Published on December 30, 2008
Embedded Data : Embedded Data What it is: 2 things Why it matters: 2 things NOTE: THERE WILL BE PICTURES SO SIT SO YOU CAN SEE :-) What it is (Part 1) : What it is (Part 1) An evil plot to undermine security of the free world What It Can Disclose : What It Can Disclose Amount of time spent with document open Original authors and editors Creation, access, modification dates Undo changes to reveal original document and/or changes made to it “I ain’t afraid of no ghosts” : “I ain’t afraid of no ghosts” Some real examples from court papers filed by good law firms since 2005. been split off into a “secret room” strips multiple elements from the statutes on which their claims are based and glosses over numerous issues that would have to be explored if their claims were ever to be fully litigated. AT&T cannot confirm or deny any of the facts on which plaintiffs’ complaint is based. But it is certain that the Klein Declaration and its associated exhibits are insufficient to demonstrate any illegal conduct by AT&T. Plaintiffs offer no evidence regarding what, if anything, actually happens to any data once it allegedly enters the alleged “secret room.” Plaintiffs’ purported expert provides merely “suggestive” configurations between unknown equipment in an AT&T facility. See Declaration of J. Scott Marcus In Support of Motion for Preliminary Injunction (Dkt. 32) ¶ 74. His strongest opinion, explicitly based “in terms of media claims” is conditioned entirely on a supposition: “if the government is in fact in communication with this infrastructure.” Id. ¶ 39. Plaintiff’s purported expert, of course… : been split off into a “secret room” strips multiple elements from the statutes on which their claims are based and glosses over numerous issues that would have to be explored if their claims were ever to be fully litigated. AT&T cannot confirm or deny any of the facts on which plaintiffs’ complaint is based. But it is certain that the Klein Declaration and its associated exhibits are insufficient to demonstrate any illegal conduct by AT&T. Plaintiffs offer no evidence regarding what, if anything, actually happens to any data once it allegedly enters the alleged “secret room.” Plaintiffs’ purported expert provides merely “suggestive” configurations between unknown equipment in an AT&T facility. See Declaration of J. Scott Marcus In Support of Motion for Preliminary Injunction (Dkt. 32) ¶ 74. His strongest opinion, explicitly based “in terms of media claims” is conditioned entirely on a supposition: “if the government is in fact in communication with this infrastructure.” Id. ¶ 39. Plaintiff’s purported expert, of course… Who Ya Gonna Sue? : Who Ya Gonna Sue? One Last Happy Thought : One Last Happy Thought Why It Matters: Part 1 : Why It Matters: Part 1 Sender’s Duties Recipient's Duties Sender’s Duties : Sender’s Duties RPC 1.6: Protect client confidential information RPC 1.1: Provide competent representation Every Day: Reducing Metadata : Every Day: Reducing Metadata Microsoft Word Microsoft has patches Word Perfect Patches available Commercial software “scrubbers” WorkShare iScrub Others – ask/Google Adobe Acrobat PDF Some metadata persists except in Acrobat 8 Professional Paper Recipient’s Duties : Recipient’s Duties Is it unethical to look for metadata that might contain privileged or confidential information? If so, can’t look. RPC 8.4: Misconduct to engage in conduct involving “dishonesty, fraud, deceit or misrepresentation.” Recipient’s Duties : Recipient’s Duties Is transmission of metadata in a file like inadvertently faxing a privileged document? If so, then rules and cases that require notifying the sender could apply Recipient’s Duties : Recipient’s Duties RPC 4.4(b): “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” Can You Look? Must You Notify? : Can You Look? Must You Notify? Looking prohibited; notice required: New York DC ? Dishonest to look Notify of receipt Florida Virginia? Can’t look; Dishonest? Notify of receipt Alabama Dishonest to look Notify of receipt Can You Look? Must You Notify? : Can You Look? Must You Notify? Can look: ABA Can view and use Notification not decided Maryland Can view and use No notification required What Does This Mean? : What Does This Mean? Can you look? Where do you practice? Must you notify? Where do you practice? - Do ethics rules include Rule 4.4(b)? - Does it apply? - What does it say? - Any case law? Two Concluding Stories : Two Concluding Stories How should a lawyer respond to an opponent’s transmission of embedded data? Microsoft story Vince P’s story Why it Matters (Part 2) : Why it Matters (Part 2) Outgoing e-documents may contain embedded data Privilege review Substantive review Other side’s e-documents may contain it E-Information In Every Case : E-Information In Every Case Car Accident Voicemails Computer generated forms On-board computers or black boxes Employment case E-mails Earlier drafts of employment and termination letters Electronic Storage Creates Discovery Problems : Electronic Storage Creates Discovery Problems Volume of written communications increasing 1 gigabyte – stack of paper 85 feet high (Third Branch 11/06) 1 terabyte – 500,000,000 typed pages (Id.) Information created generally continues to exist Communications are contagious Forwarding Multiple recipients and strands Information is easy to modify Files often contain information not readily viewable Electronic Discovery Increases Litigation Costs : Electronic Discovery Increases Litigation Costs “One study found that the cost of discovery represents approximately 50 percent of the litigation costs in all cases, and as much as 90 percent of the litigation costs in the cases where discovery is actively employed.” The Third Branch (Nov. 2006) Preservation Obligations : Preservation Obligations Need to preserve relevant information from time suit is commenced or party receives notice that a lawsuit is likely Cache la Poudre Feeds, LLC v. Land O’Lakes, Inc. (D. Colo. March 2, 2007), discusses when demand letter makes suit “likely” Letter indicating desire to resolve trademark dispute through negotiated resolution not enough Preservation impacts metadata How Will ESI Be Produced? : How Will ESI Be Produced? Printed on paper Produced in an image format such as a .pdf or .tif Produced in native format with all metadata removed Produced in native format with all metadata retained Converted into another non-image format, for example when the data was created or stored on unusual, obsolete, or proprietary software Metadata and Authentication : Metadata and Authentication “The most frequent ways to authenticate e-mail evidence are 901(b)(1) (person with personal knowledge), 901(b)(3) (expert testimony or comparison with authenticated exemplar), 901(b)(4) (distinctive characteristics, including circumstantial evidence), 902(7) (trade inscriptions), and 902(11) (certified copies of business record).” Lorraine v. Markel American Ins. Co. (D. Md. May 4, 2007) Websites are most likely authenticated through “authentication rules most likely to apply, singly or in combination, are 901(b)(1) (witness with personal knowledge) 901(b)(3) (expert testimony), 901(b)(4) (distinctive characteristics), 901(b)(7) (public records), 901(b)(9) (system or process capable of producing a reliable result), and 902(5) (official publications).” Id. Bearing the Burden of Production : Bearing the Burden of Production Zubulake factors 1. The extent to which the request is specifically tailored to discover relevant information; 2. The availability of such information from other sources; 3. The total cost of production, compared to the amount in controversy; 4. The total cost of production, compared to the resources available to each party; 5. The relative ability of each party to control costs and its incentive to do so; 6. The importance of the issues at stake in the litigation; and 7. The relative benefits to the parties of obtaining the information Problems with Costs and Allocation : Problems with Costs and Allocation In re Veeco Securities Litigation (S.D.N.Y. April 2, 2007) – Court orders search of backup tapes (estimated to cost $124K) and says it will consider cost-shifting later Document Collection Issues : Document Collection Issues Failure to implement document retention policies costs companies big money Implementation of document retention policies may prevent recovery of discovery costs Guy Chemical Co. v. Romaco AG (N.D. Ind. May 22, 2007) – party seeking discovery from third party needs to make showing regarding de minimis burden of production to avoid paying costs Reviews Changing Profession and Litigation : Reviews Changing Profession and Litigation Increased use of temporary attorneys, e-discovery consultants Outsourcing of privilege review . . . to India Review by electronic search Costs skyrocket for some litigation New FRCPs : New FRCPs Require early attention to ESI Generally relieve need to review/produce backup information – “not reasonably accessible” Retain privilege for inadvertently produced information Provide guide for deciding format of production Limit sanctions for loss through routine operations New FRCP On Privilege and Production : New FRCP On Privilege and Production FRCP seek to check costs and problems by having parties address issues relating to claims of privilege or work product protection on produced information during FRCP 26(f) conference Possible Agreements Regarding Disclosure of Privileged Materials : Possible Agreements Regarding Disclosure of Privileged Materials Quick Peek Clawback Quick Peek Agreements : Quick Peek Agreements Provide that a party can take a quick look at another party’s potential production Party conducting “look” would then indicate desired information Producing party would subject only this smaller portion to rigorous review Such a “quick peek” will not have an impact on whether privilege or work-product protection was waived Types of Quick Peeks : Types of Quick Peeks Direct—actually looking at the documents Indirect—perhaps by running sample search or having the producing party run sample searches through the information Clawback Agreements : Clawback Agreements Upon learning that privileged or work-product information had been inadvertently produced, party may recover the inadvertently produced material and avoid waiving any privilege or other protection as to those documents Steps for clawback Realize inadvertent production Give notice to party that received inadvertent production Receiving party must then return or destroy designated information Often must retrieve copies from consultants, experts, and others May later litigate access to information FRCP Rule 26(b)(5) Clawback : FRCP Rule 26(b)(5) Clawback Must return or sequester information upon receiving notice of inadvertent production May not use or disclose information without resolution allowing disclosure Should retrieve distributed information May immediately request in camera review by court Producing party must preserve information until claim of inadvertent production resolved Problems with Quick Peeks and Clawbacks : Problems with Quick Peeks and Clawbacks No way to remove information from lawyer’s mind Lawyer now knows what to seek Disclosure under agreement may constitute waiver as to third parties Rules of Evidence Rethinking Waiver and Inadvertent Production : Rules of Evidence Rethinking Waiver and Inadvertent Production Proposed FRE 502 Would limit application of "subject matter waiver" Person who took reasonable precautions but inadvertently disclosed would not waive privilege Parties could disclose to federal governmental entity without waiving protections as to non-governmental parties Caution When Producing : Caution When Producing Production of metadata may not be inadvertent (ABA Opinion 06-442) Amersham Bioscience Corp. v. Perkinelmer, Inc. (D.N.J. Jan. 31, 2007) Computerized redaction may not permanently hide information Text may be available through “paste unformatted text” Text may become available when document is rotated or the like Recommendation on Redaction : Recommendation on Redaction Keep that thick black magic marker Breath of Discovery Demands : Breath of Discovery Demands Rule 3.1 – Lawyer shall not “assert or controvert an issue” in a proceeding “unless there is a basis in law and fact for doing so that is not frivolous . . . .“ Rule 3.2 – “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client . . . .” Recovery of Costs for Attempt to Resolve Discovery Dispute : Recovery of Costs for Attempt to Resolve Discovery Dispute Williams v. Advertising Sex, LLC (N.D. W. Va. April 2007) – court awarded fees for preparing motion to compel, but not “meet and confer” letter Waiver of Work-Product Protection – Martha Stewart's Email : Waiver of Work-Product Protection – Martha Stewart's Email “The disclosure affected neither side's interest in this litigation: it did not evince an intent on Stewart's part to relinquish work-product immunity for the document, and it did not prejudice the Government by offering Stewart some litigation-based advantage”
A fascinating blog post about the uncertainty surrounding the use of any non-British Columbia cloud providers by BC lawyers. See Did the LSBC Just Kill ...
Embedded Data Embedded Data . What it is: 2 things . Why it matters: 2 things . NOTE: THERE WILL BE PICTURES SO SIT SO YOU CAN SEE
Legal Ethics For Plaintiff Attorneys Legal Ethics For Plaintiff Attorneys . Robert E. Kleinpeter. and. Elizabeth A. Alston . Last Chance Seminar. New