Handy Chart on E-Admissibility

admissibilityI received a fine gift this morning from U.S. District Judge Paul Grimm, and with the authors’ permission, I’m sharing it with you.  It’s a splendid chart on admissibility of electronic evidence that any trial lawyer will want when going to Court.  For younger readers, I will explain what “going to Court” means in a future post. 😉

The chart is the latest iteration of work by Paul Grimm and Kevin Brady, two I admire as much for their sterling characters and kindnesses as for their stunning lawyer intellects.  Judge Grimm needs no introduction here.  He’s the judge behind decisions like Victor Stanley v. Creative Pipe, Mancia v. Mayflower and Lorraine v. Markel, the last a virtual hornbook on admissibility of electronic evidence.  He’s also masterfully guided the evolution of the federal rules of evidence and procedure, notably FRE 502 and FRCP 37(e).  Paul Grimm is simply the finest judge–and gentleman–I know.

Kevin Brady is Of Counsel to Redgrave LLP.  I’ve been privileged to work with Kevin over many years in support of the Georgetown E-Discovery Institute and E-Discovery Training Academy.  Everyone who knows him likes and admires Keven Brady, and Kevin has quietly made countless contributions to e-discovery education.  This chart is just one more instance of Kevin’s largesse.

The chart is handsome to look at and easy-to-use. It covers authentication, relevance, hearsay exceptions and the Original Writing rule (which some like to call the Best Evidence rule).  Click HERE to get your free copy.  Thank you Paul and Kevin!

Preserving Alexa History: Ugly-but-Easy

amazon-alexa-history-angleTwo 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

Docendo Discimus: Q & A

teach-learn

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

My Dinner with Doris

dkg2018-2I have been lucky all my life, a fact taken for granted until standout strokes of good fortune prompt grateful reflection.  Today, it’s how blessed I have been, personally and professionally, by association with gifted and indomitable women.  In the last sixteen months, I’ve presented with Supreme Court Justice Sonia Sotomayor, NPR legal Correspondent Nina Totenberg and last Monday night, most fun of all, Presidential biographer and pop-culture icon, Doris Kearns Goodwin.  How’s that for luck!

I’d resolved to forego the annual New York LegalTech/LegalWeek show this year until my friends at Zapproved made me an offer I couldn’t refuse: interview Doris Kearns Goodwin at Tavern on the Green to anchor their annual e-Discovery Heroes awards ceremony.  They sweetened the pot by noting that they would also honor the lifetime achievements of Judge Craig Shaffer and recognize the e-discovery leadership of three dear friends, Judges Jay Francis, Frank Maas and Andy Peck, all of whom have left or are soon leaving the Federal bench.

Would I do it?  Are you kidding?  They had me at “hello.” Continue reading

The Sincerest Form of Flattery

51AEI3isFiL._SX327_BO1,204,203,200_You’d have to have been in a coma (lucky you) to have missed the presidential ire and fury roused by the book, Fire and Fury: Inside the Trump White House by Michael Wolff and its excerpts in New York magazine.  In them, we learn the President is an insecure, incurious buffoon and his posse of dim opportunists are a bunch of toadies and backstabbers (including many doing double-duty as backstabbing toadies).  Who knew?

Until Trump tried to restrain publication of the book and demanded retraction of the article, I didn’t think this latest dust up had anything to do with e-discovery or with me.

Boy, was I wrong. Continue reading

Houston: We’ve Got a Problem

19-hurricane-harveyHouston is my hometown.  I wasn’t born there (though both my children were); but, I got there as quickly as I could, at age 17 to study at Rice University.  I practiced law in Houston and kept a home in the Houston area for 38 years, longer by far than anywhere else.  I have deep Texas roots, proud Houston roots.  So, it pains me to see what’s happening in Harris County, and as a past President of the Houston Trial Lawyers Asociation, I’m thinking of all my colleagues whose offices are submerged or inaccessible and whose practices will be devastated and disrupted by Hurricane Harvey.

Right now, the needs are basic: shelter, food, clothing, medical care and such.  Soon, however, we must restore the legal and business infrastructure.  Though Houston is home to several megafirms, the majority of Houston lawyers–the best lawyers in the world–are small firm- and solo practitioners.  It’s these lawyers who will help people pick up the pieces of their lives by prosecuting claims for storm damage when insurers decline to pay what’s owed.  In Texas, the need is dire as the toadying Texas Legislature serves at the pleasure of big national insurance carriers, a fact borne out by legislation that, even before Harvey’s waters recede, will operate to deprive Texas insureds of substantial rights to recover for storm losses, effective September 1.  Ironic.  Tragic. Despicable.

So, we must pull together to help Gulf Coast lawyers recover from the storm. My friend, Tom O’Connor, unselfishly organized a relief effort for Louisiana lawyers when Katrina crippled New Orleans and environs.  I’m proud to have contributed in a small way to that effort, financially and by speaking in New Orleans about tech tools to help lawyers cope. I look forward to the chance to work with Tom and with The Computer and Technology Section of the State Bar of Texas to do the same for Gulf Coast lawyers.

There is so much to do, and we must each do what we can according to our particular ways and means. Helping Texas lawyers harness technology to weather the storm is something I can do, and I know it’s within the capability of many of my readers. Houston needs help, and Houston deserves it.  After Hurricane Katrina, Houston took in a quarter of a million evacuees, some forty thousand of them stayed.  When I was at Rice, Houston welcomed 200,000 Vietnamese refugees.  No city is more diverse.  None more self-reliant and can-do.  No city has a bigger heart.

There are a lot of sodden computers and hard drives in Houston and all along the Gulf Coast.  Where once we grabbed the family photo album in an evacuation, today, cherished photos (and crucial client data) is all digital.  To that end, I offer this link to a post I wrote after Katrina addressing data recovery.  We have come a long way since since August 2005.  The Cloud and mobile devices play a big role in data storage, and many hard drives are now solid state; still, the majority of computers rely on mechanical hard drives for long term storage, and water plays havoc with mechanical hard drives. What you do with a damaged device in the aftermath makes a huge difference in whether the data they contain can be resurrected.

Please help Houston, and Houston lawyers, get back on their feet.  Believe me, Houstonians would be there for you.  They’ve proved it many times before.

 

Custodian-Directed Preservation of iPhone Content: Simple. Scalable. Proportional.

charge sync2This 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

Cybersecurity’s a Pain Point for Plaintiffs

law-firm-breachCybersecurity and personal privacy are real and compelling concerns.  Whether we know it or not, virtually everyone has been victimized by data breach. Lawyers are tempting targets to hackers because, lawyers and law firms hold petabytes of sensitive and confidential data.  Lawyers bear this heady responsibility despite being far behind the curve of information technology and arrogant in dismissing their need to be more technically astute.  Cloaked in privilege and the arcana of law, litigators have proven obstinate when it comes to adapting discovery practice to changing times and threats, rendering them easy prey for hackers and data thieves.

Corporate clients better appreciate the operational, regulatory and reputational risks posed by lackluster cybersecurity.  Big companies have been burned to the point that, when we hear names like Sony, Target or Anthem, we may think “data breach” before “electronics,” “retail” or “health care.”  The largest corporations operate worldwide, so are subject to stricter data privacy laws.  In the United States, we assume if a company owns the system, it owns the data.  Not so abroad, where people have a right to dictate how and when their personal information is shared.

Headlines have forced corporate clients to clean up their acts respecting data protection, and they’ve begun dragging their lawyers along, demanding that outside counsel do more than pay lip service to protecting, e.g., personally-identifiable information (PII), protected health information (PHI), privileged information and, above all, information lending support to those who would sue the company for malfeasance or regulators who would impose fines or penalties.

Corporate clients are making outside counsel undergo security audits and requiring their lawyers institute operational and technical measures to protect company confidential information.  These measures include encryption in transit, encryption at rest, access controls, extensive physical security, incident response capabilities, cyber liability insurance, industry (i.e., ISO) certifications and compulsory breach reporting.  For examples of emerging ‘standards,’ look at the Model Information Protection and Security Controls for Outside Counsel Possessing Company Confidential Information lately promulgated by the Association of Corporate Counsel.

Forcing outside counsel to harden their data bulwarks is important and overdue; but, it’s also disruptive and costly.  Many small firms will find it more difficult to compete with legal behemoths.  Savvier small firms, nimbler in their ability to embrace cybersecurity, will frame it as a market differentiator.  At the end of the day, firms big and small must up their game in terms of protecting sensitive data.

Enhanced cybersecurity is a rising tide that floats all boats.

Well, maybe not all boats.  Let me share who’s likely to get swamped by this rising tide: requesting parties (or, as corporations call them “plaintiffs’ lawyers”), and their experts and litigation support providers.  Requesting parties and others in the same boat will find themselves grossly unprepared to supply the rigorous cybersecurity and privacy protection made a condition of e-discovery. Continue reading

Inquiring into Intent: FRCP 37(e) Opens the Door

evil intentLawyers spend a ton of time thinking about intent.  Intent is what separates murder from negligent homicide.  It’s key to deciding whether minds have met to form a binding contract.  Intentional torts are punished.  Notions of intent pervade the law: testamentary intent, transferred intent, malice, bad faith, mens rea, scienter and premeditation.  The intent of the framers of the U.S. Constitution was the linchpin of the late Justice Antonin Scalia’s interpretation of that great document.

Intent is the attitude with which one acts.  It can be general intent in the sense of acting in the way you meant to act, or it can be specific intent in anticipating and seeking a specific outcome.  Intent is all in the mind.

Proving intent is one of the harder things trial lawyers do.  Short of the rare Perry Mason moment when a party confesses intent ( i.e., “You’re damn right I killed him, and I’d do it again.  The bastard NEEDED killing!!”), lawyers must resort to evidence that illuminates the intent of a specific person or corporation or that of a reasonable person or corporation similarly situated in terms of what he, she or it would have thought, anticipated or known.

When lawmakers demand proof of intent, they necessarily contemplate that evidence of intent be brought forward.  Lawyers must be able to delve into intent and discover direct and circumstantial evidence of intent.  We must be permitted to probe the knowledge, experience, attitudes, motives, expectations and prejudices of the person or entity whose intent is at issue.

Because intent is elemental but difficult to prove directly, the law gives leeway to the discovery process.  For example, Courts generally prohibit evidence of other wrong acts or bad character to prove a specific act in accordance with character or traits but make an exception and permit the evidence to come in when prior bad acts show intent. Federal Rules of Evidence Rule 404(b)(2).

All of this is prelude to discussing the broader impact of amended Rule 37(e) of the Federal Rules of Civil Procedure, now requiring a finding of an “intent to deprive” as predicate for sanctioning evidence destruction and discovery obstruction.  Continue reading

A New Paradigm in Mobile Device Preservation

mobile-device-security[1]Can anyone doubt the changes wrought by the modern “smart” cellphone?  My new home sits at the corner of one-way streets in New Orleans, my porch a few feet from motorists.  At my former NOLA home, my porch faced cars stopped for a street light.  From my vantage points, I saw drivers looking at their phones, some so engrossed they failed to move when they could.  Phones impact how traffic progresses through controlled intersections in every community.  We are slow-moving zombies in cars.

Distracted driving has eclipsed speeding and drunken driving as the leading cause of motor vehicle collisions.  Walking into fixed objects while texting is reportedly the most common reason young people visit emergency rooms today.  Instances of “distracted walking” injury have doubled every year since 2006.  Doing the math, 250 ER visits in 2006 are over half a million ER visits today, because we walk into poles, doors and parked cars while texting.

Look around you.  CAUTION: This will entail looking up from your phone.  How many are using their phones? At a concert, how many are experiencing it through the lens of their cell phone cameras?  How many selfies?  How many texts?  How many apps?

Lately I’ve begun asking CLE attendees how many are never more than an arm’s length from their phones 24/7.  A majority raise their hands.  These are tech-wary lawyers, and most are Boomers, not Millennials.

Smart phones have changed us.  Litigants are at a turning point in meeting e-discovery duties, and lawyers ignore this sea change at peril.  The “legal industry” has chosen self-deception when it comes to mobile devices. It’s a lie in line with corporate bottom lines, and it once found support in the e-discovery case law and rules of procedure.  But, no more.

Today, if you fail to advise clients to preserve relevant and unique mobile data when under a preservation duty, you’re committing malpractice. 

Yes, I used the “M” word, and not lightly. Continue reading