This article was originally published in the November/December 2021 issue of San Diego Lawyer Magazine.
By Bill Kammer
The Times They Are a-Changin’
A prime example of a “new” development in electronically stored information (ESI) is the growing accumulation of audio and video files. The volume of data stored in these files has grown substantially in recent years because of the growing use of internal and external security cameras, body cameras, and recorded telephone conversations. Similarly, enterprise and personal usage have provoked the phenomenal growth of Zoom and Microsoft Teams during the pandemic months, resulting in many recorded sessions. Attorneys cannot ignore this evidence, though it does raise new challenges and considerations.
Manual review of this information can be time-consuming and expensive. Many hours may be necessary to review a single hour of video as it plays out. Additional time is necessary to redact sensitive information or the faces of children. However, help is on the way. Vendors are rapidly developing products that use artificial intelligence to locate relevant portions within a mass of recorded information, theoretically obviating the need for lineal human review. But even once located, there remain significant challenges in privilege and relevance reviews and subsequent production of ESI. For instance, that data may also require conversion before it is loaded into the review platforms attorneys traditionally use. The tools themselves may require modification to accept the new ESI for analysis.
Shadow IT
Many attorneys and firms may not know the challenges and dangers of shadow IT; they might not even know what it is. Shadow IT is loosely defined as devices, software, and services, installed or cloud-based, outside individual or company control. People commonly believe that these are all under firm or company control, but that is simply not the case. Some consultants estimate that 30%-40% of the corporate work product may be accomplished by or stored in shadow IT. Examples include cloud-based storage such as Dropbox or Box; collaboration apps like Slack; and messaging apps such as WhatsApp, Facebook Messenger, and Telegram. It might also include installed or cloud-based software that individuals download to complete basic tasks, believing it to be an improvement over currently installed applications.
Shadow IT also presents eDiscovery challenges that could hinder efforts to preserve, collect, and review ESI. Those efforts may be incomplete or even sanctionable if all possible data locations and custodians are not accurately identified in a data map.
August 6, 1991
We take much of present technology for granted, but there was nothing on the World Wide Web until Aug. 6, 1991. On that day, British computer scientist Kim Berners-Lee published the first website while working at a particle physics lab in Switzerland. It contained information about the ongoing “World Wide Web” project. Berners-Lee rejected his lab’s suggestion that he patent his web technology; he thought the web should be open and free. The original webpage is still available at http://info.cern.ch/hypertext/WWW/TheProject.html — but expect no audio, colors, or graphics.
Two years later, a team at the University of Illinois released Mosaic (later “Netscape”), the first web browser. A few years later, technology launches included Yahoo! (1994), Amazon (1995), eBay (1995), and Google (1998).
eDiscovery and Digital Discovery
First-year civil procedure courses offered to most law students historically contained only brief and passing mentions of digital discovery. Noted commentator Craig Ball has criticized that traditional curriculum because of its failure to prepare students for a litigator’s life. He argues that, for every hour spent in trial, most attorneys will spend hundreds, if not thousands, of hours in eDiscovery and related disputes.
‘eDiscovery Medicine Show’
Maura Grossman and Gordon Cormack are two pioneers of technology-assisted review for electronic discovery. They advocate for its adoption and use, but they are also experts in its design and evaluation. Their latest article, “eDiscovery Medicine Show,” scientifically compares the results of traditional, untested search terms with the information that could be obtained with the assistance of technology-assisted review (TAR). Their discussion cannot be capsulized in this paragraph, but the complete paper can be found at https://arxiv.org/ftp/ arxiv/papers/2109/2109.13908.pdf.
Three Random Words
Five years ago, Britain’s National Cyber Security Centre posted a popular webpage entitled “Three Random Words.” Their arguments resemble later passphrase recommendations by the National Institute of Standards and Technology (NIST), asserting that three random words produce password protection equal to that produced by the arbitrary complexity requirements most people are familiar with. The fundamental argument for three random words is that word combination usually generates longer passwords than basic complexity requirements. And the longer the password, the greater the difficulty for a hacker. For a summary of the arguments for that construct and a discussion of the doubts raised by others, see https://www.ncsc.gov.uk/blog-post/the-logic-behind-three-random-words.
Bill Kammer (wkammer@swsslaw.com) is a partner with Solomon Ward Seidenwurm & Smith, LLP.