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Evidence

eDiscovery Cost Recovery: A Case-By-Case Assessment

Cost recovery is a critical consideration to the eDiscovery services you provide. Without it, you won’t have an accurate view of your financial status. While today’s turbulent times may put your LSP under more pressure to budget your money more wisely, the truth is you’re always under pressure to make your bottom line and recover eDiscovery costs as quickly as possible. 

As an LSP, you report to clients who need to know they will receive a good ROI when they hire you. On the flip side, when you hire vendors, buy equipment, or lease software, you need to see that quick ROI as well. 

One way to accomplish this is to adopt eDiscovery software solutions that add real value to your business. To do so, you need an eDiscovery solution providing high quality service so you can collect fees from your clients before the solution costs you more than you can charge.

Consider the cost difference a few decades make:  In 1981, the price of a 1GB hard drive was $500K. Today, it’s less than $0.03. 

For eDiscovery data processing, the cost to process 1GB was $2000 just 15 years ago. We process the same data for less than $100. 

By adopting a solution like CloudNine Explore, you can keep your expenses down to offer more value through a cost-effective solution to your clients. This means they’re able to pay you quicker and more dependably so your cost recovery is easy to manage.

The On-Prem vs. Cloud Storage Dilemma 

 While there are many benefits to cloud storage, the cost isn’t as black and white as it once was. Traditionally, if you rented a server versus purchasing one, your initial investment was cheaper. 

Renting a server may be a smart investment if you have no plans to utilize the server long-term. However, as you continue to rent that server, the costs are going to add up, costing you more than if you just purchased the server.  

Renting data storage space from a provider today can be just as expensive as purchasing a new server because providers typically do everything to ensure the server is up-to-date and backed up. While this does make cloud servers a little more robust, you’ll be paying for that service which makes it more expensive from day one. 

CloudNine Explore allows you to securely upload and store relevant data in a single on-prem server. This allows you to have more access and control over your data while lowering your data storage costs. 

Providing Value with eDiscovery System Speed and Accessibility

Speed means everything in eDiscovery. The faster you import the data, the quicker you can move from processing to storage and review. One of the keys to shorter processing time is the use of automation – the greater the automation, the higher the output. 

CloudNine Explore allows you to use automation and leverage multithreading technology so you can use all available processors within the machine to get the most efficiency out of it. 

That’s incredibly useful as oftentimes LSPs utilize unused surplus equipment they have in their inventory to run eDiscovery processing. CloudNine Explore is a great solution in this scenario because it’s flexible and compatible enough to be used on older technology. This reduces the need to buy new equipment. 

Infrastructure Costs and Document Review Services

Infrastructure requirements vary from software to software. Many of the available eDiscovery solutions on the market are complicated and rigid.  And, providers didn’t build their platform with eDiscovery in mind. They built it for other purposes but eventually, they reassigned it to handle eDiscovery. This leaves them with too many restrictive and complicated requirements on their infrastructure. 

The infrastructure supporting CloudNine Explore wasn’t forced to be something it wasn’t. It allows CloudNine Explore to run on anything from simple laptops to state-of-the-art servers. It runs best on a server with some serious horsepower, but it’s still friendly enough to give you the ability to process and cull with less infrastructure investment – whether that’s in the cloud or on your server.  

An eDiscovery software that provides you with the infrastructure flexibility, gets your LSP one step closer to recovering costs quickly.  Learn how to boost margins even more in our eBook here.

Reducing eDiscovery File Size

Many of our competitors offer filtering technology allowing you to reduce your data file size. The only problem is how they’re able to filter your data. Most often, you have to send them the data first, only to cull it down later. Regardless of the smaller file size, you still have to pay to process the entire data file upfront. 

CloudNine Explore allows you to filter and organize the data upfront, culling unnecessary files so you can process only the data you want. This gives you the flexibility and power to control the processing and upfront storage costs. 

Some common filter types include:

  • File type – This lets you focus on specific file types like .doc, .csv, .pdf, .mov or .m4a.
  • Domain – This allows you to search emails to find the ones sent by a specific domain source.
  • Language – This filters documents containing specific languages. Explore currently supports 144 languages including Unicode characters like Korean, Japanese, Chinese, and Cyrillic. 

Breaking Down eDiscovery Software Costs

CloudNine Explore has lower software costs for the simple reason that we developed them with a lower price point in mind. Also, we offer loyalty discounts to our clients when they renew their license agreements. We also discount prices when you bundle Explore with other CloudNine solutions like Review.  

While CloudNine is less expensive than a lot of our competition, in the end, it’s all about how you use the solutions. The more efficiently you use the tool, the more value you get out of it and that’s what matters most. 

To see how Explore can help your LSP recover costs quicker and more effectively, schedule a free demo with CloudNine today.

Insourcing Vs. Outsourcing Your eDiscovery Review Process

While eDiscovery may seem a tedious process, it’s critically important to your courtroom success!  A ruling may be made solely on the content found in one corporate executive’s email.   The requisite rests in the confidence of a trusted system to collect and review relevant documents so both sides can build their case. 

However, when it comes to processing the data collection, many organizations differ on the best method for eDiscovery. 

Whether you decide to insource or outsource your eDiscovery, CloudNine Review is made can assist you in closing cases quickly. 

Discovering The Differences Between Insourcing and Outsourcing eDiscovery

Insourcing is defined as the delegation of operations or tasks within an organization to an internal unit. This refers to both the technology and the people performing the tasks. 

Outsourcing is when you transfer the day-to-day responsibility of those tasks outside your organization to an external service provider. This external service provider provides both the technology and the personnel required to perform the tasks. 

Depending on your organization’s core competencies and business model, insourcing may not be the best choice to handle your eDiscovery tasks. For example, law firms do not focus on providing technology solutions to their clients, so it may be difficult to justify the financial commitment of building an entire infrastructure and hiring a technology team.

However, many organizations may still prefer to insource their eDiscovery. Ten years ago, cloud services were still in their infancy so insourcing was the only real option. While small and mid-sized organizations struggled, larger firms invested in the infrastructure needed to win their cases.

Today, those with the infrastructure still in place choose to contain insourcing because it’s already paid off, which means no additional hosting or processing fees. But for new organizations just getting on their feet, investing in eDiscovery infrastructure may be a costly risk.  Maintaining infrastructure is costly for organizations with internal eDiscovery resources as well.  A cloud-based solution reduces the cost burden for new and established organizations seeking eDiscovery solutions.

How Insourcing and Outsourcing eDiscovery Affects Your ROI

For firms that insource their eDiscovery review, there’s a huge investment of money and time into making an eDiscovery environment a viable solution, such as:

  • Infrastructure Development
  • System Maintenance
  • IT Support Staff
  • Review Attorneys

When you outsource your eDiscovery process, you only pay on a per-project basis.

When you insource your eDiscovery process, you are paying to keep your infrastructure running and up-to-date on the latest technologies, which will require maintenance and labor. With ransomware hackers running rampant, labor shortages from COVID-19, and necessary system upgrades to keep your network from crashing, costs can become erratic and drastically change from month to month. 

Outsourcing makes it easier for your law firm to control costs since you are only concerned with paying for what you need when the cases come along.

The success of your eDiscovery review process lies in your ability to recover costs quickly, learn how to optimize your cost recovery in our eBook, which you can download here.

Are the Benefits of Insourcing Worth the Cost?

When it comes down to it, there’s really only one primary benefit to insourcing your eDiscovery review. It gives you complete and total control over your data processing. You do not have to worry about where your data is being stored or if you can access it on your schedule. It’s on-prem and ready whenever you need it. 

Let’s consider insourcing from a financial standpoint. If you want to develop your own insourced eDiscovery solution, this is what you’re looking at: 

  • The profit margins for hosting and processing fees have eroded significantly in the past 10 years. It used to cost $500 to process a single gigabyte of data. Today, it’s only around $30.
  • You will probably have to develop a custom piece of software or build a new hosting platform, which means you will need to hire at least one developer if you don’t have one on the payroll already. And according to Glassdoor, the average salary for a software developer is around $108,000 a year. This doesn’t include the additional burdens on IT to keep the system up-to-date and secure.
  • Of course, you could hire a software development company to develop new software or hosting platform but that won’t be cheap, either. It’ll be somewhere in the range of $50K and $250K. 
  • And don’t forget about the legal team you’ll need to assemble to do the actual eDiscovery review. 

Overall, you’re looking at a hefty investment. There may not  be enough financial incentive to justify spending the money to develop your own internal infrastructure. 

An Outsourced eDiscovery Solution That Makes Financial Sense

CloudNine Review offers outsourcing eDiscovery solutions that are fast, easy to use, and, most important, cost-efficient. Simply upload your documents and begin the review process in minutes, earning yourself an impressive ROI with these benefits:

  • Unlimited Users: Unlike other eDiscovery providers, we don’t charge you for every single user you add to the database. It’s a flat fee, allowing you the freedom to add as many users as you need.
  • Flexible Infrastructure: Our network is designed to handle hard-working organizations like yours. Our infrastructure can support a thousand attorneys reviewing the same data collection simultaneously. If you wanted to do that in-house, you’d be investing a lot of time and money to spin up the additional infrastructure to handle it. 
  • No Long-Term Contracts: Just pay for your eDiscovery services at a month-to-month rate. No hidden agendas or commitments. 

There’s also no difference in the quality or legality of documents collected and reviewed, as the processes are the same. The only difference is who did the work – an in-house group or a trusted provider like CloudNine. 

If you’re ready to hand over your internal eDiscovery tasks to a dedicated company that specializes in streamlining your discovery, investigation, and audit processes, reach out to CloudNine and request a free demo today.

The Discoverability of IoT Devices

What are IoT Devices

The Internet has transformed the way we conduct daily chores. Simple objects such as fridges, watches, doorbells, and washing machines can now be connected to secure networks. This technology is quick, efficient, and the perfect replacement for manual tasks. Whenever the user is within range and connected to WiFi, IoT devices can be used to turn on the lights, preheat the oven, and more. But what exactly is the definition of an IoT device? IoT is shorthand for the Internet of Things, a term used to describe physical objects that transmit data through wireless networks. [1] Fortunately for legal teams, IoT devices are effective in the courtroom as well as the home.

IoT Devices in Court

  • Four years ago in Arkansas, data from an Amazon Echo was used to investigate the death of Victor Collins. When Collins was found dead in his hot tub, his friend James Bates was charged with first-degree murder and evidence tampering. The charges were later dismissed due to reasonable doubt amongst the court. Unfortunately, news sources haven’t disclosed what the voice recordings revealed. [2]
  • After Timothy Burke was accused of shooting his brother, the prosecutor requested the admittance of audios from a Ring doorbell. The defendant objected to its admittance, claiming that it violated New York’s wiretapping and eavesdropping law. The objection was overruled. [3]
  • In an aggravated arson and insurance fraud case, Ross Compton’s guilt was proven by his pacemaker. The man claimed that he packed up his belongings and threw them out the window after discovering the fire. Medical examiners concluded that the pacemaker’s heart rate and cardiac rhythm data disproved Compton’s claims. [4]
  • In State of Wisconsin v. Burch, the defendant was accused of killing her boyfriend. However, the charges were dropped after Fitbit data revealed that Burch had only taken 12 steps in the hours before the death. [5]

Key Considerations

  • Legal teams should explain the significance of IoT data to their clients and evaluate any IoT devices that might be useful.
  • During (or in the prospect of) litigation, disable auto-deletion features on IoT devices.
  • Investigate the reliability of the device’s data.
  • Assess the accessibility of IoT data and the cost of its production. [6]

Conclusion

IoT devices are too valuable to be overlooked in litigation. As demonstrated by the aforementioned court cases, IoT data is quite useful in criminal cases. However, its utility doesn’t stop there. IoT data can also play a significant part in personal injury claims, family law, IP litigation, and more. It would be remiss of litigants to ignore IoT devices during the discovery process. Instead, litigants should consider the relevance and proportionality of IoT devices when drafting their ESI protocol.

 

[1] Brian Morrison and Joann Militano, “E-Discovery for IoT Devices: Primer for Representing Individual Clients,” New York Law Journal, February 1, 2021, https://advance.lexis.com/api/document?collection=legalnews&id=urn:contentItem:61X0-8FG1-JBM3-R471-00000-00&context=1516831.

[2] Erik De La Garza, “Charges Dropped in Amazon Echo Murder Case,” Courthouse News Service, November 29, 2017, https://www.courthousenews.com/charges-dropped-in-amazon-echo-murder-case/

[3] Kimberley Haas, “Judge: Audio from Ring doorbell can be used as evidence in Rochester shooting case,” New Hampshire Union Leader, March 5, 2020, https://www.unionleader.com/news/crime/judge-audio-from-ring-doorbell-can-be-used-as-evidence-in-rochester-shooting-case/article_ee1ddcd1-b193-5ec9-ad9b-08c22fbcdc2f.html

[4] Debra Cassens Weiss, “Data on Man’s Pacemaker Led to His Arrest on Arson Charges,” ABA Journal, February 16, 2017, https://www.abajournal.com/news/article/data_on_mans_pacemaker_led_to_his_arrest_on_arson_charges

[5] Greg Goth. “Can Wearables Testify Against Their Owners?” IEEE Spectrum, Sept. 27, 2021, https://spectrum.ieee.org/wearable-data-court

[6] Briar Morrison and Joann Militano, “E-Discovery for IoT Devices: Primer for Representing Individual Clients.”

The Risks and Benefits of Ephemeral Messages

What are Ephemeral Messages?

In the corporate world, Gmail, Microsoft Teams, and Slack are the most common forms of communication. Though these platforms are traditional and efficient, they create privacy and storage challenges. Ephemeral messages counteract these issues by disappearing shortly after the recipient has read the message. [1]

Platforms with disappearing messages:

  • Snapchat
  • Signal
  • Wickr
  • Cover Me
  • Confide
  • Telegram
  • Hash
  • WhatsApp
  • DingTalk

Court Cases Involving Ephemeral Messaging

  • Waymo, LLC v. Uber Technologies, Inc.: In this trade secrets case, Uber’s usage of Wickr and Telegram became a discovery headache. The judge granted both parties the opportunity to argue for or against the relevance of the messages. Thus, the case’s focus shifted from trade secrets to unrecoverable conversations. [2]
  • WeRide Corp v. Huang: After the defendant was accused of intellectual property theft, they took several measures to destroy communication evidence. One of those measures included communicating through DingTalk after the preliminary injunction. Since the messages were destroyed and post-injunction, terminating sanctions were issued. [3]
  • Herzig v. Arkansas Foundation for Medical Care, Inc.: In this age discrimination case, the plaintiffs started using Signal after receiving preservation orders. The judge noted that the plaintiffs manually configured the deletion settings; thus, the case was dismissed for intentional spoliation. [4]

Weighing the Risks and Benefits

Through automated deletion, ephemeral messaging apps eliminate issues concerning data volume. Smaller amounts of data provide greater security from data leaks and reductions in storage costs. Despite these benefits, ephemeral messages are a risky form of communication because they increase the likelihood of spoliation. [5] Spoliation sanctions can range from monetary payments to case dismissal. [6]

Best Practices for Preservation

  • Automated deletion settings should be shut off as soon as a complaint is filed.
  • Create comprehensive policies on managing ephemeral messages. These policies should outline legitimate reasons for the app’s usage, retention information, and destruction guidelines.
  • Train employees on ephemeral messaging etiquette in the workplace.
  • Monitor and document company usage of ephemeral messaging apps. [7]

[1] Dennis Kiker, “Now you see it, now you don’t: Ephemeral messaging may lead to sanctions,” DLA Piper, June 8, 2020, https://www.dlapiper.com/en/us/insights/publications/2020/06/now-you-see-it-now-you-dont-ephemeral-messaging-may-lead-to-sanctions/

[2] Robert M. Wilkins, “Client Litigation Risks When Using Ephemeral Messaging Apps,” Jones Foster, March 5, 2020, https://jonesfoster.com/our-perspective/pbcba-messaging-app-article

[3] Philip Favro, “INSIGHT: California Case Offers Warnings on Ephemeral Messaging,” Bloomberg Law, June 1, 2020, https://news.bloomberglaw.com/esg/insight-california-case-offers-warnings-on-ephemeral-messaging

[4] Scott Sakiyama, “This Message Will Self-Destruct in 5 Seconds,” Corporate Compliance Insights, March 26, 2020, https://www.corporatecomplianceinsights.com/self-destruct-ephemeral-messaging/

[5] Rebecca Cronin, “A Lawyer’s Guide to Ephemeral Messaging,” JD Supra, May 18, 2021, https://www.jdsupra.com/legalnews/a-lawyer-s-guide-to-ephemeral-messaging-4360652/

[6] Michael W. Mitchell and Edward Roche, “Lessons Learned: Destroying Relevant Evidence Can Be Catastrophic in Litigation,” Smith Anderson, https://www.smithlaw.com/resources-publications-1673

[7] Thomas J. Kelly, “The Rise of Ephemeral Messaging Apps in the Business Word,” National Law Review, April 23, 2019, https://www.natlawreview.com/article/rise-ephemeral-messaging-apps-business-world

Authenticating Communication Screenshots

Text messages and social media evidence can offer a plethora of relevant data. However, screenshots are not a reliable form of authenticating digital communication. Whether its Slack, Facebook Messenger, or email, screenshots of digital evidence can be easily fabricated.

Screenshot Failures in Court

  • Rossbach v. Montefiore Medical Center: To substantiate claims of workplace harassment and wrongful termination, the plaintiff submitted text screenshots from her former employer. The suit was dismissed after the court noticed emojis that an iPhone 5 is unable to depict.[1]
  • Moroccanoil v. Marc Anthony Cosmetics: In this trademark case, the court dismissed Facebook screenshots because of insufficient circumstantial evidence.[2]
  • R v. Martin: Facebook screenshots submitted to the police through an anonymous source were rejected by the court. The judge held that the anonymous source and the police couldn’t validate the authenticity of the evidence.[3]

How to Authenticate a Text Message Screenshot

Rule 901(b) of the Federal Rules of Evidence offers examples of authenticating all forms of digital evidence. The following are examples that are most applicable to screenshots of text messages:

  • Testimony of a Witness with Knowledge
  • Comparison by an Expert Witness or the Trier of Fact
  • Distinctive Characteristics and the Like
  • Evidence About Public Records
  • Methods Provided by a Statute or Rule (e.g. phone company records)[4]

How to Authenticate a Social Media Screenshot

  • Testimony from the alleged poster claiming ownership of the profile in question.
  • Expert testimony validating that the content originated from the alleged creator’s device.
  • Witness testimony confirming that the alleged author was the true creator of the content based on distinct characteristics.[5]
  • Testimony from the social media network stating that the alleged creator of the post(s) had exclusive access to the device in question and social media account.[6]

Conclusion

Though screenshots may seem like an easy ESI production method, it’s best to collect evidence from native files. However, Rene v. State of Texas demonstrates that screenshots can be helpful when utilized correctly. In this case, the defense argued against the admittance of evidence from the defendant’s MySpace account. They maintained there was no evidence of when the pictures were taken, who captured them, or if they were real. Yet, the court approved their admittance because more compelling data supported the evidence in the screenshot.[7] Rene v. State of Texas exemplifies that communication screenshots are best utilized as supporting evidence rather than the foundation of an argument.

 

[1] Philip Favro, “Fabricated Text Message Case Highlights the Importance of Emojis in E-Discovery,” Legaltech News, August 16, 2021, https://www.law.com/legaltechnews/2021/08/16/fabricated-text-message-case-highlights-the-importance-of-emojis-in-e-discovery/?kw=Fabricated%20Text%20Message%20Case%20Highlights%20the%20Importance%20of%20Emojis%20in%20E-Discovery

[2] “Court Cases Involving Social Media,” Bosco Legal Services, Inc. Accessed August 22, 2021, https://www.boscolegal.org/court-resources/social-media-case-law/

[3] Ramna Safeer, “Shedding Light on Screenshots as Electronic Evidence,” Thecourt.ca, January 18, 2021. http://www.thecourt.ca/r-v-martin-shedding-light-on-screenshots-as-electronic-evidence/

[4] “Rule 901 – Authenticating or Identifying Evidence,” Rules of Evidence, Accessed August 23, 2021, https://www.rulesofevidence.org/article-ix/rule-901/

[5] Denise A. Blake, “Social Media Evidence at Trial,” The People’s Law Library of Maryland, May 19, 2021, https://www.peoples-law.org/social-media-evidence-trial

[6] Michaela Battista Sozio, “Authenticating Digital Evidence at Trial,” American Bar Association, April 27, 2017, https://www.americanbar.org/groups/business_law/publications/blt/2017/04/03_sozio/

[7] “Court Cases Involving Social Media,” Bosco Legal Services, Inc. Accessed August 22, 2021, https://www.boscolegal.org/court-resources/social-media-case-law/

Pennsylvania Supreme Court Rules that Forcing Provision of Computer Password Violates the Fifth Amendment: eDiscovery Case Law

In Commonwealth v. Davis, No. 56 MAP 2018 (Pa. Nov. 20, 2019), the Supreme Court of Pennsylvania, in a 4-3 ruling, overturned a lower-court order that required a criminal suspect to turn over a 64-character password to his computer, concluding that “compelling the disclosure of a password to a computer, that is, the act of production, is testimonial” and rejecting the Commonwealth’s argument that provision of the password was a foregone conclusion, finding that “the prohibition of application of the foregone conclusion rationale to areas of compulsion of one’s mental processes would be entirely consistent with” US Supreme Court decisions.

Case Background

In this case involving alleged child-pornography activities, agents of the Office of Attorney General (“OAG”) executed a search warrant at Appellant’s apartment based upon a video found to contain child pornography being shared via a peer-to-peer file-sharing network (eMule) from an IP address associated with the appellant.  At Appellant’s apartment, after the agents discovered a single computer, an HP Envy 700 desktop, which was encrypted with TrueCrypt, Appellant informed the agents that he lived alone, that he was the sole user of the computer, and that only he knew the password to his computer.  When the agent requested that Appellant provide him with the password to the computer, he responded: “It’s 64 characters and why would I give that to you? We both know what’s on there. It’s only going to hurt me. No f*cking way I’m going to give it to you.”  Appellant was charged with two counts of disseminating child pornography in violation of 18 Pa.C.S. § 6312(c), and two counts of criminal use of a communication facility in violation of 18 Pa.C.S. § 7512(a).

On December 17, 2015, the Commonwealth filed with the trial court a pre-trial motion to compel Appellant to divulge the password to his HP 700 computer. Appellant responded by invoking his right against self-incrimination.  The trial court focused on the question of whether the encryption was testimonial in nature, and, thus, protected by the Fifth Amendment.  Applying the foregone conclusion exception, the trial court determined that the information the Commonwealth sought from Appellant was a foregone conclusion, in that the facts to be conveyed by Appellant’s act of production of his password already were known to the government. As, according to the trial court, Appellant’s revealing his password would not provide the Commonwealth with any new evidence, and would simply be an act that permitted the Commonwealth to retrieve what was already known to them, the foregone conclusion exception was satisfied.  A three-judge panel of the Superior Court later affirmed that ruling, leading to appeal to the Pennsylvania Supreme Court.

Judge’s Ruling

In the majority opinion written by Justice Debra Todd, she wrote:

“Based upon these cases rendered by the United States Supreme Court regarding the scope of the Fifth Amendment, we conclude that compelling the disclosure of a password to a computer, that is, the act of production, is testimonial. Distilled to its essence, the revealing of a computer password is a verbal communication, not merely a physical act that would be nontestimonial in nature. There is no physical manifestation of a password, unlike a handwriting sample, blood draw, or a voice exemplar. As a passcode is necessarily memorized, one cannot reveal a passcode without revealing the contents of one’s mind. Indeed, a password to a computer is, by its nature, intentionally personalized and so unique as to accomplish its intended purpose — keeping information contained therein confidential and insulated from discovery. Here, under United States Supreme Court precedent, we find that the Commonwealth is seeking the electronic equivalent to a combination to a wall safe — the passcode to unlock Appellant’s computer. The Commonwealth is seeking the password, not as an end, but as a pathway to the files being withheld. As such, the compelled production of the computer’s password demands the recall of the contents of Appellant’s mind, and the act of production carries with it the implied factual assertions that will be used to incriminate him. Thus, we hold that compelling Appellant to reveal a password to a computer is testimonial in nature.”

Judge Todd also, after commenting on several US Supreme Court rulings, stated “the prohibition of application of the foregone conclusion rationale to areas of compulsion of one’s mental processes would be entirely consistent with the Supreme Court decisions, surveyed above, which uniformly protect information arrived at as a result of using one’s mind. To broadly read the foregone conclusion rationale otherwise would be to undercut these pronouncements by the high Court.”

Judge Max Baer offered the dissenting opinion, stating: “In my opinion, the compulsion of Appellant’s password is an act of production, requiring him to produce a piece of evidence similar to the act of production requiring one to produce a business or financial document”.  He also stated: “Under the majority’s reasoning, the compelled production of documents would be tantamount to placing the defendant on the stand and requiring him to testify as to the location of the documents sought. The mere fact that Appellant is required to think in order to complete the act of production, in my view, does not immunize that act of production from the foregone conclusion rationale.”

Nonetheless, by a 4-3 vote, the Pennsylvania Supreme Court reversed the order of the Superior Court and remanded the matter to the Superior Court, for remand to the trial court, for proceedings consistent with the majority Opinion.

Here’s a case from earlier this year with a different result.

So, what do you think?  Should defendants be ordered to provide their passcodes, even if it leads to incriminating evidence against them?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Happy Thanksgiving!

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

#metoo and the Increasing Investigation Emphasis on eDiscovery: eDiscovery Trends

In our April webcast (Discovery Isn’t Just for Litigation Anymore), conducted by Tom O’Connor and me, we discussed a number of factors that are increasing the need for eDiscovery software and services, including compliance considerations with the General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA).  The need for eDiscovery in internal investigations is on the rise as well and one of the most significant factors is workplace harassment and #metoo, which we also discussed in that webcast.  Here’s another indication of the growth of that factor.

In the Legaltech News article As #MeToo Yields Harassment Investigations, Companies Turning to E-Discovery to Help (written by Victoria Hudgins), the author discusses how “e-discovery companies say they’ve seen a noticeable increase in the past two to three years from corporate legal departments leveraging their platform to investigate workplace harassment.”

“We are seeing it across the board, not just specifically to one category but the concept of trying to proactively identify behavior before it becomes a bigger issue and addressing it with additional training or self-reporting,” said Sheila Mackay, managing director of eDiscovery services at eDiscovery provider firm H5.

In our webcast, we referenced the 2019 Litigation Forecast from Crowell & Moring where #metoo was identified as one of the top 2019 litigation trends.  As that report noted: “The ensuing litigation is just beginning to wind its way through the courts, and its full impact is yet to be felt.”

“There have been a lot of complaints raised and individuals terminated, but few cases have been fully litigated,” said Ellen Moran Dwyer, a partner in Crowell & Moring’s Labor & Employment Group and chair of the firm’s Executive Committee. “So we haven’t seen a real shift in the legal and liability standards that apply in harassment cases—but that may be coming. Over time, the courts will have to grapple with these issues.”

Investigations don’t always lead to litigation, but it’s notable that, with regard to the litigation associated with #metoo claims, we’re just getting started.  And, organizations don’t just have to worry about individuals filing harassment claims, states are passing a ton of legislation to establish requirements with which organizations need to comply – over 260 laws directly addressing topics supported by the anti-sexual harassment initiatives within a 30-month period.  And, violations could and probably will lead to states filing claims against employers on behalf of harassment victims.  These are new litigation possibilities that organizations have to be prepared for as well.  Of course, the best litigation is the one you never have to conduct, so the importance of using eDiscovery software and services to identify potential harassment issues within the organization and address them proactively has become more important than ever.

So, what do you think?  How has your organization prepared to identify harassment issues?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

In Decision That Sounds the “Death Knell” for Fifth Amendment Protection, Defendant Ordered to Provide Cell Phone Password: eDiscovery Case Law

In Commonwealth v. Jones, SJC-12564 (Mass. Mar. 6, 2019), the Supreme Judicial Court of Massachusetts reversed a lower court judge’s denial of the Commonwealth’s renewed Gelfgatt motion (where the act of entering the password would not amount to self-incrimination because the defendant’s knowledge of the password was already known to the Commonwealth, and was therefore a “foregone conclusion” under the Fifth Amendment and art. 12 of the Massachusetts Declaration of Rights), and the court remanded the case to the Superior Court for entry of an order compelling the defendant to enter the password into the cell phone at issue in the case.

Case Background

In this case involving allegations that the defendant was trafficking a person for sexual servitude, the Commonwealth of Massachusetts seized a cell phone from the defendant that it believed contained material and inculpatory evidence, but was unable to access the phone’s contents because they were protected by a passcode.  The Commonwealth sought to compel the defendant to decrypt the cell phone by filing a motion for an order requiring the defendant to produce a personal identification number access code in the Superior Court.

The central legal issue concerned whether compelling the defendant to enter the password to the cell phone would violate his privilege against self-incrimination guaranteed by both the Fifth Amendment and art. 12.  The Commonwealth argued that under the decision in Commonwealth v. Gelfgatt, 468 Mass. 512, 11 N.E.3d 605 (2014), the act of entering the password would not amount to self-incrimination because the defendant’s knowledge of the password was already known to the Commonwealth, and was therefore a “foregone conclusion” under the Fifth Amendment and art. 12. Following a hearing, a judge denied the Commonwealth’s motion, concluding that the Commonwealth had not proved that the defendant’s knowledge of the password was a foregone conclusion under the Fifth Amendment.

Several months later, the Commonwealth renewed its motion and included additional factual information that it had not set forth in its initial motion. The judge denied the renewed motion, noting that because the additional information was known or reasonably available to the Commonwealth when the initial motion was filed, he was “not inclined” to consider the renewed motion under the Massachusetts Rules of Criminal Procedure.  The Commonwealth then filed a petition for relief in the county court, and the single justice reserved and reported the case to the full court. The single justice asked the parties to address three specific issues, in addition to any other questions they thought relevant:

  1. What is the burden of proof that the Commonwealth bears on a motion like this in order to establish a “foregone conclusion,” as that term is used in Commonwealth v. Gelfgatt?
  2. Did the Commonwealth meet its burden of proof in this case?
  3. When a judge denies a ‘Gelfgatt’ motion filed by the Commonwealth and the Commonwealth thereafter renews its motion and provides additional supporting information that it had not provided in support of the motion initially, is a judge acting on the renewed motion first required to find that the additional information was not known or reasonably available to the Commonwealth when the earlier motion was filed before considering the additional information?

Court’s Ruling

In an opinion written by Justice J. Kafker, with regard to question 1, he wrote that: “we conclude that when the Commonwealth seeks a Gelfgatt order compelling a defendant to decrypt an electronic device by entering a password, art. 12 requires that, for the foregone conclusion to apply, the Commonwealth must prove beyond a reasonable doubt that the defendant knows the password.”

With regard to question 2, Justice Kafker wrote: “The defendant’s possession of the phone at the time of his arrest, his prior statement to police characterizing the LG phone’s telephone number as his telephone number, the LG phone’s subscriber information and CSLI records, and Sara’s statements that she communicated with the defendant by contacting the LG phone, taken together with the reasonable inferences drawn therefrom, prove beyond a reasonable doubt that the defendant knows the password to the LG phone. Indeed, short of a direct admission, or an observation of the defendant entering the password himself and seeing the phone unlock, it is hard to imagine more conclusive evidence of the defendant’s knowledge of the LG phone’s password. The defendant’s knowledge of the password is therefore a foregone conclusion and not subject to the protections of the Fifth Amendment and art. 12.”

With regard to question 3, Justice Kafker wrote: “Although some, if not all, of the additional information included in its renewed motion may very well have been available to the Commonwealth at the time it filed its initial motion, in light of the nature and purpose of Gelfgatt motions and the circumstances of this case, the judge erred in concluding that he need not consider the additional information “[a]bsent a showing of new evidence not otherwise available to the Commonwealth.” The motion judge therefore abused his discretion in denying the Commonwealth’s renewed Gelfgatt motion.”

As a result, the motion judge’s denial of the Commonwealth’s renewed Gelfgatt motion was reversed, and the case was remanded to the Superior Court for entry of an order compelling the defendant to enter the password into the cell phone

Justice J. Lenk, while concurring with the decision, also said this: “The court’s decision today sounds the death knell for a constitutional protection against compelled self-incrimination in the digital age. After today’s decision, before the government may order an individual to provide it with unencrypted access to a trove of potential incriminating and highly personal data on an electronic device, all that the government must demonstrate is that the accused knows the device’s passcode. This is not a difficult endeavor, and in my judgment, the Fifth Amendment and art. 12 demand more. That is, before the government may compel an accused’s assistance in building a case against that accused, the government must demonstrate that it already knows, with reasonable particularity, of files on the device relevant to the offenses charged, and that the defendant knows the passcode to unlock them. Because I conclude that the government here met those burdens, I join in the court’s result.”

So, what do you think?  Should defendants be ordered to provide their passcodes, even if it leads to incriminating evidence against them?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Emoji Are Showing Up in Court Cases More and More: eDiscovery Trends

Without a doubt, our forms of communication are continuing to evolve from just email and we now have to add social media, text messaging and other messaging apps as forms of communication that need to be routinely preserved, collected, processed, reviewed and produced.  But, it’s not just the forms of communication that are changing, it’s the way we communicate that is changing as well.  So, you may or may not be surprised that emoji (yes, the plural of “emoji” is still “emoji”, at least officially) are showing up in court cases exponentially.

As discussed in The Verge (Emoji are showing up in court cases exponentially, and courts aren’t prepared, written by Dani Lee), emoji are showing up as evidence in court more frequently with each passing year. Between 2004 and 2019, there was an exponential rise in emoji and emoticon references in US court opinions, with over 30 percent of all cases (53 out of 171 all time) appearing in 2018, according to Santa Clara University law professor Eric Goldman, who has been tracking all of the references to “emoji” and “emoticon” that show up in US court opinions.  Yes, there’s a guy who tracks that stuff!  Here’s a chart from Goldman, showing the rise of cases since 2004:

By the way, you do know the difference between an emoji and an emoticon, right?  An emoticon is created out of text, primarily via the use of punctuation marks, whereas an emoji is a small image, a pictograph. Nearly everyone has used an emoji and emoticon at least once in their lives, even if they didn’t know what it was called.  Personally, I’m not a big fan of emoticons… ;o)

Goldman has written extensively on the subject of “emoji law” – including his blog post Emoji Law 2018 Year-in-Review and his paper published last year titled Emojis and the Law.

So far, the emoji and emoticons have rarely been important enough to sway the direction of a case, but as they become more common, the ambiguity in how emoji are displayed and what we interpret emoji to mean could become a larger issue for courts to contend with.  Want a couple of examples?  Here you go:

  • Bay Area prosecutors were trying to prove that a man arrested during a prostitution sting was guilty of pimping charges, and among the evidence was a series of Instagram DMs he’d allegedly sent to a woman. One read: “Teamwork make the dream work” with high heels and money bag emoji placed at the end. Prosecutors said the message implied a working relationship between the two of them. The defendant said it could mean he was trying to strike up a romantic relationship. Another message from the defendant included the crown emoji, which was said to signify that the “pimp is the king.”
  • In 2017, a couple in Israel was charged thousands of dollars in fees after a court ruled that their use of emoji to a landlord signaled an intent to rent his apartment. After sending an enthusiastic text confirming that they wanted the apartment, which contained a string of emoji including a champagne bottle, a squirrel, and a comet, they stopped responding to the landlord’s texts and went on to rent a different apartment. The court declared that the couple acted in bad faith, ruling that the “icons conveyed great optimism” that “naturally led to the Plaintiff’s great reliance on the Defendants’ desire to rent his apartment,” according to Room 404.

Still, it’s rare for cases to turn on the interpretations of emoji. “They show up as evidence, the courts have to acknowledge their existence, but often they’re immaterial,” Goldman says. “That’s why many judges decide to say ‘emoji omitted’ because they don’t think it’s relevant to the case at all.” But emoji are a critical part of communication, and in cases where transcripts of online communication are being read to the jury, they need to be characterized as well instead of being skipped over. “You could imagine if you got a winky face following the text sentence, you’re going to read that sentence very differently than without the winky face,” he says. In the “pimp” case above, the ruling didn’t ultimately hinge on the interpretation of emoji, but they still provided evidentiary support.

Nonetheless, as Craig Ball has noted in several presentations that I’ve seen, the handling of emoji and emoticons will become increasingly important in discovery over time.  And, here’s one more challenge to leave you with – emoji often render differently across platforms, so the emoji you see may not be the emoji your audience sees in social media posts or text/other messages.  We may have to consult those Egyptian hieroglyphics textbooks soon to see how they managed to communicate thousands of years ago!

So, what do you think?  Are you surprised that emoji and emoticons are becoming an increasing part of legal cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Here’s a Story Where Picking the Right Font Was Never More Important: eDiscovery Trends

This is a story that a word geek like me can really appreciate.  We talk a lot on this blog about the importance of metadata to provide additional useful information in discovery productions and help minimize the risk of fraud.  You wouldn’t think that the font you use on a document could expose it as a fake document, but in this case, it did.

In Newser (Alleged Fraudster Made a Really Poor Font Choice, written by Arden Dier), the choice of fonts apparently exposed a an alleged fraud scheme in Canada, where Gerald McGoey’s company, Look Communications, went bankrupt at the end of 2017. Ordered to repay $5.6 million to creditors, the former CEO sought to protect two properties—an Ontario farm purchased for $635,000 in 2003, and a cottage bought for $700,000 in 1994—with signed declarations claiming they were held in trust by his wife and three children, and therefore safe from the courts.

Here’s the problem: the farm declaration, dated 2004, was written in Calibri, while the cottage declaration, dated 1995, was written in Cambria. Per Ars Technica, Cambria was designed no earlier than 2004, while Calibri was designed between 2002 and 2004; both only became widely available in 2007.

This according to the expert report of Thomas Phinney, who has a Master of Science in graphic arts from Rochester Institute of Technology School of Printing, specializing in design and typography and over 20 years of experience in the font industry!  I guess there’s an expert for everything!  Anyway, Phinney told the court that no one but a Microsoft employee or contractor could’ve had access to Calibri in March 2004, as it wasn’t widely released until Microsoft’s Office 2007, per the National Post.

Anyway, while McGoey’s lawyers suggested the family was only mistaken about the dates the documents were signed, Ontario Superior Court Justice Michael Penny wrote in a decision earlier this month that “the conclusion that the … trusts are shams is unavoidable”.

According to the National Post, “had McGoey used Times New Roman, a popular default Microsoft font prior to 2007, it’s possible his ruse would never have been discovered.”  Whoops.

I guess if you’re going to forge a document, you’d better be up on your font history.  Or just stick with Times New Roman.

So, what do you think?  Have you ever had a case with forged documents that were identified by an unusual method?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.