Piloting E-Discovery Rules in the 7th Circuit

Magistrate Judge Nan Nolan of the U.S. District Court for the Northern District of Illinois had a long background as a criminal defense attorney before becoming a judge. She says that her background left her unprepared for the battles over discovery of electronic evidence she has encountered in the world of civil litigation. "I was not able to get my arms around all of the fighting over discovery," she says. "I know that some people have snickered about this idea that you can get lawyers to make nice and cooperate on discovery. But I believe it is possible."

Under the leadership of Chief Judge James F. Holderman, Nolan has helped launch a pilot program to address electronic discovery issues: 7th Circuit E-Discovery Pilot Program. Taking their cues from, among other sources, the Sedona Conference Cooperation Proclamation, the 7th Circuit E-Discovery Committee is attempting to fix some of the most intractable discovery problems in litigation.

Amendments to the Federal Rules of Civil Procedure put in place at the end of 2006 were supposed to force lawyers to meet and hash out discovery issues early. However, Nolan, Holderman and other judges are frustrated that despite the rule changes, electronic discovery continues to be an expensive and inefficient process in need of reform. "The central premise of the 2006 amendments is to meet and confer with the other side and settle issues early," says Magistrate Judge John Facciola of the U.S. District Court for District of Columbia. "The fact that this project exists suggests that the hopes have not been fully realized."

The 7th Circuit sought to involve all parties in the process, including trial judges and lawyers, whether they are in-house counsel, private practitioners, government attorneys, academics, or litigation consultants. An effort was even made to bring litigants into the process, so the clients’ perspective could be heard. But as is often the case when lawyers confront discovery issues, discussions became so heated that Nolan had to step in to mediate so that a final project proposal could be drafted. "I had to do some mediation to make sure all sides got heard," she says. "It was a little trying, but it was probably good for everyone to find out they could confront the issues and not have everything implode."

The 7th Circuit, which covers the states of Illinois, Indiana and Wisconsin, launched the E-Discovery Committee in May of 2009 to take action to reduce what was perceived to be the rising burden and cost of discovery. They produced a set of principles, which provide discovery guidance for lawyers in cases that parties agree to litigate as part of this project. Nolan says that since the project has been implemented there has been very little conflict over discovery. "I think it is working, because of every case I have heard in this project, I have not had one [discovery] motion," she says.

However, the court has only just concluded phase one of the project and a new, two-year phase two should begin this fall.

Phase two will increase the number of cases, as well as participating lawyers and judges, and incorporate suggested changes from the first phase. The first phase was relatively limited in scope, so that the feedback and surveys did not always provide meaningful data. The committee hopes that with more participants, they will get more meaningful survey results and feedback to further refine and improve the project’s guidelines.

What do lawyers need from the bench to navigate e-discovery disputes? The pilot project explicitly states that "an attorney’s zealous representation of a client is NOT compromised by conducting discovery in a cooperative manner," creating a foundation for a cooperative process. "The key is that it sets out that noncooperation is sanctionable," says Steven Teppler with Edelson McGuire, who is a member of the committee and had several cases that were part of the project. "How can you do discovery if the other side won’t? But if it looks like it will be a fair process, then it makes parties less obstinate."

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Federal Officials Continue AT&T iPad Investigation

A division of the Federal Bureau of Investigation that specializes in computer crimes has taken over an investigation into an AT&T security loophole that allowed a self-described security group to reach some iPad 3G users’ personal e-mail addresses and device identification numbers.

Andrew Auernheimer, known online as Weev, who is a spokesman for the group, Goatse Security, was arrested this week on drug-related charges after F.B.I. agents obtained a search warrant and entered his home.

co.washington.ar.us Andrew Auernheimer, known online as Weev, was released from a detention center on Thursday.

Bryan Travers, a special agent with the F.B.I. office in Newark, would not discuss details of the search warrant. He said the warrant was sealed because the investigation was continuing.

Mr. Auernheimer was arraigned Wednesday in a court in Washington County, Ark., where he was charged with one misdemeanor and three felony charges of possession of a controlled substance.

He was released on $3,100 bail on Thursday morning, with court dates set for July and August. It is unclear if he will be charged with any crime in connection with the AT&T security breach.

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Getting Ediscovery to Work for You

Locating, securing and producing all the electronically stored information required in the discovery phase of civil litigation can be very time consuming and extremely expensive. However, failure to produce the required information in a timely fashion can lead to fines running into millions of dollars, thanks to revisions to the Federal Rules of Civil Procedure that came into effect in December 2006.

Many companies still deal with e-discovery obligations by outsourcing the process to external specialists, who may charge between $250 and $1,400 per gigabyte to sift through corporate data, collect what is relevant, and get it in to a form that can be submitted to lawyers for review. In the past five years, an increasing number of companies have begun treating e-discovery as a routine business process that can be performed in-house. Many of these companies use e-discovery software to help carry out this business process more efficiently.

E-discovery software is designed to enable the efficient undertaking of various stages of the e-discovery process defined in the Electronic Discovery Reference Model (EDRF), which establishes guidelines for e-discovery. These stages include the identification, preservation, collection, processing, review and analysis of corporate information. Research house Gartner said e-discovery solutions may cost more than $500,000, but in some organizations they can pay for themselves in as little as three months or after a single big law case. That's because the cost of software can be offset against fees that would otherwise be paid to outside service providers to process data for discovery and against the reduction in legal fees charged by outside attorneys reviewing large amounts of written electronic material. Little wonder the market for e-discovery software is expected to grow more than 20 percent per year for the next three years, according to Gartner estimates.

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Don't Lose Sleep over U.S. e-Discovery Nightmares

E-discovery has been a hot topic ever since changes made to the U.S. Federal Rules of Civil Procedure broadened the scope of electronic evidence back in 2006.

But Canadian IT departments shouldn't lose sleep over e-discovery nightmares taking place in the U.S., according to one lawyer with experience practising on both sides of the border.

"The sky is not falling, No. 1," said Stephen Maddex, associate in the Commercial Litigation Group at Lang Michener LLP in Ottawa, who is a member of the bar in Ontario and Texas.

"No. 2, organization is key," he said. "The more businesses do get organized, the simpler it all becomes."

Broadly speaking, there are two major differences between general Canadian practice and the U.S. federal rules, said Maddex.

One is the scope of discovery. "In the U.S., you can ask for pretty much anything, which is why e-mail has become such an important problem there," he said. But Canadians "don't have that same problem because the scope is narrower."

For example, in the U.S., a company may be asked to file through its entire database and produce everything it has, which could be billions of e-mail messages, he said. "The cost to go through that and figure out what you need and what you don't need to provide is extremely expensive," he said.

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'Pension Committee' Clarifies E-Discovery Requirements

In a bombshell opinion and order issued just weeks ago by U.S. Southern District of New York Judge Shira A. Scheindlin, litigants and lawyers have been admonished (again) about their discovery obligations, particularly, to preserve, collect and produce electronic documents, records and data in their possession, custody, or control. Scheindlin, one of the foremost experts on the law of electronic discovery, was the author of the Zubulake line of decisions that many say ushered in a new era of robust electronic discovery. Now, her new blockbuster is the Pension Committee decision,[FOOTNOTE 1] which carries the picturesque title, "'Zubulake' Revisited: Six Years Later." Pension Committee promises to be a guide and oft-cited framework for complying with electronic discovery requirements.

Since the new decision copiously analyzes a series of discovery failures that led to sanctions against numerous plaintiff-companies, it is a practical roadmap on how real people and real attorneys may be confronted by real challenges regarding compliance only to wind up making judgments that come back to haunt them.

Pension Committee also is a kind of "how-to" manual setting forth key principles relating to issuing, monitoring, and enforcing litigation holds, discharging preservation and search techniques, and documenting appropriate behind-the-scenes conduct so that the responding party can withstand accusations of insufficient disclosure by the adversary. Then, too, there is advice regarding sanctions, what needs to be proved and by whom, the criteria of "relevance" and "prejudice," the legal behavior standards of negligence, gross negligence and willfulness, available remedies and, even, the text of an actual spoliation instruction.

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Data Mining Project Benefits Investigators, Scares Privacy Experts

At any one time, some 750,000 pedophiles are prowling the Internet, the United Nations says. They might be lurking in chat rooms. Or swapping images of adults having sex with kids.

It's a virtual epidemic of child pornography, and to fight it, law enforcement officers from all over are converging on a cavernous building in South Florida. Here they have access to the most advanced technology for finding pedophiles.

But this isn't run by any government agency. The desks, computers, technology — all are provided free by a former drug smuggler named Hank Asher.

Called a "mad scientist'' by one employee, Asher has made a fortune collecting public records — deeds, lawsuits, voter registrations — and combining them into databases that can be invaluable in locating people. Plug a name into Accurint, Asher's best-known product, and you'll see addresses, possible relatives, licenses held.

It was Asher's technology that helped police find the Washington, D.C., snipers.

Now he is building a super computer and a database "a thousand times more powerful" than anything he has developed yet.

It's a project that worries privacy-rights advocates and other critics. They wonder if Asher's real reason for donating some of his technology to government agencies is to get access to confidential data like firearms registries, tax information, even health records — information that could be a boon to businesses and an unprecedented intrusion into the lives of millions of Americans.

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Cell Phone Forensic Technology

Justin Ogden is using cell phone forensics to help the country locate missing people and aircraft.

He's only 28 years old and a Captain with the Air Force's auxiliary Civil Air Patrol or CAP.

"Try and take the technical information provided by the cellular providers and define search areas based on that information," Ogden said.

Pretty much everyone these days has a cell phone. If it's on and you find yourself lost in the middle of no where, Ogden says he should be able to find you.

He uses cell phone towers, text messages, and maps to help locate people. That information helps Ogden, who is the only person in America using this type of technology to pinpoint locations within one square mile to a few hundred miles.

Ogden was tapped by the Air Force's Rescue Coordination Center which is based at Tyndall Air Force Base, to help assist them with their search efforts.

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Survey Finds 73 Percent of Enterprises Plan to Bring E-Discovery In-House in Response to Rise in E-Discovery Requests

Clearwell Systems, Inc., a leader in intelligent e-discovery, today announced findings from a survey conducted in partnership with analyst firm Enterprise Strategy Group (ESG). The survey, titled "Trends in Electronic Discovery: A Market Perspective" quantifies both the rise in e-discovery and litigation over the past year. Additionally, the survey findings reinforce the need for increased enterprise readiness to manage the expected growth in volume of cases in 2010.

It has been three years since the U.S. Federal Rules of Civil Procedure were amended with provisions centered on discovery and management of electronically stored information (ESI). In the same timeframe, the macroeconomic climate went from explosive growth to recession, forcing organizations to cut costs as quickly as possible. As companies continue to operate in cost containment or reduction mode, they are changing the way they conduct e-discovery, moving away from a primarily outsourced approach to bringing core elements of e-discovery in-house. The intersection of these two industry trends led ESG and Clearwell to survey over 100 Fortune 2000 enterprises and government agencies.

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Computer Forensics Investigator Biography - Melanie Hampton

I recover digital data from crime scenes by analyzing cell phones, desktop and laptop computers, digital cameras, hard drives, CD-ROMs and other digital devices. This data helps incriminate people who are involved with child pornography, financial crimes, homicides, drug deals and other offenses.

Unfortunately, child pornography has exploded with the use of digital cameras and file sharing, and that is what I spend a large amount of my time investigating. There are huge amounts of photos and other digital data to process involving child pornography.

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FBI Computer Forensics Labs Make a Digital Difference

A domestic terrorist. A kidnapper. A corrupt politician. An identity thief.

These are just of a few of those brought to justice with the help of the FBI's Regional Computer Forensics Laboratories (RCFLs), according to the latest RCFL annual report now available online.

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Patch the Cracks of ESI Search

Electronically stored information may be easier to search than manually searching the same amount of information. However, there are several "leaks" in this digital information search that can be costly to fix. Being aware of where information is not being found is the first step of limiting these search flaws.

Read more about the "leaks" in ESI search here.

The Pivotal Role Of Computer Forensics In Today’s Litigation

Electronically stored information (ESI) continues to take center stage in all types of litigation, from bankruptcy to tort. Author Keenen Milner discusses the critical role computer forensics experts play in collecting and preserving digital evidence.

Over the past decade or so, attorneys have come to realize that some of the most valuable evidence is found not in filing cabinets but on computers and servers. The 2006 amendments to the Federal Rules of Civil Procedure, which expressly made ESI subject to discovery, also reflect the growing role of digital data.

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Porn pervasive in workplace

Sharon Nelson, president of Sensei Enterprises, a Virginia-based computer forensics company said that 26 percent of companies surveyed in the first half of 2009 have fired employees for violating e-mail policies. More than 26 percent have sacked employees for violation of Internet policies.

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IT Expert's Passion for Computer Forensics

A former military policeman and IT security expert at Northern Rock is combining his talents in a data investigations business.

Andrew Maddison, who worked at Northern Rock for eight years as head of the technical security team, has launched Orbital Forensics to work with businesses and the legal profession to investigate computer and mobile phone fraud and misuse.

Read more here.

Computer Attacks May Not Be From Noth Korea

Evidence has surfaced that the denial-of-service attacks that crippled dozens of U.S. and South Korean web sites last week may not have been perpetrated by North Korea, as widely surmised.

Bkis Security has just disclosed analysis showing that 166,908 botted PCs from 74 countries were used in the attacks. Commands were routed through eight control servers, tied into a master server located in the United Kingdom and running the Windows Server 2003 operating system, says Bkis research director Nguyen Minh Duc.

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Michael Jackson's Death Used To Spread Virus

The world's obsession with superstar Michael Jackson's sudden death is being exploited by a range of digital crooks who - in at least one instance - are using it to infect computers with a virus that can steal bank-account numbers and passwords.

According to the University of Alabama at Birmingham (UAB) Spam Data Mine, cybercriminals are embedding the data- stealing virus in an e-mail "that claims to link you to a website that will reveal Michael Jackson's killer".

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Computer Forensics Grohttp://www.blogger.com/post-create.g?blogID=8390894616923382391up Discovers ATM Malware

"SKULDUGGERY," says Andrew Henwood, "is a very good word to describe what this extremely advanced, cleverly written malware gets up to. We've never seen anything like it."

What he has discovered is a devious piece of criminal coding that has been quietly at work in a clutch of cash machines at banks in Russia and Ukraine. It allows a gang member to walk up to an ATM, insert a "trigger" card, and use the machine's receipt printer to produce a list of all the debit card numbers used that day, including their start and expiry dates - and their PINs. Everything needed, in fact, to clone those cards and start emptying bank accounts. In some cases, the malicious software even allows the criminal to eject the machine's banknote storage cassette into the street.

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The Ins and Outs of Cyber Warfare

Imagine a situation where a powerful country wants to annex its small neighbor, so it launches a week-long campaign of cyberattacks aimed at disrupting the financial, energy, telecom and media systems of its neighbor's biggest ally. A week later, the aggressor launches a full-scale cyberwar on its neighbor that includes air and naval defenses. With its ally's defenses weakened, the neighbor agrees to become a province of the aggressor in less than a week.

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More Files Related to Jail Suit Scrubbed from Computer

Attorneys have discovered a second batch of missing computer files related to the inquiry into former Sheriff Bill Balkwill's award of a $9 million no-bid jail contract.

Someone deleted a "significant amount of data" from a desktop used by a top executive for Armor Correctional Health Services.

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Computer Forensics Expert Warns Employers of Computer Fraud

Don't underestimate the wrath of a disgruntled ex-employee.

As the downturn forces businesses to shed jobs, employers should watch for computer sabotage by laid-off employees, says Gary Kessler, a computer forensics expert.

Just one vengeful act can cost a company thousands of dollars in repairs and lost productivity, and he said that these days it probably happens more often than many employers realize.

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