Electronic Discovery and Evidence

Alteration of Electronic Evidence

(6-30-04) Court orders payment to MTA. Contractor fines hit $5.2 million. "A Metro Red Line subcontractor has been ordered to pay the MTA $5.2 million for violating federal regulations and submitting false claims during construction of the subway, officials said Monday. The order by Los Angeles Superior Court Judge Wendell Mortimer follows his finding in March that Oved & Associates Construction Services Inc., of Sylmar, engaged in a series of litigation abuses, including alteration of electronic evidence"

Fraudulent E-mail

(6-28-04). Fraudulent E-mail became an acute problem for MasterCard in November and has gotten steadily worse, senior VP Pinon says. "Evidence that the Internet's killer app is seriously ill can be seen in the frantic efforts to resuscitate it. The past two weeks have witnessed a flurry of activity aimed at restoring trust in E-mail as a business-consumer communication tool that has been eroded by spam and E-mail-related online fraud. How worrisome have the problems become to businesses? Bad enough that MasterCard International Inc. last week said it has created a system for round-the-clock monitoring to inform 25,000 financial-institution members worldwide within four hours of when such a scam starts."

Comment: Fraudulent e-mail has become a way of life on the Internet. Authentication of e-mail from electronic discovery is important.

Storing Electronic Discovery

(6-28-04). Law firm turns to IP-based SAN to save money and handle growing numbers of electronic documents. "Law firms have been slow to embrace electronic documents. But now that they have, they also need to upgrade their storage and archiving systems. . . Wildman, Harrold, Allen & Dixon LLP employs 550 people, and its lawyers have been demanding better tools to store and manage electronic documents. "The need for storage is growing quite rapidly," CIO Steve Walsh says. "We process a lot of evidence in litigation, and it's all electronic now." Last year, the firm used 90 Gbytes to store litigation data; this year, it's up to around 600 Gbytes. That required Walsh to change the firm's storage infrastructure, moving from a bunch of high-capacity disk drives to an automated storage area network."

Comment: As electronic discovery and production increases this type of electronic storage will become routine.

Insufficient E-Mail Notice to Employees

(6-25-04) E-mail notification of change to employment policy insufficient "A federal court in Massachusetts has just ruled that an employer's e-mail notification to employees about a new and mandatory arbitration policy was not sufficient notice to be binding. As more and more communications are electronic, the reasoning of this particular court decision could have a fairly far-reaching impact."

Comment: Very important electronic discovery case. This provides another defense to employees contending they did not receive proper notice of "important" employment matters.

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Alternatives to E-Mail

Is E-Mail Doomed? Under attack by spam, phishing, and viruses, e-mail users may seek other ways to communicate. . . Between spam and viruses, e-mail is taking a battering as users' favorite online application. Add to that privacy concerns and a few emerging alternatives such as messaging and voice telephony, and the killer app may be losing favor, say some experts at the recent E-mail Technology Conference here. . . Two promising e-mail authentication systems are under development. One is Sender ID, which combines Pobox.com's Sender Policy Framework (also known as Sender Permitted From) and Microsoft's Caller ID for E-mail. The other is Yahoo's DomainKeys. . . Privacy was also cited as a threat to e-mail's effectiveness, possibly greater than viruses. But people are also more accepting of an erosion of privacy in the current political environment, said Philip Zimmermann, creator of the Pretty Good Privacy (PGP) encryption system, in a keynote address. "The erosion of privacy [is] a by-product of Moore's Law," Zimmerman said, citing the Intel founder's declaration that computing power doubles every 18 months. Applied to privacy, Zimmerman said, the capability of computers to track us is doubling every 18 months.

Comment: New forms of electronic communications such as messaging or voice over the Internet (VOIP) will have to be included in your electronic discovery plan.

"Electronic Food Stamps" - Smart Cards

(6-23-04). Electronic Cards Replace Coupons for Food Stamps. "The Bush administration announced Tuesday that it had completed one of the biggest changes in the history of the food stamp program, replacing paper coupons with electronic benefits and debit cards. . . Electronic benefits have replaced food stamp coupons in all states, and more than half the states now issue electronic benefits in place of welfare checks as well."

Comment: Another example of how your electronic discovery may involve the use of a smart card to support your case.

Fox News Trusts Google!

(6-17-04) US channel's BBC remarks censured. "UK media watchdog Ofcom has criticised US cable channel Fox News over views a presenter expressed about the BBC. Ofcom said Fox News breached guidelines when commentator John Gibson claimed the BBC had displayed "a frothing-at-the-mouth" anti-American bias. . . The network [in defense of Gibson] also said searching for the phrase "BBC anti-American" into the Google internet search engine resulted in 47,200 hits.

Comment: . American courts have not treated web content with such trustworthiness as Fox News does.

For example, in St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774, 775 (S.D. Tex. 1999), after the plaintiff was injured on a sea vessel, he sought to establish ownership of the sea vessel from evidence obtained from the web. The court rejected the trustworthiness of the data and stated:

While some look to the Internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation. So as to not mince words, the Court reiterates that this so-called Web provides no way of verifying the authenticity of the alleged contentions that Plaintiff wishes to rely upon. . . . There is no way Plaintiff can overcome the presumption that the information he discovered on the Internet is inherently untrustworthy. Anyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content on any web-site from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rules found in FED. R. EVID. 807. Instead of relying on the voodoo information taken from the Internet, Plaintiff must hunt for hard copy back-up documentation in admissible form.

Electronic Discovery Partially Blamed for Decrease in Jury Trials

(6-16-04) Are jury trials vanishing? "Atlanta attorney Robert Rothman says he is shocked by the steep decline in the number of federal court trials over the last 40 years. "It's a sea change," said Rothman, referring to a long-term study by law professor Marc Galanter of the University of Wisconsin Law School. In 1962, there were 5,802 civil trials and 5,097 criminal trials in federal courts across the country. By 2002, those numbers had dropped to 4,569 civil trials and 3,574 criminal trials, according to the report. Despite a fivefold increase in civil filings and a twofold spike in criminal filings over the 40-year period, the actual number of trials had dropped by 2,756, Galanter reported. In short, only about one in 50 federal cases today goes to trial. . . Rothman said discovery is much more burdensome and expensive in the electronic age. Attorneys seek not only paper files but electronic information, upping the costs and time involved.

Comment: Electronic discovery now taking part of the blame for a decrease in jury trials from 1962 to 2002 even though electronic discovery in cases was minmal during this time period.

Zubulake 's Inaccessible Distinction Will Fade Away

(6-13-04) "EMC Corporation, the world leader in information storage and management, announced today that Adirondack Electronics Markets (AEM) has implemented EMC's Proven Solution for E-mail Archiving to help comply with U.S. government mandated e-mail archiving requirements. . . SEC Rules 17a-3 and 17a-4 under the Securities Exchange Act of 1934 require companies in the securities trading industry to retain and keep e-mail correspondence readily accessible for a minimum of three years. NASD regulations require broker-dealers to establish procedures for monitoring incoming and outgoing electronic communications relevant to their trading business. To comply with both agencies' regulations, AEM deployed the EMC Proven Solution for E-mail Archiving as part of its information lifecycle management (ILM) strategy. LEGATO EmailXaminer(TM) allows AEM to quickly and efficiently monitor, review and classify e-mail messages and store audit records in accordance with NASD requirements. This was previously a time-consuming and resource-intensive process. LEGATO EmailXtender(R) defines and applies policies to users subject to the SEC requirements, automatically captures all e-mail messages and indexes these messages. LEGATO DiskXtender(R) then moves the e-mail to EMC Centera(TM) content addressed storage (CAS), where it is retained securely for six years. "The SEC requires archived e-mail to be stored on non-erasable, non-rewriteable storage, while still being easily accessible," said Vdovets. "

Comment: These types of technological advances in management of electronic discovery and evidence will minimize the inaccessible data distinction set forth in the Zubulake decisions.