Computer Forensics and Legal Technology Blog

A concern that I have is that wiping utilities are becoming more and more commonplace, even being packaged with ordinary utilities that ship with new computers or come with ISP services (e.g., MSN, which makes SpySweeper, McAffee and a number of wiping & anti-forensic utilities available).  The popularity of these utilities, as well as encryption, has increased because of the growing awareness of identity theft, among other reasons.  Even disk defragmenting tools, such as DiskKeeper, create a nightmare for forensic analysists attempting to located deleted files on a target system.

Whereas, in the past, such utilities required a knowing use (mens rea), the use of such utilities today may not be an indication of intent to spoliate.  This means that the standard may shift more and more –as the case above illustrates– from scienter to negligence.  Therefore, counsel will increasingly need to observe strict data preservation protocols when litigation becomes reasonably forseeable and to communicate these obligations to clients promptly.

Some obvious questions that are often raised include:

• Must clients be instructed to immediately cease using a computer –at the first hint of reasonably forseeable litigation– until the hard-drive can be forensically imaged?  If so, what about the accumulating data that is created after the imaging date?
• If a client takes reasonable steps to preserve extant potentially-responsive data, must the client disable the use defragmenting utilities and other anti-forensic utilities that arguably are necessary for maintaining the optimum efficiency of a computer (especially considering that litigation may last several years)?
• Assuming the h.d.d. wasn’t imaged, If a client has taken reasonable steps to preserve the obvious potentially-responsive data, should the client also have been expected to identify and preserve files that have been deleted but are still recoverable (given that further use of the computer will overwrite these files)?

For counsel seeking to discover ESI, the availability of that evidence may decrease as a result of the widespread use of anti-forensic utilities, but the shifting jurisprudence may allow for adverse jury instructions based on the missing evidence, which instructions possibly could be more damaging than the destroyed evidence, itself.

Previously, I had written about four grads from this same school, who’ve been admitted to SCotUS.  In fact, I recall meeting a local judge –can’t recall whether district or county– at the 2006 Bar Convention in Brainard who was an adjunct professor for Concord.

Here’s the test for patentable subject matter: “A claimed process is surely patent-eligible under § 101 if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.” The Federal Circuit’s standard is different than the one articulated in State Street, which stated that the proper inquiry is whether the invention yielded a “useful, concrete, and tangible result”.  However, the Federal Circuit clearly took great pains to adhere to Supreme Court precedent.

Much has been written about In re Bilski, but go get the best analysis that money can’t buy: read if for yourself and see what you think (http://www.cafc.uscourts.gov/opinions/07-1130.pdf).

Some clever miscreant hacked GoDaddy, transferred the makeuseof.com domain to a web registrar in Dubai, then demanded $2000 ransom from the domain’s owner to restore it.

The good news is that the domain is now back in the control of its rightful owner. Not sure if they had to dole out the money.

Methinks GoDaddy needs to bolster its security a bit, and revisit its policy of immediate domain transfers.

Recently, a few reports have been published, highlighting a phenomenon that I and, I suspect, many of us anticipated:  that the cost and burdens of e-discovery would become eventually become unwieldy  and unmanageable, even for the firms with an infrastructure and regular need to deal with it.  But, not everyone paints the picture as bleakly  –certainly not the EDD firms that benefit.

A telephone research survey sponsored by EDD firm Fios, Inc. concluded: technologists and lawyers are working more closely than previously thought; the most significant investments are being made in legal hold and archiving tools; and the 2007 amendments to the federal Rules didn’t have the impact feared.

However, a joint survey, released in September, by the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System reports that a majority of those surveyed found that the discovery system in particular is broken and “has become an end in itself,” and that “Electronic discovery clearly needs a serious overhaul.” Nearly a quarter of those surveyed characterized the civil justice system is “broken.” The report claims that 83 percent of nearly 1,500 lawyers responding found costs  –not the merits– of a case to be the deciding factor in settling.  A significant 68 percent of the college fellows disclosed that civil cases do not get filed because of the prohibitive litigation costs.

Frankly, I’m not so sure that surveying “college fellows” on the practicality of electronic discovery are the right people to ask these questions of.  So, I decided to ask a colleague, Sharon Nelson, for her perspective.  Nelson and her husband, John Simek, operate a computer forensics firm in Virginia.  She is an attorney, frequent lecturer and co-author of the Electronic Evidence and Discovery Handbook.

Nelson concludes –as I have, also– that, “The truth is often somewhere in the middle.” She recalls, “Discovery was a nightmare even in paper – because there was often so much. The problem has grown exponentially with ESI, because there is so much more data. However, a portion of the blame belongs to all of us. We don’t ‘take out the trash’ so our garbage heap of data expands constantly. It is just too cheap and easy to move it all to ever larger hard drives.”

As a result, e-discovery has led to a new boom industry of specialized service providers which  charge $125-600 an hour. George Socha (based here in Minnesota and who adminsters an annual survey regarded as the industry benchmark) estimates that their annual revenues have grown from $40m in 1999 to about $2 billion in 2006 and may hit $4 billion next year.

“Additionally, there are now at least two tiers of EDD companies – the whales, who are interested only in the mega-firms and their cases, and the smaller fish, who handle the small to mid-range cases of small to mid-range firms,” Nelson noted. She also observed that, “There is little interaction between those two worlds – and huge price point differences,” and believes that, “A continuing shake-out among vendors is probably likely, especially given the state of the economy.”

Further reading:

• Pamela A. MacLean, Cost of Discovery a Driving Force in Settling Cases (The National Law Journal, Sept. 10, 2008)
• The Economist, “The big data dump” (Aug. 28, 2008)
• Survey Shows eDiscovery Best Practices (Law.com, July 21, 2008)
• The Sedona Conference

A DWI defendant in Nassau County. NY has sued, demanding that her name and photograph posted to the County’s Web page –dubbed “Wall of Shame”– be removed. Read story.  Defendant’s claim is based primarily on the prospective harm caused when potential employers and others find her name and photo on the Web.  Her attorney argues that publication to the “Wall of Shame” of persons who have not yet been found guilty of a crime is a form of punishment, noting “I don’t think you need a law degree to understand that this fundamentally goes against a system of justice in which punishment occurs after you’ve been found guilty.”

Last month, another woman sued the county over publication.  She had lapsed into a hypoglycemic shock¹ and was subsequently arrested for DWI.

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¹ As I have witnessed first-hand, a person experiencing hypoglycemia, when his or her blood sugar is too low, can appear to be drunk. They may sweat, talk confused, become disoriented, stumble, lose their bearings, become aggressive, even “ornery,” belligerent or pass out.