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Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Court Compels Plaintiff to Provide Social Media Account and Activity Data: eDiscovery Case Law

In Waters v. Union Pacific Railroad Co., No. 15-1287-EFM-KGG (D. Kan. June 21, 2016), Kansas Magistrate Judge Kenneth G. Gale granted the defendant’s motion to compel the plaintiff to produce account information associated with his social media accounts as well as postings from the dates he missed work in conjunction with his injury claims against the defendant.  Judge Gale also granted most of the components of the plaintiff’s motion to compel against the defendant for various discovery requests.

Case Background

In this personal injury case against the plaintiff’s former employer, both parties filed motions to compel against the other.  The defendant asked for the plaintiff to list the names/account names “associated with [his] Facebook and Twitter accounts” and also initially asked for a broad category of information relating to the plaintiff’s social media presence.  After the plaintiff objected, the parties conferred and the defendant limited the scope of its requests to “all social network postings, messages, and photographs that he sent or received” on the work dates he claims he missed as a result of his injuries.  The plaintiff argued that the defendant’s requests for social media data were overly broad, irrelevant, and not proportional to needs of the case.

The plaintiff’s motion to compel related to discovery requests regarding prior injuries suffered by the defendant’s employees, notifications regarding defects or hazards on the defendant’s locomotives, prior notification of safety hazards or injuries relating to water on walkways, statements regarding the plaintiff’s claims, photos of the locomotive in question, and inspection and maintenance reports for the subject locomotive.  The defendant logged various objections to those requests.

Judge’s Ruling

In addressing the defendant’s motion to compel, Judge Gale stated:

“The Court finds that Defendant’s requests are relevant on their face. As stated above, unless a request is improper on its face, ‘the party asserting the objection has the duty to support its objections.’  Plaintiff has failed in this regard. To the contrary, the Court finds that the requests are highly relevant on their face as they seek evidence which could be germane to the extent of Plaintiff’s injuries and damages and state of mind.

Plaintiff has also failed to establish the overbreadth of Defendant’s requests. Following attempts to confer with Plaintiff, Defendant willingly narrowed the scope of the requests at issue. The Court does not agree that the access Defendant seeks to Plaintiff’s social media postings and messages is ‘unfettered’ when Defendant has limited the temporal (i.e. days Plaintiff missed work) and/or substantive subject matter scope of the requests”.

As a result, Judge Gale granted the defendant’s motion to compel.

Not all news was bad for the plaintiff; however, as Judge Gale granted his motion to compel regarding prior injuries and notifications, statements regarding the plaintiff’s claims and inspection and maintenance reports for the subject locomotive.  Only the plaintiff’s request for photos of the locomotive in question was denied.

So, what do you think?  Was the scope of the defendant’s request appropriate or was it overbroad?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

Can You Figure Out How I Wrote this Blog Post?: Best of eDiscovery Daily

Even those of us at eDiscovery Daily have to take an occasional vacation (which, as you can see by the picture above, means taking the kids to their favorite water park); however, instead of “going dark” for a few days, we thought we would take a look back at some topics that we’ve covered in the past.  Today’s post takes a look back at a little experiment I performed (which was two phones ago for me, by the way).  Enjoy!

______________________________

I have to be honest, this blog post contains quite a bit of content from one of the early posts from this blog.  However, there is something different about this version of the content – it looks a bit unusual.  Can you figure out how I wrote it?  See if you can figure it out before you get to the bottom.  I promise I haven’t lost my mind.

Types of exceptions file

It’s important to note that efforts to quote fix quote these files will often change the files parentheses and the meta data associated with them parentheses, so it’s important to establish with opposing counsel what measures to address the exceptions are acceptable. Some files may not be recoverable and you need to agree up front how far to go to attempt to recover them.

  • Corrupted files colon files can become corrupted 4 a variety of reasons, from application failures 2 system crashes to computer viruses. I recently had a case where 40 percent of the collection what’s contained in to corrupt Outlook PST file dash fortunately, we were able to repair those files and recover the messages. If you have read Lee accessible backups of the files, try to restore them from backup. If not, you will need to try using a repair utility. Outlook comes with a utility called scan PST. Exe that scans and repairs PST and OST file, and there are utilities parenthesis including freeware utilities parenthesis available via the web foremost file types. If all else fails, you can hire a-data recovery expert, but that can get very expensive.
  • Password protected files colon most collections usually contain at least some password protected files. Files can require a password to enable them to be edited, or even just to view them. As the most popular publication format, PDF files are often password protected from editing, but they can still be feud 2 support review parenthesis though some search engines May fail to index them parenthesis. If a file is password protected, you can try to obtain the password from the custodian providing the file dash if the custodian is unavailable or unable to remember the password, you can try a password cracking application, which will run through a series of character combinations to attempt to find the password. Be patient, it takes time, and doesn’t always succeed.
  • Unsupported file types corn in most collections, there are some unusual file types that art supported by the review application, such as file for legacy or specialized applications parenthesis E. G. AutoCAD for engineering drawing parenthesis. You may not even initially no what type of files they are semi colon if not, you can find out based on file extension by looking the file extension up in file ext. If your review application can’t read the file, it also can’t index the files for searching or display them 4 review. If those file maybe responses 2 discovery requests, review them with the natives application to determine they’re relevancy.
  • No dash text file colon files with no searchable text aren’t really exceptions dash they have to be accounted for, but they won’t be retrieved in searches, so it’s important to make sure they don’t quote slip through the cracks unquote. It’s common to perform optical character recognition parenthesis Boosie are parenthesis on Tiff files and image only PDF files, because they are common document 4 minutes. Other types of no text files, such as pictures in JTAG or PNG format, are usually not oser, unless there is an expectation that they will have significant text.

Did you figure it out?  I “dictated” the above content using speech-to-text on my phone, a Samsung Galaxy 3 (yes, that was three years and four versions ago, I will have to update the “experiment” soon to see if the speech-to-text is any better now on my Apple iPhone 6).  I duplicated the formatting from the earlier post, but left the text the way that the phone “heard” it.  Some of the choices it made were interesting: it understands “period” and “comma” as punctuation, but not “colon”, “quote” or “parenthesis”.  Words like “viewed” became “feud”, “readily” became “read Lee” and “OCR” became “Boosie are”.  It also often either dropped or added an “s” to words that I spoke.

These days, more ESI is discoverable from sources that are non-formalized, including texts and “tweets”.  Acronyms and abbreviations (and frequent misspelling of words) is common in these data sources (whether typed or through bad dictation), which makes searching them for responsive information very challenging.  You need to get creative when searching these sources and use mechanisms such as conceptual clustering to group similar documents together, as well as stemming and fuzzy searching to find variations and misspellings of words.

Want to see the original version of the post?  Here it is.

So, what do you think?  How do you handle informal communications, like texts and “tweets”, in your searching of ESI?   Please share any comments you might have or if you’d like to know more about a particular topic.

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.

No Victory Laps on Social Media: eDiscovery Trends

This is the second time this month I’ve covered a “social media gone wrong” story (here was the previous story I covered), but I just couldn’t ignore this story.

As covered by the ABA Journal (Clients drop firm after lawyer uses Twitter to celebrate ‘win’ against parents of disabled children, written by Martha Neil), a British law firm suffered a sudden loss of business over the last few days, after a series of tweets by a founding partner who serves as its managing director ignited a firestorm.

Mark Small of Baker Small heads a law firm known for its leading niche representation of local government councils defending against claims by parents seeking “special educational needs” funding for disabled children.  However, Small was perceived as “gloating” over a lack of funding for disabled children by a number of observers. They pointed to a tweet about “a great ‘win’ last week which sent some parents into a storm!” and a tweet apparently responding to criticism that included a photo of a kitten and said Baker had received “great tweets” and had “just shared them with my cat,” the newspaper reports.

By Sunday, with parents lobbying their own local authorities not to hire Baker Small again, the firm began to apologize for the tweets that upset the parents, deleting the tweets and flooding its Twitter feed with re-tweets that supported parents.

However, it may already be too late to reverse the damage.  At least eight local authorities, nearly half of the twenty represented by Baker Small in special-education cases have said they have either suspended their contracts with the firm or said they intend to do so, the Guardian reports.

When it comes to the ability to reach the world through social media posts, it’s important to remember that with great power comes great responsibility.  Victory laps on social media are often not a good idea.  Just ask this daughter of a laid off school administrator who told the world on Facebook to “SUCK IT”, costing her father an $80,000 discrimination settlement.

So, what do you think?  Have you ever made a social media post that you regretted?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

Virginia Politician’s Screen Grab Shows Porn Sites in Browser, He Gives ‘Testy’ Response: eDiscovery Trends

At least once a year, I like to cover a “social media gone wrong” story to remind us how careful we all need to be when communicating via social media.  This latest one illustrates that point quite well.

According to Gawker (Close Your Porn Tabs Before Posting Screenshots to Your Congressional Campaign Page, written by Ashley Feinberg) and numerous other sources, Virginia politician Mike Webb is running for Congressman in Virginia’s 8th District. On his Facebook page, he recently posted about Curzon Staffing Agency and how his difficulties in pursuing a job related to his decision to run for office.  He even posted a picture of a Yahoo search he “screen captured” regarding the staffing agency to his “Mike Webb for Congress” Facebook account.

Only one problem – he forgot to close his porn tabs first.

Right there, plain as day, are two tabs, one for “IVONE SEXY AMATEUR” and another partially displayed title – “LAYLA RIVERA TIGHT BO” (which Gawker has determined is a film called “LAYLA RIVERA TIGHT BOOTY”, after a little research).  I’ll take their word for it.

The post was on his page for over six hours before finally being taken down.  Webb later posted a lengthy follow-up post that attempted to explain the extraneous tabs on the previous post that began this way:

“Curious by nature, I wanted to test the suggestion that somehow, lurking out in the pornographic world there is some evil operator waiting for the one in a gazillion chance that a candidate for federal office would go to that particular website and thereby be infected with a virus that would cause his or her FEC data file to crash the FECfile application each time that it was loaded on the day of the filing deadline, as well as impact other critical campaign systems.”

I think we can all agree he is curious by nature.

Let’s face it, whether you’re the former social media manager of an NBA team, an NFL running back or the daughter of a laid off school administrator who tells the world on Facebook to “SUCK IT” after her father wins an $80,000 discrimination settlement, voiding the confidentiality agreement associated with the settlement (and, therefore, the settlement itself), it pays to think before you hit send.  Just ask Anthony Weiner.  Hey, at least he made it to Congress before the gaffe that undid his career… :o)

So, what do you think?  Do you know any good “social media fail” stories?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

Court Orders Plaintiff to Perform a “Download Your Info” From Facebook: eDiscovery Case Law

In Rhone v. Schneider Nat’l Carriers, Inc., No. 4:15-cv-01096-NCC, (E.D. Mo. Apr. 21, 2016), Missouri Magistrate Judge Noelle C. Collins ordered the plaintiff to disclose a complete list of her social media accounts to the defendant and also provide a “Download Your Info” report from her Facebook account from June 2, 2014 to the present within fourteen days and ordered the defendant to disclose to the plaintiff any and all posts, photos or other media from the report it intends to use in support of its defense.

Case Background

In this case, the plaintiff asserted that she sustained “severe physical injuries” as a result of a motor vehicle accident that occurred on June 2, 2014, when the vehicle driven by Third Party Defendant Charles Quinn, in which the plaintiff was a passenger, was struck from behind by Defendant Schneider National Carriers, Inc.’s (“Schneider”) vehicle driven by Defendant Dean Lilly.  The defendant requested production of any social media postings, photographs and/or videos posted by the plaintiff to any social media accounts since the date of the accident; in turn, the plaintiff objected and did not acknowledge the existence of any social media accounts.

However, according to Defendant Schneider, its own independent investigation uncovered that the plaintiff did have a Facebook account and may have also had a LinkedIn account and the information uncovered included “relevant information; specifically, comments and photos regarding physical activity such as dancing”.  The plaintiff initially objected to the defendant’s request for social media information as irrelevant, then provided a supplemental answer to the defendant’s request to indicate that no social media information was “related to this incident”.

As a result, the defendant requested that the plaintiff be required to provide a “Download Your Info” report from her Facebook account from the date of the accident, June 2, 2014, to the present. In the alternative, in the event the account or other social media content has been deleted, the defendant requested sanctions in the form of dismissal of the action with prejudice and attorney’s fees.  In response, the plaintiff indicated that the defendant had “failed to show that any evidence, whether relevant or irrelevant, has been deleted” and that the motion was moot as the defendant had already accessed the plaintiff’s Facebook account and printed at least 264 pages of Facebook postings; the defendant countered that sanctions are warranted because, although the plaintiff claimed not to have deleted any posts, its January 2016 download from the plaintiff’s Facebook account produced 441 pages of material whereas the same method in March 2016 retrieved only 226 pages of material.

Judge’s Ruling

In light of the information available, Judge Collins found that “Plaintiff has not fully and completely responded to Schneider’s production requests, even in light of her objections. Plaintiff did not initially disclose the existence of any social media accounts. However, Plaintiff does not deny that the Facebook account in question belongs to her. Furthermore, there is some indication that Plaintiff may have other social media accounts.  Accordingly, Plaintiff shall disclose to Schneider a complete list of Plaintiff’s social media accounts during the requested time periods.”

Judge Collins also ruled that “Plaintiff is directed to provide a ‘Download Your Info’ report from her Facebook account from the date of the accident, June 2, 2014 to the present. Plaintiff and Schneider shall consult regarding the process and the most effective means of disclosing this information. Thereafter, Schneider shall produce to Plaintiff, from this download, any and all posts, photographs, videos or other material that it intends to rely on for its case. However, the Court finds that, at this time, sanctions are unwarranted. Not only is it unclear whether Plaintiff has deleted any information, such a download from Facebook may afford Plaintiff the ability to recover any, even innocuous, information that may have been deleted.”

So, what do you think?  Should the court have required the plaintiff to download the info from her Facebook account?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

Well, That Didn’t Take Long! Apple v. the US Government Gears Up for Round Two: eDiscovery Trends

When the FBI was able to access the iPhone used by one of the gunmen in the San Bernardino terrorist shooting, effectively ending the six week dispute between Apple and the FBI over privacy and security, we said the battle was over – for now.  Apparently, “for now” was the same as “not for long”.

According to re/code (Apple-FBI Encryption Battle Shifts to New York, written by Dawn Chmielewski), the U.S. Attorney’s office notified a federal judge in Brooklyn on Friday that the government plans to press forward with its request to have Apple assist in unlocking a phone seized in a Brooklyn drug case, moving the low-profile case to center stage in the ongoing debate over encryption.

“The government’s application is not moot and the government continues to require Apple’s assistance in accessing the data that it is authorized to search by warrant,” U.S. Attorney Robert Capers wrote to the court.

Apple had requested a delay in the case until it could be determined whether the FBI’s new technique for hacking an iPhone 5c used by one of the San Bernardino shooters could also unlock the device in the Brooklyn case.

Back in February, a federal judge ordered Apple to give investigators access to encrypted data on the iPhone used by one of the San Bernardino shooters, a court order that Apple has fought, accusing the federal government of an “overreach” that could potentially breach the privacy of millions of customers.  That same day, Apple CEO Tim Cook published an open letter, pledging to fight the judge’s ruling that it should give FBI investigators access to encrypted data on the device.  And, the two sides battled over the issue in court until the FBI was successfully able to access the iPhone on its own toward the end of March.

As many predicted, it was only a matter of time before another dispute with a government agency over Apple security made its way to the courtroom.  When that government agency is not able to find a way to access the Apple device and requests assistance from the court, I would expect to see a long drawn-out court battle over the issue – one that privacy and security advocates will undoubtedly continue to debate.

So, what do you think?  Is this the case where the true battle between Apple and the US government will be waged?  Please share any comments you might have with us or let us know if you’d like to know more about a particular topic.

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.

If Google and Oracle are Going to Mine for Jurors’ Social Media Info, They Have to Inform the Court: eDiscovery Trends

When the big guys sue each other, the cases last forever.  We’ve been covering developments in the Apple v. Samsung case since July 2012, and that case is still going on.  Another case that we’ve covered a long time ago (way back in November 2011) is Oracle Corp. v. Google Inc. and that case is still going on too.  In that case, with a trial approaching, the judge has told lawyers to disclose Internet and social media research about jurors to the court or agree not to conduct it.

According to The Wall Street Journal (Google and Oracle Must Disclose Mining of Jurors’ Social Media, written by Jacob Gershman), U.S. District Judge William Alsup’s order urges both sides to respect the privacy of jurors.  He opened the order in this manner:

“Trial judges have such respect for juries – reverential respect would not be too strong to say – that it must pain them to contemplate that, in addition to the sacrifice jurors make for our country, they must suffer trial lawyers and jury consultants scouring over their Facebook and other profiles to dissect their politics, religion, relationships, preferences, friends, photographs, and other personal information.”

As the order notes, apparently, both sides requested that the Court require the jury pool to complete a two-page jury questionnaire.  Then, one side asked for “a full extra day to digest the answers, and the other side wanted two full extra days, all before beginning voir dire.”  Judge Alsup eventually realized that they wanted that time to “scrub Facebook, Twitter, LinkedIn, and other Internet sites to extract personal data” and when asked about it, “counsel admitted this.”

Using the example of a juror’s favorite book being To Kill a Mockingbird and counsel constructing a copyright jury argument based on an analogy to that work and to play upon the recent death of Harper Lee, Judge Alsup noted that one of the dangers of mining juror social media use is that lawyers will use the information to make “improper personal appeals.”  Opting against a total research ban, he offered this compromise:

“[T]he Court calls upon them to voluntarily consent to a ban against Internet research on the [jury pool] or our jury until the trial is over… In the absence of complete agreement on a ban, the following procedure will be used. At the outset of jury selection, each side shall inform the venire of the specific extent to which it (including jury consultants, clients, and other agents) will use Internet searches to investigate and to monitor jurors, including specifically searches on Facebook, LinkedIn, Twitter, and so on, including the extent to which they will log onto their own social media accounts to conduct searches and the extent to which they will perform ongoing searches while the trial is underway. Counsel shall not explain away their searches on the ground that the other side will do it, so they have to do it too.”

Apparently, however, both parties would not agree to ban the research.  As Judge Alsup noted in his order, “Google is willing to accept an outright ban on Internet research about the venire and our jury, provided the ban applies equally to both sides. Oracle, however, will not.”  Judge Alsup also noted that “[o]n numerous occasions, Oracle has supplied confusing answers to the Court’s inquiries about its plan”.

Judge Alsup instructed both parties to “inform the Court By MARCH 31 AT NOON, whether they will consent to a ban against Internet research on the venire or the empaneled jury until the trial is over.”  That’s today, so we’ll see what happens.

So, what do you think?  Should litigants be allowed to mine social media data of prospective jurors?  Please share any comments you might have with us or let us know if you’d like to know more about a particular topic.

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.

Breaking News: The BIG Battle between Apple and the FBI is Over – For Now: eDiscovery Trends

Last week, we reported that the FBI said that it might no longer need Apple’s assistance in opening an iPhone used by a gunman in the San Bernardino, Calif., rampage last year.  Looks like that was the case.

According to CNN Money (FBI says it has cracked terrorist’s iPhone without Apple’s help, written by Jackie Wattles and Laurie Segall), the Department of Justice says the FBI has accessed the iPhone used by one of the gunmen in the San Bernardino terrorist shooting, with the help of an unnamed third party.  Saying that it has successfully retrieved the data from the phone, the Justice Department is asking the court to vacate its order from last month for Apple’s assistance.

“The FBI has now successfully retrieved the data stored on the San Bernardino terrorist’s iPhone and therefore no longer requires the assistance from Apple required by this Court Order,” DOJ spokeswoman Melanie Newman said in a statement.

Government officials did not go into detail about what was found on the phone.

The two sides were due in court last week, but the judge granted a last minute request from the DOJ to postpone the hearing, saying an unidentified “outside party” came to the FBI with an alternative method for hacking into the phone.  On Monday, the DOJ said the method only works on this particular phone, which is an iPhone 5C running a version of iOS 9 software.

A law enforcement official, speaking to reporters on condition of anonymity, would not reveal how it pulled off this hack. He would not name the “third party” that helped the FBI. And he refused to say whether the FBI will disclose this hacking method to Apple so the company can protect future phones from being hacked this way.  “We can’t comment on the possibility of future disclosures at this point,” the law enforcement official said.

Last month, a federal judge ordered Apple to give investigators access to encrypted data on the iPhone used by one of the San Bernardino shooters, a court order that Apple has fought, accusing the federal government of an “overreach” that could potentially breach the privacy of millions of customers.  That same day, Apple CEO Tim Cook published an open letter, pledging to fight the judge’s ruling that it should give FBI investigators access to encrypted data on the device.  And, the two sides have battled over the issue in court over the past month.

So, who is this “outside party”?  Was Steve Jobs resurrected over the weekend?  It was Easter, after all.  :o)  Regardless, it appears that the dispute is over – at least until the next time that the DOJ and the FBI need to hack into an Apple device.

So, what do you think?  Do you think we will see more disputes like this in the future?  Please share any comments you might have with us or let us know if you’d like to know more about a particular topic.

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.

FBI May Be Able to Unlock Terrorist’s iPhone without Apple’s Help: eDiscovery Trends

In court on Monday, the FBI said that it might no longer need Apple’s assistance in opening an iPhone used by a gunman in the San Bernardino, Calif., rampage last year.

According to The New York Times (U.S. Says It May Not Need Apple’s Help to Unlock iPhone, written by Katie Benner and Matt Apuzzo), in its court filing, the government said an outside party had demonstrated a way for the FBI to possibly unlock the phone used by the gunman, Syed Rizwan Farook. The hearing in the contentious case — Apple has loudly opposed opening the iPhone, citing privacy concerns and igniting a heated debate — was originally set for Tuesday.

In its filing, the Justice Department, while noting that the method must be tested, stated that if it works “it should eliminate the need for the assistance from Apple”. The Justice Department added that it would file a status report by April 5 on its progress.  Judge Sheri N. Pym, the federal magistrate judge in the United States District Court for the Central District of California who was set to hold the hearing, agreed to grant the Justice Department’s motion to postpone the hearing.

As the article notes, “The emergence of a potential third-party method to open the iPhone was a surprise, as the government said more than a dozen times in court filings that it could open the phone only with Apple’s help. The FBI director, James B. Comey Jr., also reiterated that point several times during a hearing before Congress on March 1.”

Last month, a federal judge ordered Apple to give investigators access to encrypted data on the iPhone used by one of the San Bernardino shooters, a court order that Apple has fought, accusing the federal government of an “overreach” that could potentially breach the privacy of millions of customers.  That same day, Apple CEO Tim Cook published an open letter, pledging to fight the judge’s ruling that it should give FBI investigators access to encrypted data on the device.  And, the two sides have battled over the issue in court over the past month.

In the meantime, everyone from Google Chief Executive Sundar Pichai to Donald Trump has weighed in on whether Apple should help unlock the iPhone for the investigation.  In addition, Apple claimed that had the passcode to Syed Farook’s iPhone not been reset hours after the shooting (at the consent of the FBI), the company would have been able to initiate a backup of the phone’s data to its associated iCloud account in order to retrieve its contents.  And, PCWorld reported that if San Bernardino County had been using a Mobile Device Management (MDM) service on its employees’ devices, they “would have been able to clear the device’s passcode in a matter of seconds” and the whole issue would have been moot (at least this time).

So, what do you think?  Who is this outside party and will they be able to eliminate the dispute between Apple and the FBI or only delay it?  Please share any comments you might have with us or let us know if you’d like to know more about a particular topic.

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.

Craig Ball’s “Alexa-lent” Example of How the Internet of Things is Affecting Our Lives: eDiscovery Trends

I probably shouldn’t be writing about this as it will give my wife Paige another reason to say that we should get one of these.  Nonetheless, Craig Ball’s latest blog post illustrates how much data can be, and is being, captured these days in our everyday life.  Now, if we could just get to that data when we need it for legal purposes.

In Craig’s blog, Ball in your Court, his latest post (“Alexa. Preserve ESI.”) discusses how many cool things the Amazon Echo (with its “Alexa” voice command service) can do.  Sounding like he has gotten a little too up close and personal with the device, Craig notes that:

“Alexa streams music, and news updates.  Checks the weather and traffic.  Orders pizzas and Ubers.  Keeps up with the grocery and to do lists.  Tells jokes.  Turns on the lights.  Adjusts the temperature.  Answers questions.  Does math. Wakes me up.  Reminds me of appointments.  She also orders stuff from Amazon (big surprise there).”

Sounds pretty good.  Hopefully, my wife has stopped reading by this point.

Have you ever seen the movie Minority Report where Tom Cruise walks into his apartment and issues voice commands to turn on the lights and music?  Those days are here.

Anyway, Craig notes that, using the Alexa app on his phone or computer, he can view a list of every interaction since Alexa first came into his life, and listen to each recording of the instruction, including background sounds (even when his friends add heroin and bunny slippers to his shopping list).  Craig notes that “Never in the course of human history have we had so much precise, probative and objective evidence about human thinking and behavior.”

However, as he also notes, “what they don’t do is make it easy to preserve and collect their digital archives when a legal duty arises.  Too many apps and social networking sites fail to offer a reasonable means by which to lock down or retrieve the extensive, detailed records they hold.”  Most of them only provide an item-by-item (or screenshot by screenshot) mechanism for sifting through the data.

To paraphrase a Seinfeld analogy, they know how to take the reservation, they just don’t know how to hold the reservation (OK, it’s not completely relevant, but it’s funny).

In a call to action, Craig says that both “the user communities and the legal community need to speak out on this.  Users need an effective, self-directed means to preserve and collect their own data when legal and regulatory duties require it.”  I agree.  Some, like Google and Twitter, provide excellent mechanisms for getting to the data, but most don’t.

As Wooderson says in the movie Dazed and Confused, “it’d be a lot cooler if you did”.

So, what do you think?  Will the “Internet of Things” age eventually include a self-export feature?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.