Newsbits
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December 2012 (Topic 68): MWE eDiscovery malpractice case: Could "Trust and Verify" have helped?
In July 2011, we discussed the J-M v. WME suit concerning eDiscovery problems (1). As case moves through the courts, the judge is considering not J-Ms compliance with FRCP 502(b) (1) and (2), but rather (3): Did J-M promptly rectify the error?
Our observation is: could better controls by WME have prevented the issue? Based on the article by E. Partick Buntz, it appears keyword searching filters failed to identify such common terms as "Attorney Client Privilege." (2)
The use of Private Investigators, who specialize in computer forensics and eDiscovery, could have been a "second set of eyes." Articles on the case indicate MWE relied on one firm at a time to do the work for them.
In 1987, President Ronald Reagan admonished us to "Trust and Verify." A very simple concept: get at least two positive confirmations to each piece of evidence prior to relying on it.
(1) J-M Manufacturing Company, Inc. v. McDermott Will & Emery, California Superior Court, Los Angeles County - Central District, Case No.: BC 462832
(2) Our newsbit is very condensed. A much more complete outline of the case can be found at: http://mccumberdaniels.wordpress.com/2012/03/20/e-discovery-lesson-you-dont-want-to-be-the-next-mcdermott/
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November 2012 (Topic 67): NO Expectation of Privacy in Cell Phone GPS signal
DEA tracked drug dealer, Skinner, from a GPS enabled cell phone number obtained during the course of an investigation. They obtained a court order, but not a Search Warrant, "to track his whereabouts." (1) Skinner was convicted based on this and other evidence. The 6thDCoA upheld the conviction. (2) There are many good, opposing opinions in the blog. Once again, technology is way ahead of the Law.
(1) http://blogs.wsj.com/law/2012/08/14/sixth-circuit-no-expectation-of-privacy-in-cell-phone-gps-data/
(2) http://www.ca6.uscourts.gov/opinions.pdf/12a0262p-06.pdf
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October 2012 (Topic 66): Do you rely on your client's IT Department or Experts for computer forensics?
Situation - Your client has valuable computer data taken by employees.
A few good reasons why NOT to rely on the client's IT personnel to do forensics: 1. Most IT persons are busy trying to maintain a system. 2. When it comes to testifying, will the IT people pass Voir Dire? 3. Have they followed the industry standard of care in designing the network? 4. Have they followed standards in which employees have access and permissions to delete data? 5. How do you know what they are looking for or will find the data, or do they have a vested interest in the outcome? 6. What levels of expertise do the IT personnel have in computer forensics?
If IT personnel resist hiring of outside experts you should be concerned. It might not just be a cost / benefit analysis they are pushing on the client.
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September 2012 (Topic 65): Apple security enhancements stifle forensic investigations
Using cryptography (software) and integrating it with hardware, Apple has created security improvements which make imaging evidence on iPhones, iPads, and hard disk drives nearly impossible. The application of these technologies can be a blessing or curse to those tasked with investigating criminal and civil evidence. Apple is using the NSA's AES-256 key which is unique to the device it is attached to. Apple says it does not keep records of the key.
(1) For a more complete story see: http://www.technologyreview.com/news/428477/the-iphone-has-passed-a-key-security-threshold/?nlid=nldly&nld=2012-08-13
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August 2012 (Topic 64): Stolen Cell Phones can be disabled by provider
The FCC and phone companies have created a database to disable stolen cell phones when reported to law enforcement. It should be available by the end of this year.* Password protecting the phone is a must to secure your data. Quick reporting is the key. New phones can automatically back up your data.
* Until then contact your provider to block the number.
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July 2012 (Topic 63): Who Owns Your Social Media Contacts?
Social Media is tied-into our everyday business. A court in England recently ruled a departing employee's business related LinkedIn contacts are IP of the employer. This article, which came from LinkedIn and a Forbes (link below), also noted a US court took an opposing view. Will this issue end up in The Hague?? Regardless, it does point out the need for a good non-compete clause in employment contracts. More recently PhoneDog is suing former employee Noah Karvitz over the Twitter his use of @PhoneDog_Noah
http://www.ibtimes.com/articles/273210/20111227/phonedog-sues-ex-employee-noah-kravitz-twitter.htm
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June 2012 (Topic 62): Wi-Fi used by Police to find Child Pornography
Child Pornography (CP) is condemned by society. CP is a Law Enforcement (LE) issue as much as a social issue. The police are using a "new" device. It uses the open airwaves to capture and analyze Wi-Fi signals from a "suspect" system. The problem: if some else is tapping into that Wi-Fi spot, it appears the owner of the Wi-Fi spot is, accessing or otherwise, involved in CP. This may or may not be the case. Defense Counsels need to be aware of this technology. LE may or may not have the training to decipher the difference and may not provide exculpatory evidence. (1)
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May 2012 (Topic 61): Digital Search Warrants
CPC 1526(D)* permits digitally signed Search Warrants. While not a new concept, it will cut down the time between LEO's need for a SW and its issuance. Defense Counsel and their Investigators must scrutinize these as with any other SW. Just because it is digital does not mean probable cause or the other elements of issuance should automatically be assumed correct.
* 1526. (D) The magistrate shall transmit via facsimile transmission equipment, electronic mail, or computer server, the signed search warrant to the affiant who shall telephonically acknowledge its receipt. The magistrate shall then telephonically authorize the affiant to write the words "duplicate original" on the copy of the completed search warrant transmitted to the affiant and this document shall be deemed to be a duplicate original search warrant. The duplicate original warrant and any affidavits or attachments in support thereof shall be returned as provided in Section 1534.
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April 2012 (Topic 60): Web Searching and Social Media
Web content is increasing at a staggering rate (1). Social media content is growing even faster. Bing, Google, and Microsoft are integrating Facebook and Twitter into their search engines. What does this mean to the legal profession? You should be using every resource to learn ALL you can about the parties to your lawsuits. Is your WC Injury or employment case client/claimant posting their activities on Facebook or YouTube? Is your criminal defendant or someone else bragging about the crime on Twitter or MySpace? Is your corporate client discussing their employee, financial, IP, or trade secrets on Linked-In or Yahoo Groups? Due Diligence Searches should be part of every case.
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March 2012 (Topic 59): Digital Image Challenges
Film is out. Digital Images are in. Manipulation of images is relatively easy using programs such as Photo Shop®. Defensible procedures and well written reports are needed to substantiate the forensic value of images. Technology is ahead of the Law in this area. Here are some tips on authentication of images relevant to both sides in civil and criminal cases: (1)
- How was the memory card handled? Was the camera date and time compared to a local watch? Sometimes cameras do not have the date and time set properly.
- How are images transferred and stored? Were there other cases on the same card? Was there a Chain of Custody form to track handling of the images?
- Most digital images can be changed without detection. Did someone "Hash" the image on the memory card before and again on the transferred image to storage?
(1) http://www.dfinews.com/article/can-your-digital-images-withstand-court-challenge?page=0,1
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February 2012 (Topic 58): Cell Phone Call Tracking
The 911 system can give an approximate location of a cell phone. However, only law enforcement can get this information in "real time," if the cell service provider cooperates. Cell phones with GPS enabled can be located with a greater degree of accuracy by law enforcement, or a service which sends a notification to another phone.
How can you track a cell phone, after the fact, for a civil or criminal case? Subpoena the cell service provider, but be very specific about the data you require. Otherwise, you will get a lot of information which cannot be correlated to the call. Contact us with "Cell Phone Data Template" in the Subject Line and we will send you an Excel Template of the data fields needed to track cell calls.
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January 2012 (Topic 57): Spoliation Costs VA PI attorney $542,000 and his career
1. Are the penalties for counseling a client to "clean up" potentially damaging evidence worth the price? In this case, Plaintiff's attorney had their client remove negative images on their Facebook account, even though the case went in their favor. The court fined both the attorney and the client.
Look at: Lester v. Allied Concrete Company Virgina (citiation below)2. Do you give the same weight to personal social media as other digital evidence? Do you include a Litigation Hold on all party's personal social media? Law Enforcement uses social media to develop evidence against a suspect. Your licensed Private Investigators should be searching social media on all parties to help support your case or impeach the other side.
Social Media review is part of our background investigations.