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Friday, February 14, 2003

Electronic Discovery And Weblogs (LazyBlawg)

Dave Donna asks: "Can anyone else out there point to some good sources of information about discovery and online material--even, specifically, weblogs?" One thing worth mentioning up front is that public weblog posts would not necessarily need to be obtained through the formal discovery process in litigation, which involves serving requests, and receiving back responses and often materials (and perhaps more often a pile of objections...). If it's on the Web a party can simply track it down, without waiting for the other side to provide it. In order for a party to use such informally located material to help present its case, the material probably would have to be disclosed in advance to the other side -- but maybe not, as can be true of material used in arbitration or for impeachment -- and authenticated as evidence. Given the appellate direction my practice has taken in recent years I've never had to lay a foundation for Web material in court, but it seems like it would not be difficult. That said, there's a wealth of material online about discovery of digital records. I quickly rounded up the following by using the site search functions at and FindLaw, and by running this (incidentally quite Dave-friendly) Google search. LazyBlawgers, please chime in too. Sarbanes-Oxley Has Major Impact on Electronic Evidence, by Michele C.S. Lange: "No longer can e-mail and computer files be blindly destroyed. Instead, balance must be found between appropriate destruction of stale and nonregulated documents and adequate preservation of potentially significant documents." The New New Evidence, by Paul Neal: "In fact, electronic audit trails can reveal much more than their paper counterparts. An electronic file leaves its own chronology of creation, modification and transmission. It may contain a history of drafts, rewrites, edits and comments between collaborators." The Homesteader and the Gunslinger, by Robert Alan Eisenberg: "The existence of contemporaneous and spontaneous electronic communications and digital 'smoking guns' can be used as enormous leverage for the aggressive and savvy practitioner." Discovery's Future Is Electronic, by Jason Hoppin: "Studies vary, but it's safe to say that more than 90 percent of all information generated in the business world is electronic and a comfortable majority of that information is never translated into paper form." Discovering Electronic Evidence, by Ernie Svenson: "[E]lectronic evidence is veritable treasure trove of potential information. And it may even include information that has been presumably destroyed under a document non-retention policy." E-Mail Mining: The Wages of Scandal, by Rafe Needleman: "Google does clustered searching on an even grander scale than Discovery Mining, although it doesn't (yet) offer a complete solution for the legal profession like Discovery does." Beware the Digital Dos and Don'ts, by Blaine Kimrey: "Plaintiff's attorneys are becoming increasingly savvy about digital data, and unless your company has a policy for retention of digital data, you could find yourself in a discovery predicament regardless of how good your defense might be. In a case where your defense is rock solid, the last thing you want to do is pay a settlement simply because you inadvertently failed to retain relevant digital data and thus are facing possible sanctions." An Electronic Voyage of Discovery, by Natalie Hanlon-Leh: "[R]emember that technology research is only part of the challenge: it’s just as important to understand the people with access to relevant information and how they work and process data."'s E-Discovery portal: " looks at the emergence of e-discovery as a mainstream litigation tool and examines the unique issues that arise when gathering electronic evidence." [Update] Also check out Kroll Ontrack's Law Library of resources on electronic discovery and computer forensics, including articles, case summaries, rules and statutes by location, and a glossary.

Calling All Crimsons (LazyBlawg)

As part of the Weblogs At Harvard project, Dave and Donna are looking for all of you blogging members of the Harvard community (students, academics, alumni, etc.). My blawgroll has turned up several, but if you're a Harvard blawger I've missed (1) let me know and I'll update this post, and (2) go here. Also invoking the LazyBlawg on this. Harvard Blawgers: Michael Adams Jeremy Blachman Stuart Buck Ex Parte David French GrepLaw Burt Hanson [Update] Bernard Hibbits Garrett Moritz [Update] Rebecca Nesson/Wayne Marshall Christine Niles Nathan Oman John Palfrey Derek Slater Peter Tillers Sasha Volokh Donna Wentworth [Update] Adam White

Proposed Patriot Act II, Coast To Coast

Jack Balkin (L.A. Times): "Give a few dollars to a Muslim charity Ashcroft thinks is a terrorist organization and you could be on the next plane out of this country." William Safire (N.Y. Times): "We hyperventilating, raving privacy fanatics may deal in piffle and flapdoodle, but we are not alone."

Thursday, February 13, 2003

The Cruelest Editor

Justice William Bedsworth (Take The Ashes and Gub):
The Reporter of Decisions is a nice man named Ed Jessen, and he and his minions(2) edit everything written for publication by the Courts of Appeal and the Supreme Court to make sure we sound official and/or erudite.(3) (2) Say what you will about Ed, he is a man of many minions. (3) Imagine their despair when I was appointed.

DMCA Indictments

Six defendants have been criminally charged in California under the DMCA's anticircumvention provisions for activities aimed at descrambling satellite TV broadcasts. Story at c | net [via ILN]

She Would Both Giveth, And Taketh Away

California Senator Deborah Bowen (D-Redondo Beach), who introduced legislation in California that would enable spam recipients to recover the greater of actual damages or $500 per offending item (as discussed previously here), also is the author of SB 157, introduced two days ago. If passed, SB 157 would require businesses with no physical presence in the state to start collecting sales tax from California residents in online transactions. Senator Bowen and California are not alone. Thirty-four other states and the District of Columbia are backing the Streamlined Sales & Use Tax Agreement (the "SSUTA," related site here), as further described in the Senator's press release and this San Jose Business Journal article. A six-part series on the SSUTA is available here, from E-Commerce Tax News. These efforts are at odds with federal legislation introduced last month by Congressman Cox (R-CA) and Senator Wyden (D-OR), that would prohibit states indefinitely from requiring out of state online sellers to collect sales tax that would be charged if the buyer were making a local purchase. Subsequent commentary seems to suggest Cox and Wyden are more likely to obtain another extension of the existing moratorium -- which otherwise expires this November -- than the permanent ban they seek. In other words, this is no hoax, people. Shop now, shop now...

Wednesday, February 12, 2003


While I'm reading The Support Economy my Dad's reading and raving about The Hydrogen Economy, so I guess that's next on the list. Of related interest, Road to the Future: fuel cell development news from GM. [Update] Also related: a new initiative from Congressman Cox (R-CA) and Senator Wyden (D-OR), to promote hydrogen fuel cell filling stations.

No Wonder I Spend So Much Time On The Web

This week on TV: Joe Millionaire didn't pick, and 60 Minutes II promo'd this segment as follows: "If you drink this, it will kill you. And he's about to do it!!"

Appellate Sites And Tidbits

According to this (Nevada Delays Plans for Appeals Court, SFGate/AP) we shouldn't look for an intermediate appellate court, or an intermediate appellate court Web site, in the state of Nevada any time soon. However, for a thorough rundown of other appellate court Web site offerings, don't miss Howard's Legal Intelligencer article this month (available soon here, and via email subscription at that link; oh golly, I linked to a competitor again, somebody get the big net). The discussion is informative and useful, and I was pleased to see Rory Perry and his court get well deserved recognition for their efforts. The response Howard posted last night from the former IT director for the Eleventh Circuit also is fascinating. A sample: "Using such tools in house and putting Microsoft's Index Server on the public Internet are two very different undertakings. The number of successful hacks of Index Server on public web sites is staggering, and each time Microsoft swore that security patches 'fixed' their product, another successful hack of either the Index Server or Microsoft's web server occurred within days or weeks. There now are some safer Linux-based tools, and I think the Eleventh is quickly moving in that direction." (By the way, can anyone explain why whenever I consider electric guitars in prison, all I can picture is Chicago, with Strats?)

Tuesday, February 11, 2003

Dude, You're Getting A Criminal Possession Charge!

Aw, poor (PDF) Dell dude. [via FindLaw]

Firm News

Howard had this last week (but of course! his permalinks are on hold, but it was Friday at 4:04 p.m.), but I'm pleased also to note The Internet Marketing Attorney's annual review of law firm sites, and mention how proud we are at Reed Smith to have been included in the top ten. (Personally, I'm of the mind the firm should get extra points for showing Mr. Buchdahl "some good things about [our] competitors" -- think Nordstrom, among other things -- but we can have that discussion another day.) The Web site in its current form is "new" as of mid-December, and we're working to make it better and better... I'm also very excited for my Northern California colleague Greg Beattie, who will head the firm's Venture and Technology Practice Group as described further here.


Finally downloaded Safari over the weekend. Liking it a bunch, especially its built in pop-up killer, intuitive and powerful bookmark wrangler, and the orange "snap back" arrow in both the main address and included Google search bars (these bring you right back to where you started a particular train of thought). One thing I'm missing from IE 5.2 for the Mac: the "Scrapbook" feature, that lets you easily (one-click easily) stash a copy of any Web page in the browser (and on your hard drive) for future reference. Scrapbook is a slick way of making sure key pages don't vanish on you. Also gave the 'puters their iLife update. Not much I can add to the myriad reviews of the updated iApps, except to suppose it's just a matter of time before Apple breaks down and includes some sort of dimly lit, softly focused iDVD theme to cater to another reputedly popular use of home video equipment. If you're like me and sprang for Office for your Mac to ensure compatibility with Windows-Office documents, you've got Entourage but may not be up to speed on all its features. Never fear, there's a free (you pay s&h) "beyond the basics" CD for Entourage available from Avondale Media. [via Macworld Audible News] Finally, I'm determined to give the iBlog OS X blogging tool and news aggregator a whirl one of these days. Will keep you posted. [Id.]

"...and ultimately even burned onto a CD..."

Interesting take on Microsoft DRM strategies from Joe Wilcox at ZDNet. Among other things, it cites "[a] research paper [Word doc via Stanford's Applied Crypto Group] published last fall, reportedly by four Microsoft employees, conclud[ing] that DRM technology would likely fail because of consumer resistance to content protection and acceptance of file trading. The researchers concluded 'that a vendor will probably make more money by selling unprotected objects than protected objects.'"

Veggies With Velocity

Dave Barry rounds up some zucchini racing links. Knew this was going to be good.

Crimson And Clover

If you haven't checked out what's going on at Harvard Blogs, do. This strikes me as a Quite A Big Deal, for reasons like those eloquently expressed by Donna Wentworth. More from Dave Winer.

Monday, February 10, 2003

Blue Calling

Olympia will offer a cordless phone that speaks Bluetooth to other devices for Net access: "The Olympia 2.4 GHz CDP is the first multi-handset, cordless phone to offer simultaneous voice and data access that lets mobile devices - PDAs, laptops and mobile phones - connect wirelessly at broadband speeds." [via EE Times] The Sony Ericsson P800 ships in the U.S. just in time for Valentine's Day. [via c | net]

Light Encryption

Kevin Mitnick on The Screen Savers, surfing the Web for the first time since his sentence: "I'd really like to check out online banking!"

Sunday, February 09, 2003

Bah Relief

People who live in conch houses shouldn't throw cones. In other news, Hermione Granger still has her wand, and space yet remains in Estonian Traveling Stitches at Stitches West ("Armhole Success," of course, is full at this late date).

Vox, And Veritas

Med Kit
There's much to think about in The Support Economy, with which I'm spending some beach time this afternoon (it's February in Southern California, after all). The book's wealth of insights and analyses encourage, if nothing else, a critical reassessment of business practices you might take for granted both in your personal and professional life. With attention to things like voice,
With the expression of voice one names the world, turning otherwise chaotic experience into something that can be known and understood. In this way the exercise of voice is a way of creating meaning and imbuing experience with a sense of purpose and choice.
and identity,
One of the most important ongoing organized processes in modern life is the establishment and maintenance of identity. As sociologist Peter Burke observes, it involves behaviors, thoughts and feelings in a "continuously operating, self-adjusting feedback loop."
the authors analyze economic realities that businesses ignore at their peril. The underlying messages call to mind another author's observations: "The audience is listening -- for a heartbeat." And their hearing can tell the real thing from the recording: "[F]orget faux-hip; when suits get cute, everybody reaches for the barf bag."

Lucious Links

Congratulations to Maureen and friends at Reenhead for a great blog and inclusion in MSNBC's Best of Blogs. A liveried messenger is being dispatched even as we speak.

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