ESI and Admissibility

July 22, 2008

After writing the post immediately below it occurred to me that although there is much talk about the discovery of electronically stored evidence (ESI), the admissibility of ESI is addressed far less often. In fact, in the two day conference I linked to in that post, the topic is not even mentioned. For the interested, there are two important starting places for this topic. The first is the 101 page decision in Lorraine v. Markel American Insurance Company by Magistrate Judge Paul Grimm (one of the “rock star judges” mentioned in the ABA article), and the second is The Next Frontier: Admissibility of Electronic Evidence (Listrom, Harlan, Ferguson and Redis). (Note: this last link is on the ABA website and appears to require an ABA membership user name/password; as yet I am unable to locate a copy anywhere else).

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Rock Star Judges and E-Law

July 21, 2008

Anytime these judges write an opinion, it’s treated like a papal encyclical,” . . . They really influence other judges, who act like these are the rock stars of their profession. . . These ‘rock star’ judges are not surprised that they, and not the new rules, are still the final word in e-discovery. . . . Quoted from Rockin’ Out the E-Law, ABA Journal, July 2008. Rock star judges, huh? OK, I’m trying not to wince, laugh or, well, you know… The American Bar Association needs to sell its publications, so you can’t blame them too much, I suppose. In any event, this article names several judges as prominent in the area of discovery of electronically stored evidence (“ESI”), including Chief Magistrate Judge Paul Grimm of the U.S. District Court for the District of Maryland, Se

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The YouTube Discovery Order and ESI

July 8, 2008

“You have no privacy. Get over it.” Scott McNealy —————————— The Internet and the press are abuzz with the potential privacy issues raised by the federal court order requiring YouTube and Google to produce the YouTube “Logging database.” This database is described in the court order as follows: [the database] contains, for each instance a video is watched, the unique “login ID” of the user who watched it, the time when the user started to watch the video, the internet protocol address other devices connected to the internet use to identify the user’s computer (“IP address”), and the identifier for the video. . . . That database (which is stored on live computer hard drives) is the only existing record of how often each video has been viewed during various time periods. Its data can “recreate the number of views for any particular day of a video.” [Viacom] seek[s] all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website. In addition to this database, YouTube was ordered to produce copies of the millions of videos that had been deleted from YouTube. Whew! Just a few, eh? My favorite quote from this decision is the judge’s offhand comment that “while the Logging database is large, all of its contents can be copied onto a few…

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The Agony of Inadvertant Disclosure

June 8, 2008

Sometimes being a lawyer is like being an airline pilot – hundreds of hours of tedium, interrupted by moments of sheer panic. In the case of lawyers, the panic can hit from a number of sources: a missed court filing date or statute of limitations, the discovery during trial that your client has failed to produce key documents during discovery, the failure to discover a controlling legal precedent, the realization that a client has lied to you, or “inadvertant disclosure.” To lawyers, the term “inadvertant disclosure” means that during discovery documents protected by attorney-client privilege or work-product immunity have been produced to the other side, by mistake. You (the disclosing attorney) usually learn of this when the opposing lawyer calls you up to gloat (under the guise of politely informing you of the incident, which is required under the ethical rules). It’s enough to ruin any lawyers day: you demand (or beg for) the return of the documents; the opposing lawyer refuses; you file a motion with the court asking for an order that the documents be returned to you (after that embarrassing call to your client); the other side opposes your motion; and finally, the judge writes a decision ruling one way or the other on your request for return, but in either case informing the world of what a sloppy or incompetent lawyer you were to have produced…

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The TimesMachine

May 23, 2008

If you have a home delivery subscription to the New York Times (even only the Sunday Times), check out the TimesMachine — a collection of full-page image scans of the newspaper from 1851-1922. That’s every issue and every page and article, advertisements and all, viewable in their original format. April 16, 1912 To read how this was done, click here. “Using Amazon Web Services, Hadoop and our own code, we ingested 405,000 very large TIFF images, 3.3 million articles in SGML and 405,000 xml files mapping articles to rectangular regions in the TIFF’s. This data was converted to a more web-friendly 810,000 PNG images (thumbnails and full images) and 405,000 JavaScript files – all of it ready to be assembled into a TimesMachine. . . . “

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Rambus Court: "Price Raising Deception" Not Competitive Harm

May 22, 2008

The “Rambus litigation” in all its many permutations — Justice Department investigation, FTC proceedings and multiple civil cases — has been documented and commented upon widely. For a recap see Andy Updegrove’s article here. At the heart of the legal controversy is the allegation that during the 1990s Rambus, the owner of key DRAM patents or pending patents that solved the CPU-memory chip “bottleneck” problem, failed to disclose these patents to JEDEC, an important standards-setting organization (“SSO”) to which Rambus belonged. JEDEC, uninformed of the existence of these patents, incorporated the Rambus technology in its standards, which were then widely adopted in the memory chip market. Because Rambus withheld disclosure of its patents, JEDEC did not have the opportunity to exercise either of the two options open to it when a member disclosed proprietary technology: either choose another technology or negotiate industry-wide favorable licensing terms as a condition of adoption of the standard (so-called “reasonable and non-discriminatory” license fees, or”RAND” royalties). RAND royalties are negotiated and agreed-upon ex ante, that is, before the technology owner’s IP is adopted, and therefore before the technology owner acquires market power by reason of the adoption. By the time Rambus announced its patents and began demanding royalties (and filing patent infringement suits against companies that refused to pay royalties), Rambus had achieved a technical “lock-in” that made it difficult for the memory chip industry…

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Pocket Guide to Electronic Evidence, for Federal Judges

February 5, 2008

Judges need to keep learning too, and a major source of education for them is the Federal Judicial Center, an organization dedicated to judicial education. In fact, the FJC site is pretty cool. For example, here is a page that provides the biography of every federal judge (all courts, from District Court to Supreme Court), since 1789. Here is the bio of Judge Andrew A. Caffrey (deceased), who made me sweat quite a bit during this 37 day trial back in the early 1980s. In any event, the FJC publishes various learning materials for judges, and last year they published a short work titled, Managing Discovery of Electronic Information: A Pocket Guide for Judges, authored by Judge Barbara J. Rothstein and former U.S. Magistrate Ronald J. Hedges. As I’ve noted in the past, electronically stored information (or ESI, as its known), presents enormous challenges to lawyers and judges, almost all of whom were educated long before the last decade’s explosion in ESI. This Pocket Guide is important reading for lawyers practicing in the federal courts since it’s reasonable to assume that (a) the federal judge before whom you’re appearing probably has a copy sitting on the corner of his or her desk, gratis from the FJC, and (b) it may constitute the entirety, or close to it, of what the judge knows about ESI.

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Everything Old is New Again – The Cost of Failing to Get IP Ownership Assigned

June 19, 2007

When I began to practice in the area of technology law area in the early 1980s one of the issues we often brought up with clients was the need to get clear ownership assignment of their technology. We wrote articles about this, spoke on the topic, and generally beat the subject to death in publications and seminars. It’s surprising (but not too surprising) that seemingly sophisticated businessmen still don’t focus on this. Two cases we recently settled are illustrative of this issue. In the first case, a start-up company hired a part-time/consultant level programmer. He ultimately became an “employee,” but the company allegedly failed to fulfill some of the obligations in his employment agreement, and failed to treat him as an employee in all respects, raising an issue as to whether he truly became an “employee” for legal purposes. In any event, even under the best of circumstances, some of the programming he did occurred before he became an “employee.” After the programmer left the company under unpleasant circumstances, he claimed ownership of the software. Following substantial and expensive litigation our firm was brought into the case and we successfully settled it shortly thereafter (based on the ongoing costs of the litigation and our assessment of the risks to our client). The settlement included a full assignment by the programmer, but it cost the client a great deal of money…

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Electronic Evidence – Fear and Loathing in the Legal Profession

October 26, 2006

The best aspect of law school is the subordination of math. Anon ________ The schematic displayed above (click for a blow up in pdf format) is a simplified illustration of a corporate network which Microsoft provided to the Federal Rules Committee in connection with proceedings on electronic evidence. It was intended to illustrate a generic corporate computer network. If you are a lawyer and this seems like an alien concept that no lawyer should ever be required to understand, you’re not alone. Lets face it – like most stereotypes, the old joke that lawyers go to law school to avoid math and technology contains a large element of truth. So, it’s not hard to sense the anxiety emanating from the hallways of the nation’s law offices as the electronic discovery tsunami picks up speed. Yes, there’s a new technology boom, but it’s not the kind that sent clients flocking to their lawyers for legal representation in the 1990s. Many lawyers in their 50s and 60s can barely find the caps lock key on a computer keyboard, much less learn the intricacies of “IT“. Nevertheless, every day emails and brochures arrive announcing seminars and warning that the era of electronic data discovery (EDD) has finally, truly arrived. Luddite lawyers are warned that – 99% of all documents created today are in electronic form. Changes to the federal rules of civil procedure…

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Do Software Patents Discourage Innovation?

September 21, 2006

Patents. Over the last 20 years the conventional wisdom has been that patents are inimical to software innovation in the U.S. Many prominent software developers and industry luminaries have argued this position. Here is a link to a paper by Professor Robert Merges of the University of California Law School at Berkeley arguing the contrary view: that software patents have had a negligible impact, if any, on innovation in the industry. Here is the abstract: In the late 1980s and early 1990s, people in the software industry often said that the coming of patents would spell doom, particularly for small companies. The entry of new firms – the seabed of growth in the industry – would dry up, and only large, bureaucratic and decidedly non-innovative firms would remain. This paper concludes that these predictions were wrong. New firm entry remains robust, despite the presence of patents (and, in some cases, perhaps because of them). Successful incumbent firms have adjusted to the advent of patents by learning to put a reasonable amount of effort into the acquisition of patents and the building of patent portfolios. Patent data on incumbent firms shows that several well-accepted measures of “patent effort” correlate closely with indicators of market success such as revenue and employee growth. Whatever the effect of patents on the software industry, this paper concludes, they have not killed it. Here is a…

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The Sum of All Knowledge

September 19, 2006

Technology. Do you know what Wikipedia is? Did you know that this open source encyclopedia covers 1,391,807 topics (in the English version, as of this writing)? That it may be (or soon become) the greatest collaborative knowledge gathering effort the world has ever known? That it is the 17th most popular site on the Internet, receiving 14,000 hits per second? That you can find a topic in Wikipedia by simply entering “wiki” at the end of a Google search? (e.g., Lost TV show wiki)? If you’re interested in understanding the origins, goals and inner-workings of this astonishing phenomenon, I recommend these two articles from The Atlantic and The New Yorker, respectively: The Hive: Can thousands of Wikipedians be wrong? How an attempt to build an online encyclopedia touched off history’s biggest experiment in collaborative knowledge, by Marshall Poe (The Atlantic, September 2006) Know It All: Can Wikipedia conquer expertise?, by Stacy Schiff (The New Yorker, July 2006)

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Just another boring August afternoon in the Internet Age

August 18, 2006

First, Google wants to digitize every book ever written. Now, YouTube wants to make available, for free, every music video ever created: YouTube, which sprung out of nowhere a year ago to now claim over 100 millions views a day, is negotiating for rights to post current and archive music videos on its site, and said any commercial model it decides on will offer the videos free. “What we really want to do is in six to 12 months, maybe 18 months, to have every music video ever created up on YouTube,” co-founder Steve Chen told Reuters. “We’re trying to bring in as much of this content as we can on to the site.” (continued) Right. When will Westlaw or Lexis step up and make every law case ever decided available for free? Now that would be worth getting excited about.

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