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Jim Calloway's Law Pracice Tips Blog

An Oklahoma-based weblog about law practice management, the Internet and technology as it applies both in law practice and in all of our lives.

Is it appropriate to outsource your Electronic Discovery processing overseas?

Jim Calloway and Sharon Nelson discuss this important topic and the ethical implications of EDD outsourcing in the October Edition of their Digital Edge: Lawyers and Technology podcast. Take a few minutes to listen to their comments on Outsourcing EDD Review Abroad in this 12th edition of The Digital Edge: Lawyers and Technology.

November 14, 2008 in Electronic Discovery | Permalink | TrackBack (0)

Preserving Mobile Phone Evidence

At our 2008 OBA Solo and Small Firm Conference, Judge Gary Dean of Prior, OK (who was chair of the 1st OBA Solo and Small Firm Conference before rising to the bench) stumped our panel of experts with this inquiry: " I am seeking a reasonably simple (and inexpensive) device to be able to download and print cell phone messages and call logs. Hopefully something simple enough for a law enforcement officer with reasonable computer skills to use. In domestic violence and protective order cases which I handle, I am seeing an ever increasing volume of threats and harassment by cell text messages. In domestic protective order cases the messages have been kept and are frequently shown to me. The problem is preservation for possible later court use."

As a veteran of many Q & A panels as a so-called expert, I've had to do this drill a couple of times. You have no idea whatsoever and you look hopefully at your co-panelists, only to see them looking hopefully back at you. Then the lawyer training for candor kicks in (especially since a judge asked) and you hear "I have no clue" escaping from your lips. The good judge is undeterred, however, and wonders if we can find out.

The problem with using Internet research for such a query is that many products promise but do not deliver and, generally speaking, the terms "inexpensive" and "electronic evidence preservation" don't even go on the same piece of paper, much less in the same sentence.

So I decided to look for the answer, frankly expecting that the answer would be "Sure, the ACME Phone Slurper 4000 will do a great job on this for only $11,995 and six month's training to certify the operator."

I queried my friend John Simek, figuring he could give me a list of devices costing five figures that would get the judge off my back. John, as many readers know, is the vice-president of Sensei Enterprises, Inc., a computer forensics firm. He has a list of credentials a mile long.

With his permission, I am passing along his response to my readers.

"There is really only one 'sure fire' way to document text messages, call logs, etc. from ALL cell phones," John says. "That way is to take pictures of the actual screen of the phone while the user accesses the various functions. We use a device called Project-a-Phone that is available from Paraben. It only costs $295, which is a bargain for documenting cell phone contents. We also have several multi-thousand dollar software/hardware combinations to get the cell phone data. However, no single solution gets all of the data from EVERY cell phone."

"To compound the problem, we have several hardware kits that contain hundreds of data cables to connect to the cell phone. Sometimes a particular model phone is not supported by one vendor so we have to try another one of our kits to see if we have the data cable and ability to extract information. The beauty of the Project-a-Phone is that you don’t need any data cables, which means it works with every phone. You are just taking a picture of the screen. This means that you are only capturing (documenting) the logical data and cannot retrieve any deleted information that may exist. As with anybody taking crime scene photos, there needs to be a chain of custody and, perhaps, a statement from the examiner that they are the ones who retrieved the data on a particular date while observing cell phone model XXX and serial number YYY-ZZZ. I think you get the picture! (bad pun)."

That was all probably elementary to a computer forensics professional, but I found it fascinating! I hope you found it interesting.

June 24, 2008 in Electronic Discovery | Permalink | TrackBack (1)

Site of the Week: e-Discovery Team (Featuring Summaries of 31 e-Discovery Cases)

Attorney Ralph Losey publishes the e-Discovery Team Blog. He has posted over 100 items there in the last 18 months. Of particular note is his most recent post where he mentions how useful the search features of his sites are and then provides summaries of his 31 "favorite" e-Discovery cases complete with links to the complete opinions. What a great resource! 

I got a kick out of Martin v. Northwestern Mutual Life Insurance Company, 2006 WL 148991 (M.D Fla. Jan. 19, 2006) where the court held ignorance of technology is no excuse for failing to comply with e-discovery requests. The District Court held that the attorney’s “claim that he is so computer illiterate that he could not comply with production is frankly ludicrous.”

Ralph Losey is also the author of e-Discovery: Current Trends and Cases. I am pleased to recognize e-Discovery Team Blog as my Website of the Week.

May 22, 2008 in Electronic Discovery, Website of the Week | Permalink | TrackBack (0)

Dennis Kennedy's Eight Legal Technology Trends for 2008

My friend Dennis Kennedy has posted his annual predictions on LLRX.com. This year's edition is called "Eight Legal Technology Trends for 2008 – Good Times, Bad Times or Hard Times in Legal Tech?" I'll specifically note numbers 1 and 2 and let you follow the link for the rest.

  1. "Making Better Use of What You Already Own." This is always a important concept, but even more so during tough economic times. Law firms sometimes can pay for new software and training without even understanding that the current software might do all or part of what they need-- if someone would only explore the advanced features.
  2. "Lawyers Win Round 1 in the E-discovery Battle . . . by a Wide Margin." I have to confess this one caught me a little off guard. But Dennis correctly notes that while there were many predictions of the immediate changes in litigation this year, "electronic discovery remains a trickle rather than a flood in today's litigation world." But, to borrow the analogy, one round does not make a match. So, we'll see how this progresses as much is happening on the electronic discovery front. I would point out a prior post by Dennis "26 Electronic Discovery Trends for 2008" and Craig Ball's recent 17 electronic discovery predictions.

March 07, 2008 in Electronic Discovery, Technology Trends | Permalink | TrackBack (0)

Kansas U.S. District Court Rules Provide Great Electronic Discovery Primer

Last night was one of my more fun and unusual presentations. At the Hudson-Hall-Wheaton chapter meeting of the American Inns of Court in Tulsa, they combined electronic data discovery with a Saturday Night Live theme. So after giving a serious talk on EDD, I sat down to be interviewed by the Church Lady, who soon brought up the Evil One's role in EDD. I was followed by Hanz and Franz.

Hanz was played by none other than the Honorable Sam A. Joyner, Magistrate Judge of the United States District Court for the Northern District of Oklahoma. He made us aware of an EDD resource that I had not seen before, Guidelines for Discovery of Electronically Stored Information from the U.S. District Court for the District of Kansas. This three page PDF file is a truly great summary of counsel's obligations with regard to EDD. Since it is only three pages, I suggest it is worth everyone's time to download and read, even if you are stil trying to convince yourself that you can avoid EDD and ESI for the reminder of your career.

October 12, 2007 in Electronic Discovery | Permalink | TrackBack (0)

EDD Update Blog Seeks to Become "Go To" Source for Electronic Data Discovery News and Analysis

Law.com has released the EDD Update blog, which will focus on "electronic data discovery news and analysis." Given the number of well-known pundits and experts that have signed on as authors, the endeavor seems destined to be a success. For a good example of the content you will find there, check out Craig Ball's common-sense post on getting electronic evidence admitted in court.

October 01, 2007 in Electronic Discovery, Website of the Week | Permalink | TrackBack (0)

Site of the Week: Richmond Journal of Law and Technology - E-Discovery Archives

If you do not have much to do the next few days, here's one way to fill up your spare time. Check out this collection: the Richmond Journal of Law and Technology (JOLT)  E-Discovery Archives. Several weeks ago the Spring, 2007 issue of the online law journal, which is focused solely on Electronic Discovery, was added to the archives.

One of the student editors informed me of the publication."Our publication is a student-run law journal housed at the University of Richmond School of Law. JOLT was first published in 1995 as the first exclusively on-line law journal and has continued to publish articles on the intersection of law and technology for over ten years. JOLT is available online, free of charge, to anyone who visits our website....Each year, we publish an issue dedicated to the emerging issues in Electronic Discovery. The most recent annual survey focuses on the recent changes in the federal rules and contains six articles from authors with various perspectives on E-Discovery."

Over 250 pages are contained in the new issue.

June 08, 2007 in Electronic Discovery, Website of the Week | Permalink | TrackBack (0)

What Lies Beneath: Native Format Production and Discovery of Metadata in Federal Court

We have many great scholarly articles published in the Oklahoma Bar Journal. But they are all generally outside of the subject matter of this weblog. Imagine my surprise to find tucked into the Law Day theme issue of the Bar Journal, the article "What Lies Beneath: Native Format Production and Discovery of Metadata in Federal Court" by Elliot Paul Anderson. This is an easy-to-read article on the topic of when discoverable digital evidence must be produced in native format with the metadata intact and when images or other formats are permissable. If you are handling litigation and the prior sentence doesn't mean much to you, you had better check out this article. Even the most knowledgeable litigator will want to read this article for its list of opinions from trial courts on this issue. Nice work, Mr. Anderson.

April 17, 2007 in Electronic Discovery | Permalink | TrackBack (0)

Ten Tips Leading to Efficient and Effective eDiscovery for the Small Law Firm

I just received my copy of the ABA GPSOLO's Technology eReport. In my continuing effort to pass along e-discovery information of use to mid-sized and smaller law firms, I refer you you to Ten Tips Leading to Efficient and Effective eDiscovery for the Small Law Firm. It is brief and written by some very well-qualified authors.

April 09, 2007 in Electronic Discovery | Permalink | TrackBack (0)

Law Technology Today is Launched!

I am pleased to note the launch of a new free e-zine, Law Technology Today, which is published by the ABA Law Practice Management Section. The inaugural issue, dated March, 2007, is now available online. Like its sister publication, Law Practice Today, it is free and I strongly suggest that you subscribe to both e-zines. (Subscribe to LTT  Subscribe to LPT ) I understand that there will be a lot of electronic evidence and discovery issues covered in this new publication.

April 03, 2007 in Electronic Discovery, Technology Trends | Permalink | TrackBack (0)

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