E-Discovery Requests - Are Your Clients Prepared? Are You?
This presentation was given on May 22, 2008 at Raymond James, 880 Carillon Parkway, St. Petersburg, Florida and sponsored by the St. Petersburg Bar Association In-House Counsel Section.
Documents include:
- Continuing Legal Education Part 1 of 2
- Continuing Legal Education Part 2 of 2
- E-discovery Requests Presentation Flyer
Continuing Legal Education Part 1
Attorney: Did anyone read the Calvin & Hobbes cartoon? Apparently he doesn't get along so well with this girl. She is unhappy with him and attempting to communicate that. In his alternate fantasy world, he perceives this confrontation: Our hero regards the strange alien. It seems to be trying to communicate."
Attorney: I'm going to treat this as an exercise in communication, not only - or even perhaps even primarily - communication from me to you, [but] communication from you to the people you serve. The things we're going to talk about - metadata, some of the other issues arising from the many issues Mr. [Eric S.] Adams [Esq.] addressed - are critically important. I'm fairly confident that people who walk out the door today will understand them. The question then is conveying that information to others who need to know it. If you're outside counsel, speaking with in-house counsel; if you're in-house counsel, speaking with the people you work with in the corporation, and so forth.
Attorney: One of the things I'm going to attempt to do is, yes, talk about some of the technical computer-geek backgrounds to an extent. But what I will try to do more is give you images, ideas, metaphors, ways of expressing these ideas to people that you're going to need to instruct and help. So that's my effort with respect to trying to communicate.
Attorney: Now, in doing so, I'm going to be dealing with different comfort levels. I've already heard some people discussing their various comfort levels with this general subject matter. I know there are some tech geeks in this audience, some people who can take this information more or less directly as apparently this gentleman seems to be able to do. There are also some leaning slightly toward this end of the spectrum [reference to visual aid] who are not as entirely, utterly comfortable with these issues. I am going to attempt to frustrate both groups equally by going pretty much down the middle.
Attorney: As far as my methods are concerned, I'm going to try to illustrate things visually when I can. That seems to help out a lot of things. One of the things it helps out with, of course, is the digestive trance which probably some of you are going to be slipping into [during] that one- or two-hour period after lunch. I will see if I can keep as many of you non-comatose as possible. It's always a challenge in the early afternoon, but I will cheat. I will use audio-visuals wherever humanly possible.
Attorney: I will have to ask you to bear with me, though. One of the slogans you're going to hear from me in a few minutes, and unfortunately I'm going to prove it, is "live by the tech, die by the tech." The sound levels on my computer are not necessarily playing nice with the sound amplification equipment we have here.
Attorney: [Referencing visual aid] So this might be indicative of some of the things you're going to be seeing, both in this hour and in the hour to follow. Huh? Bullfight? Riot? What on earth was that supposed to symbolize? Actually, counter-intuitiveness: something I'm going to expound upon in a big way when we get to the ethics stuff I'll be talking about that in greater detail.
Attorney: Not too long ago I put out a five-hour CLE DVD, basically on that theme: how can good, honest, hardworking people nonetheless fall afoul of the ethics rules? By never seeing it coming. By being in a situation where the ethical violation was so counter-intuitive that they were trying their hearts out to be ethical. They missed it, and, boom, unethical. So, to the extent that I can - and, as I said, I will do more of this in the second hour - I'm going to aim this presentation toward those areas where you might not see it coming. Or the people you're attempting to instruct or bring up to speed in these areas might not see it coming.
Attorney: The handout. I believe everybody has that. You've got my contact information should you want that. We've got the firm logo nice and big up there. Contact information's on the right. You'll notice several parts of it are chunked up and say, "Redacted, redacted." We're going to talk about redacting later on. This is an example of a very low-tech but effective way of doing it . . . I am referring, of course, to permissible redactions. The reason it was this letter is that I was able to have some fun with the first three lines there. It was a copyright infringement case for software. This guy put on the Web a "how-to" video on how to crack the protection on the client's software. And in that video, he said, "You can put this on 400 computers if you want, using the same process. Screw them!" My first line was, "This firm represents 'them.'" I just had so much fun with that, I thought I would use that as my example. Why not?
Attorney: The rest of the document consists of just the PowerPoint itself - I did kill trees, I confess. There are maybe other things I refer to that you would be interested in getting copies, I'll make the same offer. If you want to follow up on anything that we cover, you can try to email me. You've got my office email in the letterhead. That is what I use for former students and for people taking CLE from me. I am no longer a professor - it's sort of a misnomer - but I figure I'll just keep it for convenience's sake. If you shoot that to me, it will bounce off in two directions. It will go to both to my work and it will go to my home.
Attorney: "Live by the technology, die by the technology." As I said, it's a theme. We have a scheme to cheat a creditor and the long-story-short there is that, in this case, husband sends wife an email indicating that they should not leave a paper trail regarding their arrangement. Think about that for a second. Sending an email saying, "Let us not create a paper trail! We must not do this! Else our nefarious scheme will come to no good end!" Well, it came to no good end. And of course the judge is right. An electronic trail is more enduring than a paper one, for reasons Mr. Adams addressed and that I'll be addressing further. [reference to visual aid]. This one is a decent illustration of "Live by the tech, die by the tech." I put that up there in something of a self-mocking vein. I love my laser pointer. And, to the best of my knowledge, it has never "gone off" unintentionally and made like a light saber, but fair enough.
Attorney: Now, these are some things that, again, Mr. Adams did a fine job of laying out specifically for us toward these ends. I'm backing up a bit and going at it somewhat more abstractly. The objective, from making good decisions in this area, breaks out into this sort of thing: you want - if you are honest, if your client has done nothing wrong - what you want to do is be able to demonstrate that, to appear that way, from a public relations standpoint . . . as well as a remaining-in-good-odor-with-the-judge standpoint: not a small issue. But in a litigation format, you're sort of guilty until proven innocent, right? If you're the subject of a request, you need to be able come forward and prove, lay it out, show what you've done. And that's where document retention policies and strict adherence to those are vastly important.
Attorney: Here's the problem. A lot of things I'm going to talk about are a little toward the paranoid end of the spectrum. They're going to be a bit scary. The danger is this: you take what I'm saying so seriously. You advise clients accordingly. They get so paranoid that basically they can't go forward. If you attempt to maintain perfect standards with respect to all of these things, then by definition I think you're going to slow down. You're basically going to grind to a halt. There's always going to be sort of a cost/benefit analysis involved in that. So, although I am going to stress the dark, evil, nasty stuff out there, please do not understand me to be saying that it is more important to avoid these bugaboos that I'm laying out than it is to, oh, I don't know, run a business and make a profit. You want to reconcile those things to the extent humanly possible.
Attorney: And that's actually something that I wanted to illustrate visually. I'll try not to throw this at anybody, but - iron plus sulfur means what? At least when it's sparkly like this? Well, a geologist knows iron pyrite, aka fool's gold, right? I keep this on my desk to remind me I'm talking to non-lawyers. If I say something bad, if I'm describing a danger, it doesn't meant the end of the world. If I'm describing something good, a positive development, it doesn't meant that "you need do nothing different, everything's fine, go forth and ignore this legal dispute." So I wanted to throw that out as sort of a cautionary measure in turning around and communicating with people who need this sort of information. Make sense? Okay.
Attorney: That is one temptation that the people in the business community will face that you need to be aware of. [Referencing visual aid] Let's assume . . . this is a duck who really knows how to migrate, right? Unlike these poor schlubs out here doing it the hard way - winging it - this is a laid-back feathered friend. Let's assume that you clone Mr. Adams's knowledge of this subject and you manage to put it directly into the brain of your business counterpart, and that it is implemented flawlessly. Problem solved, right? That's your business contact right there, migrating off into the future. What's the problem with that scenario? Well, we're going to talk a lot about PDF - that's the Adobe Portable Document Format. How long has that been around? Forever? In technological terms, you're absolutely right. But it was barely coming on to the scene twelve years ago. And consumer-level or mid-grade business computers simply did not have the power to do that sort of image processing as recently as 1992-93. As a consequence, what you need to bear in mind is that all this technological advancement and change is not only happening all the time but the rate at which it's happening is increasing. Things are changing fast, the rate of change is changing, the direction of change going faster.
Attorney: Which means that the whole issue of staying ahead of the sort of problems that Mr. Adams described is a dynamic one. Even if you have perfect policies in place and a perfect understanding of the way things stand now, that's not going to be enough. So, rather than attempting to take a snapshot in time of what the perfect policies are, you've got to have a system in place whereby you've got periodic reviews, periodic adaptations, what's new, what's the latest and greatest means of document storage, what are the problems with it, and so forth. So one of the things I want to get across to you folks is my sense of the matter: that this isn't a body of knowledge, this area we're talking about. It is really, more than anything else, an attitude. It's something that needs to be continually re-addressed.
Attorney: Root versus branch. Let me jump to the bottom. Litigation is evil. I say that as a litigator. In my original incarnation, I spent six years as a litigator, then nine years as an academic. I am now a recovering academic and a litigator again. And here I am saying that litigation is evil. What do I mean by that? Well, in the example that I have used - it is after lunch, after all - is that it's similar to a proctoscopy in the sense that it is unpleasant. It is intrusive. It is expensive. It is something to be avoided if at all possible. I presume that's something that everybody in the room can get up to speed with, but if not, talk to anybody on the business side. Business people, I think, have this in their DNA.
Attorney: So you want to avoid it. Great. Well, what do I mean by "root versus branch"? Once you're in litigation, and you're subject to an e-discovery request, you're going to have major problems of the sort Mr. Adams discussed, some of which I'll go into in some more detail. But the same sort of procedures that will let you do a good job of assembling good responses to e-discovery and so forth will do a good job of preventing litigation from arising in the first place in response to information going astray. Mr. Adams referred to this in several places, but I'm thinking in particular of the disgruntled former employee, something we'll be talking about a bit later. So a couple of fancy - Greek words? Latin words? - in either case, a medical model: prevention is better than cure. Prevention is cheaper than cure. When you're talking about the sort of mechanisms you want to get in place with your business counterparts, you might want to talk in terms of costs and characterize this not only in terms of litigation response but litigation avoidance. I think you'll find that litigation avoidance puts a bigger smile on their faces. Right? It's a lot more cooperative. It's a good thing.
Attorney: [Referring to visual aid] Yes, technically we are pedestrians and therefore have the right of way. Actually, that's a throwback to the point I was making about how, if you are clean, if you are in the right, technically, but you can't demonstrate it or you can't avoid litigation, you have to go through the expense and the disruption of that, it's cold comfort. The same sort of thing here. It's entirely true that they've got the right of way, let's assume. But is that going to help them under these circumstances? There are many situations where it's a whole lot easier to avoid a train wreck than to clean up after one.
Attorney: Ethics. I wasn't able to keep all the ethics in the first hour. The second hour is going to be pretty much all-ethics-all-the-time for purposes of our accreditation. But this we have to talk about upfront. Backing up: we lawyers, whether outside counsel, in-house counsel, otherwise, have this obligation with respect to client information. Now, there is a bad habit that people get into. I try to inoculate my Evidence students against it: talking about how lawyers are obliged by the attorney-client privilege to keep the client's secrets. Not true, exactly backwards. The duty of confidentiality flows - well, under common law from the agency relationship, but specifically - from the ethical obligations. You're ethically obliged to keep things confidential. The attorney-client privilege protects you when you discharge that obligation. When you keep your mouth shut, pursuant to the obligation to keep client confidential information confidential, the attorney-client privilege is what prevents you from being taken to the pokey, being put in jail, contempt, or whatever else.
Attorney: The reason I want to draw that distinction here is that there is a dangerous place - I'm going to mention this only fairly briefly in the context of e-discovery, but it's something always to be borne in mind - notice those two words there? "Information relating to the representation of the client." Hmmm. Is that broader than, or narrower than, "communications from or to an attorney, between an attorney and client, under circumstances indicating confidentiality" for purposes of obtaining legal advice? I'd say it's broader. I'd say it's a whole lot broader. I'd say it's pretty much "information you get in the course of the representation," not necessarily indicating the source. So you have a situation where the privilege itself is a lot narrower than your duty to keep information back. Again, I can't spend a lot of time on that and there's no need to go into it in great detail, but I'd appreciate it if you'd bear that in mind. Just stick it in the back of your head while we go through the rest of these things, because it ends up being pretty important. What you really want to avoid is putting yourself in a situation where you have information that falls within your duty of confidentiality, but outside your protection under the attorney-client privilege. That's what's called being "north of the rock and south of the hard place," right? You don't want to be there.
Attorney: Okay, a quick mention of other privileges. There are lots of them. Trade secret is one that's going to be near and dear to a bunch of your business contacts. With respect to attorney-client privilege, trade secret privilege, all that good stuff, I'll just mention that it's critical to treat the privileged matter as privileged matter. You treat it as confidential and need to be able to demonstrate the steps that you've taken to treat it as confidential. And that is something that you'd think is utterly obvious, and I hesitate even to mention it, but particularly when it comes to things like trade secrets, sometimes your business contacts won't necessarily see it in that light. This is stuff they deal with every day. This is stuff that needs to be communicated and acted-upon. What I'd recommend you do is just bear in mind that they're of the same general nature, and -- particularly in responding to requests along the lines of e-discovery - need to be treated just as gingerly. Certainly it can be damaging for attorney-client communications to come out in the open, but it can be devastating for trade secrets (assuming they're essential to the business) to come out as a consequence. No particular surprises there.
Attorney: I mention this quickly: another ethical obligation, since I was talking about privilege. In those situations where you have a former employee, whatever else, you've got a situation where the privilege is about to be essentially made moot by massive dissemination. You might be going for some sort of ex parte proceeding to stop that: a temporary restraining order or whatever else. Just bear in mind that if you're alone in front of a judge -- which is an unusual thing for you to be, [because] typically you're ethically prohibited from being there - you have the duty, in a sense, to be counsel for the other side. Also uncomfortable to do, but it's very important for you to recognize that if you have to be there, you don't have the time for anything else, you don't even have the time to find out who opposing counsel might be, assuming the court will entertain an ex parte TRO or something along those lines, the ethical obligation calls upon you to make sure that you're disclosing everything that the judge is going to need, even when those things are adverse.
Attorney: Moving on: wayward documents and ethical obligations. I wanted to mention this briefly. This is something that I have had experience with. I've received faxes - one from a company that we were directly going up against - apparently intended for - it's client contact. It laid out the entire history of the negotiations to date, the negotiation objectives, the high/lows, the strategy . . . it was interesting reading, I freely admit. Now [nowadays] there are some rules that apply to a situation like this, but there are more questions than answers. If you get a document that you believe was inadvertently sent, you have to promptly notify the sender. Now, notice, that does not answer a bunch of other questions: are you under an obligation to return it? Are you under an obligation to keep quiet about it? Must you avoid keeping a copy? Does that waive privilege? What happens if the document itself was wrongfully obtained by the sending person? Does that raise some interesting questions! Say it's a purloined document, obtained by a breach of trust, and sent to you inadvertently. Under those circumstances, what do you do? You do some very heavy hard-rocks research that I have not done in this area. I will just mention that it raises some ugly issues. But going back to your obligation, you have to let the sender know that the sender has really, really stepped in it. And that's your only overt duty under the ethics rules. Kind of delicate, don't you think? What do you do? "It is my responsibility to inform you that . . . ." Anyway, those are the minimally necessary ethics points to tee up what we're going to talk about next.
Attorney: Document. Okay. Clay tablet: cuneiform inscription. It was all fairly simple until comparatively recently. It was a physical medium, and marks thereupon somehow. And we're moving away from that. Of course, Mr. Adams had his four P's, so I have to have my four M's. I'm straining a bit to get it there, as in "Means of Transmission," but if these things are not the definition of a document, they're certainly the things that are most critical with respect to e-discovery issues.
Attorney: You've got the Message itself. What is the Message itself? What is the intelligence? What is the expression that was fixed into a tangible medium of expression? You've got to watch out there. We'll give you an example in just a second, but some more Latin terms: superscription, interlineation, overscoring. What happens when someone annotates something? I'm not going to go into that in great detail. Just bear in mind that, like the example I'm going to show you in a moment, in my view, really only the annotated version is a complete document and arguably they're completely separate. The virgin document and the annotated document are probably going to have to be addressed differently, produced differently, and so forth.
Attorney: Means of Transmission. We'll talk about the Internet aspect of that a good bit.
Attorney: Medium? Wet clay for cuneiform. Paper for most of our recent civilized history. And what is it now? Silicon, right? Phototemplate lithography onto itty, bitty, tiny little transistors on a silicon substrate? It gets pretty weird. In fact, it's getting weirder. They're coming up against the point where they're starting to encounter physical barriers as to how small they can make things, and they keep getting around those barriers by increasingly clever means that are requiring the development of actual new physical theories. Good stuff!
Attorney: Metadata. Going to talk about that a lot: data about data.
Attorney: [Referring to visual aid] What do we have here? Oh, yes. Same document as a clean copy. I don't know. This isn't one of the sexier Nixon White House documents. This is one that happened to be released by the Nixon museum not too long ago. So if you imagine that without any blue on it, that's the document as it originally existed. But you can imagine how it would change the character of it. Here's an approving comment by Haldeman of Ailes's suggestion, or one of his suggestions.
Attorney: Now, let's imagine there's a memorandum in which somebody advises a corporate higher-up that a certain course of action would be illegal! Immoral! Discourteous! Fattening! And CEO, in the margin, writes, "We've go to get rid of this wimp," or something along those lines. Or, perhaps in a more virtuous way, "Gosh, we'd better take all steps necessary to avoid that!" In either case, it's fairly significant with respect to how the corporation's responding with respect to that particular issue, right? Fair enough.
Attorney: So when you say you're moving away from a paper-based society, yes, we are. But people still tend to print things out for review. They tend to get read that way. They tend to get annotated that way. That will be less so, I think, as we get the younger people moving up, the people who basically ate electrons with their Alpha-Bits and are born with PDA in hand. But until we get to that point, where everyone is annotating documents electronically, the physical version will continue to have some significance, but I agree completely with what Mr. Adams said about how, due to storage cost constraints and so forth, it's becoming common for documents to be stored electronically. That's becoming true even if the originals travel electronically. So they get imaged, the originals get destroyed, [and] the image is still available. But this is a different document in several meaningful senses from the virgin copy.
Attorney: So what happens if you have both? If you have a blank copy and you have the annotated copy, what happens if you only produce the blank? Well, sooner or later, the other one's going to surface. Basically, there's no way to hide anything anymore. Not like the good old days, when Oliver North could shred things, and by-god, they stayed shredded, right? We'll talk about that in a minute.
Attorney: Transmission via the Internet. We're not going to go into too great a detail on that, because most of the problems don't arise by covert interception or malign acts. I should point out that, just by the nature of the Internet, the stuff that you send around bounces. The whole Net was set up in such a way as to allow at least universities and military commands to be able to communicate when cities had been wiped off the map by nuclear attack. So it's very robust, with lots and lots of redundancy. The signal tends to bounce off of lots and lots of different nodes. And guess what? Copies are created at every single one of those points, although usually they are transitory. The ones that are permanent are usually the one at the source and usually the one at the destination, the model there being email, right? You send an email, you have the email, the recipient has the email.
Attorney: I'll mention just briefly that there are some issues with respect to vulnerability in transmission. How many of you actually do use encrypted email in communicating with clients? OK. It can be done. It's comparatively simple. It's comparatively cheap. There is a learning curve on the front end, both for you and for the client, that's usually not worth it. However, consider the possibility of your needing to do that if you are particularly a subject of interest for, say, the federal government. If you have clients who are, say, Saudis, I think there's a pretty decent chance that your emails are attracting some attention between source and destination. Bear in mind that in that sense an email is utterly non-secure. It is an address with information attached to it, and it goes bouncing around these different nodes. It's very much like a postcard. That usually doesn't matter, because usually the sort of people who'd be interested in reading your mail don't have the means of tapping in. It can be done but it's expensive, it's dangerous, it's highly illegal, and usually the government's going to do it if anyone's going to.
Attorney: [In response to an audience question] You're not just emailing her, you're emailing everyone she's ever emailed. I should mention, and I'm not going to say too much about this because this is farther afield, but general computer hygiene. Maintain good firewalls, good anti-virus protection, all of that's important. Because, not uncommonly, we get one of these email viruses - worms, actually. They will transmit information they find within the email programs that they spread to. Usually that's address information rather than the body, but even the address information can be pretty dangerous stuff.
Attorney: Medium. Now we're getting back to the chips. Like I said, the good old days! When you could shred stuff and it stayed shredded! The best illustration I could come up with for that is this [referring to visual aid]. Paper doesn't do that, generally. But electrons do. They keep coming back. Actually, I'll talk about [that] right now. How about this: the difference between "delete" and "erase." What does it mean to "delete" something? To delete, in one sense, is to press the "delete" key [and verify that this is a delete key? It is.] For purposes of the security of documents in a visual environment, [reference to visual aid] not even close. But "deleting" is not terribly helpful, because all "deleting" is . . . well, it can be as simple as just the removal of the first byte at the head of a long identification string, taking it out of the accessible portion of the table. But that does not make something irretrievable. It doesn't even limit its retrievability much, at all. The only way you can do that is by erasing the material. How do you do that? You can't do that either.
Attorney: In fact, "erase" is misleading in this context. Actually, it shares the same root as the German "ausrasieren," which means, "to wipe out," "to annihilate," "to destroy," based on the Latin word "rasa," meaning "blank." You think in terms of being able to erase media. "Erase the tape," right? "Erase a hard drive." For technical reasons that I won't get into, I would just like to tell you it doesn't work that way. You can physically destroy the medium, but short of that, you cannot put the information past use. In fact, even multiple re-writes over discs will not necessary make it irretrievable.
QUESTION: I was going to ask you about, they call it "DOD Overwrites," or Department of Defense multiple, rewrite ones and zeros over every spot. Those are still susceptible?
Attorney: You're right, I would bet on that against any privately available means of recovery. But when you go down to the point where Heisenbergian uncertainty, where we're almost talking about almost individual atoms, those physicists, I think, will ultimately tend to beat the people who put those programs together.
Attorney: Usually the destruction of the physical medium is the only way to make sure. Now, does it make sense to think in those terms? Does it make sense to think in terms of "that's what we have to do?" Well, no. Just like I said, paranoia past a certain degree is going to result in absolute paralysis. You won't be able to do anything. But I wanted to get across the point that is essential to recognize: simply pushing a "delete" key is by no means sufficient. You've got to address how to make the data irretrievable by ordinary efforts as opposed to extraordinary ones.
Attorney: What do I mean by this? Even if successful, you have the problem with the Nixon tapes. I am truly dating myself.
QUESTION: Somebody knows it's gone?
Attorney: Somebody knows it's gone. So by 1974 technology, they were able to address the, what was it, eighteen minutes of silence on the tape?, and figure out that it was four separate erasures. Not uncommonly, when you successfully delete something - erase it, overwrite it, whatever else - it leaves a space. The space may be interpreted. Sometimes it can be interpreted chronologically, so that you know where it had to have been described in time, or when it had to be wiped out.
Attorney: In either event, I just want to get across that being actively involved with these issues is important, but also it's a business/contact/client relations point. If your business/contact/client thinks that there's an easy way to make a problem go away . . . I would like to think that every single business contact that I have was sufficiently moral that it would not even be an issue. But would I be wise to rely upon that? I see a lot of people shaking heads out there. If business/client/contact person realizes that not only would improperly attempting to destroy information be illegal, immoral, fattening, impolite, whatever you want to call it, but probably futile and probably the sort of thing that might well result in the sort of 37(b) ugliness that Mr. Adams described in some detail, then it would be a lot more likely that we could persuade them not to do it, or at least to make them aware of the consequences. Does that make sense to everybody? Fair enough.
Attorney: Obsolete . . . obso-delete. Hmm. Given the sort of media that we're dealing with, the sort of transmissions we're dealing with, I'm suggesting the terms, "delete," and "erase" are approaching obsolescence. The term "where" is also taking a pummeling. You get the idea why, right? With respect to the Internet, you can transmit anything, to anywhere, from anywhere. It gets there in almost exactly the same amount of time which is nearly zero. It gets there with almost exactly the same amount of - or the same amount of - distortion, which is zero. And that has some consequences.
Attorney: For example, it is still, as a matter of law, of some consequence where a contact is executed, the physical location where it's executed. Well, when I taught Contracts I didn't use this hypo, but I might have. How about somebody who is texting back and forth, or emailing back and forth, from a plane? Or a series of emails going back and forth to a business client you're trying to contact. He's on vacation in Barbados this week, Antigua the next, whatever. The idea of something having a physical locus is becoming less and less truly a matter of reality. That has significant effects on not only contracts. The question of personal jurisdiction: to what extent are you making contracts within a forum? Same thing. And also - we'll get back to this a bit later - the whole issue of choice of law. The choice of law rules are designed based upon the idea of certain things having a locality. That's changed somewhat. The Second Restatement of Conflict of Laws tried to move away from that, but it's still a big deal. Again, this is in the nature of background, but I wanted to get across the idea that the media and the transmission means that we use are changing so much that some fairly fundamental ideas that we use in going back and forth with clients are becoming of questionable validity and utility.
Attorney: Why is that? [Referring to visual aid] Moore's Law. Why on earth am I using 72-point type to talk about Moore's Law? Well, Moore was a bright guy who came up with an observation in the late sixties that the total number of transistors that you can place within a certain area on a silicon substrate was doubling about every eighteen months. Which translates into either doubling power per unit of cost, essentially, every eighteen months, or price being cut in half for the power being kept the same every eighteen months. I actually think that there's no inevitability about the eighteen months. I think that just held true long enough that people started basing business expectations upon it. Every time they'd come up against a situation where it seems that, technically, it's not going to be possible to do that any more, basically enough pressure is brought to bear on the R&D types - "We've gotta have it!" -- that they find something new. It seems to happen every time.
Attorney: What on earth does that have to do with what we're talking about here today? I remember back in 1997, I guess, I got a brand-new hard drive to upgrade my computer. I was so excited. It was 200 whole megabytes. Wow! Goodness, I was never going to exhaust that thing! Not strictly applicable here because that's magnetic storage rather than the sort of storage subject to Moore's law, which is integrated circuits, but it does provide a useful baseline for this [referencing visual aid: storage on keychain]. This is two gigabytes, and it's fourteen bucks. The relevant part of it is the size of my thumbnail. So storage is becoming something of a non-issue, which means that keeping documents versus destroying documents, we have in a way some perverse incentives, right? The storage is becoming so reliable, so cheap, so fast, that the destruction of documents that are kept in that medium is something that you'd only do when you have some specific reason to do it, like a document destruction policy. That's going to be significant in a lot of ways, but let's go look at some other things.
Attorney: Those chips exist in an awful lot of places. We're moving away from the drives and going more in the direction of chips. Matter of fact, this little laptop I got the other day - very cheap, very small - runs only on chips. No drives at all. So let's talk about where chips are. Well, you've got laptops with chips and drives. The significance of that? I have some examples of it over there, but in the interest of time I'll just say: haven't you heard about ten stories in the past ten years of some NATO lieutenant in Brussels leaving a laptop behind in a taxi that had, basically, the defense plans for the entire Western world? It happens a lot.
Attorney: In fact, when I knew I was going to give this presentation, I just opened up a folder and started throwing in there everything along those lines that went into it. There's a lot. I chose some highlights, and even they will probably be too much. Let's see . . . "April 3, 2008: Representative Barton Seeks Probe in Theft of Computer." We've got a computer theft, laptop, three thousand heart patients with medical information potentially exposed to public scrutiny when an unencrypted government laptop was stolen in February from a car of a National Institutes of Health researcher.
Attorney: Okay, happens all the time. Not a problem until you realize that a laptop could contain, let's say, your entire litigation docket, if that's where you kept it. Or if you have basically all the relevant information for the functioning of the business of your business contact, and what happens when it goes out the door? Well, again, the issue is [that] so much storage is available; the storage is ubiquitous; it comes about in so many different ways that you've got to bear in mind the possibility of its ending up in the wrong hands. Eric [Adams] covered a decent chunk of that.
Attorney: I wanted to get across the idea, though, that it doesn't have to look like something you would normally watch. You saw my keychain, right? That bright little dangly silver thing on there? Would you think of that as something that's a hazard to the continued functioning of a business, a law firm, whatever else? Probably not. Probably you wouldn't think of that with respect to Blackberries with text messages, voicemail, whatever else. How about this innocent looking little thing? An MP-3 player? But it's got a gigabyte of memory. If it's hooked to a computer, you can download data into it. What happens if, let's say, a secretarial employee downloads a bunch of stuff on it, intending to work on it at home; takes it home; does the work; doesn't erase it; sells it on EBay? As is common, [the employee] leaves the music on there and also, inadvertently, leaves the data on there. What is being sold on EBay for $32.95 is worth how much? In terms of damage to your client? Yourself? Your reputation? Whatever else?
Attorney: Yes, this is one of those instances where I'm saying, "be paranoid." I don't know where you take that precisely. As I say, it's less a program of action than an attitude. Just be aware that anything that has a chip in it can take a whole big chunk of stuff and put it where it ought not be, and that's dangerous. With respect to that, I will just point out that you are going to have something of a generation gap. It's going to matter how old your client/contact is. There are some people - my mentor at my original firm, some years older than I am, he was blazingly fast and up-to-date on all computer stuff. That's not necessarily going to be true of everybody past a certain age. So you will have to bear in mind the need to, perhaps, fill in a bit more background with people who are not as up-to-speed on this sort of thing.
Attorney: Okay, people to watch. I was talking about devices to watch, [now let's talk about] people to watch. Proto-DFEs. Huh? "Disgruntled Former Employees." Oh, yeah. Mr. Adams already spoke about that. Forbes did a layout on "Employees From Hell." This was their imagery from that [referring to visual aid]: this little guy who is not a lot of help in the business but can cause a while lot of trouble later on. Again, I'm not suggesting specific courses of action. In particular, this is going to vary enormously with respect to the needs of the business, the nature of the employee, and so forth. But having the sort of policy in place that might prevent this guy from hooking his MP-3 player up . . . or perhaps prevent computerized documents from being able to be locally accessed, locally transmitted, locally copied on his workstation, maybe that would be a good thing.
Attorney: Because I think this might deafen me if I don't adjust the sound levels, why don't we stop here for right now? I think I have another 49 seconds. We will begin with the good Sergeant taking this point forward after our break.
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