Two years ago, I blogged about the challenge of seeking to preserve records of interactions with the Amazon Echo/Alexa family of devices and applications.  I concluded:

“Listen, Amazon, Apple, Microsoft and all the other companies collecting vast volumes of our data through intelligent agents, apps and social networking sites, you must afford us a ready means to see and repatriate our data.  It’s not enough to let us grab snatches via an unwieldy item-by-item interface.  We have legal duties to meet, and if you wish to be partners in our digital lives, you must afford us reasonable means by which we can comply with the law when we anticipate litigation or respond to discovery. “

In a testament to my thought leadership, nothing whatsoever has happened since my call-to-arms in terms of the ability to preserve Alexa app history data.  It’s as bad as it was two years ago and arguably worse because Echo products have grown so popular and the Alexa interface has been integrated into so many devices that the problem is bigger now by leaps and bounds.

Don’t get me wrong, I am Alexa’s biggest fan (and adore her sisters, “Amazon” and “Computer,” so-called for the alternate “wake words” I use to trigger voice communication to Amazon’s servers from other Echo devices).  If anything, Craig the Consumer is happier now with the Echo ecosystem than two years ago.  Wearing my user hat, Alexa’s a peach (and, yes, I am perfectly comfortable with her from a privacy point of view).  Wearing my e-discovery propeller beanie, Alexa is a pain in the butt.  She’s a data gold digger who cooks the books to make it supremely difficult to account for what she’s taken. Continue reading →

The Latin maxim Docendo Discimus means “by teaching, we learn.”  So true, because absent my need to stay up-to-date to teach, it’s easy to fall behind.  I teach various places, but of longest standing at the University of Texas School of Law, my alma mater.  My subject is E-Discovery and Digital Evidence, a three-credit, 14-week course.  In my course, information technology enjoys equal status with case law and procedure.  Half the semester is dedicated to mastering the “e” in e-discovery: the foundations of modern information storage and retrieval.  That balance is unique among law school courses.  I don’t elevate information technology because I happen to know how to teach it; I do it because I think it’s what the students need most and don’t get.  It’s certainly what lawyers need most and don’t get.

Why?

Surprisingly, that’s a contentious question.  The arguments against teaching the technology side of e-discovery and digital evidence range from “it’s not law” to “lawyers hire people for the tech stuff, so why bother?”

I think the explanation for the marginalization of information technology in e-discovery classes is simpler: lawyers teaching law school classes have a limited ability to teach technology.  My guess is that if the teachers knew the technology as well as they know the law, there would be more balance in the curriculum.

The limits of instructors hobbles the curriculum of e-discovery, which should spring from the needs of the students.  We should gear our syllabi to what must be learned rather than what can be taught.  First, let’s teach the teachers.

That won’t be easy.  The level of interest is low, and who wants to draw the circle of competence to leave themselves outside the circle?  Too, there are virtually no instructional channels or materials.  No formal incentives.  No funding.  Many invested in the status quo ante.  And all that aside, there’s a dearth of experienced instructors.  We are fuc… challenged.

Continue reading →

This article makes the case for routine, scalable preservation of potentially-relevant iPhone and iPad data by requiring custodians back up their devices using iTunes (a free Apple program that runs on PCs and Macs), then compress the backup for in situ preservation or collection.

The Need
Most of you will read this on your cell phone.  If not, it’s a virtual certainty that your cell phone is nearby. Few of us separate from our mobile devices for more than minutes a day.   On average, cell users spend four hours a day looking at that little screen.  On average.  If your usage is much less, someone else’s is much more.

It took 30 years for e-mail to displace paper as our primary target in discovery.  It’s taken barely 10 for mobile data, especially texts, to unseat e-mail as the Holy Grail of probative electronic evidence.  Mobile is where evidence lives now; yet in most cases, mobile data remains “off the table” in discovery. It’s infrequently preserved, searched or produced.

No one can say that mobile data isn’t likely to be relevant, unique and material.  Today, the most candid communications aren’t e-mail, they’re text messages.  Mobile devices are our principal conduit to online information, eclipsing use of laptops and desktops.  Texts and app data reside primarily and exclusively on mobile devices.

No one can say that mobile data isn’t reasonably accessible.  We use phones continuously, for everything from games to gossip to geolocation.  Texts are durable (the default setting on an iPhone is to keep texts “Forever”).  Mobile content easily replicates as data backed up and synched to laptops, desktops and online repositories like iCloud.  The mobile preservation burden pales compared to that we take for granted in the preservation of potentially-relevant ESI on servers and personal computers.

Modest Burden.  That’s what this article is about.  My goal is to demonstrate that the preservation burden is minimal when it comes to preserving the most common and relevant mobile data.  I’ll go so far as to say that the burden of preserving mobile device content, even at an enterprise scale, is less than that of preserving a comparable volume of data on laptop or desktop computers.  Too, the workflows are as defensible and auditable as any we accept as reasonable in meeting other ESI preservation duties. Continue reading →

Two characteristics that distinguish successful trial lawyers are preparation and strategy.

Strategy is more than simply doing what the rules require and the law allows.  Strategy requires we explore our opponent’s fears, goals and pain points … and our own.  Is it just about the money?  Can we deflect, distract or, deplete the other side’s attention, energy or resources?  How can they save face while we get what we want?

In a world where less than one-in-one-hundred cases are tried, discovery strategy, particularly e-discovery strategy, is more often vital than trial strategy.  Yet, strategic use of e-discovery garners little attention, perhaps because the fundamentals demand so much focus, there’s little room for flourishes.  As lawyers, we tend to cleave to one way of approaching e-discovery and distrust any way not our own.  If you only know one way of doing things, how do act strategically?

Strategic discovery is the domain of those who’ve mastered the tools, techniques and nuances of efficient, effective discovery.  That level of engagement, facility and flexibility is rare; but, you can be still be more strategic in e-discovery even if you’ve got a lot to learn.

Recently, I had to dash off a dozen e-discovery strategies for requesting and producing parties.  I’m not completely happy with my lists, but I think I nailed a few of the essentials for each side.

A Dozen E-Discovery Strategies for Requesting and Producing Parties

(from Ball, Competency and Strategy in E-Discovery (2017))

Continue reading →

In my law practice, I use PowerPoint more frequently than Word.  Word processing tools are for preparing documents for people to read and understand; I use presentation tools like PowerPoint when I want people to see and understand.  PowerPoint isn’t a word processor; it’s a visual presentation tool.  You can fill slides with text as you might a word-processed document, but when you do that, you’re killing the power of PowerPoint.

Text documents are pro se.  They speak for themselves.  Presentations benefit from the presence of a narrator, i.e., you sharing your message.  An effective presentation supports your message.  It’s your ally, not your competitor.  Human brains are challenged to simultaneously read text and listen to words.  Written text doesn’t reinforce spoken text; it competes with it.  Our language centers are overwhelmed trying to process both spoken- and written words.  The result is a breakdown in comprehension and retention.  That breakdown is worst when a presentation proceeds at the brisk pace best required to hold attention.  And we need an audience’s attention. Attention is the hardest thing to grab and hang onto in this time of ubiquitous screens and constant connection. Continue reading →

I lecture about 50-70 times a year, all over the globe.  Of late, my presentations start with an exploration of the Internet of Things (IoT), focused first on my own IoT-enabled life and then addressed to the proliferation of IoT data streams in all our lives.  Apart from mobile phones–the apex predators of IoT–discovery from the Internet of Things remains more theoretical than real in civil litigation; and instances of IoT evidence in criminal prosecutions are still rare.  That will change dramatically as lawyers come to appreciate that the disparate, detailed data streams generated by a host of mundane and intimate sensors tell a compelling human story.

With every disruptive technology, lawyers go through the Four Stages of Attorney E-Grief: Denial, Anxiety, Rulemaking and Delusion.  I considered a stage called “Prattle,” but that hit too close to home. Continue reading →