Electronic Discovery Navigator

GPS Evidence Might Drive Your Case Home

GPS Evidence Might Drive Your Case Home

"A reporter recently interviewed me about in-car GPS navigation systems as evidence. Aside from vehicle tracking devices planted on suspect vehicles, neither of us could point to more than a few matters where GPS evidence played a role in court; yet, its untapped value to criminal and civil cases is enormous. Think how many murders, rapes, burglaries, robberies, thefts, kidnappings and drug deals could be solved -- and innocent persons exonerated -- by reliably placing suspects in space and time. DNA just puts the accused at the scene. Reliable GPS data puts the suspect there between 9:42 and 10:17 p.m. and reveals where she came from and went next.

GPS-enabled personal travel assistants store both waypoints and typed destinations, distinguishing a suspect who claims coincidental presence from one who entered the address of the crime scene. Some units offer hands-free phone interfaces, recording frequently called numbers and holding unique identifiers for each linked telephone, enabling prosecutors to more persuasively tie the navigation system to a particular user.

With many units costing under $150, these marvelous devices are appearing on more dashboards and will be appearing in more courtrooms; but the reporter was thinking too small. There will soon be a location-enabled device in near-constant use by almost every man, woman, 'tween and 'teen in the U.S. And it won't be on dashboards. It's as close as your cell phone.

Late in 2005, the FCC mandated that cell phones must be capable of geolocation to support 911 emergency calls as part of the first phase of its Enhanced 9-1-1 program. By September 11, 2012, phase II of the rules kick in, requiring cell service providers to deliver extremely precise location-enabled data. By law, your phone is going to know exactly where it is and will be transmitting that information to the network. Most already do."

Another Obscure Repository of Electronically Stored Information Worth Checking Out

I was reading this story and a light bulb lit up in my head.  Photocopiers made in the last five years have hard drives in them.  When you photocopy a document, it is duplicated and stored until the hard drive is full and new data overwrites it.  So, for those looking for electronically stored information ("ESI"), photocopiers might be another obscure repository worth checking out.

Note:  According to the story, a Sharp survey indicated that 54% of those polled did not know that digital photocopiers store an image of what is duplicated.

Five Things I Learned from My CIO

The recent amendments to the Federal Rules of Civil Procedure mandate accountability for electronically stored information ("ESI").  So, here are five things counsel can learn by talking to the CIO and doing so early.

1.  Where's the ESI? --  CIO knows where ESI is kept, from the typical hard drive to less obvious repositories like USB Flash Drives (as discussed in my earlier post), which have been the subject of recent litigation (as discussed here).

2.  Access to ESI -- CIO also knows who has access to the ESI in question.  Counsel would need this information to draft a litigation hold that includes all relevant persons.

3.  Stop in the name of litigation -- CIO can stop automatic deletion programs so that relevant ESI is not accidentally destroyed.

4.  Is relevant ESI reasonably accessible? -- CIO would know whether the technology exists  to reproduce ESI that has been kept in back-up tapes and the cost of retrieving that ESI.  If the relevant ESI is not reasonably accessible, the burden falls on the requesting party to justify their need for it.

5.  Your witness, Counselor -- A well informed CIO could bolster your claim that relevant ESI is not reasonably accessible.

(Source: http://www.computerweekly.com/Articles/2007/03/14/222391/cios-talk-to-your-companys-lawyer.htm.)

E-Discovery Survival Guide for Corporate Counsel

Here's a good ediscovery survival guide for corporate counsel:

1.  Update and enforce your records management policies;

2.  Adopt litigation early warnings strategies;

3.  Implement detailed litigation hold;

4.  Review your computer use policies with ediscovery in mind;

5.   Educate your legal, administrative, and IT staff on the fundamentals of ediscovery;

6.   Adopt collection plans for electronically stored information ("ESI");

7.  Don't forget to consider all possible sources of ESI -- see here and here.

8.  Designate an ediscovery liaison;

9.  Monitor the ediscovery process;

10.  Stay up to date on ediscovery issues.

Note: I added numbers 7 and 9 to the list discussed in the article hyperlinked above.

(Source: Smith, Arthur L., "United States: E-Discovery Survival Guide For Corporate Counsel," (Feburary 19, 2007).)

"Slack Space:" Not A Place to Slack Off In Looking For Electronically Stored Information

Continuing on the theme of sources of electronically stored information (ESI) (see here and here), there is a certain area on storage devices (e.g., a hard drive) that one should not slack off in looking for ESI.  The area is called "slack space" or "file slack."  It is the area of a storage device between the logical end of a file's data and the physical end of the last cluster or sector used by that file.  Often, deleted ESI is found in the slack space.  (See United States v. Triumph Capital Group, Inc., 211 F.R.D. 31, 46, n. 7 (D.Conn. 2002).)

USB Flash Drive Was Allegedly Used To Misappropriate Confidential Information

The case of Anadarko Petroleum Corp. v. Davis, 2006 WL 3837518 (S.D. Tex. 2006), illustrates why highly portable storage devices, like USB Flash Drives (a.k.a. "thumb drives") should not be overlooked as sources of electronically stored information, as I discussed in my post yesterday.  This case involved a former employee who allegedly misappropriated 7.21 gigabytes of his company's confidential information using a thumb drive.  Here's a summary of the case.

Sources of Electronically Stored Information That Should Not Be Overlooked

When determining the sources of electronically stored information during the eDiscovery process, cell phones, PDAs, laptops, hard drives, and 3 1/2" floppy disks may come to mind.  But the following highly portable data storage devices should not be overlooked.  They might contain the proverbial "smoking gun" you're looking for.

1.  USB Flash Drives

USB Flash Drives are small, highly portable data storage devices that do not require electrical power to keep the information stored.  Think of them as fast, portable hard drives that can save Word documents, Excel spreadsheets, PowerPoint presentations, emails, etc.  USB Flash Drives can store up to 64 gigabytes (GB) of information, which is roughly equivalent to 4 million pages of MS Word documents.  USB Flash Drives can be connected to any computer or device that has a USB port.  Here's what a USB Flash Drive looks like.

2.  Memory Cards

Memory Cards are just like USB Flash Drives, except that they can be used in a wider range of devices, e.g., mobile phones, portable audio and video players, PDAs, laptops, printers, etc.  But Memory Cards cannot store as much information as USB Flash Drives.  The current maximum storage capacity in Memory Cards is only 16 GB.

There are four major types of Memory Cards:

• CompactFlash
• Memory Stick
• SecureDitigal (SD) and mini-SD
• xD Picture Card