Electronic Discovery and Evidence

Authentication of Evidence

(5-24-04) What is evidence? "Have you seen any of the photos of Jane Fonda and John Kerry together back when he was a war protester? Do you know which of the photos are real and which are phony? Digital technology has made it easy to create pictures that purport to show something that never was."

Comment: During your electronic discovery ensure that the chain of custody and authentication of your evidence is in place.

Employee Computer Security

(5-17-04) How to sell - The danger within. While most IT managers concentrate on protecting the network from outside viruses and hackers, the biggest threat most organisations face is often found just down the corridor . . . The DTI Information Security Breaches Survey 2004 found that 74 per cent of all businesses (94 per cent of large firms) have had a security incident in the past year. Malicious incidents, such as viruses, unauthorised access, misuse of systems, fraud and theft, rose dramatically with 68 per cent of firms (91 per cent of large ones) suffering at least one such incident in the past year. This is a rise of 44 per cent compared with 2002."

Comment: Advise your clients as to the risk of breach of internal computer security and the taking of trade secrets, etc.

Electronic Medical Records

(5-24-04) "REVOLUTION UNDER WAY IN STORING MEDICAL DATA. Ushered into the exam room to wait for her doctor one day last fall, Kathy Beerbower couldn't help but notice a new computer hanging on the wall next to the mirror and sink. And when the certified medical assistant used it to record Beerbower's complaint and vital signs with mouse clicks instead of pen strokes, the advantage in clerical efficiency was obvious."

Comment: Include in your electronic discovery request all medical records in an electronic format including doctor's notes.

Australian Government Purchases Metadata Removal Software

(5-20-04) Canberra crackdown on Office leaks "THE furore over Mark Latham's much-amended speech to the ALP National Conference in January has spurred the Federal Government to address security concerns over functions on Microsoft Word that allow users to track changes to text. The Australian Government Information Management Office has bought copies of a software package that strips metadata - information on document creators and the changes they have made - from government documents before they are emailed and posted online."

Smart Cards are Getting Smarter

"Beepcard Inc. is a leading developer and provider of miniaturized wireless authentication and verification systems for a variety of security and mass-market applications. Beepcard offers the world’s first reader-free smart card. . . The Comdot™ solution is easy and convenient: Users simply hold the card in front of their PC, phone or other networked microphone and squeezes the Comdot™ - a flat button on the card - the card uses sound, carrying a one time 3DES encrypted code, to identify the user to the destination server."

Comment: Another example of the communication and integration of various electronic devices. Be on the lookout for these type of devices in your electronic discovery.

Word Processing Metadata Discovery

Attorney General parrots music industry. "Bill Lockyer is California's attorney general. But judging from his mindless recitation of the entertainment industry's anti-piracy schtick, he's really a parrot. Lockyer apparently wrote a letter railing against "peer-to-peer" file sharing, in which many computers hook up to distribute files among them. . . The Lockyer letter reads like propaganda because it is. Hidden information called "metadata" discovered in the Microsoft Word document points to a person in the Motion Picture Association of America as a source. The person in question denies writing the letter, but admits that Lockyer contacted him about the issue. . . This is also a lesson in the hazard of using Microsoft Word. Its metadata, which most people don't even know exists, makes Word dangerous to use for confidential documents. A previous version of a contract, for example, may contain information you don't want disclosed."

Comment: Electronic discovery of this type of electronic evidence may have a very beneficial affect on your cases. However, make sure before sending out word processing documents that you have scrubbed the document clean of metadata.

Access to Competitor Trade Secrets

(5-14-04) Court rules in Oracle's favor on access to evidence. "SAN FRANCISCO--Oracle won a small battle . . . in its antitrust case against the government with a pretrial ruling that preserves the rights of its in-house attorneys to review sensitive information submitted by competitors and customers in the discovery phase of the case. At Friday's hearing here, United States District Court Judge Vaughn Walker denied requests from the Justice Department and several Oracle competitors and customers to expand a protective order restricting Oracle's access to confidential information that may be used as evidence against it in an upcoming trial. 'I don't believe Oracle should be handicapped' in its defense, Walker said while delivering his ruling."

Comment: Court ruled Oracle entitled to electronic discovery of sensitive competitor trade practices and other evidence.

Internet Evidence - Shows Visits to Web Sites

(5-3-04) - Police: Man Tried to Electrocute Wife. "HENDERSON, Texas (AP) - A man set up a bubble bath for his wife, complete with candles and music, then tried to electrocute her by pushing a radio into the tub, authorities say. . .She said she later discovered that he had visited Web sites on their home computer dealing with bathtub electrocution."

Wal-Mart Turns to RFID Smart Tags

(4-30-04) Wal-Mart Turns to Smart Tags. The retail giant begins sticking RFID tags on some of its products, looking to the day when the technology replaces bar codes as the way of tracking inventory. The tags may also help cut down on counterfeiting and theft, Wal-Mart says.

Comment: Aside from the significant privacy issues, RFID smart tags will become commonplace on all consumer good purchased. They can be tracked, even after leaving a store, by comining into contact with a short or long range RFID reader. The tracking data may provide significant electronic discovery and electronic evidence in your cases.

News Reporter Document Retention Policies

(4-30-04) "Newsroom Document Retention Policies In An Electronic Age . . .At every newsroom legal seminar we give, a reporter or editor always asks, "Should we be saving our notes?" In light of news organizations’ increasing reliance on electronic devices to create and store information, as well as a series of recent cases and guidelines addressing the scope of a litigant’s duty to preserve electronic documents, this perennial question deserves a fresh look."

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Comment: For electronic discovery purposes this gives a good starting point if you are seeking retention policies for reporter electronic materials.