The new frontiers of electronic discovery
For those who have never attended LegalTech in New York, it is like so many other things in the US - big. The organisers of this conference, at which lawyers and legal professionals meet the providers of their IT technology, estimated that the 26th annual event, held at the end of January, was attended by more than 11,000 people over the three days, browsing more than 250 exhibitor stands and attending some of the 50 or so presentations.
March 21, 2007 at 08:12 PM
6 minute read
For those who have never attended LegalTech in New York, it is like so many other things in the US – big. The organisers of this conference, at which lawyers and legal professionals meet the providers of their IT technology, estimated that the 26th annual event, held at the end of January, was attended by more than 11,000 people over the three days, browsing more than 250 exhibitor stands and attending some of the 50 or so presentations.
As a director of a London-based computer forensics firm that supports a great deal of UK litigation, I was particularly interested in hearing how such matters are run in the US and what new directions, tricks and techniques may well be coming our way from the largest litigation market in the world.
The opening speech was a classic eye-opener in the best tradition of the investigation business. Presented by David Thomas, deputy assistant director of the science and technology branch of the FBI, the presentation, entitled: 'Is your data as secure as you think?' was a gallop through the most frightening corners of the web: those infested by hackers, crackers and terrorists who make it their business to steal and abuse data.
While being understandably coy about the terrorist threat, Thomas was explicit about the size and scale of the data theft problem seen by his department. He estimates that 100 million personal records have been stolen in the US, displaying websites that he believes regularly traffick upwards of 10,000 highly confidential items every hour – mostly personal details and credit card information.
Thomas was not at all bombastic and as well as some terrifying statistics he managed to demonstrate how talented the hackers are and how even the FBI can get caught out. One of his stories concerned a raid undertaken by the FBI and local US law enforcement on a young hacker who had crashed most of one country's internet access. The FBI sensibly removed all the hacker's computers but left him with a seemingly innocent PlayStation. Due to his extreme youth, the US police were not able to hold the hacker in custody, and released him that same day. Thomas explained with consummate good grace how the hacker went about taking his revenge on the FBI by manipulating the technology in his PlayStation to enable him to access the web. From this point the hacker contacted other underground web users and bought stolen credit card and personal information. With this he contacted a computer supplier, purchased five new machines and convinced them (due in part to the level of data he had stolen and was able to use) that he was so important that they agreed to deliver the machines that evening. With these machines he promptly organised an attack on the FBI and crashed its website. All in a day's work.
The thrust of this excellent talk was to try and make users aware of the vast potential for fraud and criminal activity offered by the web something Thomas obviously feels he is making progress on, as he added that the FBI is co-operating more and more with US businesses in trying to tackle security issues. Perhaps more importantly, the FBI has, according to Thomas, reached out successfully to a number of predominantly East European governments and their law enforcement agencies to coordinate investigation efforts into the sources of much of the problem, with what he described as "encouraging" results.
While the subject of computer forensics was allotted just two presentations over the three days, 'electronic discovery' (as the US terms it) was a much-discussed theme, unsurprisingly given the recent changes in the Federal Rules of Civil Procedure. The nature of US civil litigation and the highly developed use of technology by US businesses has made it the greatest market for electronic litigation support and discovery in the world. Therefore, the changes in the Federal Rules are, according to some US sources, just a catch-up with the realities of modern technology. Whatever the case, the changes will drastically increase the burden of technical understanding on the lawyers involved and on production for the businesses litigating. And more than this, they have been told to speed up their act.
Among other things, the new rules that took effect from 1 December, 2006 require litigants to meet and confer with opposing counsel over data issues, and to identify even relatively hard to reach information early in a case. These and the other changes, such as widening the definition of potentially discoverable material, will require attorneys and clients to achieve a much more complete understanding of what they have, where they have it and how they are going to preserve it and search it – all of which must be explained and can be challenged by not only their opponents but also the judge.
In this climate it is therefore not surprising that, as well as it taking up so much of the lecture time, every other stand in the exhibition halls purported to be the answer to every client and attorney's discovery problems. And with such competition there is inevitably a great degree of similarity. However, as the new rules have widened the definitions, items such as electronically-stored audio files come into the frame as discoverable items – a category which includes stored voicemail messages as well as more traditional items (call-centre and trading-floor recordings for example).
As if in answer to their prayers, I did manage to find one presentation in which a service provider informed its audience of attorneys and litigation support managers that it had technology allowing for the targeted searching of audio files – something only previously achieved by teams of reviewers with headphones at an alarming cost. The new software can search for specific items by phoneme searches (keywords with sound) and will open up new areas for searching.
So how much of this discovery technology will cross the Atlantic? The answer is that the good technology already has, although that new technology may not be used as much as it is in the US. Without doubt, UK companies and their advisers will want to be able to search some of the nooks and crannies that the US providers claim to be able to illuminate, and to do so as quickly and efficiently as the manufacturers/providers claim. However, as one UK speaker said from the podium: "We have something called proportionality, which helps."
Having felt slightly bombarded with various e-discovery tools/systems/consultants, I did take heart from a key message delivered by the last speaker. He stressed to the audience (rightly I would suggest – though I am biased), that the new rules suggest that forensic principles need to be employed for the collection and preparation of data for discovery more than ever before. He was, of course, a computer forensic examiner.
Julian Parker is chief executive officer at Data Genetics International.
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