CONSERO INSIGHTS: Consero Insights -- Information Technology

The evolution of technology, with all its blessings and pitfalls, requires that attorneys examine how its use creates new professional duties and responsibilities.

 

In a recent Ethics Opinion (Formal Op. No. 2010-179), the California State Bar issued what is widely considered to be the current authority on the question whether an attorney violates the duties ofconfidentiality and competence he or shes owes a client by transmitting or storing confidential client information when using technology that may be susceptible to unauthorized access by third parties.

 

Last week I listened to an episode of Digital Detectives, a great series of podcasts co-hosted by Sharon Nelson and John Simek of Sensei Enterprises, Inc., who spoke at length with attorney and  e-Discovery expert Josh Gilliland, author of the noted Bow Tie Law blog.

 

The topic was straightforward:

United States Magistrate Judge Howard Lloyd of the Northern District of California compelled Facebook to produce electronically storedinformation (“ESI”), not merely “provide access” thereto on a commercial website that allowed it to restrict class action plaintiffs from reviewing those materials properly. The court’s order granting the plaintiff’s Motion To Compel Production in In re Facebook PPC Advertising Litigation (Apr. 6, 2011) analyzed three important issues: (1) the importance of ESI Protocols, (2) production of ESI in native formats, and (3) production of documents versus “access” to them.

The Associated Press, among others, is reporting that the United States used multiple methods to positively identify the remains of Osama bin Laden. In addition to traditional genetic (DNA) testing, which revealed a perfect match with bin Laden’s family, NBC News reports “that the CIA’s facial recognition technology also identified bin Laden’s face with 95 percent certainty.” The use of biometrics to resolve any possible doubt as to the identity of the terrorist’s remains is no doubt comforting in this particular case.

It was only a matter of time before a class action suit was filed against Apple for tracking its owners’ movements, as reported recently in four insightful pieces by Forbes contributor Kashmir Hill.

As debates about data privacy rage in the United States—the Wikileaks Twitter case is a recent and prominent example—it is important for multinational corporations and other potential litigants (both plaintiffs and defendants) not only to understand the nuances of the markedly different privacy definitions and security standards in the European Union (“EU”), but also to master this legal landscape with the indispensable help of expert local counsel in foreign jurisdictions. These differences are especially important given that U.S. courts engaged in the litigation discovery process routinely expect litigants to be able to produce relevant data through cross-border discovery according to the same standards and restrictions that apply at home. A highly informative webinar hosted by RenewData, a provider of services for the discovery, archiving, and governance of electronically stored information (“ESI”), and featuring Ken Rashbaum of the law firm Rashbaum Associates, discussed these issues and others vital to corporate counsel.

In United States v. Faulkner (N.D. Tex. Dec. 28, 2010), the U.S. government accused 19 defendants of having participated in a criminal conspiracy over the course of seven years. The defendants are alleged to have created fraudulent companies to exceed authorized access to the victim companies’ computer systems, as well as failing to pay for leased equipment, services, and premises.

Facebook now turns the legal corner into a newly energized lawsuit by Paul Ceglia, an engineer and convicted felon who claims to own 50% of Facebook based on a series of emails between Ceglia and Mark Zuckerberg memorializing work completed by Ceglia for the young Harvard entrepreneur in 2004. Some of the emails reveal Zuckerberg at his most conciliatory.

 

Metadata matters. According to Applied Discovery, one of a variety of companies that delivers and manages electronic discovery services, metadata, or data that is embedded in electronic documents, can tell us precisely how and when an electronic document was created, modified, and transmitted. More poetically, “the document tells its own story.” Embedded Information in Electronic Documents (Applied Discovery White Paper). Recently featured in The New York Times, advanced e-Discovery software can “deduce patterns of behavior that would have eluded lawyers examining millions of documents.” John Markoff, Armies of Expensive Lawyers Replaced by Cheap Software, N.Y. Times (Mar. 4, 2011). The ability of software to “put together a chain of events . . . over different media” and to “capture ‘digital anomalies’” by parties hoping to hide their activities depends on both artificial intelligence and metadata. Id.

 

Predictive coding is the electronic coding, organization, and prioritization of entire sets of electronically stored information (“ESI”) according to their relation to discovery responsiveness, privilege, and designated issues before and during the legal discovery process. Lawyers control this process by specifying relevant criteria. Computers then expedite discovery, as discussed in greater detail below. As I have written elsewhere, the discovery process is becoming increasingly automated, scientific, and objective in nature, a fact that applies both to e-Discovery with the government (e.g., Department of Justice) and with other civil litigants. According to Robert Trenchard, a Partner in the New York office of Wilmer Hale, and Craig Carpenter, Vice President and General Counsel of Recommind, an end-to-end e-Discovery and predictive coding solution provider, predictive coding’s myriad benefits inure to those early adopters with a risk comfort level that embraces the relative uncertainly posed by the process vis-à-vis an attorney’s obligations to conduct a reasonable inquiry under Rule 26 of the Federal Rules of Civil Procedure and also to ensure attorney-client privilege in the event of inadvertent disclosure of privileged information under Federal Rule of Evidence 502.