"The authenticity of a found document:

Hmm, interesting problem that can torpedo a case. Does your firm's IT department employ effective document management policies?

"What seems to be the problem? Your IT organization has put in place proper procedures [PDF] for deleting electronic documents, including e-mails. So it is no surprise when as a result of litigation your e-discovery process cannot turn up a particular document. However, to everyone's surprise the document turns up on your CEO's laptop. This is a very possible scenario. You must know whether the document is admissible as evidence in a civil lawsuit.

"What do you need to know? Evidence is admitted in court only if it can be shown that the evidence is authentic. Authentic data must follow a chain-of-custody. So how does this work with a lost document that has now been found?"

Find more key questions for IT in the balance of this article from Storage

Author David Hill is the founder and principal at the Mesabi Group...an industry analyst firm that focuses on networked storage and storage management.


"Still Guilty After All These Years"

Very interesting op-ed in the NY Times from author & lawyer Scott Turow, all about how advances in forensic technology may also impact statutes of limitations. He raises some intriguing questions about changes in law & the passage of time:

"THIS Friday a 33-year-old man named Juan Luna will go on trial here for the murder of seven people in a Brown’s Chicken restaurant in Palatine, Ill., on Jan. 8, 1993. The investigation of the murders, in which the victims’ bloody corpses were discovered in the restaurant freezer, languished for more than a decade until Mr. Luna’s DNA was identified in the saliva found on a chicken bone at the crime scene.

[snip]

"Greater accuracy in the truth-finding process is a laudable development. But I worry that the growing capacity of today’s forensics to reach farther and farther into the past seems likely to undermine the law’s time-ingrained notions, embodied in statutes of limitations, about how long people should be liable to criminal prosecution. As the Brown’s Chicken case illustrates, DNA analysts [PDF] can now examine scant decades-old specimens and produce results of near-certainty in identifying suspects. Nor are the innovations in forensic science limited to the testing of human DNA. Forensic botany can often establish whether plant fragments found on a victim or defendant have a unique origin. Fire-scene investigation has advanced because of new extraction techniques and instrumentation. Fingerprint identification has been revolutionized both by cryogenic processes for lifting latent prints and computer imaging that allows faster and more reliable identification of partial prints. Forensic pathology, ballistics and forensic anthropology have also moved ahead rapidly.

[snip]

"The law is a fluid thing, and there is an inherent unfairness in initiating a prosecution decades later when legal rules and community expectations have changed. If a jury — or the police and prosecutors — now strongly disapprove of conduct to which they would have once turned a blind eye, it’s natural to wonder whether the defendant would have acted the same way in today’s ethical climate.

"Statutes of limitations have also traditionally embodied a moral judgment that if a person has lived blamelessly for a significant time, he should not have the anxiety of potential prosecution hanging over him forever. Violent crimes are usually the province of young men, and it is often the case that one of the principal purposes of the criminal justice system — keeping the criminally inclined off the streets — vanishes with time."


"Investigator: Paralegal filed false complaint"

Oh, this news can't be good for anyone:

"A Marine paralegal who reported that she overheard guards at Guantanamo Bay brag about beating detainees was accused by a military investigator of filing a false report, the paralegal’s boss, a Marine officer, said Friday.

"Army Col. Richard Basset, who was ordered by the U.S. Southern Command to investigate the allegations into guards’ actions, met the paralegal, Marine Sgt. Heather Cerveny, late last year at Camp Pendleton, Calif., where she is based, according to Marine Lt. Col. Colby Vokey.

"Basset told Cerveny the guards denied her account of their conversation in a Guantanamo bar — and the investigator accused her of having made a false statement, Vokey told The Associated Press in a telephone interview."


"Trials & Tribulations of New Rules on EDD"

Could not understanding EDD issues -- both evidence rules & technology -- amount to malpractice? Oh, yeah, I think so, especially if the client didn't 'know' not to monkey with hard drives:

"During discovery in a securities case in the Northern District of Florida, Miami attorney Michael Kreitzer's client wanted to see e-mails between two of the defendants. The defendants claimed that the hard drives on which the e-mails were stored had failed, and that all the data were lost.

"Kreitzer, the chair of the litigation group at Bilzin Sumberg Baena Price & Axelrod in Miami, persuaded the judge to order the defendants to produce the hard drives, and had them forensically examined.

"That examination found that the defendants had attempted to overwrite the hard drive five times to wipe out the data. Kreitzer asked the judge to instruct the jurors that they could presume that the information formerly stored on the hard drive was adverse to the defendants. The judge granted his request. The case ended in a confidential settlement."

BTW, this article describes how to destroy data on your own hard disk by overwriting it.


"E-Discovery May Target Unexpected Sources"

Yes, even more information is now subject to discovery, but really, iPods too??

"On Friday [12/1/2006], the long-discussed and much-awaited amendments to the Federal Rules of Civil Procedure (FRCP) went into effect. Among the elements of these amendments are changes to how electronic evidence is treated in discovery.

"This issue and the changes to the rules affect most particularly counsel advising clients in e-discovery matters, but e-discovery and the treatment of information and communications -- before discovery is developed or considered, or before lawsuits are filed -- are issues critical to e-commerce, and that will become more important as this segment of the economy grows, for businesses and for law firms.

"This article describes how nontraditional sources of electronic data may provide important evidence in investigations. These data sources, including instant messaging (IM), voicemail, Web-based e-mail and sales-management systems, present distinct challenges in terms of procuring and analyzing raw data.

[snip]

"According to the FRCP amendments, electronically stored information (ESI) has been added to the official list of items subject to production. Typical ESI sources include forensic copies of personal computers, company file servers, e-mail servers and backup tapes. In our experience, alternative sources of ESI (whether from external data sources or from a more detailed review of forensic hard-drive images) can take many forms and can produce additional evidence. Examples of nontypical ESI, which we will examine in further detail, include: Web-based e-mail, IM, voicemail, internal database systems, iPods and other portable storage devices."