentially responsive ESI? What is Rule 26(g), and what does it require? What constitutes a reasonable search? To what extent and under what circumstances may counsel rely upon a client’s actions and representations in preserving or collecting responsive ESI?
  • Columbia Pictures v. Bunnell: (Judge Chooljian, California) What prompted the Court to require the preservation of such fleeting, ephemeral information? Why were the defendants deemed to have control of the ephemeral data? Unique to its facts?
  • In re NTL, Inc. Securities Litigation: (Judge Peck, New York) Be prepared to discuss what constitutes control for purposes of imposing a duty to preserve and produce ESI in discovery and how it played out in this case. I want you to appreciate that, while a party may not be obliged to succeed in compelling the preservation or production of relevant information beyond its care, custody or control, a party is obliged to exercise all such control as the party actually possesses, whether as a matter of right or by course of dealing. What’s does The Sedona Conference think about that?
  • William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co.: (Judge Peck, New York) What was the “wake up call,” who were expected to awaken and on what topics?
  • Adams v. Dell: (Judge Nuffer, Utah) What data was claimed to have been lost? What was supposed to have triggered the duty to preserve? What did the Court say about a responding party’s duty, particularly in designing its information systems? Outlier?
  • RAMBUS: (Judge Whyte, California) I expect you to know what happened and to appreciate that the mere reasonable anticipation of litigation–especially by the party who brings the action–triggers the common law duty to preserve. Be prepared to address the sorts of situations that might or might not trigger a duty to initiate a legal hold.
  • United States v. O’Keefe (Judge Facciola, DC): I like this case for its artful language (Where do angels fear to tread?) and consideration of the limits and challenges of keyword search.  The last being a topic that bears scrutiny wherever it has been addressed in the material.  That is, does keyword search work as well as lawyers think, and how can we improve upon it and compensate for its shortcomings? 
  • Victor Stanley v. Creative Pipe I & II (Judge Grimm, Maryland):  Read VS I with an eye toward understanding the circumstances when inadvertent production triggers waiver (pre-FRE 502).  What are the three standards applied to claims of waiver?  What needs to be in the record to secure relief?

    Don’t get caught up in the prolonged factual minutiae of VS II.  Read VS II to appreciate the varying standards that once existed across the Circuits for imposition of spoliation sanctions and that pre-date the latest FRCP Rules amendments, i.e., Rule 37(e).
  • Anderson Living Trust v. WPX Energy Production, LLC (Judge Browning, New Mexico): This case looks at the application and intricacies of FRCP Rule 34 when it comes to ESI versus documents.  My views about the case were set out in the article you read called “Breaking Badly.”
  • In re: State Farm Lloyds (Texas Supreme Court):  Proportionality is the buzzword here; but does the Court elevate proportionality to the point of being a costly hurdle serving to complicate a simple issue?  What does this case portend for Texas litigants in terms of new hoops to jump over issues as straightforward as forms of production?  What role did the Court’s confusion about forms (and a scanty record) play in the outcome?
  • Monique Da Silva Moore, et al. v. Publicis Groupe & MSL Group and Rio Tinto Plc v. Vale S.A., (Judge Peck, New York): DaSilva Moore is the first federal decision to approve the use of the form of Technology Assisted Review (TAR) called Predictive Coding as an alternative to linear, manual review of potentially responsive ESI.  Rio Tinto is Judge Peck’s follow up, re-affirming the viability of the technology without establishing an “approved” methodology.
  • Brookshire Bros. v. Aldridge (Texas Supreme Court): This case sets out the Texas law respecting spoliation of ESI…or does it?  Is the outcome and “analysis” here consistent with the other preservation and sanctions cases we’ve covered?
  • VanZant v. Pyle (Judge Sweet, New York): Issues of control and spoliation drive this decision.  Does the Court correctly apply Rule 37(e)?
  • CAT3 v. Black Lineage (Judge Francis, New York):This trademark infringement dispute concerned an apparently altered email.  Judge Francis found the alteration sufficient to support sanctions under Rule 37(e).  How did he get there?  Judge Francis also addressed the continuing viability of discretionary sanctions despite 37(e).  What did he say about that?
  • EPAC v. Thos. Nelson, Inc.: Read this report closely to appreciate how the amended Rules, case law and good practice serve to guide the court in fashioning remedial measures and punitive sanctions.  Consider the matter from the standpoint of the preservation obligation (triggers and measures) and from the standpoint of proportionate remedial measures and sanctions.  What did the Special Master do wrong here?
  • Mancia v. Mayflower (Judge Grimm, Maryland): Don’t overlook this little gem in terms of its emphasis on counsel’s duties under FRCP Rule 26(g).  What are those duties?  What do they signify for e-discovery? What is the role of cooperation in an adversarial system?
  • Race Tires America, Inc. v. Hoosier Racing Tire Corp. (Judge Vanaskie, Pennsylvania): This opinion cogently defines the language and limits of 28 U.S.C. §1920 as it relates to the assessment of e-discovery expenses as “taxable costs.”  What common e-discovery expenses might you seek to characterize as costs recoverable under §1920, and how would you make your case?
  • Zoch v. Daimler (Judge Mazzant, Texas):  Did the Court correctly resolve the cross-border and blocking statute issues?  Would the Court’s analysis withstand appellate scrutiny once post-GDPR? 

Remember: bits, bytes, sectors, clusters (allocated and unallocated), tracks, slack space, file systems and file tables, why deleted doesn’t mean gone, forensic imaging, forensic recovery techniques like file carving, EXIF data, geolocation, file headers/binary signatures, hashing, normalization, de-NISTing, deduplication and file shares.  For example: you should know that an old 3.5” floppy disk typically held no more than 1.44MB of data, whereas the capacity of a new hard drive or modern backup tape would be measured in terabytes. You should also know the relative capacities indicated by kilobytes, megabytes, gigabytes, terabytes and petabytes of data (i.e., their order of ascendancy, and the fact that each is 1,000 times more or less than the next or previous tier).  Naturally, I don’t expect you to know the tape chronology/capacities, ASCII/hex equivalencies or other ridiculous-to-remember stuff.

4. TERMINOLOGY: Lawyers, more than most, should appreciate the power of precise language.  When dealing with professionals in technical disciplines, it’s important to call things by their right name and recognize that terms of art in one context don’t necessarily mean the same thing in another.  When terms have been defined in the readings or lectures, I expect you to know what those terms mean.  For example, you should know what ESI, EDRM, RAID, system and application metadata (definitely get your arms firmly around application vs. system metadata), retention, purge and rotation mean (e.g., grandfather-father-son rotation); as well as Exchange, O365, 26(f), 502(d), normalization, recursion, native, near-native, TIFF+, load file, horizontal, global and vertical deduplication, IP addressing, data biopsy, forensically sound, productivity files, binary signatures and file carving, double deletion, load files, delimiters, slack space, unallocated clusters, UTC offset, proportionality, taxable costs, sampling, testing, iteration, TAR, predictive coding, recall, precision, UTC, VTL, SQL, etc.

5. ELECTRONIC DISCOVERY REFERENCE MODEL:  We’ve returned to the EDRM many times as we’ve moved from left to right across the iconic schematic.  Know it’s stages, their order and what those stages and triangles signify.

6. ENCODING: You should have a firm grasp of the concept of encoded information, appreciating that all digital data is stored as numbers notated as an unbroken sequence of 1s and 0s. How is that miracle possible? You should be comfortable with the concepts described in pp. 132-148 of the Workbook (and our class discussions of the fact that the various bases are just ways to express numbers of identical values in different notations). You should be old friends with the nature and purpose of, e.g., base 2 (binary), base 10 (decimal) base 16 (hexadecimal), base 64 (attachment encoding), ASCII and UNICODE.

7 STORAGE: You should have a working knowledge of the principal types and capacities of common electromagnetic and solid-state storage devices and media (because data volume has a direct relationship to cost of processing and time to review in e-discovery). You should be able to recognize and differentiate between, e.g., floppy disks, thumb drives, optical media, hard drives, solid state storage devices, RAID arrays and backup tape, including a general awareness of how much data they hold. Much of this is in pp. 22-48 of the Workbook (Introduction to Data Storage Media).  For ready reference and review, I’ve added an appendix to this study guide called, “Twenty-One Key Concepts for Electronically Stored Information.”

8. E-MAIL: E-mail remains the epicenter of corporate e-discovery; so, understanding e-mail systems, forms and the underlying structure of a message is important.  The e-mail chapter should be reviewed carefully.  I wouldn’t expect you to know file paths to messages or e-mail forensics, but the anatomy of an e-mail is something we’ve covered in detail through readings and exercises.  Likewise, the messaging protocols (POP, MAPI, IMAP, WEB, MIME, etc.), mail single message and container formats (PST, OST, EDB, NSF, EML, MSG, DBX, MHTML, MBOX) and leading enterprise mail client-server pairings (Exchange/Outlook, Domino/Notes, O365/browser) are worth remembering.  Don’t worry, you won’t be expected to extract epoch times from boundaries again. 😉

9. FORMS: Forms of production loom large in our curriculum.  Being that everything boils down to just an unbroken string of ones-and-zeroes, the native forms and the forms in which we elect to request and produce them (native, near-native, images (TIFF+ and PDF), paper) play a crucial role in all the “itys” of e-discovery: affordability, utility, intelligibility, searchability and authenticability.  What are the purposes and common structures of load files?  What are the pros and cons of the various forms of production?  Does one size fit all?  How does the selection of forms play out procedurally in federal and Texas state practice?  How do we deal with Bates numbering and redaction?  Is native and near-native production better and, if so, how do we argue the merits of native production to someone wedded to TIFF images?  This is HUGE in my book!  There WILL be at least one essay question on this and likely several other test questions.

10. SEARCH AND REVIEW: We spent a fair amount of time talking about and doing exercises on search and review.  You should understand the various established and emerging approaches to search: e.g., keyword search, Boolean search, fuzzy search, stemming, clustering, predictive coding and Technology Assisted Review (TAR).  Why is an iterative approach to search useful, and what difference does it make?  What are the roles of testing, sampling and cooperation in fashioning search protocols?  How do we measure the efficacy of search?  Hint: You should know how to calculate recall and precision and know the ‘splendid steps’ to take to improve the effectiveness and efficiency of keyword search (i.e., better F1 scores). 

You should know what a review tool does and customary features of a review platform.  You should know the high points of the Blair and Maron study (you read and heard about it multiple times, so you need not read the study itself).  Please also take care to understand the limitations on search highlighted in your readings and those termed The Streetlight Effect.

11.ACCESSIBILITY AND GOOD CAUSE: Understand the two-tiered analysis required by FRCP Rule 26(b)(2)(B).  When does the burden of proof shift, and what shifts it?  What tools (a/k/a conditions) are available to the Court to protect competing interests of the parties

12. FRE RULE 502: It’s your friend!  Learn it, love it, live it (or at least know when and how to use it).  What protection does it afford against subject matter waiver?  Is there anything like it in state practice?  Does it apply to all legally cognized privileges?

13. 2006 AND 2015 RULES AMENDMENTS: You should understand what they changed with respect to e-discovery.  Concentrate on proportionality and scope of discovery under Rule 26, along with standards for sanctions under new Rule 37(e).  What are the Rule 26 proportionality factors?  What are the findings required to obtain remedial action versus serious sanctions for spoliation of ESI under 37(e)?  Remember “intent to deprive.”

14. MULTIPLE CHOICE: When I craft multiple choice questions, there will typically be two answers you can quickly discard, then two you can’t distinguish without knowing the material. So, if you don’t know an answer, you increase your odds of doing well by eliminating the clunkers and guessing. I don’t deduct for wrong answers.  Read carefully to not whether the question seeks the exception or the rule. READ ALL ANSWERS before selecting the best one(s) as I often include an “all of the above” or “none of the above” option.

15. All lectures and reviews of exercises are recorded and online for your review, if desired.

16. In past exams, I used the following essay questions.  These will not be essay questions on your final exam; however, I furnish them here as examples of the scope and nature of prior essay questions:

EXAMPLE QUESTION A: On behalf of a class of homeowners, you sue a large bank for alleged misconduct in connection with mortgage lending and foreclosures. You and the bank’s counsel agree upon a set of twenty Boolean and proximity queries including:

  • fnma AND deed-in-lieu
  • 1/1/2009 W/4 foreclos!
  • Resumé AND loan officer
  • LTV AND NOT ARM
  • (Problem W/2 years) AND HARP

These are to be run against an index of ten loan officers’ e-mail (with attached spreadsheets, scanned loan applications, faxed appraisals and common productivity files) comprising approximately 540,000 messages and attachments).  Considering the index search problems discussed in class and in your reading called “The Streetlight Effect in E-Discovery,” identify at least three capabilities or limitations of the index and search tool that should be determined to gauge the likely effectiveness of the contemplated searches.  Be sure to explain why each matter. 

I am not asking you to assess or amend the agreed-upon queries.  I am asking what needs to be known about the index and search tool to ascertain if the queries will work as expected.

EXAMPLE QUESTION B: The article, A Bill of Rights for E-Discovery included the following passage:

I am a requesting party in discovery.

I have duties.

I am obliged to: …

Work cooperatively with the producing party to identify reasonable and effective means to reduce the cost and burden of discovery, including, as appropriate, the use of tiering, sampling, testing and iterative techniques, along with alternatives to manual review and keyword search.

Describe how “tiering, sampling, testing and iterative techniques, along with alternatives to manual review and keyword search” serve to reduce the cost and burden of e-discovery.  Be sure to make clear what each term means.

It’s been an excellent semester and a pleasure for me to have had the chance to work with a bright bunch.  Thank you for your effort!  I’ve greatly enjoyed getting to know you notwithstanding the limits imposed by the pandemic and Mother Nature’s icy wrath.  I wish you the absolute best on the exam and in your splendid careers to come.  Count me as a future resource to call on if I can be of help to you.  Best of Luck!   Craig Ball

APPENDIX

Twenty-One Key Concepts for Electronically Stored Information

  1. Common law imposes a duty to preserve potentially relevant information in anticipation of litigation.
  2. Most information is electronically stored information (ESI).
  3. Understanding ESI entails knowledge of information storage media, encodings and formats.
  4. There are many types of e-storage media of differing capacities, form factors and formats:
    a) analog (phonograph record) or digital (hard drive, thumb drive, optical media).
    b) mechanical (electromagnetic hard drive, tape, etc.) or solid-state (thumb drive, SIM card, etc.).
  5. Computers don’t store “text,” “documents,” “pictures,” “sounds.” They only store bits (ones or zeroes).
  6. Digital information is encoded as numbers by applying various encoding schemes:
    a) ASCII or Unicode for alphanumeric characters.
    b) JPG for photos, DOCX for Word files, MP3 for sound files, etc.
  7. We express these numbers in a base or radix (base 2 binary, 10 decimal, 16 hexadecimal, 60 sexagesimal). E-mail messages encode attachments in base 64.
  8. The bigger the base, the smaller the space required to notate and convey the information.
  9. Digitally encoded information is stored (written):
    a) physically as bytes (8-bit blocks) in sectors and partitions.
    b) logically as clusters, files, folders and volumes.
  10. Files use binary header signatures to identify file formats (type and structure) of data.
  11. Operating systems use file systems to group information as files and manage filenames and metadata.
  12. Windows file systems employ filename extensions (e.g., .txt, .jpg, .exe) to flag formats.
  13. All ESI includes a component of metadata (data about data) even if no more than needed to locate it.
  14. A file’s metadata may be greater in volume or utility than the contents of the file it describes.
  15. File tables hold system metadata about the file (e.g., name, locations on disk, MAC dates): it’s CONTEXT.
  16. Files hold application metadata (e.g., EXIF geolocation data in photos, comments in docs): it’s CONTENT.
  17. File systems allocate clusters for file storage, deleting files releases cluster allocations for reuse.
  18. If unallocated clusters aren’t reused, deleted files may be recovered (“carved”) via computer forensics.
  19. Forensic (“bitstream”) imaging is a method to preserve both allocated and unallocated clusters.
  20. Data are numbers, so data can be digitally “fingerprinted” using one-way hash algorithms (MD5, SHA1).
  21. Hashing facilitates identification, deduplication and de-NISTing of ESI in e-discovery.

The Great Pandemic Leap

22 Thursday Apr 2021

Posted by in Computer Forensics, E-Discovery, General Technology Posts

≈ 4 Comments

Much has been made of the “Great Pandemic Leap” by law firms and courts. Pandemic proved to be, if not the mother of invention, at least the mother****** who FINALLY got techno tardy lawyers to shuffle forward. The alleged leap had nothing to do with new technology. Zoom and other collaboration tools have been around a long time. In fact, April 21, 2021 was Zoom’s 10th Birthday! Happy Birthday, Zoom! Thanks for being there for us.

No, it wasn’t new technology. The ‘Ten Years in Ten Weeks’ great leap was enabled by compulsion, adoption and support.

“Compulsion” because we couldn’t meet face-to-face, and seeing faces (and slides and white boards) is important.
“Adoption” because so many embraced Zoom and its ilk that we suddenly enjoyed a common meeting place.
“Support” because getting firms and families up and running on Zoom et al. became a transcendent priority.

It didn’t hurt that schools moving to Zoom served to put a support scion in many lawyers’ homes and, let’s face it Atticus, the learning curve wasn’t all that steep. Everyone already had a device with camera and microphone. Zoom made it one-click easy to join a meeting, even if eye-level camera positioning and unmuting of microphones has proven more confounding to lawyers than the Rule Against Perpetuities.

For me, the Great Leap manifested as the near-universal ability to convene on a platform where screen sharing and remote control were simple. I’ve long depended on remote control and screen sharing tools to access machines by Remote Desktop Protocol (RDP) or TeamViewer (not to mention PCAnywhere and legacy applications that made WFH possible in the 90s and aughts). But, that was on my own machines. Linking to somebody else’s machine without a tech-savvy soul on the opposite end was a nightmare. If you’ve ever tried to remotely support a parent, you understand. “No, Mom, please don’t click anything until I tell you. Oh, you already did? What did the error message say? Next time, don’t hit ‘Okay” until you read the message, please Mom.“

E-discovery and digital forensics require defensible data identification, preservation and collection. The pandemic made deskside reviews and onsite collection virtually impossible, or more accurately, those tasks became possible only virtually. Suddenly, miraculously, everyone knew how to join a Zoom call, so custodians could share screens and hand over remote control of keyboard and mouse. I could record the sessions to document the work and remotely load software (like iMazing or CoolMuster) to preserve and access mobile devices. Remote control and screen sharing let me target collection efforts based on my judgment and not be left at the mercy of a custodian’s self-interested actions. Custodians could observe, assist and intervene in my work or they could opt to walk away and leave me to do my thing. I was “there,” but less intrusively and spared the expense and hassle of travel. I could meet FRCP 26(g) obligations and make a record to return to if an unforeseen issue arose.

In my role as investigator, there’s are advantages attendant to being onsite; e.g., I sometimes spot evidence of undisclosed data sources. But, weighed against the convenience and economy of remote identification and collection, I can confidently say I’m never going back to the old normal when I can do the work as well via Zoom.

Working remotely as I’ve described requires a passing familiarity with Zoom screen sharing, if only to be able to talk others through unseen menus. As Zoom host, you will need to extend screen sharing privileges to the remote user. Do this on-the-fly by making the remote user a meeting co-host, (click “More” alongside their name in the Participants screen). Alternatively, you can select Advanced Sharing Options from the Share Screen menu. Under “Who can Share?” choose “All Participants.”

To acquire control of the remote user’s mouse and keyboard, have the remote user initiate a screen share then open the View Options dropdown menu alongside the green bar indicating you’re viewing a shared screen. Select “Request Remote Control,” then click “Request” to confirm. The remote user will see a message box seeking authorization to control their screen. Once authorized, click inside the shared screen window to take control of the remote machine.

If you need to inspect a remote user’s iPhone or iPad, Zoom supports sharing those devices using a free plugin that links the mobile device over the same WiFi connection as the Zoom session. To initiate an iPhone/iPad screen share, instruct the remote user to click Screen Share and then select the iPhone/iPad icon at right for further instructions. Simpler still, have the remote user install Zoom on the phone or pad under scrutiny and join the Zoom session from the mobile device. Once in the meeting, the remote user screen shares from the session on the mobile device. Easy-peasy AND it works for Android phones, too!

So Counselor, go ahead and take that victory lap. Whether you made a great leap or were dragged kicking and screaming to a soupçon of technical proficiency, it’s great to see you! Hang onto those gains, and seek new ways to leverage technology in your practice. Your life may no longer depend on it, but your future certainly does.

Can a Producing Party Refuse to Produce Linked Attachments to E-Mail?

25 Thursday Mar 2021

Posted by in Computer Forensics, E-Discovery

≈ 5 Comments

A fellow professor of e-discovery started my morning with a question. He wrote, “In companies using Google business, internal email ‘attachments’ are often linked with a URL to documents on a Google drive rather than actually ‘attached’ to the email…. Can the producing party legally refuse to produce the document as an attachment to the email showing the family? Other links in the email to, for example, a website need not be produced.“

I replied that I didn’t have the definitive answer, but I had a considered opinion. First, I challenged the assertion, “Other links in the email to, for example, a website need not be produced.”

Typically, the link must be produced because it’s part of the relevant and responsive, non-privileged message.  But, the link is just a pointer, a path to an item, and the discoverability of the link’s target hinges upon whether the (non-privileged) target is responsive AND within the care, custody or subject to the control of the producing party.

For the hypothetical case, I assume that the transmittal is deemed relevant and the linked targets are either relevant by virtue of their being linked to the transmittal or independently relevant and responsive.  I also assume that the linked target remains in the care, custody or subject to the control of the producing party because it has a legal and practical right of access to the repository where the linked target resides; that is, the producing party CAN access the linked item, even if they would rather not retrieve the relevant, responsive and non-privileged content to which the custodian has linked the transmittal.

If the link is not broken and the custodian of the message could click the link and access the linked target, where is the undue burden and cost?  Certainly I well know that collection is often delegated to persons other than the custodian, but shouldn’t we measure undue burden and cost from the standpoint of the custodian under the legal duty to preserve and produce, NOT from the perspective of a proxy engaged to collect, but lacking the custodian’s ability to collect, the linked target? Viewed in this light, I don’t see where the law excuses the producing party from collecting and producing the linked target

The difficulty in collection cited results from the producing party contracting to delegate storage to a third-party Cloud Provider, linking to information relegated to the Cloud Provider’s custody.  In certain respects, it’s like the defendant in Columbia Pictures v. Bunnell, who put a contractor (Panther) in control of the IP addresses of the persons trading pirated movies via the defendant’s platform.  Just because you enlist someone to keep your data on your behalf doesn’t defeat your ultimate right of control or your duty of production. 

Having addressed duty, let’s turn to feasibility, which is really what the fight’s about. 

Two key issues I see are: 

1. What if the link is broken by the passage of time?  If the target cannot be collected after reasonable efforts to do so, then it may be infeasible to effect the collection via the link or via pairing the link address to the addresses of the contents of the repository (as by using the Download-Link-Generator tool I highlighted here).  If there is simply no way a link created before a legal hold duty attached can be tied to its target, then you can’t do it, and the Court can’t order the impossible.  But, you can’t just label something “impossible” because you’d rather not do it.  You must make reasonable efforts and you must prove infeasibility. Courts should look askance at claims of infeasibility asserted by producing parties who have created the very situations that make it harder to obtain discovery.

2. What if the content of the target has changed since the time it was linked?  This is where the debate gets stickier, and where I have little empathy for a producing party who expects to be excused from production on the basis that it altered the evidence.  If the evidence has changed to the point where its relevance is in question because it may have been materially changed after linking, then the burden to prove the material change (and diminished relevance) falls on the producing party, not the requesting party.  Else, you take your evidence as you find it, and you produce it as it exists at the time of preservation and collection.  The possibility that it changed goes to its admissibility and weight, not to its discoverability.

I hope you agree my analysis is sound. To paraphrase Abraham Lincoln, you cannot murder your parents and then seek leniency because you’re an orphan. The problem is solvable, but it will be resolved only when Courts supply the necessary incentive by ordering collection and production. Integrating a hash value of the target within the link might go a long way to curing this Humpty-Dumpty dilemma; then, the target can be readily identified AND proven to be in the same state as when the link was created.

While we are at it, embedded links should be addressed from the standpoint of security and ethics. If a producing party supplies a message or document with a live link and opposing counsel’s clicks on the link exposing information not meant to be produced, whose head should roll there? If a party produces a live link in an email, is it reasonable to assume that the target was delivered, too? To my mind, the link is fair game, just as the attachment would be had it been embedded in the message. Electronic delivery is delivery. We have rules governing inadvertent production of privileged content, but not for the scenario described.

Don’t BE a Tool, GET a Tool!

22 Monday Mar 2021

Posted by in Computer Forensics, E-Discovery

≈ 4 Comments

Considering the billions of dollars spent on e-discovery every year, wouldn’t you think every trial lawyer would have some sort of e-discovery platform?  Granted, the largest firms have tools; in fact, e-discovery software provider Relativity (lately valued at $3.6 billion) claims 198 of the 200 largest U.S. law firms as its customers.  But, for the smaller firms and solo practitioners who account for 80% or more of lawyers in private practice, access to e-discovery tools falls off.  Off a cliff, that is. 

When law firms or solos seek my help obtaining native production, my first question is often, “what platform are you using?”  Their answer is usually “PC” or simply a blank stare.  When I add, “your e-discovery platform–the software tool you’ll use to review and search electronically stored information,” the dead air makes clear they haven’t a clue.  I might as well ask a dog where it will drive if it catches the car.    

Let’s be clear: no lawyer should expect to complete an ESI review of native forms using native applications. 

Don’t do it.

I don’t care how many regale me with tales of their triumphs using Outlook or Microsoft Word as ‘review tools.’  That’s not how it’s done.  It’s reckless.  The integrity of electronic evidence will be compromised by that workflow.  You will change hash values.  You will alter metadata.  Your searches will be spotty.  Worst case scenario: your copy of Outlook could start spewing read receipts and calendar reminders.  I dare you to dig your way out of that with a smile.  Apart from the risks, review will be slow.  You won’t be able to tag or categorize data.   When you print messages, they’ll bear your name instead of the custodian’s name. Doh!

None of this is an argument against native production. 
It’s an argument against incompetence. 

I am as dedicated a proponent of native production as you’ll find; but to reap the benefits and huge cost savings of native production, you must use purpose-built review tools.  Notwithstanding your best efforts to air gap computers and use working copies, something will fail.  Just don’t do it.

You’ll also want to use an e-discovery review tool because nothing else will serve to graft the contents of load files onto native evidence.  For the uninitiated, load files are ancillary, delimited text files supplied with a production and used to carry information about the items produced and the layout of the production.

I know some claim that native productions do away with the need for load files, and I concede there are ways to structure native productions to convey some of the data we now exchange via load files.  But why bother?  After years in the trenches, I’ve given up cursing the use of load files in native, hybrid and TIFF+ productions.  Load files are clunky, but they’re a proven way to transmit filenames and paths, supply Bates numbers, track duplicates, share hash values, flag family relationships, identify custodians and convey system metadata (that’s the kind not stored in files but residing in the host system’s file table).   Until there’s a better mousetrap, we’re stuck with load files.

The takeaway is get a tool. If you’re new to e-discovery, you need to decide what e-discovery tool you will use to review ESI and integrate load files.  Certainly, no producing party can expect to get by without proper tools to process, cull, index, deduplicate, search, review, tag and export electronic evidence—and to generate load files.  But requesting parties, too, are well-served to settle on an e-discovery platform before they serve their first Request for Production.  Knowing the review tool you’ll use informs the whole process, particularly when specifying the forms of production and the composition of load files.  Knowing the tool also impacts the keywords used in and structure of search queries.

There are a ton of tools out there, and one or two might not skin you alive on price. Kick some tires. Ask for a test drive. Shop around. Do the math. But, figure out what you’re going to do before you catch that car. Oh, and don’t even THINK about using Outlook and Word. I mean it. I’ve got my eye on you, McFly.

Understanding the UPC: Because You Can

25 Monday Jan 2021

Posted by in Computer Forensics, General Technology Posts

≈ 2 Comments

Where does the average person encounter binary data?  Though we daily confront a deluge of digital information, it’s all slickly packaged to spare us the bare binary bones of modern information technology.  All, that is, save the humble Universal Product Code, the bar code symbology on every packaged product we purchase from a 70-inch TV to a box of Pop Tarts.  Bar codes and their smarter Japanese cousins, QR Codes, are perhaps the most unvarnished example of binary encoding in our lives. 

Barcodes have an ancient tie to e-discovery as they were once used to Bates label hard copy documents, linking them to “objective coding” databases. A lawyer using barcoded documents was pretty hot stuff back in the day.

Just a dozen numeric characters are encoded by the ninety-five stripes of a UPC-A barcode, but those digits are encoded so ingeniously as to make them error resistant and virtually tamperproof. The black and white stripes of a UPC are the ones and zeroes of binary encoding.  Each number is encoded as seven bars and spaces (12×7=84 bars and spaces) and an additional eleven bars and spaces denote start, middle and end of the UPC.  The start and end markers are each encoded as bar-space-bar and the middle is always space-bar-space-bar-space.  Numbers in a bar code are encoded by the width of the bar or space, from one to four units. 

This image has an empty alt attribute; its file name is barcode-water.png

The bottle of Great Value purified water beside me sports the bar code at right.

Humans can read the numbers along the bottom, but the checkout scanner cannot; the scanner reads the bars. Before we delve into what the numbers signify in the transaction, let’s probe how the barcode embodies the numbers.  Here, I describe a bar code format called UPC-A.  It’s a one-dimensional code because it’s read across.  Other bar codes (e.g., QR codes) are two-dimensional codes and store more information because they use a matrix that’s read side-to-side and top-to-bottom.

The first two black bars on each end of the barcode signal the start and end of the sequence (bar-space-bar).  They also serve to establish the baseline width of a single bar to serve as a touchstone for measurement.  Bar codes must be scalable for different packaging, so the ability to change the size of the codes hinges on the ability to establish the scale of a single bar before reading the code.

Each of the ten decimal digits of the UPC are encoded using seven “bar width” units per the schema in the table at right.

To convey the decimal string 078742, the encoded sequence is 3211 1312 1213 1312 1132 2122 where each number in the encoding is the width of the bars or spaces.  So, for the leading value “zero,” the number is encoded as seven consecutive units divided into bars of varying widths: a bar three units wide, then (denoted by the change in color from white to black or vice-versa), a bar two units wide, then one then one.  Do you see it? Once more, left-to-right, a white band, three units wide, a dark band two units wide , then a single white band and a single dark band (3-2-1-1 encoding the decimal value zero).

You could recast the encoding in ones and zeroes, where a black bar is a one and a white bar a zero. If you did, the first digit would be 0001101, the number seven would be 0111011 and so on; but there’s no need for that, because the bands of light and dark are far easier to read with a beam of light than a string of printed characters.

Taking a closer look at the first six digits of my water bottle’s UPC, I’ve superimposed the widths and corresponding decimal value for each group of seven units. The top is my idealized representation of the encoding and the bottom is taken from a photograph of the label:

Now that you know how the bars encode the numbers, let’s turn to what the twelve digits mean.  The first six digits generally denote the product manufacturer. 078742 is Walmart. 038000 is assigned to Kellogg’s.  Apple is 885909 and Starbucks is 099555.  The first digit can define the operation of the code.  For example, when the first digit is a 5, it signifies a coupon and ties the coupon to the purchase required for its use.  If the first digit is a 2, then the item is something sold by weight, like meats, fruit or vegetables, and the last six digits reflect the weight or price per pound.  If the first digit is a 3, the item is a pharmaceutical.

Following the leftmost six-digit manufacturer code is the middle marker (1111, as space-bar-space-bar-space) followed by five digits identifying the product.  Every size, color and combo demands a unique identifier to obtain accurate pricing and an up-to-date inventory.

The last digit in the UPC serves as an error-correcting check digit to ensure the code has been read correctly.  The check digit derives from a calculation performed on the other digits, such that if any digit is altered the check digit won’t match the changed sequence. Forget about altering a UPC with a black marker: the change wouldn’t work out to the same check digit, so the scanner will reject it.

In case you’re wondering, the first product to be scanned at a checkout counter using a bar code was a fifty stick pack of Juicy Fruit gum in Troy, Ohio on June 26, 1974.  It rang up for sixty-seven cents.  Today, 45 sticks will set you back $2.48 (UPC 22000109989).

It’s About Time!

17 Wednesday Jun 2020

Posted by in Uncategorized, General Technology Posts, E-Discovery, Computer Forensics

≈ 9 Comments

“Time heals all wounds.”  “Time is money.” “Time flies.” 

To these memorable mots, I add one more: “Time is truth.”

A defining feature of electronic evidence is its connection to temporal metadata or timestamps.  Electronically stored information is frequently described by time metadata denoting when ESI was created, modified, accessed, transmitted, or received.  Clues to time are clues to truth because temporal metadata helps establish and refute authenticity, accuracy, and relevancy.

But in the realms of electronic evidence and digital forensics, time is tricky.  It hides in peculiar places, takes freakish forms, and doesn’t always mean what we imagine.  Because time is truth, it’s valuable to know where to find temporal clues and how to interpret them correctly.

Everyone who works with electronic evidence understands that files stored in a Windows (NTFS) environment are paired with so-called “MAC times,” which have nothing to do with Apple Mac computers or even the MAC address identifying a machine on a network.  In the context of time, MAC is an initialization for Modified, Accessed and Created times.

That doesn’t sound tricky.  Modified means changed, accessed means opened and created means authored, right?  Wrong.  A file’s modified time can change due to actions neither discernible to a user nor reflective of user-contributed edits.  Accessed times change from events (like a virus scan) that most wouldn’t regard as accesses. Moreover, Windows stopped reliably updating file access times way back in 2007 when it introduced the Windows Vista operating system.  Created may coincide with the date a file is authored, but it’s as likely to flow from the copying of the file to new locations and storage media (“created” meaning created in that location). Copying a file in Windows produces an object that appears to have been created after it’s been modified!

it’s crucial to protect the integrity of metadata in e-discovery, so changing file creation times by copying is a big no-no.  Accordingly, e-discovery collection and processing tools perform the nifty trick of changing MAC times on copies to match times on the files copied.  Thus, targeted collection alters every file collected, but done correctly, original metadata values are restored and hash values don’t change.  Remember: system metadata values aren’t stored within the file they describe so system metadata values aren’t included in the calculation of a file’s hash value.  The upshot is that changing a file’s system metadata values—including its filename and MAC times—doesn’t affect the file’s hash value. 

Conversely and ironically, opening a Microsoft Word document without making a change to the file’s contents can change the file’s hash value when the application updates internal metadata like the editing clock.  Yes, there’s even a timekeeping feature in Office applications!

Other tricky aspects of MAC times arise from the fact that time means nothing without place.  When we raise our glasses with the justification, “It’s five o’clock somewhere,” we are acknowledging that time is a ground truth. “Time” means time in a time zone, adjusted for daylight savings and expressed as a UTC Offset stating the number of time zones ahead of or behind GMT, time at the Royal Observatory in Greenwich, England atop the Prime or “zero” Meridian.

Time values of computer files are typically stored in UTC, for Coordinated Universal Time, essentially Greenwich Mean Time (GMT) and sometimes called Zulu or “Z” time, military shorthand for zero meridian time.  When stored times are displayed, they are adjusted by the computer’s operating system to conform to the user’s local time zone and daylight savings time rules.  So in e-discovery and computer forensics, it’s essential to know if a time value is a local time value adjusted for the location and settings of the system or if it’s a UTC value.  The latter is preferred in e-discovery because it enables time normalization of data and communications, supporting the ability to order data from different locales and sources across a uniform timeline.

Four months of pandemic isolation have me thinking about time.  Lost time. Wasted time. Pondering where the time goes in lockdown.   Lately, I had to testify about time in a case involving discovery malfeasance and corruption of time values stemming from poor evidence handling.  When time values are absent or untrustworthy, forensic examiners draw on hidden time values—or, more accurately, encoded time values—to construct timelines or reveal forgeries.

Time values are especially important to the reliable ordering of email communications.  Most e-mails are conversational threads, often a mishmash of “live” messages (with their rich complement of header data, encoded attachments and metadata) and embedded text strings of older messages.  If the senders and receivers occupy different time zones, the timeline suffers: replies precede messages that prompted them, and embedded text strings make it child’s play to alter times and text.  It’s just one more reason I always seek production of e-mail evidence in native and near-native forms, not as static images.  Mail headers hold data that support authenticity and integrity—data you’ll never see produced in a load file.

Underscoring that last point, I’ll close with a wacky, wonderful example of hidden timestamps: time values embedded in Gmail boundaries.  This’ll blow your mind.

If you know where to look in digital evidence, you’ll find time values hidden like Easter eggs. 

E-mail must adhere to structural conventions to traverse the internet and be understood by different e-mail programs. One of these conventions is the use of a Content-Type declaration and setting of content boundaries, enabling systems to distinguish the message header region from the message body and attachment regions.

The next illustration is a snippet of simplified code from a forged Gmail message.  To see the underlying code of a Gmail message, users can select “Show original” from the message options drop-down menu (i.e., the ‘three dots’).

The line partly outlined in red advises that the message will be “multipart/alternative,” indicating that there will be multiple versions of the content supplied; commonly a plain text version followed by an HTML version. To prevent confusion of the boundary designator with message text, a complex sequence of characters is generated to serve as the content boundary. The boundary is declared to be “00000000000063770305a4a90212” and delineates a transition from the header to the plain text version (shown) to the HTML version that follows (not shown).

Thus, a boundary’s sole raison d’être is to separate parts of an e-mail; but because a boundary must be unique to serve its purpose, programmers insure against collision with message text by integrating time data into the boundary text.  Now, watch how we decode that time data.

Here’s our boundary, and I’ve highlighted fourteen hexadecimal characters in red:

Next, I’ve parsed the highlighted text into six- and eight-character strings, reversed their order and concatenated the strings to create a new hexadecimal number:

A decimal number is Base 10.  A hexadecimal number is Base 16.  They are merely different ways of notating numeric values.  So, 05a4a902637703 is just a really big number. If we convert it to its decimal value, it becomes: 1,588,420,680,054,531.  That’s 1 quadrillion, 588 trillion, 420 billion, 680 million, 54 thousand, 531.  Like I said, a BIG number.

But, a big number…of what?

Here’s where it gets amazing (or borderline insane, depending on your point of view).

It’s the number of microseconds that have elapsed since January 1, 1970 (midnight UTC), not counting leap seconds. A microsecond is a millionth of a second, and 1/1/1970 is the “Epoch Date” for the Unix operating system. An Epoch Date is the date from which a computer measures system time. Some systems resolve the Unix timestamp to seconds (10-digits), milliseconds (13-digits) or microseconds (16-digits).

When you make that curious calculation, the resulting date proves to be Saturday, May 2, 2020 6:58:00.054 AM UTC-05:00 DST.  That’s the genuine date and time the forged message was sent.  It’s not magic; it’s just math.

Had the timestamp been created by the Windows operating system, the number would signify the number of 100 nanosecond intervals between midnight (UTC) on January 1, 1601 and the precise time the message was sent.

Why January 1, 1601?  Because that’s the “Epoch Date” for Microsoft Windows.  Again, an Epoch Date is the date from which a computer measures system time.  Unix and POSIX measure time in seconds from January 1, 1970.  Apple used one second intervals since January 1, 1904, and MS-DOS used seconds since January 1, 1980. Windows went with 1/1/1601 because, when the Windows operating system was being designed, we were in the first 400-year cycle of the Gregorian calendar (implemented in 1582 to replace the Julian calendar). Rounding up to the start of the first full century of the 400-year cycle made the math cleaner.

Timestamps are everywhere in e-mail, hiding in plain sight.  You’ll find them in boundaries, message IDs, DKIM stamps and SMTP IDs.  Each server handoff adds its own timestamp.  It’s the rare e-mail forger who will find every embedded timestamp and correctly modify them all to conceal the forgery. 

When e-mail is produced in its native and near-native forms, there’s more there than meets the eye in terms of the ability to generate reliable timelines and flush out forgeries and excised threads.  Next time the e-mail you receive in discovery seems “off” and your opponent balks at giving you suspicious e-mail evidence in faithful electronic formats, ask yourself: What are they trying to hide?

The takeaway is this: Time is truth and timestamps are evidence in their own right.  Isn’t it about time we stop letting opponents strip it away?

Tip of the hat to Arman Gungor at Metaspike whose two excellent articles about e-mail timestamp forensics reminded me how much I love this stuff.  https://www.metaspike.com/timestamps-forensic-email-examination/