Litigation Support

DÉJÀ VU ALL OVER AGAIN: QUALCOMM

Posted on March 11, 2008
The Qualcomm attorneys previously sanctioned for their egregious misconduct in electronic discovery are now to get another bite of the apple to explain what appears to most experts to be inexplicable conduct. U.S. District Judge Rudi Brewster reasoned that the...

D??J?? VU ALL OVER AGAIN: QUALCOMM

Posted on March 11, 2008
The Qualcomm attorneys previously sanctioned for their egregious misconduct in electronic discovery are now to get another bite of the apple to explain what appears to most experts to be inexplicable conduct. U.S. District Judge Rudi Brewster reasoned that the...

THANKS FOR THE MEMORIES INFOGOVERNANCE!

Posted on March 09, 2008
It is with great sadness that I say goodbye to the venerable Infogovernance blog written by my friend Rob Robinson. Rob tells me that he is moving on to other endeavors. I wish him Godspeed. For more than two years,...

PROPELLER HEAD ALERT: MORE ON ANTIFORENSICS

Posted on March 06, 2008
For the technically inclined among you, there was an excellent antiforensics thread on the Windows Incident Response blog which makes a nice companion to my earlier blog post on antiforensics: http://www.typepad.com/t/trackback/2538276/26540438 Thanks to Harlan Carvey for passing this thread along:...

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LEGAL SKULLDUGGERY: THE COKE SIDE OF LIFE

Posted on March 05, 2008
Why, oh why, do some of our colleagues insist on bringing dishonor to our beleaguered profession? Now we have to buy electronic and paper evidence under the table? According to the blog Legal Pad, there was an unsavory arrangement to...

KEYWORD SEARCHES: SHERLOCK HOLMES OR INSPECTOR CLOUSEAU?

Posted on March 03, 2008
On February 5th, the United State District Court for the Southern District of Texas issued a Memorandum and Order in Diabetes Centers of America, Inc. v. Healthpia America, Inc. (Slip copy, 2008 WL 336382). Judge Atlas has clearly had her...

RULE 502 IS HALFWAY HOME

Posted on February 28, 2008
On February 27th, the Senate approved by unanimous consent without amendment S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. The bill will now move to the House of Representatives for a vote. The legislation concerns waiver of the attorney-client privilege and work product protection...

ANTIFORENSICS: SLACKER, TIMESTOMP AND SAM JUICER

Posted on February 26, 2008
Strange names, huh? Slacker, Timestop and Sam Juicer are all ?antiforensics? software tools designed to foil computer forensic technologists. As we often lament, the criminals always seem to be one step (sometimes miles) ahead of law enforcement. If you are unaware of the many, many tools that now come under the rubric of ?antiforensics,? a recent article from CIO will send shudders up your spine...

MYSPACE FRIEND REQUEST VIOLATES PROTECTIVE ORDER

Posted on February 22, 2008
In a potentially landmark decision, a New York judge has ruled that allegations that a Staten Island teen broke the law when she used MySpace to reach out to three people she was ordered not to contact may stand and go to trial. The 16-year old made a MySpace ?friend request? of a 43-year-old woman and her daughters, who had previously obtained a Family Court order against her...

BALLING AND GETTING HIGH: EVIDENCE ON MYSPACE

Posted on February 19, 2008
It?s one thing to make a fool of yourself in public, but some folks seem to excel at stupidity in front of the entire world. Recent examples of lawyers using MySpace included one lawyer?s success in admitting the entirety of a plaintiff?s MySpace page...

BRITS HIRE ?HOTTIE? PIS TO TEST SPOUSE FIDELITY

Posted on February 15, 2008
Imagine this. You are a married businessman on your way home from work. As is your innocent custom, you stop in for a quick pint at the local pub. A very attractive young lady joins you at the bar and begins to flirt with you. Her ?availability? is clear...

POCKET GUIDE TO ESI FOR FEDERAL JUDGES URGES PROACTIVITY

Posted on February 13, 2008
In January 2008, the Federal Judicial Center published Managing Discovery of Electronic Information: A Pocket Guide for Judges.  The primary author is Judge Barbara Rothstein, Director of the Federal Judicial Center, along with Judge Ronald J. Hedges (a former Magistrate Judge in New Jersey, now an e-discovery lawyer with Nixon Peabody), and assisted by Elizabeth C...

JUDGE: NO GET OUT OF JAIL FREE CARDS

Posted on February 11, 2008
From the Sensei case files: What a difference a judge makes. After many weeks of poison pen letters exchanged between irate counsel who couldn?t agree that two plus two equals four, much less agree on how to handle electronic evidence, the judge had had enough...

EDRM: DOES THE EMPEROR HAVE NO CLOTHES?

Posted on February 08, 2008
One of my favorite blogs is Infogovernance http://infogovernance.blogspot.com by blogger Rob Robinson. One of his recent posts struck me as especially significant. I think it is important to consider the questions he asks about the Electronic Discovery Reference Model (EDRM) and its XML2 (Extensible Markup Language) project...

MURDER MOST WIRED: SEX AND DEATH IN ITALY

Posted on February 07, 2008
Hello from sunny L.A. and the ABA Midyear meeting, a long and bumpy plane ride from Virginia. I detest planes (gravity is one of the few scientific concepts that I understand) but I do enjoy having the time to simply sit and read. I finally caught up with a lurid story from the December 3, 2007 edition of Newsweek...

POSTSCRIPT TO THE WHOOPS-A-DAISY DEFENSE STORY

Posted on February 05, 2008
Apparently, O?Melveny and Myers is really getting into the electronic evidence world in a big way, and generating a lot of negative press along the way. A reader of Ride the Lightning wrote to add a postscript to my previous posting. My correspondent passed along a post from the blog Above the Law, which said that the firm is furious about comments sent to ATL about the firm?s ?poor performance and underhanded layoffs...

THE WHOOPS-A-DAISY DEFENSE: O?MELVENY APOLOGIZES FOR MISSING E-MAILS

Posted on February 01, 2008
For a while the attorneys at O?Melveny & Myers must have been cheerfully singing ?We?re in the Money.? They charged more than $12 million in six months in their representation of New Century Financial Corp, a failed subprime lender. Now the firm has come to national attention after a blistering report was filed by a bankruptcy examiner alleging that O?Melveny misled the court about funds that might belong to creditors...

WHEN LOGIC AND PROPORTION HAVE FALLEN SLOPPY DEAD: JUDGE REFUSES TO QUALIFY CERTIFIED FORENSIC EXAMINER BECAUSE HE HAS A BIOCHEMISTRY DEGREE

Posted on January 30, 2008
If you go into enough courtrooms, you?ll see it all. You?ll watch an irate judge order a bailiff to bring him an attorney?s ringing cell phone and throw it out the courtroom window. You see a judge fall sound asleep while hapless attorneys try to carry on...

AUTHOR! AUTHOR! RALPH LOSEY ON ED

Posted on January 28, 2008
I was pleased to see an announcement today that the American Bar Association has published e-Discovery: Current Trends and Cases by Ralph C. Losey. Many readers will know Ralph as the author of the e-Discovery Team blog. My copy of the book is on its way to me now, but I have no doubt this will be well worth reading...

THE STATE OF THE STATES: A FLURRY OF ELECTRONIC DISCOVERY RULES

Posted on January 25, 2008
As if the new federal rules themselves were not enough to get a handle on, there are now at least 37 United States District Courts which require compliance with special local rules, forms or guidelines addressing the discovery of electronically stored information...

GOOD NEWS, EH? SEDONA CANADA PRINCIPLES FOR ELECTRONIC DISCOVERY PUBLISHED

Posted on January 23, 2008
On January 21st, the Sedona Canada E-discovery Principles were posted in English on the Canadian E-discovery Portal, which is hosted by Lexum. The French version will reportedly be posted soon. You will also find Canadian e-discovery related precedents (common law, civil law) on the Portal...

ELECTRONIC DISCOVERY IN THE WINDY CITY: TIME TO SIGN UP FOR ABA'S TECHSHOW!

Posted on January 21, 2008
Don't forget that ABA TECHSHOW, the premier national legal technology conference, is coming up fast! As a former TECHSHOW chair, I have a real soft spot in my heart for TECHSHOW, at which John and I have lectured since 2000. The CLE curriculum is fantastic, and for the electronic discovery mavens among you, there is a full day ED track...

CROSS FIRE: ED VENDOR SUED BY CLIENT, SUES CLIENT IN RETURN

Posted on January 17, 2008
If you run an ED company, here is your ?wake up in the middle of night sweating buckets? nightmare . . . It was bound to happen sooner or later - a major electronic discovery vendor sued by a major law firm. On December 28, 2007, Sullivan & Cromwell filed suit in the Southern District of New York against Electronic Evidence Discovery, Inc...

LION?S ROAR BECOMES A CAT?S MEOW: QUALCOMM ATTORNEYS GET OFF EASY

Posted on January 15, 2008
First, thanks to all who wrote and were worried about me because I took a brief hiatus from blogging. Nothing was wrong ? far from it ? I was cruising the Caribbean with John, whose maritime background means he is always happiest when at sea. And since his happiness is mine, it was a delightful sojourn...

ROBES ON A RAMPAGE: ANOTHER JUDGE SIGNALS ZERO TOLERANCE FOR SPOLIATION

Posted on December 31, 2007
Judges have been getting angrier and angrier over what seems to be a non-stop escalation of spoliation and the reckless handling of electronic evidence. In the recent copyright infringement lawsuit filed by The Motion Picture Association of America (MPAA), Judge Florence-Marie Cooper (U...

PARKINSON?S MEDS CAUSED ME TO SOLICIT A MINOR ONLINE (and other folderol)

Posted on December 28, 2007
When you do computer forensics for a living, you think you?ve heard it all. Then you read the newspapers, and something still more bizarre comes blazing from the headlines. We have heard that solicitation of a minor (generally captured online by law enforcement) was caused by 1) some unknown someone who mysteriously had access to the computer; 2) alcoholism; 3) drug abuse; 4) depression; 5) insanity; 6) curiosity; 7) journalistic research; and 8) the belief that that the other person was an adult pretending to be a child (that gets points for sheer creativity)...

EVEN A CAVEMAN CAN DO IT: HACKING INTO THE TELECOMS

Posted on December 26, 2007
Convicted hacker Robert Moore, who is now in federal prison, says breaking into 15 telecommunications companies and hundreds of businesses worldwide was incredibly easy because of simple IT gaffes. As much as we deal with this truism in forensics and lecture on it non-stop, this is a train that just keeps on chugging down the track to doom...

A ROSE BY ANY OTHER NAME IS NOT A ROSE: THE NEW F.R.C.P AMENDMENTS

Posted on December 19, 2007
Effective on December 1, 2007, the new Federal Rules of Civil Procedure are often referred to as ?the style rules? and some lawyers have complacently chosen not to take a close look at them. This way lies a minefield however ? you really do need to look at the new rules because both numbering and captioning have been changed in some places, including some of the electronic discovery provisions...

COURT DECLINES TO FORCE SURRENDER OF PGP PASSPHRASE

Posted on December 17, 2007
In computer forensics, encryption is usually a killer. You groan when you encounter it. Or sometimes not . . . in a couple of notable cases, we?ve found wonderful documents like ?passwords.txt? and (better yet) ?stuffnottoforget.doc? which had the decryption keys in them because the doggone things are so long and hard to remember...

INSURERS GET ON THE ED BANDWAGON

Posted on December 13, 2007
It had to happen. Insurance companies have figured out how to get a piece of the ED action. Lexington Insurance Company has announced it has enhanced its Employment Practices Liability (EPL) insurance offerings to include E-Discovery Response(SM), a new endorsement designed to cover an insured´s payroll expenses incurred while retrieving electronically stored information requested during discovery in a covered EPL claim...

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