Adroit Photo Forensics review
December 31, 2009
A review of Adroit Photo Forensics is now online here with follow up discussion available here. Many thanks to Austin Troxell for the review.
Secret mobile phone codes cracked
December 29, 2009
A German computer scientist has published details of the secret code used to protect the conversations of more than 4bn mobile phone users. Karsten Nohl, working with other experts, has spent the past five months cracking the algorithm used to encrypt calls using GSM technology... More (BBC)
Case in Point 2009-12-28 05:00:17
December 28, 2009
About ‘Case in Point’ – ‘Case in Point’ is a weekly cartoon series, created by CaseCentral Corporation, that illustrates the lighter side of eDiscovery. ‘Case in Point’ also runs a contest inviting anyone from the expansive eDiscovery realm – lawyers, IT staff, judges, service providers, paralegals, writers and consultants – to submit their own humorous experience or a scenario they find particularly funny. Participants may submit cartoon ideas online at http://www.casecentral.com/caseinpoint/idea for consideration. Readers who see their idea turned into a cartoon will receive a copy of the final cartoon signed by the artist, Tom Fishburne.
Permission to reproduce ‘Case in Point’ cartoons is granted on the conditions that any cartoon used is reproduced “as is” and that the re-use is not for purposes of resale or direct compensation. Please provide CaseCentral with a copy of any such use by sending an email with attached sample to: caseinpoint@casecentral.com.
Case in Point mailing list – Visit www.casecentral.com/caseinpoint/mailsignup/ to have Case in Point sent weekly to your eMail. To opt out, send an email titled “UNSUBSCRIBE” to caseinpoint@casecentral.com.
Case in Point Resources – Get the ‘Case in Point’ one year anniversary screen saver: www.casecentral.com/case-in-point/resources/ or ‘Case in Point’ mobile for your iPhone or Blackberry: www.casecentral.com/case-in-point/mobile/.
About the cartoonist – CaseCentral is pleased to feature Tom Fishburne as the cartoonist behind ‘Case in Point.’ See Tom’s bio here: http://www.tomfishburne.com/tomfishburne/bio.html
About CaseCentral – Case in Point is sponsored by CaseCentral. Visit www.casecentral.com to learn more about CaseCentral’s eDiscovery products and services.
“International Man of Mystery” Sanctioned for Contempt of Court and Intentional Spoliation
December 23, 2009
TR Investors, LLC v. Genger, 2009 WL 4696062 (Del. Ch. Dec. 9, 2009) (Unpublished)
In this case, defendant Arie Genger was held in contempt and found to have intentionally spoliated relevant documents in violation of a court order following his instruction to his personal IT consultant to wipe the unallocated space of his company’s computer system which his consultant then carried out. Declining to impose terminating sanctions, the court instead ordered that Genger produce 10 documents previously subject to a claim of privilege, that the burden of persuasion as to Genger’s affirmative defenses and counter-claims be raised one level, that Genger was precluded from prevailing on any material factual issue by reason of his testimony alone, and that Genger pay for plaintiffs’ reasonable attorneys’ fees and expenses in the amount of $750,000.
As of June 2008, defendant Genger was the Chief Executive Officer of TRI, a company that he founded. Plaintiff, The Trump Group, owned a sizeable portion of the company’s stock and had representatives on the board of directors. Eventually, for reasons unimportant to the discovery issues at hand, TRI sought to take over the company and to remove Genger from his position. Litigation ensued. While attempting to settle their disputes, the parties submitted to the court a stipulated status quo order which included a provision that prohibited tampering with or destroying company records.
It turned out that Genger was not a run of the mill CEO. Instead, aside from his usual business interests, Genger had high level contacts within the Israeli government for whom he performed “sensitive tasks” related to Israel’s national security. (As the court noted, “[a]lthough Mike Myers may have made millions by bringing to the big screen his take on what it is like to be an "international man of mystery," Arie Genger, as it turns out, is such a man.”) Highly sensitive documents related to his Israeli contacts were stored on his work computer and server, along with other personal documents. Concerned that his personal information would be viewed by members of The Trump Group, Genger undertook to segregate his personal documents from those relevant to the litigation. In doing so, Genger was substantially assisted by attorneys for TRI who in turn employed an outside technology firm to identify and encrypt personal confidential documents and to preserve documents related to the business of TRI.
When imaging TRI’s computer system, however, the outside technology firm failed to capture the unallocated space. Nor did they review TRI’s email server, because it was maintained off-site, and they were not made aware of it. Thereafter, Genger’s personal IT consultant, Oren Ohana, informed Genger that non-encrypted versions of his personal files may be present in the unallocated space on TRI’s system, despite the technology consultants’ efforts to protect their confidentiality. Ohana then ran wiping software to “take care of” the problem. Because the consultants failed to capture the unallocated space, the deleted data had not been preserved by their efforts. Neither Genger nor Ohana informed anyone of their actions, even when obvious opportunities to do so arose. When “caught,” Genger claimed his actions were merely intended to erase copies of any unencrypted versions of his personal documents. For a myriad of reasons, including the suspicious timing of the deletion, the technical savvy of Ohana, and the parties’ failure to disclose their actions, the court did not accept this justification.
To establish civil contempt, the court noted, the petitioner must “demonstrate that the [contemnors] violated an order of this Court of which they had notice and by which they were bound.” Rejecting Genger’s claims that he was merely disposing of copies of documents and his defense that there was no evidence that “any particular documents were lost”, the court identified several documents that were “likely” to have been erased by Genger’s actions and found him in contempt of court.
Turning to the issue of spoliation, the court identified the need for a showing of intentional or reckless spoliation of documents subject to a duty to preserve to justify the imposition of dismissal claims of an adverse inference. Specifically as to an adverse inference, the court went on to note, there must also be a showing that the “allegedly destroyed evidence existed and supported the aggrieved party’s position.”
The court found that Genger spoliated evidence. In so holding, the court first found that Genger was under a clear duty to preserve as evidenced by both the ongoing litigation and the clear language of the Status Quo Order. The court next found that the spoliation was intentional or, “at the very least reckless,” stating, “If Genger believes that running wiping software without advice of counsel or court permission in this context does not constitute recklessness, he has an unusual dictionary. The law uses a more traditional lexicon.” Finally, the court found that The Trump Group had met its burden of showing that relevant documents were destroyed as evidenced by the existence of relevant documents that were not found on Genger’s or TRI’s computer systems (and thus, reasoned the court, were likely deleted by the wiping of the unallocated space.)
Having found Genger in contempt and having determined that he participated in the spoliation of relevant documents, the court turned the question of sanctions. The court laid out the appropriate considerations: “(1) the culpability of the spoliating party; (2) the degree of prejudice suffered by the aggrieved party; and (3) the availability of lesser sanctions that could both avoid unfairness to the aggrieved party and serve as an adequate penalty to deter such future conduct.”
With these considerations in mind, the court first found that “Genger was improperly motivated and intended to limit the Trump Group’s ability to gather evidence” but also that “part of his motivation was to protect the confidentiality interests of his personal information.” Next, the court found that the Trump Group did not suffer a high degree of prejudice” because the misconduct only affected unallocated space and in light of the Trump Group’s own bad conduct which, although insufficient to warrant denying TRI relief, was “relevant in deciding to deny default judgment.” Finally, the court found the extreme remedy of default judgment inappropriate where lesser sanctions were sufficient.
Accordingly, as noted above, the court ordered that Genger produce 10 documents previously subject to a claim of privilege, that the burden of persuasion as to Genger’s affirmative defenses and counter-claims be raised one level, that Genger was precluded from prevailing on any material factual issue by reason of his testimony alone, and that Genger pay for plaintiff’s reasonable attorneys’ fees and expenses in the amount of $750,000 – an amount suggested by the judge as reasonable.
A copy of the full opinion is available here.
Digital Forensics Research Challenge Results Released
December 22, 2009
The results and winners of the 2009 Digital Forensics Research (DFRWS2009) Challenge were announced at the 9th Annual DFRWS Conference. This challenge delves into gaming consoles from a forensic perspective, combining UNIX file system forensics, memory forensics, and network forensics. The winning submission was from Wouter van Dongen and Alain van Hoof at University of Amsterdam System & Network Engineering...
Case in Point 2009-12-21 05:00:08
December 21, 2009
About ‘Case in Point’ – ‘Case in Point’ is a weekly cartoon series, created by CaseCentral Corporation, that illustrates the lighter side of eDiscovery. ‘Case in Point’ also runs a contest inviting anyone from the expansive eDiscovery realm – lawyers, IT staff, judges, service providers, paralegals, writers and consultants – to submit their own humorous experience or a scenario they find particularly funny. Participants may submit cartoon ideas online at http://www.casecentral.com/caseinpoint/idea for consideration. Readers who see their idea turned into a cartoon will receive a copy of the final cartoon signed by the artist, Tom Fishburne.
Permission to reproduce ‘Case in Point’ cartoons is granted on the conditions that any cartoon used is reproduced “as is” and that the re-use is not for purposes of resale or direct compensation. Please provide CaseCentral with a copy of any such use by sending an email with attached sample to: caseinpoint@casecentral.com.
Case in Point mailing list – Visit www.casecentral.com/caseinpoint/mailsignup/ to have Case in Point sent weekly to your eMail. To opt out, send an email titled “UNSUBSCRIBE” to caseinpoint@casecentral.com.
Case in Point Resources – Get the ‘Case in Point’ one year anniversary screen saver: www.casecentral.com/case-in-point/resources/ or ‘Case in Point’ mobile for your iPhone or Blackberry: www.casecentral.com/case-in-point/mobile/.
About the cartoonist – CaseCentral is pleased to feature Tom Fishburne as the cartoonist behind ‘Case in Point.’ See Tom’s bio here: http://www.tomfishburne.com/tomfishburne/bio.html
About CaseCentral – Case in Point is sponsored by CaseCentral. Visit www.casecentral.com to learn more about CaseCentral’s eDiscovery products and services.
More on DECAF
December 18, 2009
DECAF takes an interesting turn at decafme.org plus Cyberspeak interview at http://cyberspeak.libsyn.com/index.php?post_id=561335
Western District of Oklahoma Adopts Best Practices for Electronic Discovery in Criminal Cases
December 17, 2009
If you needed more proof that electronic discovery is not just for civil cases, the Western District of Oklahoma has adopted “Best Practices for Electronic Discovery of Documentary Materials in Criminal Cases.” Adopted on August 20th, these Best Practices recognize the lack of guidance in Federal Rule of Criminal Procedure 16 or in U.S.C. § 3500 regarding the production of discovery materials in electronic from and are intended to “summarize proposed electronic discovery practices.”
Included in the Best Practices are requirements that counsel for the parties shall, by a time proscribed, address issues including the volume of discovery, the litigation capabilities of counsel, and timeframes for production, among other things. Additional requirements include the production of electronically stored information in .PDF format, the production of an index identifying the “source and/or nature of the materials” produced, and mandatory good-faith discussions of possible cost-sharing measures when handling voluminous discovery.
A full copy of the Best Practices are available here.
Thursday’s Three Burning Legal Questions
December 17, 2009
Here are today’s three burning legal questions, along with the answers provided by the blawgosphere. 1) Question: I am the director of a theatrical version of “The Graduate” at the local nonprofit theater. We need to provide Mrs. Robinson with a lighted cigarette on stage so she can do a dramatic exhale of a puff of smoke like in the movie. Now the sheriff is telling me that this will violate the Clean Air Act, which prohibits smoking in any indoor area. He says I need to use talcum powder, or a prop cigarette with a reflective tip. What?? Is this true? I cannot work under these conditions! Answer: Are you in Colorado? Then go get the talcum powder. (On Point News, Colorado Judge Fumes Over Ban on Theatrical Smoking) 2) Question: Can you help me find a conference dedicated solely to the subject of yawning? Answer: No problem. (idealawg: In Paris next June: 1st International Conference on Yawning) 3) Question: I’m about to cross-examine Santa Claus. He thinks he is so pure and loved. Do you have any ideas on how I can take him down a peg or two in front of the jury? Answer: You need to…
IntaForensics launches hunt for next generation of computer forensics experts
December 17, 2009
With the demand rising rapidly for computer forensics, Nuneaton-based computer forensics firm IntaForensics has enjoyed rapid growth. Now, the firm is launching a free 5-day intensive training course to attract the interest of local graduates...