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Alextronic Discovery
An Electronic Discovery Blog covering News, Articles
and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - alubarsky@enterusa.com - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM


Thursday, July 01, 2004

Cali Seeing the Light  

7.01.04

At times, it is tough to be proud to be a Californian... The Scott Peterson sensationalism hails from my home state as well as my home county and city... The heady days of Bay Bridge World Series and Journey Arena shows at Candlestick Park (before it was renamed 3Com Park... a criminal act if you aske me) are long gone. Although the Giants are having a great season, we still must make excuses for the Sharks and Warriors. Steve Perry is in a retirement home somewhere and our biggest rock hero is now William Hung.

One thing about California makes me proud, though. No, not the majestic Golden Gate or the splendid Redwoods... It's California's Proposed Rule of Court Rule 332.

You read that right, take a hike Goofy and Pluto... catch you later Barry Bonds and Gwen Stefani... Hasta la vista Arnold, I'm all about CPC 332.

This proposed rule of court "requires attorney to be familiar with relevant computer applications, document retention policies and the storage and retrieval capabilities of the client." You read that last sentence correctly, the court's are REQUIRING litigators to understand EDD basics. This ground breaking rule (should it become adopted) will essentially require law students to take a class on EDD and automated litigation support between morning crim law and afternoon torts. This is ground breaking stuff. The biggest thing since prop 237 (my fellow Californianites will understand that one).

Imagine an attorney being sanctioned for not understanding the difference between a .pst and an .nsf. How about the counselor who is considered legally ineffective for failing to know which data to be requested is live and which is likely to exist in archival format? God help the litigator who is not familiar with Zubulake!

Is this real or am I in some euphoric dream state? Somebody pinch me please...

posted by Alexander | 11:14 PM


Tuesday, June 29, 2004

Detective ED says, Book 'em Danno!  

6.29.04

The criminal courts and the cops may be way ahead of us in the forms of traditional forensics (the blood and hair sample stuff) but us civil litigators have reveled in the fact that we can smoke them DA's, PD's, cops and robbers when it comes to traditional electronic discovery (getting at the computer guts and not the crime victim's guts).

I once (quite recently) spoke at a police department to a group of investigators and the group was stunned at my depictions of harvesting e-mail messages and running filter queries for later categorization and examination of metadata. The cops were big on data mining hard drives for their child pornography internet cases, but beyond that, electronic evidence was as mystifying to them as a stun gun is to me...

Things have changed. Just this week, the Boston police department assigned handheld network devices (RIM Blackberries, to be precise) to the force and networked them gadgets with regional crime databases. Now the officers can page each other while they pull up the rap sheet on the would be robber by the dumpster behind the local Pay n' Pak.

Gone are the days of "going back to the precinct to run the prints."

Of course, this on the fly flurry of electronic data coming out of the law enforcement community will translate into a steep increase in ED activity. One of many reasons why the ED community can expect to keep a hefty supply of donuts on hand these days is that Blackberry and other relatively pervasive technologies have been strategically interfaced with previously unknown and still 'clumsy' law enforcement databases such as Matrix or SEVIS. The integration of e-mail technologies such as RIM will in effect lift the data from these systems and allow it to travel as e-mail attachments through the internet. Hence, we see traditionally discoverable mediums (e-mail) as vehicles for other types of critical electronic data that had not vehicle to enter the public domain. It can be analogized, I guess, to the Ukrainian herring farmer who did not find an international market for his pungent fish until the railroad was developed to bring the product to France, Germany, Italy and other far away places.

The Supreme court recently chimed in. A plaintiff who claimed that a police stop requiring him to divulge his name amounted to an unconstitutional search and seizure was rebuffed by Justice John Paul Stevens who referenced Blackberryesque technology to justify the importance of available data "at the scene" to confirm identity in furtherance of the interests of law enforcement. Score one for ED ... sorry little thing called Fourth Amendment...


Mobile computing and wireless e-mail devices are surely carrying data from all crevices of the nation into the mainstream. This is yet another avenue that should be watched as electronic evidence continues to gain momentum.

posted by Alexander | 6:25 PM

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