Posted on 01/04/2005 1:47:31 PM PST by Hal1950
Recent court decisions have put attorneys and companies on notice by posing hefty fines against businesses and public institutions that don't properly handle -- or hand over -- electronic records.
Brian L. Moffet said he saw the writing on the wall about three years ago. The attorney was arguing a national class-action suit with 50,000 pieces of paper entered into evidence when the judge asked, ''Where are the e-mails?''
That sent Moffet into scramble mode.
''It was the first time I realized it was something that was going to have to be addressed,'' he said.
More than 90 percent of all new information is created and stored in electronic form, according to the University of California at Berkeley. And more than two-thirds of that is never printed. Not since the adoption of the Xerox machine 45 years ago has the centuries-old legal profession been so affected by new technology.
A handful of law firms, including Moffet's -- Gordon, Feinblatt, Rothman, Hoffberger & Hollander LLC -- have created units specifically to mine for electronic information and help clients manage it. But experts say many lawyers aren't yet comfortable with hunting for electronic data and may be setting themselves up for claims of malpractice because of it.
''Think about it,'' said Ken Withers, an attorney at the Federal Judicial Center, the Washington-based research and education arm of the national court system. ''If 92 percent of the information is in electronic form, then they're only asking for 8 percent of the information. Obviously, they're not getting a full picture of what's going on.''
Recent court decisions have put attorneys and companies on notice by posing hefty fines against businesses and public institutions that don't properly handle -- or hand over -- electronic records.
In July, Phillip Morris USA Inc. was sanctioned $2.75 million for failing to keep and produce such data in a case that claimed the company marketed cigarettes to minors. That same month, a New York court instructed a jury to infer that the absence of electronic records could be considered intentional and damaging to the defendants. And a year ago, Baltimore City defendants in a housing discrimination case produced 80,000 e-mails too late, causing U.S. District Court Judge Paul W. Grimm to refuse their admittance into evidence and preclude some witnesses from testifying.
Electronic evidence ''is absolutely explosive in terms of the impact,'' Grimm said in a recent telephone interview. ''At first it was somewhat unusual. But in the late '90s and early 2000, we started seeing a drumbeat of cases'' submitting e-mail evidence in particular, which is often more salacious because of its casual nature.
''Discovery'' -- the technical term for the lawyer's process of collecting evidence and information to try a case -- once meant pawing through file cabinets in search of a paper trail. But the explosion of e-mail and other electronic data has turned the procedure on its head, making it more costly and cumbersome, but also critical. E-mail and data can be found on laptops, network servers, disks, hard drives, backup tapes, cell phones, and portable digital assistants -- making them all fair game when mining for dirt that could make or break a case.
''Now, we not only have to sweep files for relevant information. We have to sweep the computers that are relevant, too,'' said Thomas P. Vartanian, a Washington attorney and a member of the American Bar Association's technology committee. Without in-house electronic discovery teams, lawyers and companies typically turned to outside businesses for help. The first such companies began on the West Coast in the late 1980s. But it wasn't until a decade later that the new market began taking off, said George J. Socha, Jr., an attorney, market analyst and consultant in St. Paul, Minn.
Today, about 160 companies concentrate on electronic discovery, whose total revenues grew to $430 million in 2003 from $40 million in 1999.
Cases involving records mismanagement and accounting fraud -- such as those of Arthur Andersen LLP and Enron Corp. -- have heightened mistrust of corporations by juries, said Lori Ann Wagner, a partner at Faegre & Benson LLC in Minneapolis. Her firm, whose electronic discovery task force in 1999 is considered one of the pioneers among law firms, helps clients put policies in order to avoid the appearance of misconduct. But many companies still don't have well-defined or well-reasoned processes.
Recently, a California software company filed a motion in U.S. District Court in Baltimore that claimed Microsoft Corp. purposely created policies to destroy evidence. The plaintiffs, Burst.Com Inc., contend Microsoft stole its intellectual property and destroyed the e-mails that would prove it. They've requested that the judge issue an ''adverse inference'' instruction to the jury, which permits members to infer that the destroyed evidence was harmful to Microsoft.
Dealing with data is not easy for companies or their attorneys. The information is enormous in scope and costly to maintain and search. Word documents have multiple versions, e-mails have replaced telephone calls and they are sent to multiple recipients, embedded data are attached to files, and deleted data are not truly gone until it's overwritten, which could take years. All of it is discoverable, meaning millions of pieces of information might come into play.
And right now, there are no universal rules governing the electronic discovery process, though various groups have offered guidelines. Some states -- Delaware, Wyoming, New Jersey, Kansas and Arkansas -- have implemented their own rules, but some experts complain of a lack of uniformity.
''The volume of electronic information is much higher than anything we ever imagined in the paper world,'' said Withers of the Federal Judicial Center. ''Computers generate far more than humans are capable of comprehending.''
The Judicial Conference of the United States -- the policy-making body for the country's court system -- has proposed amendments to the federal Rules of Civil Procedure that specifically address electronic discovery. The proposals have been presented for comment, which ends in February, and would not take effect until December 2006 at the earliest.
The current proposals would require attorneys to lay ground rules for electronic discovery early on, help decide who pays for what, add options to pull back privileged communication mistakenly handed over, and ease the burden of production on some defendants by only asking for easily accessible documents. Among the possible changes is a new definition of what a ''document'' is: It could include an entire computer and everything on it.
Law schools are trying to train the next generation of lawyers to think in such terms. But while most students are already familiar with the Internet and tech toys, ''trying to harness all of that recreational knowledge and turn it into professional expertise is a challenge for all law schools,'' said Theresa K. LaMaster, assistant dean for technology affairs at the University of Maryland School of Law.
I was exonerated of a nasty charge made against me in college due to an email sent after the alleged "crime" was committed. Hard to prove someone attacked you when you send them happy birthday notes via email.
Man was she one crazy girl.
The main problem with emails (as I see it) submitted as evidence is that a savvy computer person can modify the evidence very easily.
>>Law schools are trying to train the next generation of lawyers to think in such terms. But while most students are already familiar with the Internet and tech toys, ''trying to harness all of that recreational knowledge and turn it into professional expertise is a challenge for all law schools,''<<
Discovery itself is very practice specific and covered in very few law school courses. Only two that I can think of in Texas law schools in general, and one of them would be a practicum class, if offered. I took a pretrial procedure course from a sitting state appellate judge (former district court judge) and I don't remember us covering much discovery practice at all. Not that it isn't a good idea.
"Dealing with data is not easy for companies or their attorneys. The information is enormous in scope and costly to maintain and search. Word documents have multiple versions, e-mails have replaced telephone calls and they are sent to multiple recipients, embedded data are attached to files, and deleted data are not truly gone until it's overwritten, which could take years. All of it is discoverable, meaning millions of pieces of information might come into play."
Never put anything in an E mail that you would not want on the front page of your local paper. If someone sends you an e maill suggesting something untoward, reply and correct the impression. I have been burned in a deposition when the attorney produced an E mail I had forgotten. Fortunately, I had honestly forgotten and I had responded as I suggested above so the attack was thwarted. I was embarassed for a "poor memory" but nothing else.
Yup, but unless they're VERY savvy, a good digital forensics examiner will usually find the digital trail left behind when digital evidence is altered.
This is exactly what I do.
MM
---I seem to vaguely remember Algore's office having an email problem in the dark, distant past--something about campaign contributions or the trail leading to them, maybe?
Yup, that's good practice, but most people don't follow it. For whatever reason, people see email more as water-cooler talk than the written evidence it is and as a result, some REALLY dumb things have been said in emails that later turned up in litigation.
MM
People really should be careful of emails that they send. They can be a permanent record, and an incriminating one.
A few years ago, during a bruising budget battle in our city council (York, PA), an email was sent to the City Treasurer requesting information about any members of our taxpayer group (York Citizens for Responsible Taxation). The newspapers reported the request as coming from a private citizen, who happened to be a friend of a council woman who was favoring a 40% increase in our property taxes resulting from financial mismanagement by the previous mayor, a good friend of hers who had decided not to seek re-election because of a murder indictment.
The private citizen spoke at the city council meeting, saying that anyone who owed back taxes shouldn't have the right to protest tax increases. I then spoke, saying that I did not owe back taxes, and that I never had sexual relations with Monica Lewinsky, and I was appalled at the proposed tax increase, and at the politics of personal destruction. The whole council, the Treasurer, the previous and current mayors are all Democrats, so I thought I'd use their own rhetoric against them. As I expected, I was quoted in the press, and got a belly laugh from all in attendance.
The request actually came from the city council president in the form of an email to the City Treasurer. The City Treasurer is no fan of the mayor, or the city council members, so he passed a printed copy of the email to a member of our taxpayer group, who gave it to me, and I gave it to a reporter, who wrote it into his story. The city council president is no longer on council, while that member of the taxpayer group was elected to council in 2003.
So can anyone tell me what ever happened to the clinton White House e-mail scandal? Did it die when Charles Ruff died or what?
'Inquiring minds' and all that...
I don't know that its THAT big a deal. I think most attorneys that have started practicing within the last 8 or so years are comfortable with technology. A lot has to do with the understanding of how to request these documents. You can get that info in practice guides.
I recently used an outline that led me through specific questions for a Request for Production. It was very helpful in terms of being consise and already written out, but it wasn't anything I hadn't already thought of. The people here that will be hurt are those 15-20 year attorneys in small or solo firms that only started using a computer within the last 7-9 years (if that) and don't know a web server from a food server.
I do some similar stuff, though I'm not the guy who dredges up the empty sectors on a hard drive and the "slack space" data. I'm a database person, and I consult for contact management companies who have every scrap of their data in relational databases. Lots of end users think they can go in and edit something through the user interface, when in actuality there is user/date/time information captured when they do that, which they are completely unaware of. And of course the OS keeps track of last modified dates and times for files as well. It's a slippery slope indeed! :)
I do analysis for people in this regard but thankfully have never had to testify.
What's the surest way to get rid of data?
a) The delete key.
b) The delete key followed by emptying the Recycle Bin.
c) Format the hard drive.
d) All of the above.
ANSWER >>None of the above steps affects the data at all.<< (select the text between the arrows to see the answer.) Hey, if you ever have need for someone to go deeper, freepmail me; twould be happy to do some subcontract work for another freeper.
MM
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