Supreme Court Accepts an Electronic Communications Privacy Appeal
December 17, 2009
The U.S. Supreme Court has agreed to hear an appeal concerning privacy rights to electronic communications. The case comes out of the Ninth Circuit: Quon v. Arch Wireless, 529 F.3d 892 (9th Cir. 2008). It involves an employer reading an employee's text messages, sexy ones at that, where the Ninth Circuit ruled for the employee. The Supreme Court could use this appeal as an opportunity to write an opinion that not only broadly impacts privacy rights of all U.S. citizens, but also impacts employee rights, public record disclosure duties, and the scope of electronic discovery. I have written about this case and the privacy rights issues many times on my blog, and am delighted to see the Supreme Court is willing to take a look at this area. My "emergency blog" post this week, right after the Supreme Court's announcement that it would accept certiorari, talks about the Quon case, the Court's acceptance, and how it might rule. (By the way, I finally have an easier to remember domain name for my blog: e-DiscoveryTeam.com.)
Will Smarter TIFFs from Microsoft Change E-Discovery?
December 10, 2009
I trust you know, dear reader, that the only thing dumber than a TIFF file is converting your entire e-discovery collection to TIFF images for review. But, while wholesale TIFF conversion will forever be monumentally stupid and profligate, it appears TIFF files just acquired a few brain cells.
At risk of being revealed as the last kid on the block to figure this out, I learned today that Microsoft offers a way to smarten up TIFF images such that load files–those hinky, stinky electronic bills of lading that must accompany TIFF image productions to make them usable–may no longer be needed.
For those new to this topic, TIFF stands for Tagged Image File Format. Think of a TIFF as a still photo of a document, either one snapshot per page (single page TIFF) or a snapshot of all the pages laid out on the floor (multipage TIFF). I call TIFFs "dumb" because, unlike the native electronic versions of the documents they replace, TIFFs can't be searched electronically and don't function like native files. To anthropomorphize, TIFFs are so dumb, they don't know what they say. They're especially brain dead when used to replace spreadsheets or other formats which wither on the printed page. To offset their low IQ, TIFFs need literate escorts in the form of load files carrying the document's textual content and metadata.
Of course, there's long been a way to pair an image of a document with its textual content and metadata. It's called Portable Document Format or PDF, and it's made a boatload of cash for Adobe Corporation. Need to download a tax form from IRS.gov? It'll be a PDF document. Want to electronically file a pleading in federal court? Be sure it's a PDF or the Pacer filing system won't accept it. PDF is a pretty smart format. It even stores video, audio and animation or the binary source of any file.
So, if native formats are optimum and PDF is so smart, why does anyone still use TIFF for e-discovery? That's the billion dollar question. Is it because of the clout of companies hawking entrenched TIFF-dependent tools and services from the horse-and-buggy time when e-discovery meant scanning and coding paper documents? Or do lawyers so cling to paper and Bates numbers that they turn a blind eye to the staggering cost of their intransigence? Whatever the reason, you can be sure it comes down to someone making more money from lesser technology.
As you gather, I'd pretty much written off TIFF as yesterday's news when today's news mentioned that Microsoft just released a document detailing the purpose and structure of three custom tags which the Microsoft Office Document Imaging (MODI) tool can embed in TIFF images. It's long been possible to embed minimal metadata in a TIFF, e.g., identifying the scanner that made the image, but nothing of much value in e-discovery–certainly nothing to rival a PDF. I'd paid little attention to MODI since it was first introduced because it seemed just another Microsoft bell and whistle that no one rang or blew.
Then, on December 9, 2009, Microsoft revealed the purpose of the catchy-named "Private Tag 37679" and–yowza!–it's a way to embed the text of a document into a TIFF image of the document in UTF-8 format! Don't you just wish you had a little party horn to toot right about now? A little digging revealed that Tag 37679 has been around for years but it was as undocumented as a Wal-Mart cleaning crew. People could pretty obviously guess what the tag was for, but they couldn't be certain how to implement it
That's nothing new with Microsoft. They're notorious for embracing an open standard, adding a few undocumented tweaks and labeling it a "new" proprietary standard. Star Trek fans liken Microsoft to the Borg, a race of cybernetic organisms that destroy other races by compulsory assimilation, against which, "resistance is futile." Mentioning the Borg gives me an excuse to attach a picture of Borg Seven of Nine (played by actress Jeri Ryan). C'mon, would you really prefer a picture of a gavel or the Microsoft logo?
To its credit, by finally and formally documenting Tag 37679 and two other private tags, Microsoft makes it feasible for others to develop tools to read and write text searchable TIFFs. Will anyone support the MODI TIFF format? Doubtful, as a TIFF with embedded text is a far cry from native production or even PDFs. TIFF will probably continue its inexorable slide into e-discovery oblivion. But, just in case TIFF limps along, it's nice to know that there's a way–blessed by none other than Microsoft–to make TIFFs text searchable without a load file.
Searching ESI: A Lesson from Aunt Judy
December 9, 2009
Imagine you borrow your buddy's mobile to phone your wife. When you type in her cell number and hit send, the phone recognizes the number as belonging to "Aunt Judy." Huh? Your wife's name is Cindy. Suspicions aroused, you start poking around in the text messages and find exchanges confirming that "Aunt Judy" and your trusted pal have been doing the horizontal mambo. Ouch!
That apparently triggered the sleaze fest swirling around Republican Senator John Ensign of Nevada, whose dalliances with his campaign treasurer, Cynthia Hampton, prompted questions about the Senator abusing his office to funnel hush money to Cindy and her cuckolded husband, Bob, a longtime friend and aide to the senator. Unlike the fictional corrupt womanizing Nevada Senator Pat Geary in The Godfather II, there was no Michael Corleone to make it all disappear; but, it sounds like Senator Ensign nonetheless labored to find patroni with the fortunes to play godfather to Hampton.
The e-discovery lesson? A search for "Cindy," "Cynthia" or "Hampton" wouldn't have turned up the randy exchanges with "Aunt Judy;" but in all likelihood, a search for her phone number would have done so. When framing searches, remember that all of us have electronic aliases in the form of phone numbers, e-mail addresses and messaging avatars. Be sure to include phone numbers, e-mail addresses and messaging identities as queries when searching for information about and communications to or from persons of interest.
What do The Sedona Conference, Supreme Court Justice Stephen Breyer, and Bob Dylan have in common?
November 11, 2009
Read my latest blog to find out. I'll give you a hint. Remember the song, Ballad of a Thin Man with this great line:
Because something is happening here
But you don’t know what it is
Do you, Mister Jones?
Mister Jones has another name, Bill E. Boie. At least that is what my past blog guest writer, Bill Hamilton, head of Holland & Knight's e-Discovery team, called him in his great satire, the Non-Cooperation Proclamation.
Turns out that Justice Breyer is no Mr. Jones or Bill E. Boie. He indeed gets it and has added his comments to a special publication of the Sedona Conference Journal.
It is really not that hard to cooperate. Attorneys do it all of the time in areas where they know what they are doing. Pre-trial stipulations come to mind, as do evidence stipulations, not to mention mediations and other forms of ADR. But it is hard to cooperate on electronic discovery when you are not comfortable with the field and do not know what you are doing. For instance, you may not know if a particular issue or concession is important or not. When you do not know, you tend to treat everything as critical. Something is happening here, but you don’t know what it is. You are afraid of making a mistake that will cost your client. You are afraid of looking stupid. For those reasons, you object to everything your adversary wants.
For the rest of my commentary, see: A Supreme Court Justice Writes the Preface to a Sedona Conference Journal on the Cooperation Proclamation.
The ESIs of Texas
November 10, 2009
Craig Ball's November column:
My home state of Texas was the first to enact a discovery rule dealing with electronically stored information. Years before the federal rules amendments, and in four simple sentences, Rule 196.4 addressed a litigant's right to discover ESI, the scope of e-discovery, forms of production and cost shifting. The rule was either so completely successful or so utterly ignored that it wasn't cited in a published decision for nearly a decade.
So, when the Texas Supreme Court — the state's highest tribunal — issued its first e-discovery opinion, I listened to oral arguments. In re: Weekley Homes, 52 Tex. Sup. Ct. J. 1231 (2009), concerned a litigant's right to directly access an opponent's storage media. The plaintiff wanted to run 21 search terms against the hard drives of four of defendant's employees in an effort to find deleted e-mails from 2004. I eagerly anticipated insightful arguments by advocates who grasped the important technical and legal issues afoot, but what I heard would make a hearse horse snicker. Judge for yourself by listening to the arguments at http://tinyurl.com/weekleyhomes.
More Noise About Qualcomm Case
November 3, 2009
See Lawyers in Discovery Scandal Say Qualcomm Lied (from The Recorder)