2015 Law + Informatics Symposium on Digital Evidence

2015 Law + Informatics Symposium on
Digital Evidence

Friday, February 27, 2015

The Northern Kentucky Law Review and NKU Chase Law + Informatics Institute hosted their annual spring symposium, the Law + Informatics Symposium on Digital Evidence, on Friday, February 27, 2015. The event was held in the Northern Kentucky University George and Ellen Rieveschl Digitorium and was co-sponsored by the Center for Excellence in Advocacy.

The all-day symposium provided an interdisciplinary exploration of digital evidence. Discussion topics included individual autonomy and government security, evidentiary, reliability, digital privacy concerns, drone-obtained evidence, and medical reimbursement fraud. Speakers from across the country participated in the conference and in a final roundtable discussion of various current issues and topics in digital evidence.

  • Michael Losavio, University of Louisville, “A World Information Order – Privacy and Security in a Hyper-networked World of Data and Analysis”
  • Erin Corken, Ricoh Legal, “The Changing Expectation of Privacy”
  • Timothy Ravich, University of Central Florida, “All Arise! Courts in the Drone Age”
  • Jennifer Brobst, Southern Illinois University School of Law, “The Digital Wild Frontier: The Impact of Public Records Requests for Whole Databases and Metadata in Public Health and Criminal Justice”
  • Neil Issar and Edward Cheng, Vanderbilt Law School, “Admissibility of Statistical Proof Derived from Predictive Methods of Detecting Medical Reimbursement Fraud”

The symposium included a student scholarship showcase luncheon. Three law review editors, Kathleen Watson, Casey Taylor, and Lauren Martin, presented on the right to confront technology, warrantless cell phone searches, and computer source code copyright, respectively.

On Thursday, February 26, 2015, as a prelude to the academic symposium, NKU Chase hosted a special screening of The Decade of Discovery, a documentary film about a government attorney on a quest to find a better way to search White House e-mail, and a teacher who takes a stand for civil justice on the electronic frontier. After the viewing, the audience discussed the film with Joe Looby, filmmaker; Jason R. Baron, former government attorney featured in the film; Erin Corken, e-discovery adjunct professor and Ricoh Legal regional review manager; and Joseph Callow, partner and leader of the Keating Muething & Klekamp E-Discovery Litigation Support Group. The film screening was sponsored by Ricoh Legal and Keating Muething & Klekamp PLL.

The symposium was sponsored by Northern Kentucky Law Review, NKU Chase Law + Informatics Institute, Center for Excellence in Advocacy, Keating Muething & Klekamp PLL (film), and Ricoh Americas Corp. Legal (film).

A complete agenda with roster of speakers, biographies, and CLE materials is available here.

Watch the webinar without CLE credit.

About the Law and Informatics Institute: The Law + Informatics Institute at Chase College of Law provides a critical interdisciplinary approach to the study, research, scholarship, and practical application of informatics, focusing on the regulation and utilization of information – including its creation, acquisition, aggregation, security, manipulation and exploitation – in the fields of intellectual property law, privacy law, evidence (regulating government and the police), business law, and international law.

Through courses, symposia, publications and workshops, the Law + Informatics Institute encourages thoughtful public discourse on the regulation and use of information systems, business innovation, and the development of best business practices regarding the exploitation and effectiveness of the information and data systems in business, health care, media and entertainment, and the public sector.

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Tech ignorance a major hurdle to conducting modern litigation

Guest Post by Michael Goodwin

Although recent changes to the ABA model rules specifically require technological competence, many lawyers remain unapologetic luddites. According to one federal judge, this lack of tech savvy is a major hurdle conducting modern litigation efficiently.

In the Fall issue of the journal Litigation, United States Magistrate Judge Patrick J. Walsh takes lawyers to task for what he perceives as a failure to educate themselves on basic technology:

Lawyers need to be versed in technology if they are going to be successful in discovery. If they are not, they should find someone in their firm who is and bring that person into the case for the discovery phase. Because I find that the lawyers are often unable to adequately discuss discovery of electronically-stored data, I often require them to bring the client’s information technology person to the hearing or have that person available by telephone to explain what the company is capable of retrieving and the time and costs that would be involved in doing so.

The failure to articulate the logistics and costs to find data, particularly electronically-stored data, is often fatal to arguments that the discovery sought is unduly burdensome or disproportionate.

A modicum of self-education is required, but like many lawyering skills, competently handling e-discovery is as much about asking the right questions, and finding out to whom they should be addressed. Learning the necessary technological concepts to manage e-discovery does not require a degree in computer science or a formal education in information technology, but it usually does require consultation with people who have that background. As Judge Walsh observes in the article, the client’s employees should be key members of the e-discovery team. These are the people who are usually in the best position to know where their ESI “lives,” how to capture it, and how much it will cost to do so. At least one landmark decision in e-discovery jurisprudence endorsed active collaboration with clients in the e-discovery process:

[I]f you are knowledgeable about and tell the other side who your key custodians are and how you propose to search for the requested documents, opposing counsel and the Court are more apt to agree with your approach.

Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182, 192 (S.D.N.Y. 2012). U.S. District Judge Shira Scheindlin made similar observations almost a decade ago in Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 439 (S.D.N.Y. 2004).

While obtaining appropriate tech skills does require some effort, lawyers aren’t alone. Teamwork, along with a willingness to learn, goes a long way.

Michael Goodwin is a litigation attorney at Jardine, Logan & O’Brien in Minnesota. Michael has experience in a range of practice areas, including government liability, insurance coverage, products liability, and employment law. He can be reached at mgoodwin@jlolaw.com.

The Proportionality Principle

By Michael Goodwin[2]

A feature of JD Rising[1]

As most civil litigators in Minnesota are aware, a number of significant rule amendments went into effect on July 1, including new rules designed to change aspects of discovery, non-dispositive motion practice and complex case management.

Many of the rule changes were based on recommendations by the Minnesota Supreme Court Civil Justice Reform Task Force, which published a report in December 2011. The task force considered its most important recommendation to be the new rule requiring proportionality in all aspects of case management (especially discovery). In fact, proportionality was considered so important that it was included in Rule 1 of the Minnesota Rules of Civil Procedure, which now reads in part:

“It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues. The factors to be considered by the court in making a proportionality assessment include, without limitation: needs of the case, amount in controversy, parties’ resources, and complexity and importance of the issues at stake in the litigation.”

The proportionality requirement of new Rule 1 applies to “virtually any issue that affects the managerial decisions judges and parties make in handling the case.”

The task force was particularly concerned about the costs and burdens associated with discovery, and a number of amendments were made to the discovery rules to advance the proportionality principle. New Rule 26.02(b) requires that a party seeking an order compelling discovery make a showing proportionality. Rules designed to impose limits on discovery were already part of Rule 26.02(b), which mirrored the federal rule.  According to the Civil Justice Reform Task Force, these considerations had not been effective in reigning in discovery:

“In practice, [Rule 26.02(b)] discovery limits have rarely been enforced, however; and the expansion of discovery and the increasing expense of discovery literally threaten the civil justice system.”

By making the proportionality concept more explicit in the rules, the task force intended to “create a presumption in favor of narrower discovery and require consideration of proportionality in all discovery matters, limiting discovery to the reasonable needs of the case.” Proposed changes to the federal rules also include a proportionality limitation on the scope of discovery.

While the express proportionality requirement is new and applies only in Minnesota state court, a few recent cases from the federal courts demonstrate how to make detailed and persuasive proportionality arguments, especially as related to electronically stored information. In one recent case from the Northern District of Illinois, a party largely succeeded in limiting certain discovery by demonstrating the difficulty and expense of accessing the requested information, as well as the likelihood that the discovery requests duplicated discovery that had already been produced.  The defense specifically articulated how the requested data was stored and had specific dollar estimates as to the costs of recovery and production. A Colorado district court, on the other hand, rejected several “unduly burdensome” objections because the objections lacked factual support; the defendants failed to provide “any specific information indicating how the [the defendants] store electronic information, the number of back-up or archival systems that would have to be searched in the course of responding to [plaintiff’s requests], or Defendants’ capability to retrieve information stored in those back-up or archival systems.” As these cases demonstrate, building a record for a proportionality argument often requires detailed testimony from individuals with knowledge of how the requested information is stored and how it could be accessed. Of course, under Rule 1, this information will have to be viewed in the context of the amount in controversy, the parties’ resources and the complexity of the issues, among other factors.

[1] The Proportionality Principle originally appeared In Minnesota Lawyer, July 25, 2013, http://minnlawyer.com/jdr/2013/07/25/the-proportionality-principle/. Reprinted with permission.

[2] Guest blog author Michael Goodwin is an associate attorney at Jardine, Logan & O’Brien in the Twin Cities. Michael’s practice involves a range of insurance defense and coverage issues. Michael currently serves as the Outreach Committee Chairperson for the Minnesota State Bar Association New Lawyers Section. He earned first place in the 2010 Levit Essay Contest, a national writing contest sponsored by the ABA Standing Committee on Lawyers’ Professional Liability and Long & Levit, LLP. Michael graduated from Hamline University School of Law in 2009. During law school he was a board member of the Hamline Law Review and he completed a judicial externship in United States District Court. A native of Sioux City, Iowa, Michael was a newspaper reporter prior to enrolling in law school.