Electronic Discovery and Evidence

Electronic Discovery Filtering Software

Autonomy's Aungate Total Communications Management Solution Honored (1/27/04).

" Autonomy Corporation . . .a global leader in infrastructure software for the enterprise, today announced that it has been distinguished as a leader by Transform Magazine for the 2003 Product of the Year award within the enterprise search category. . . .Introduced in June 2003, Aungate is the only solution available that enables corporations to automatically analyze, review, understand and act upon any internal communications, including telephone calls, email and instant messages, to ensure that business communications meet appropriate codes of conduct and comply with specific industry regulations. For companies in highly regulated industries such as financial services, investment banking and litigation support, Aungate provides the ideal solution to achieve total communications compliance without the high cost of manual intervention. Aungate is founded on Autonomy's unique Intelligent Data Operating Layer
(IDOL), a technology platform that integrates unstructured, semi-structured and structured information from multiple repositories through an understanding of their content. At the heart of Autonomy's software is its ability to process text, voice and video, and identify and rank the main concepts within them.

Comment: To limit the "smoking guns" in electronic discovery software is used to filter inappropriate electronic evidence such as e-mail. During discovery request copies of all e-mail filter files that contains the inappropriate electronic evidence such as e-mail.

Instant Messaging Electronic Evidence

Are ICQ logs admissible in court?March 15, 2001

"The posting of thousands of instant messages between a CEO and his executives has created a cottage industry for people looking for evidence of possible illegal activity. But whether information derived from the logs could be used in court is an unsettled legal question. Hundreds of pages of ICQ instant messaging logs were posted on the Web and copied onto various sites last week. The logs, apparently snatched by a hacker from a computer used by Sam Jain, CEO of eFront, have prompted a personal nightmare and crippled his company.
Judging from the messages posted on various Web sites, hundreds of people have been scanning the files, looking for everything from gossip to evidence of nefarious activities. The logs, which include discussions regarding business partners, employees and affiliated Web sites, could lead to possible legal troubles. . .
"It's always up to the judge," he said. "Ultimately, the judge can let anything he wants into evidence, and illegally obtained information can still be legally admitted." Yarbrough said the information contained in the logs would have to go to the heart of the case to pass muster with a judge. It would also have to be authenticated, to make sure that the messages were actually typed by eFront's founder."

Comment: Keep an eye out for listservs and threaded discussions in your electronic discovery. They may contain some excellent electronic evidence.

Electronic Evidence Retention Policies

Electronic Document Retention Policies (And Why Your Clients Need Them) January 2004

"In Residential Funding Corp. v. DeGeorge Fin. Corp. 306 F.3d 99, the 2d U.S. Circuit Court sounded a grim warning for companies lacking a sound electronic document retention policy: if you wind up in court and can’t produce the goods, you may be liable!"

Comment: Article discussses policies for document retention of electronic evidence.

Solution to E-mail - A Return to Post Its!

No 10’s sticky note plan to avoid awkward e-mails

January 26 2004

"DOWNING Street has come up with a strategy to curb embarrassing internal e-mails by replacing electronic messages with sticky notes. The method has already been adopted by the White House. Staff at No 10 are to be encouraged to leave messages for each other on Post-it style notes that can be torn up and destroyed without a trace. The move follows a barrage of highly embarrassing electronic mails, written by some of Tony Blair's closest aides, that came back to haunt the government after they were submitted to the Hutton inquiry into the death of Dr David Kelly. In one, Tom Kelly, the prime minister's spokesman, de-scribed a row with the BBC as "a game of chicken". He wrote: "This is now a game of chicken with the Beeb – the only way they will shift is (if) they see the screw tightening."" In another, Jonathan Powell, No 10 chief of staff, revealed doubts about the strength of the evidence in the government Iraq dossier."

Comment: To avoid electronic discovery of electronic evidence organizations are now returning to post it notes!

Electronic Evidence - Computer Organizer and Disk

Trial adjourns before it begins

"Lethbridge, Alta. — Dar Heatherington's trial on charges she fabricated being stalked was adjourned before it began Monday in a hearing that saw the defence accuse Ms. Heatherington's husband of being an unwitting “agent of the state.”

Ms. Heatherington, the Lethbridge alderwoman who drew headlines on both sides of the border when she mysteriously disappeared last spring during a visit to Great Falls, Mont., is on trial in provincial court on a charge of public mischief.

Lethbridge police allege she lied to them about being stalked by an unknown man.

She was charged after an eight-month police investigation that included the use of undercover agents and video surveillance.

Her husband, Dave Heatherington, turned over to police a computer disc and letters from his wife's personal electronic organizer, which contain evidence that is now being used against her."

Comment: Electronic discovery of wife's computer organizer and disk assisted in building the case against her.

E-mail Authentication

AOL tests caller ID for e-mail
"The Internet service provider is testing an antispam filter intended to accurately trace the origin of e-mail messages, a move that could bring new accountability to the Net."

Comment: This would provide an additional method of authenticating e-mail for electronic discovery and electronic evidence purposes.

Smart Card Illustration

DirecTV dragnet casting wide net
"The equipment in question includes so-called smart cards and other electronic devices used to reprogram the cards. The plastic card, which contains a computer chip, is similar to the access card that is inserted into receiver boxes to "unscramble" channels that DirecTV subscribers purchase"

Comment: Illustraion of the electronic evidence that is used to pirate TV signals.

Defending a Computer Porn Case

The Giant Wooden Horse Did It!
01/20/04

Article points out the difficulty of prosecuting a computer porn case even though there was substantial electronic evidence of the crime. Understanding electronic discovery is necessary to effective prosecution as well as defense of computer crime cases.

E-mail - Electronic Evidence

E-mail correspondence made up a substantial portion of the electronic evidence that the Securities & Exchange Commission used against J.P. Morgan Chase & Co. The Exchange contended that the the Wall Street investment bank abused the initial public offering. J.P. Morgan agreed to pay $25 million to settle the charges. (SEC v. J.P. Morgan Chase & Co., D.D.C., No. 1:03CV02028, 10/1/03

Comment: Copy of complaint outlining details of e-mail used as electronic evidence.

Electronic Medical Evidence

New WellPoint Initiative Jumpstarts Physicians' Participation in the Electronic Medical Community (1-14-04).

"WellPoint (NYSE:WLP), the nation's second largest health insurer, today announced a technology initiative to help physicians improve patient care, achieve greater efficiency and realize cost savings for America's health care system. This initiative provides almost 19,000 contracting network physicians in California, Georgia, Missouri and Wisconsin with new technologies designed to enhance the quality of patient care, reduce administrative costs and improve physician communications with patients and pharmacists. The total retail value of the program is approximately $40 million.

Free of charge, selected physicians will have their choice of either:

-- Prescription Improvement Package: A hand-held electronic
prescribing unit, which will allow physicians to
electronically generate prescriptions.

-- Includes a wireless handheld PDA, a wireless access point
and a one-year subscription to an e-prescribing service.

-- Physicians will be able to use this system to easily write
prescriptions and either have them automatically faxed or
e-mailed to the pharmacy of their choice.

* * *
-- Paperwork Reduction Package: A fully-loaded professional grade
Dell computer, and Dell printer to facilitate on-line
communication, including paperless submission of claims.

-- This package is targeted toward physicians who are not
making full daily use of information technology or the
Internet.

-- The system will provide the basic infrastructure for
on-line communication, including paperless submission of
claims as well as improved communications regarding member
eligibility and claims administration."

-- Doctors will also be able to access the Provider Access
websites of WellPoint's operating subsidiaries (or any
other health plan website) where member eligibility, claim
status and medical policies can be reviewed and verified.