New 4th Circuit Ruling on Illegal e-Discovery Adds Teeth to Federal Anti-Hacker Email Privacy Law

The Fourth Circuit Court of Appeals has strengthened federal anti-hacker email privacy law by allowing a civil suit for punitive damages alone, even when there are no actual damages. Van Alstyne v. Electronic Scriptorium, _F.3d_, 2009 WL 692512 (4th Cir. March 18, 2009). The Court recognized that the intentional taking of email stored online was a violation of the  Stored Communications Act (”SCA”), 18 U.S.C. §2707, allowing a victim to sue for monetary damages to punish the hacker and deter such future conduct.

This is a significant advance in privacy protection law because previously, punitive damage awards under the SCA were not allowed without proof of actual damages. Id. at pg. 16. People Helpers Found., Inc. v. City of Richmond, 12 F.3d 1321, 1326 (4th Cir. 1993). This is in accord with the general rule that punitive damages are never allowed without proof of actual damages unless a statute expressly allows it. Id. The Court found such authority in the civil enforcement section of the SCA, which states:

If the violation is willful or intentional, the court may assess punitive damages.

18 U.S.C. §2707(c). This is the first time the SCA has been so interpreted by a Circuit Court of Appeals and the first time punitive damages, costs, and attorney fees for an SCA violation have been allowed without proof of damages.

It is a Crime to Hack Into an Online Email Account

The unauthorized access of an AOL account in Van Alstyne constituted a violation of the SCA, which is part of the Electronics Communications Privacy Act (”ECPA”), 18 U.S.C. §2510, et seq. As the opinion at page 8 explains:

Section 2701 of the SCA creates a criminal offense for whoever “intentionally accesses without authorization a facility through which an electronic communication service is provided” or “intentionally exceeds an authorization to access that facility,” and by doing so “obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system.” 18 U.S.C.A. §2701(a)(1-2).

As background, Bonnie Van Alstyne was employed as Director of Marketing for Electronic Scriptorium, a small data-conversion company. She claimed she was fired after rejecting sexual advances from the CEO, Edward Leonard. At that point, Leonard did a little self-help e-discovery (we presume without any assistance from his lawyer) and hacked into Van Alstyne’s AOL email account.

This AOL account, like any online email service, is considered ”a facility through which an electronic communication service is provided” covered by the SCA. Leonard had somehow discovered Van Alstyne’s AOL password. We are not told how he did that, but he could have lawfully discovered it by looking on company computers. Regardless, Van Alstyne had never authorized Leonard to access her AOL account. Leonard used her AOL user-name and password to read her email. We do not know all of the nefarious motives behind this invasion of privacy, but certainly one motive was to try and find something that he could use against Van Alstyne to defend the sexual harassment claims. He found a few emails he liked, downloaded them, and provided them to his lawyer. The lawyer in turn surprised Van Alstyne with these emails during her deposition.

The downloading of emails from Van Alstyne’s AOL account without authorization constituted “obtaining … a electronic communication while it is in electronic storage in such system” and thus a clear violation of the SCA was established. The Court held that if the SCA is intentionally violated, then punitive damages, costs, and fees can be awarded, even though no damages were caused by the taking of the electronic communication.

Court Requires Actual Damages to Trigger the Statutory Minimum

The Court did, however, draw the line at the automatic award of the minimum statutory damages of $1,000 per unauthorized access. It held that it is not permitted under the statute with proof of some damages. In so doing, it followed the Supreme Court in Doe v. Chao, 540 U.S. 614, 627 (2004). The Supreme Court in Doe considered nearly identical language in the Privacy Act, 5 U.S.C. §552a (g)(4), and held that the $1,000 minimum statutory damages award was available “only to plaintiffs who suffered some actual damages.”

The Fourth Circuit considered itself to be bound by Doe, but reportedly five district courts in five different circuits did not. They had previously held to the contrary that proof of actual damages was not required to receive the statutory minimum award under the SCA. For this reason, some consider Van Alstyne to be a setback for privacy law, and indeed it is, to a degree. Still, this is a slight setback and pales in comparison to a Circuit Court of Appeal allowing punitive damages under the SCA without proof of actual damages.

Here is the Court’s summary, at page 8, of the civil action of damages allowed under the SCA:

Section 2707 provides a private cause of action for “any . . . other person aggrieved” by a violation of § 2701. 18 U.S.C.A. §2707(a). Under § 2707, a district court may award equitable or declaratory relief, a reasonable attorney’s fee and other costs, and “damages under subsection (c).” 18 U.S.C.A. §2707(b). Subsection (c) provides:

The court may assess as damages in a civil action under this section the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of $1,000. If the violation is willful or intentional, the court may assess punitive damages. In the case of a successful action to enforce liability under this section, the court may assess the costs of the action, together with reasonable attorney fees determined by the court.

The Court rejected plaintiff’s arguments that the reference to a minimum award meant that you should receive $1,000 for every violation, even if there were no “actual damages.” I found the Court’s argument on that point persuasive and even forgetting Doe, which of course you cannot do, I do not see how five district courts were persuaded to rule to the contrary. If Congress had intended to allow a minimum statutory damage award absent proof of actual damages, it could easily have said so in the statute. For instance, The Wiretap Act, which like the SCA is found within the ECPA, does exactly that:

In any other action under this section, the court may assess as damages whichever is the greater of . . . the sum of the actual damages suffered by the plaintiff and any profits made by the violator . . . or . . . statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000.

18 U.S.C. §2520(c)(2). I would support an amendment to the Stored Communications Act to provide for an automatic award of damages in an amount even greater than $1,000 per violation, but regardless, we now have incentive enough from actual and punitive damages to sue to enforce this important law. 

Lesson For Hackers: Computer Privacy Law Now Has More Teeth

Although this case arises out of an employer context, and involves other claims of sexual discrimination and wrongful discharge (thus the search for her email), this is not really an employment case, but rather an individual privacy rights case. This decision strengthens the protection of the Electronics Communications Privacy Act by encouraging civil suits to enforce the SCA email protection segments of this law.

Since it is often difficult or impossible to prove actual damages from an invasion of email privacy, there is little encouragement for victims to sue under the Stored Communications Act if the suit requires proof of damages. Further, as Van Alstyne argues in this case, if you do try to prove damages, such as emotional distress, you often open yourself up to very invasive discovery of all aspects of your personal life. This is something that most people, including Van Alstyne, are unwilling to do. The net result is that the hacker often walks, undeterred from doing it again to the next victim.

If a person is just embarrassed and annoyed by the interception and theft of their email and other electronic messages, and they cannot easily prove actual hard dollar damages, they had no incentive to sue the perpetrator. (They might be able to get an injunction or declaration, but so what.) If you must prove actual damages, then the victim’s only real hope to try to punish and deter a computer hacker is though the criminal system. A victim could file a complaint and hope the prosecutor would bring criminal charges. But as a practical matter, unless money is involved, few prosecutors have the time, money, expertise, or inclination to prosecute such computer privacy cases. The reluctance to prosecute non-monetary hacker cases is especially true in situations such as in this case, where there is ongoing civil litigation between private parties.

Aside from cases where there are actual damages, such as credit card or medical information hacker cases, criminal prosecutions for breach of computer privacy alone are few are far between. The only exception is the high profile case, such as 2008 Republican Vice presidential candidate Sarah Palin, whose Yahoo email account was hacked into during the election. A college student accessed her email account by guessing the answers to her security questions, and then publicly bragged about it. You betcha he was tracked down and indicted under the SCA. But even there, the student has not yet been convicted and there may be problems with the SCA criminal case.

Although many people use online email, it is far from secure. It is all too too easy to discover a person’s online email account password and “hack” into their email or other cloud computing accounts, including social media accounts such as Facebook. The ease of such computer intrusion or hacking is shown by this case and the Sara Palin case. This is especially true if you know the person, or they are a public figure and you can guess their password security questions as the Palin case shows. It is also easy to do if you have access to the person’s work computer and can trace their Internet use history, something most employers today can do. 

There are many other instances of email hacking going on today that you never hear about, particularly in divorce or harassment cases. Thanks to Van Alstyne, in the future you will to start to hear about this much more often. The Fourth Circuit has strengthened the rights of computer users to privacy by adding punitive damage teeth to the Stored Communications Act. Since cloud computing has now become so pervasive, this is an important decision for everyone’s privacy rights, including corporations at risk for having their own computers and email systems hacked. Hackers beware! You may not only go to jail, but be sued for punitive damages and fees by everyone you hack. 

Apparently this change in the law may also help plaintiffs in class-actions cases that allege SCA violations, such as suits against service providers like AT&T for turning over private email to the government without a valid subpoena. It will make it easier to state a cause of action under the SCA because you will no longer have to plead damages, just an intentional violation. According to class-action attorneys Al Gidari and Ryan Mrazik in their article on the Van Alstyne decision in Digestible Law:

Practically, this case actually makes it easier for plaintiffs to survive motions to dismiss for failure to plead actual damages because they now can assert the conduct was “willful or intentional” and discovery will be required to determine if punitive damages are warranted. And, because whether conduct is willful or intentional is a question of fact, it will be difficult for defendants to win summary judgment after discovery as well. In sum, the Fourth Circuit’s decision may open the door to much more SCA litigation.

Attorneys Gidari and Mrazik recommend that:

Companies should carefully consider when and whether to access, use, or disclose stored communications or customer information and ensure their conduct comports with SCA-authorized activities to avoid the now higher risk of litigation. 

That is good advice for companies, spammers,  Gladys Kravitz-types, and hackers alike.

Lessons for e-Discovery Lawyers:
Beware of Illegally Hacked Email

There are important lessons here for e-discovery lawyers too. The unauthorized access of a person’s private email account to discover and retrieve their email is a crime. Just because you know a person’s user name and password, does not give you the right to use it. This kind of self-help e-discovery is not only unethical, it is criminal. You must employ a request for production or subpoena. You cannot hack into their private email accounts or home computers any more than you can break into their house and steal papers.

Of course, this is different from a situation where you look at the contents of the employee’s office, or office computer, or office email account. See IT Workers Read Your Personal Email and U.S. Law is Generally OK with That. An employer can use an employee’s password to access their company computer and company email because they have authority to do that. But I have never seen an employment agreement or policy which provides an employer with authority to access an employee’s private email account, such as AOL, Yahoo, or Gmail, or hack into their home computer systems, regardless of whether they may sometimes use these computers and email services for business.  Also See: Quon v. Arch Wireless 529 F.3d 892, 2008 WL 2440559 (9th Cir., June 18, 2008), which I wrote about in More “Must Read” 2008 Cases. In Quon the Ninth Circuit held that a company’s disclosure of text messages to the employer, who was the “subscriber” and not “an addressee or intended recipient of such communication,” violated the SCA.

Van Alstyne sends a clear signal to the computer-savvy-Bar. You cannot use self-help in the guise of discovery or employee monitoring to hack a person’s private email account. Yes, I know it is ridiculously easy to hack into these online email and social media accounts. It might be a simple way get at the truth, expose liars, and win the case. It could be done surreptitiously and never disclosed. But don’t do it. This kind of self-help e-discovery is a crime. You could go to jail (up to five years), be fined, and lose your license. Also, as this case holds, you could face a civil suit and a jury with the power to punish the “bad lawyer” with damages. The CEO in Van Alstyne got tagged with a $100,000 punitive damage award. How much do you think a jury might award to punish a lawyer hacker or his or her law firm? It is an easy button to be sure, but don’t press it, and don’t allow your staff, hired detectives, or vendors to do it either.

Van Alstyne also sends a clear signal to the computer-challenged-Bar. Consider the facts in Van Alstyne as stated in the opinion. Van Alstyne was shown several emails during her deposition. They were presented to her in paper form and had apparently not been disclosed to her attorney before the deposition. She had written these emails before she was fired and she recognized them. Apparently they were all work related in some way and hurt her case.

Van Alstyne had primarily used her employer’s Outlook email for work, but would sometime also use her personal AOL email account. She suspected that some of the emails shown to her during the deposition were from her AOL account, not her Outlook account. (I do not know why this was just a suspicion, instead of obvious from the email address, but perhaps the emails all just showed the same user name or perhaps that portion of the email was not included on the papers shown to her). Here is the Court’s explanation of what happened after the deposition:

Van Alstyne believed that these exhibits were actually taken from her AOL account and not her company account. With her suspicions aroused, Van Alstyne began pursuing the possibility that Leonard and ESL had broken into that private account. Sure enough, during a June 2006 deposition, Leonard admitted that he accessed Van Alstyne’s AOL account after she left the company. He further testified that the emails produced during the deposition represented the only occasions on which he had accessed her account.

It turns out that Leonard, the alleged sexual harasser, was not entirely truthful during his deposition testimony. He had far more of Van Alstyne’s AOL emails than that. In truth, he had accessed her AOL account many, many times. In later depositions Leonard admitted the truth. Here are the Court words in footnote 2 about Leonard’s false testimony in his first deposition:

These statements were not entirely true. Indeed, Leonard ultimately admitted to accessing Van Alstyne’s AOL account at all hours of the day, from home and internet cafes, and from locales as diverse as London, Paris, and Hong Kong. During discovery, Leonard produced copies of 258 different emails he had taken from Van Alstyne’s AOL account.

A tad obsessive, wouldn’t you say? In any event, after contradictory testimony like that, Leonard’s credibility is shot. It is no surprise that the jury awarded $100,000 in punitive damages alone, just for these unauthorized intrusions into Van Alstyne’s AOL account.

But what about Leonard’s attorney? Did he or she ask Leonard where he got the emails they were going to use for the deposition of Van Alstyne? I would hope so, and hope that the client lied to his attorneys and said they were all from his company’s computers. Still, it would seem that a diligent investigation and supervision of the discovery process would have revealed the true origin of these emails.

The lesson to be learned here by attorneys is to always ask and be sure you understand where and how your client obtained email that they turn over to you. Especially in a heated case like this with allegations of sexual harassment, you need to be sure the emails were obtained legally. This is now a common problem in divorce cases. If your client has hacked into someone’s private email to get the evidence, they may well have committed a crime, as this case shows. They should be counseled accordingly. You cannot simply act like Sergeant Schultz in Hogan’s Heros and say “I know nothing!” The dumb as you want to be defense will not work with savvy opposing counsel or judges. You have a duty to inquire and cannot simply look the other way. If you learn the evidence is tainted, you do not use it and just hope that nobody notices.

I am not suggesting that is what happened here. I do not know; but the facts stated in the opinion raise some disturbing questions. Clearly we should all exercise caution in the discovery of an adversaries’ email and other personal computer information. When it comes to private email we should forget the common proverb; we should carefully look a gift horse in the mouth. 

Conclusion

Everyone who uses email in the clouds can now rest a little safer, thanks to this important ruling of the Fourth Circuit. We can only hope that other Circuits will follow Van Alstyne and allow punitive damage, cost, and fee awards for unlawful invasion of email privacy without proof of actual damages. This will encourage active enforcement by private parties in civil lawsuits. If a jury is mad at the hacker, be they a young student, like in Palin, or the CEO of the company, as in Van Alstyne, we could see quite a few six figure punitive damage awards (assuming the judge does not reduce the size of the award as unreasonably high; see Abner v. The Kansas City So RR , 513 F.3d. 154 (5th Cir. 2008)). Nobody likes to have their email privacy invaded and now we have another way to fight back.

ABA Announces the Publication of My Second Book

I am excited to tell you about the ABA’s publication of my second book: Introduction to E-Discovery: New Cases, Ideas, and Techniques. Here is a link to the ABA webstore where the book can be purchased online. It should be shipped in the next few weeks and in the meantime you can order it at a 15% discount. I have not seen the final bound version myself, but it looks like it will come in at just over 300 pages. Check out the cool cover I got this time. Believe it or not, it took me a few minutes to see the “e.”

If you have read all of my blogs since the Fall of 2007, then you have already read most of this book. But if you missed some, or just want to see what it looks like in a “dead tree” version, then order a copy. The blogs have been rearranged into proper subject matter order with a Table of Contents, Index, Table of Authorities, etc. The book includes not only my blogs, but that of two blog contributors in 2008, Jason Baron and Michael Simon. It also includes many of the comments that blog readers have posted publicly.

Although I am a fairly plugged-in person, own a Kindle and all that, I still like paper books too. Ken Withers would call me “protodigital.” A book like this does in fact makes for a handy three-dimensional reference. Also, perhaps you have some friends that are not yet “blog-reading” types, but might read or at least consult a more traditional book? How about your law firm or company library, etc? You get the picture. If you can help me get the word out about the book, or buy it yourself, I would greatly appreciate it.

The truth is, the people who need to read this material the most are not among my regular e-Discovery Team blog readers. In fact, they barely read anything online. They have probably heard of blogs, but just dismiss them “humorously” as part of the “blogosphere” where they suspect only wild-eyed crazies would spend any time. Yes, we bloggers are still the “Rodney Dangerfields” of the established Bar. But these same lawyers do respect books, especially books by the American Bar Association. That is why I put tons of hours each week into researching and writing a blog, and even more hours each Fall to turn them into a book. My hope is that this digital-to-paper effort will bring the latest news and ideas about e-discovery to a wide audience, not just the elite leadership of e-discovery, by which, of course, I am referring to you!

Apparently the ABA was hit up by many subject-matter-experts this year who wanted the ABA to publish a book they either proposed or had already written on e-discovery. Their selection of my book, for a second year in a row, was by no means a foregone conclusion. The ABA quite rightly insisted it be peer reviewed first. It passed. Also, the fact that my first book was a best seller for the ABA, received great reviews, and was cited (thank you all), did not hurt either.

Introduction to E-Discovery: New Cases, Ideas, and Techniques, much like my first book, e-Discovery: Current Trends and Cases, is designed to make e-discovery approachable and interesting. It is, I have been told, a pretty good orientation for students of all ages and backgrounds.  It is my hope that this second book, like the first, will be used by laws schools and paralegal training schools around the country as a basic text, along with others, on this exciting and important new subject.

Here is what the good folks at the ABA, who are, by the way, prone to exaggeration, have written to promote my new book:

About the Book In the follow up to his acclaimed, best selling book, E-discovery: Current Trends and Cases, author Ralph Losey once again examines the ever-changing world of electronic discovery, and goes on to explain the latest trends and cases effecting e-discovery in an easy-to-understand manner. This new book is derived from a popular Internet blog on an e-discovery by a senior attorney at a large national law firm and includes readers comments on the materials in the book, and the authors replies straight from the author’s Blog.Introduction to e-Discovery: New Cases, Ideas, and Techniques begins with a fundamental premise that teams are the most efficient and effective way to do e-discovery. An e-Discovery team is an interdisciplinary group of lawyers and IT technicians, usually joined by one or more representatives of business management. The book explains in a step-by-step fashion how this team should be assembled, and how the various tasks of electronic discovery can be more easily accomplished using the team.   In addition the book examines: ” Self-organization and development of evidence preservation protocols ” New articles of interest on e-discovery teams ” The future of e-discovery suggested by a recent litigation survey ” How negligent e-records management is creating stunning business risks ” E-discovery at the Harvard Club in New York City ” New California proposals for e-discovery laws ” The conflict between our rules of discovery and the privacy laws of the rest of the world ” The limitations of checklists and how to work best using them, and much, much more! Importantly, the book discusses two new e-discovery guides for judges and how everyone involved in e-discovery, not just judges, should become familiar with them.  No one can operate effectively in the court rooms of tomorrow without a good understanding of wheres, hows and whys of digital evidence. As a cover-to-cover read to learn more about the hot topics and latest case law in e-discovery, this book can help provide that understanding. After a read through, this book can be used as a reference, with its appendix of useful reference materials to look up cases and arguments to use in daily practice.  Introduction to e-Discovery is written in an easy-to-read style, making it perfect for anyone interested in e-discovery. This book is suitable for non-lawyers, too, including paralegals, law students, IT experts, and executives of all kinds in the growing fields of e-discovery and information management. Nothing is having a more profound effect on the field of law today than e-discovery. Make sure you stay on top of the latest trends with this important new book.

What Others Are Saying “Ralph Losey’s newest book provides deep and useful insights into the rapidly changing world of electronic discovery. A must read for bench and bar alike.”–Browning E. Marean, DLA Piper, LLP     “This expert advice is worth its weight in gold, and goes far beyond mere technical expertise. …required reading for anyone who wants to learn this emerging area, avoid malpractice, steer clear of ethical problems, and importantly, win the case at the least expense.” –George Paul, Author, and Partner, Lewis & Roca    “Once again Ralph Losey nails the current status of E-Discovery law. It’s an entertaining and legally substantive guide, which all lawyers would benefit from reading. I will use it as my first stop in finding relevant case law and highlighting problem areas and disparate opinions in this ever-growing field of law.”  –Shannon Capone Kirk, E-Discovery Counsel, Ropes & Gray, LLP   “Ralph has done it again! His second “blook” is undoubtedly one of the most thorough, understandable, candid, and enjoyable resources addressing e-discovery I have ever picked up.” –Sherry B. Harris, E-Discovery Advisor, Hunton & Williams LLP

My sincere thanks goes to the many people who helped make this second book possible, including especially my family, friends, law firm, kind reviewers, contributors, and you, my readers.

Fresh Perspectives on e-Discovery from Young Minds in the “Academy”

The best, most innovative solutions to thorny legal issues are often born in the academic community of law professors and students, a community that still refers to itself as the academy. In this regard, law is somewhat like physics or math, where the best, breakthrough insights often come early in life. Albert Einstein conceived his theories of relativity at age 26. It was pretty much downhill for him after that. The same is true to an even greater extent in the most abstract of fields – mathematics, where there has always been a strange mix of prodigies and geniuses, perhaps best exemplified by the doomed young Indian savant, Srinivasa Ramanujan.  

The young mind is particularly well suited for certain theoretical tasks; innovation in the law is one of those tasks. How else do you explain that only in law are all of the serious scholarly publications run and controlled by students? This is not the case in any other subject, even physics and math.

The emerging field of e-discovery, which combines law and technology, is especially well suited for young legal theorists. We practicing lawyers are tainted by our strongest asset, our wealth of experience. We already know how to do things. We have “been-there, done-that;” the beginner’s Zen mind is gone.

True, the practice of law is now, and always has been, controlled by the senior attorneys, the ones with the experience, clients, and power. But they are rarely, if ever, involved in theory or pure intellectual pursuits. Instead, they are focused on practical issues of representing clients. They devise and advocate theories and positions that benefit their clients, as opposed to theories that are true and just in an abstract platonic sense. They chase the shadows on the cave wall and have no time for frivolities in the sun. They leave justice to the judges and, to some extent, the  law professors. But in the area of e-discovery at least, the professors have been absent, ceding the field entirely to the students and judges.

A small handful of judges have had the time and energy to tackle e-discovery problems, but they have been few and far between. Moreover, the few judges that author landmark rulings in e-discovery recognize their limitations in experience with the digital world, and, like practicing attorneys, are constrained by limited time and resources.  

The few bona fide scholars that have emerged in e-discovery all recognize this problem too. For instance, Ken Withers understands the limits of our current e-discovery leadership and legal practice. Ken has even coined a word to explain the limits inherent to the mature mind, limits that make it so difficult to truly grasp the essence of e-discovery – “protodigital.” Those of us who, like Ken, grew up in a paper world and were first trained  in law as a “paper chase” are of the protodigital type. We are half-in and half-out of the new era of e-discovery. We have inherent gestalt limitations on our ability to make theoretical breakthroughs in electronic discovery. We are like astronaut Dave Bowman in Stanley Kubrick’s film, 2001: A Space Odyssey, before he transforms into the Star-Child.

The young minds who have lived their whole lives in a digital world have a significant edge in an increasingly techno-centric world. They are not as constrained by the shadows of the past. This is one reason that Ken and others in The Sedona Conference, including its executive director, Richard Braman, and the young Patrick Oot, all promote the need for including e-discovery in law school curricula. We all herald the coming good of the next generation of young lawyers.

Clicking Away Confidentiality; a Case in Point

For these reasons I am delighted to see more and more articles written by law students on e-discovery and published by the mainstream law reviews they operate. My son, Adam Colby Losey (shown left), recently published, Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilege, as one of three student articles published in the current issue of Florida Law Review, Volume 60, Number 5, December 2008. Other articles in this same volume include: Student Speech Rights in the Digital Age by Mary-Rose Papandrea, a young Assistant Professor at Boston College Law School; and, Possession of Child Pornography: Should You Be Convicted When the Computer Cache Does the Saving for You? by  Giannina Marin, a law review student at the University of Florida School of Law. 

Adam’s article is concerned with the hot topic of when an employee’s use of their employer’s computers to communicate with an attorney should result in a waiver of their attorney-client privilege. Learned judges around the country have struggled with this question and have come up with answers that vary widely. The state of the law of workplace waiver is murky at best.  As a consequence, employees and employers alike cannot predict if employee email communications to lawyers are privileged. Prior to the recent publication of Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilege, there were no suggestions proposing a solution.

Walter Weyrauch was one of the faculty members at Florida who frequently advised Adam about Clicking Away Confidentiality. He recommended the use of a presumption to deal with workplace waiver. Professor Weyrauch held a J.S.D. in law from Yale (equivalent of a Ph.D.) and taught at the University of Florida for over fifty-one years. He was my favorite law professor at UF in the late 1970s, at which time he had already been teaching at U.F. for over twenty years, and so it was quite amazing that he also taught my son some thirty years later. Shortly after advising Adam on the finer points of presumptions, Professor Weyrauch  passed away on October 17, 2008. His insights and intellect will be sorely missed by the students, faculty, and alumnus of the University of Florida.

Admittedly, I am biased toward an article written by my son. However, he has been independently contacted by several judges, professors, and thought leaders in e-discovery regarding Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilege to whom he had sent copies. After a year and a half of work, Adam naturally wants his article to be read and critiqued. I am pleased that the response has been swift and positive. Not merely in words, but also by actions, which speak louder. Adam has already been invited to participate in an e-discovery writing project with two leading scholars. Like me, they see the value of the voice of youth and the pure digital mind.

Adam has even been invited by the Chief Information Officer of the City of New York to participate in an e-discovery seminar in Manhattan this February. They plan on setting up a debate between Adam, representing the responding party, and someone with literally thirty years of legal experience representing the requesting party. No doubt the experienced lawyer assumes this will be a cake-walk, as Adam is still a student. However, I know from many hours of frustrating personal experience that all law students love to argue. With all of the experience they gain through 24/7 arguments at law school, they become very proficient at it. Dinner at the Losey home is often testament to this.

The Meat of Clicking Away Confidentiality

I hope to spend the rest of the blog enticing you to click the following link to Clicking Away Confidentiality and read the article yourself. Adam would appreciate your criticisms and thoughts. It is a concise piece; at 24 pages and 162 footnotes, you can easily study Clicking Away Confidentiality in under an hour and absorb over a year’s worth of work. You may even find that there are sections worth citing and quoting in your own briefs. 

Like most law review articles, it is written in a scholarly style, but also has wit and dry humor. For instance, the article begins with a factual scenario drawn directly from a recent New York Times article interviewing a woman named Barbara Hall. Ms. Hall describes her constant emails to her daughters while at work as “[i]n the grand tradition of Chekhov, or perhaps ‘Days of Our Lives,’ . . . .”.  

Reading this article, and others like it now emerging in law reviews around the country, will also provide you with an example of  full digital-mind legal reasoning. These articles provide taste of things to come from the next generation of lawyers. By the end of the read of Clicking Away Confidentiality, especially if you include the 162 footnotes, you will have a thorough grasp of the evolution of the doctrine of attorney-client privilege and when and how it can be waived in the workplace. The only published cases on either side are explained and a proposal is made for resolving the conflict. 

This whole project started about one and a half years ago when Adam was scouting around for a law review topic. At that time, my law firm had two cases where the issue of waiver of privilege by use of  an employer owned computer had become critical. I knew there was blatant conflict in the law, but had no idea how to resolve it. Our job was to present the law so that our client prevailed. I did not try to determine what the law should be or how to reconcile the conflicts. So goes the practice of law.

My only hand in Adam’s project was to influence the choice of topic and thereafter to encourage him in the hard work of research, analysis, and writing. Eighteen months later, when I read the final version of Clicking Away Confidentiality, I was impressed with the ideas, the proposed solution, and the style. In my biased view, Adam’s article is indeed first rate and his proposed solution to the conflict seems sound. However, I invite you to determine for yourself the viability of Adam’s proposed solution to the developing workplace waiver schism.

Before you click and start reading Clicking Away Confidentiality for yourself, you can get a good overview of the work by the Table of Contents:

I. INTRODUCTION: BARBARA HALL AND HER DAUGHTERS 

II. THE EVOLUTION OF ATTORNEY-CLIENT PRIVILEGE 

A. The Traditional Approach 

B. The Modern Approach 

C. Possible Chilling Effects 

D. Intersection with the Work Product Doctrine 

III. CHAOS IN THE COURTS 

A. The Employer’s Policies Regarding Computer Use and Monitoring 

B. Employee Use of a Password-Protected E-mail Account

C. Common Usage of Personal E-mail on Company Computers

D. Employee Attempts to Delete Privileged Material

E. Employer Enforcement of any Existing Policies

F. The Location of the Computer

G. The Forensic Method Used to View an Employee’s E-mails

H. Fairness and Public Policy

IV. MAKING SENSE OF IT ALL

A. The Knowledge Gap

B. Modern vs. Traditional Approach to Attorney-Client Privilege

V. THE WORKPLACE WAIVER PRESUMPTION

A. The Bright-Line Fallacy

B. Distillation of Logically Pertinent Variables

VI. CONCLUSION: ADOPTION OF THE WORKPLACE WAIVER PRESUMPTION

I am not going to steal the thunder of the article by revealing the details of the proposed solution to this problem, suffice it to say that it involves the application of a rebuttable presumption concerning whether the privilege has been waived. The presumption is triggered by proof of certain basic facts and circumstances concerning the workplace and employer policies.

As a final enticement to read this article, and the footnotes (as that is where many of the most interesting facts are found) I offer a few quotes. The first is from the introduction explaining the premise and scope of the article

While an estimated 90% of companies that monitor employee communications notify their employees about the possibility of monitoring, many employees are oblivious to the fact that a permanent record may exist of their Internet and e-mail use at work. This ignorance has resulted in serious consequences for employee litigants. At risk are the communications between attorney and client that have been extended special legal protections throughout history. This Note discusses workplace monitoring of these privileged communications. (footnotes omitted)

Part II points out the growing and unspoken abandonment of traditional approaches in these non-traditional cases. Part III describes the hodgepodge of emerging case law on the subject. Part IV attempts to identify the underlying source of difficulty in these abstruse cases. Part V teases the logically pertinent variables out of existing case law, and uses these variables as building blocks to construct a workplace waiver presumption. Finally, Part VI advocates the universal adoption of this workplace waiver presumption.

In these workplace waiver cases, a schism is quietly developing. Some courts are discreetly (and perhaps inadvertently) abandoning the traditionally accepted narrow interpretation of attorney-client privilege in favor of a broad protective approach on public policy grounds. Others continue to adhere to traditional doctrine. A clash between these two schools of thought may be inevitable. The universal application of a rebuttable presumption that an employee has waived attorney-client privilege could avert a direct collision between these two schools of thought and establish a semblance of predictability in workplace waiver cases.

Here are the final two closing paragraphs of the article. Read the whole work to understand exactly what presumption is recommended.

Courts can and should distill existing case law to determine the logically pertinent factual variables in workplace waiver cases, but a jurisprudential clash may be inevitable. Courts that have adopted the broad (modern) approach to attorney-client privilege, and those that have held fast to Wigmore’s narrow (traditional) interpretation are on a collision path.

The application of the workplace waiver presumption, described in this Note, is the best way to avert a direct collision between these two schools of thought and to achieve a semblance of predictability in these cases. Adherents to both the modern and traditional approaches would be able to use this presumption without compromising their viewpoints. This presumption would give courts a workable, flexible rubric that would prove invaluable in working through workplace waiver issues. It is clear that the adoption of the workplace waiver presumption is the logical first step in the development of workplace waiver jurisprudence.

Adam C. Losey, Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilege, 20 Fla. L. Rev. 5 (Dec. 2008).

Happy Holidays to you and your family!

The Ninth Step: Review of George Paul’s New Book “Foundations of Digital Evidence”

Everyone in e-discovery is familiar with the EDRM nine-step model of e-discovery. It may surprise you to know that the first and last steps of this model, Information Management and Presentation, are not part of the discovery process at all. Instead, they are key activities related to e-discovery. The first and last steps precede and follow the seven steps of actual e-discovery work (shown below). The last step, the Ninth Step, is governed by the rules of evidence, not procedure. That is where George Paul’s new book, Foundations of Digital Evidence  (ABA 2008), makes a valuable contribution to U.S. jurisprudence.

The essence of Paul’s book is that the old paper-based rules of evidence are inadequate to deal with today’s world of digital information. Just like we now have new rules of civil procedure to govern the discovery of electronic information, we also need new rules of evidence to govern the admissibility of electronic information at trial. Paul’s book explains why. He does so using all of the considerable intellectual tools and knowledge at his command, including history, philosophy, jurisprudence, computer science, and most importantly, pragmatic skills and knowledge learned the hard way from 26 years of practicing law as a trial attorney.

Before I go into more detail about Foundations of Digital Evidence, I want to show how digital evidence fits into the overall scheme of e-discovery. Hopefully, this explanation will provide context as to why I consider Paul’s work on the Ninth Step to be important, not only to e-discovery, but to the whole body of the Law.

The first step in the EDRM e-discovery model is called Information Management. It is typically shown on the far left of the diagram before Identification and Preservation. It is obviously not part of discovery per se, but instead refers to the pre-discovery practices of ESI filing and retention, practices that later make e-discovery much easier, or more difficult, depending on how well they are designed or performed.

The last Presentation step is also not part of discovery. Instead, it follows the discovery work and is usually shown on the far right, after Production. Indeed, Presentation represents the whole point of e-discovery; its purpose and goal: the presentation of information found in order to support your case or undermine your opponent’s case. Here, the few grains of electronic-wheat, separated from the zillions of chaff-ESI, are polished up and served either in a hearing to support a motion, a trial, or a mediation or other settlement conference.

The Ninth and last Step comes after the discovery process is completed. In spite of this fact, I strongly agree that Presentation should be included in the e-discovery work-flow model. (I also agree that Records Management should too, but that is a different story having to do with efficiency and cost savings.) If you discover information, and it is not admissable as evidence, or is discounted as untrustworthy and given little weight, then the whole exercise of discovery has been pointless. This is exactly what happened to the parties in Judge Grimm’s landmark case on ESI evidence,  Lorraine v. Markel American Ins. Co., 2007 WL 1300739 (D. Md. May 4, 2007). I wrote about Lorraine previously in my article The Admissability of Electronic Evidence.

As a “reformed trial lawyer” myself (to borrow a phrase from Craig Ball), I know full well that if discovery is not done right, the information you uncovered at such great expense and effort  may never be seen by anyone. Even if it is considered, it may not be given much importance; or, from the other side’s perspective, it may be given much more weight than it deserves.

Foundations of Digital Evidence

This last point is at the heart of George Paul’s new book: Foundations of Digital Evidence. The rules of evidence govern the Ninth Step of Presentation when the information is offered in a court of law. The rules may be ignored or winked at in arbitration and mediation, and may be unknown to the rest of the world which typically has a more active and discretion-laden judiciary. But in U.S. courts, the evidence rules govern the admissibility, or not, of information into evidence. Only if information is allowed into the record as evidence may it be considered by a judge or jury. Further, information may often only be allowed in “for what it is worth,” a common phrase in any bench trial. Then the arguments as to “probative value” of the evidence are in the forefront. What value does this evidence have to the proof of your case?

George Paul’s book is a gold mine of ideas for trial lawyers who may need to support or attack the probative value of electronic evidence at trial. Young trial lawyers especially should read this book to try to understand the emerging impact of electronic information on rules of evidence. But Paul’s ideas and information are also of great value to e-discovery focused lawyers such as myself for much the same reason. We need to present ESI to trial lawyers that is credible, with strong indices’s of authenticity, so that it will be not only be admitted into evidence, but have strong persuasive value. That will help our clients to win the case or achieve a favorable settlement. Further, trial counsel will turn to e-discovery lawyers for advice on how to attack the worthiness of the opposing party’s digital evidence. Was it collected properly so as to be authenticated? Is there some question as to its bonaficity so as to discount its probative value, even if it is admitted into evidence?

Evidentary Arguments Should Become the New Focus of Adversarial Contests

As I have frequently discussed before, discovery must and will inevitably shift to a more cooperative model. The volume and complexity of ESI demand cooperation as a practical matter. Also, as Judge Grimm has shown in Mancia v. Mayflower Textile Services Co., Civ. No. 1:08-CV-00273-CCB (D. Md. October 15, 2008), the rules governing discovery also demand cooperation. The Sedona Conference and others, myself included, are pushing hard for U.S. lawyers to adopt this new paradigm in discovery. But, unlike other groups that are pushing for Alternative Dispute Resolution, we are not pushing for the elimination of the public adversary process all-together. We believe in the civil justice system and are looking for ways to improve it, not arguing for its demise and replacement by private alternatives. 

Our system of justice is based on the adversarial model where two or more sides present their opposing views of the truth, and the judge and jury sort it out to do justice. The cooperative e-discovery movement stands by the adversary system, but demands that the contests take place in the right arena, in the court rooms where there is a judge and jury to monitor and declare winners, not in the backrooms of ESI production. 

It is our hope that as discovery becomes more cooperative, the contests concerning electronic information will shift from discovery of ESI, to the admissibility and weight of ESI at trial. The adversarial process will shift from the first eight steps in the e-discovery model, to the Ninth Presentation Step. George Paul’s book will arm the lawyers and judges of the future with the background needed to carry out the battles on the admissibility and probative value of ESI. That is one reason this is such an important book. Although Paul’s ideas are cutting edge and take effort to grasp, they are what we need to prepare for the coming digital evidence battles. Those who do not take the time to study this book now, do so at their own peril. You may think you have a digital smoking gun, but by the time Paul and his protege prodigies get through with it, it will look like a cheap fake toy.

In the Introduction to Foundations of Digital Evidence, Paul makes a similar point by a series of interesting questions:

After digital information is obtained in discovery, how does one get such information admitted into evidence? Must one lay a foundation? If so, how and what are the governing rules? How might you keep digital information out of evidence? And is that realistic, given the existing scheme regarding admissibility? But if there is a way to do it, don’t you want to know your best arguments?

And what of the digital information is hearsay? Did a “system” make a statement, without any person being involved? How does one address the hearsay rule in such a situation? How does one exclude such evidence as not fitting any hearsay exception? Are there legal arguments? Are there foundations that must first be laid? What is the developing law? 

George Paul’s book answers all of these questions and more.  The Introduction then goes on to the key point of the weight to be given to electronic evidence. This is an especially important question since, as the book later explains, authenticity and admission of ESI are far too easy to accomplish under the paper-based rules of evidence, subjecting the whole system to possible abuse. In Paul’s words:

But admissibility is not everything. There are other evidentiary concerns, indeed, which are probably far more important to the practitioner than admissibility. One of these is the weight of the evidence – the dynamic whereby the fact finder compares information to determine what fits into his mental construct, and what is rejected, and thus falls away.

Accordingly, this book is useful to litigators doing their jobs long before any trial process. A litigator must know how to ask questions of the information he receives in discovery. All the while, he analyzes the evidence because its authenticity and persuasiveness are his critical raw material – his force and power and the salvation of his client. It is this dynamic weight that he uses to “build a case.” . . . 

Accordingly, litigators must know how to make digital evidence persuasive. Equally, if not more important, they must know how to test digital evidence when it threatens their case. If they know what they are doing, they can launch a crushing flank attack on the opponent. Such information is invaluable to an advocate.

George Paul then goes on to ask more key questions, important to all trial lawyers and clients alike:

Quite simply, how can lawyers of the new millennium do their jobs without understanding basic concepts about digital evidence? Without an understanding of how to test, prove, or attack the information of our new age, aren’t lawyers mere ghosts of the past? Where should we test and probe, and where do we shore up? Do we understand the new information well enough to do these traditional jobs?

Lawyers as “mere ghosts of the past.” Paul’s book is filled with great lines like this and he shows himself time and again to be an artful writer.

The two paragraphs which follow these questions provide a great introduction, which should, I hope, entice any lawyer or thinking person to read the book:

Digital evidence needs questioning like all evidence, but a new and different sort of questioning is in order, and this book points out where to begin one’s thinking. This is a key part of our professional skill set from this point forward. If we abandon our role as society’s experts in information, we loose our power and importance – our righteous calling as the high priests of information. This book is thus a call to a new professionalism. . . .

In short, law is evolving at the start of the new millennium. We are at a crossroads – a change of phase. With our new information and infrastructure, the concept of written evidence has reached a critical tipping point. Judges, professors, students, and thinkers must rewrite the rules. When something so important to civilization as writing suddenly morphs into a new system, the world’s institutions, but particularly its legal systems, simply must adapt.

Two  Primary Defects In Our Current Evidence Law

Foundations of Digital Evidence makes the strong argument that our current jurisprudence, based as it is on paper, not ESI, fails in two fundamental areas: authenticity and hearsay. The fundamental reason for this, which Paul’s book makes very clear, is the change in our system of recording information, the change from tangible paper to intangible electrons. When our current rules of evidence were conceived and last revised there was no expectation that people would stop writing on paper and instead write with zeros and ones. In fact, it has taken several years after this transformation for thinkers like Paul to begin to understand the significance of this shift upon the Law.

Paul explains it well in many sections of his book. Here is another excerpt that I particularly like from Chapter 2 – Understanding the Digital Realm:

Digital information objects are a species of pure information. Because they carry information only of the present, and are freely editable, they are not testable as to past states. This conflicts with how we traditionally viewed written evidence, including our longstanding view that original documents give an assurance we are dealing with authentic records. The longstanding notion that writing is a permanent form of evidence has come to an end – unless we construct regimes that permit tests of information attributes.

Authenticity

Our authenticity rules were all designed and perfected for authenticating paper documents. No consideration was provided for purely ephemeral information such as computer files. Paul shows that under our current rules of evidence, very little is required to establish the authenticity of a computer file. In fact, the paper-based rules inadvertently allow almost all ESI to be admitted into evidence with few if any safeguards as to authenticity. This leaves our legal system open to abuses and uncertainty that the rules of evidence are supposed to prevent.

To explain this point better, and tempt you to read Foundations for yourself in all its literary excellence, I offer a selection of some of my favorite quotes from Paul’s first chapter, New World of Evidence:

There has been a profound change in the world of law. After more than fifty centuries, civilization’s system of writing changed suddenly. Indeed, within the course of merely twenty years, supporting technologies clustered into a completely new system of writing for our planet. The change has altered commerce, everyday communication, government, public discourse – indeed almost everything. Global human culture is forever different, and legal systems must now take this into account.

As a result, the written record was transformed. It is now fundamentally different than it was just a handful of years ago. And given the importance of written records to the law, a change in the nature of writing is perhaps the most significant thing that could happen in a legal system.

At issue is the digital information infrastructure that evolved at the end of the twentieth century. It has triggered a revolution in the world of evidence.

What a terrific beginning to a book! You can tell that this is the same George Paul who co-authored with Jason Baron the important law review article, Information Inflation: Can The Legal System Adapt? 13 Rich J.L. & Tech 10 (2007). I discussed this in my article Information Explosion and the Future of Litigation. If you liked Paul and Baron’s article, then you will also like this book.

The first chapter goes on to explain how this unprecedented, rapid transcendence of paper has undermined our evidence laws.

The current evidentiary scheme comprises three main historical policies: (1) the notion of authentic writings, exemplified by the search for an “original” object tying certain people, acting at a certain time, to certain permanently recorded information; (2) the rule against hearsay, giving litigants the right to test factual statements through cross-examination, unless there was an accepted policy reason not to do so: and (3) the notion that evidence, particularly evidence implicating specialized knowledge, be generally scientific in that it be subject to a “test” of its hypotheses or methodologies.

These policies are all stressed by digital evidence.

Paul says stressed, but what he really means is broken. The paper systems of authenticity, trustworthiness, and accuracy do not make sense for shape-shifting digital evidence. Here is how Paul explains it in Chapter Three, The Existing Scheme Regarding Authenticity at pages 48-49:

Having a witness with some minimum level of knowledge testify that a document is what it is claimed to be made sense during the time that documents were artifacts – records made of molecules that were static over time. A witness could look at a physical object, ensure himself it was the right object by examining the type of paper it was on, how it felt in his hands, whether there were any obvious signs of change on the document, or whether his handwriting appeared on the document. The upshot was that, if it was the same document he originally handled, and there was no obvious signs of change, the document was likely authentic. The inference is that since the “thing” is present and being held, the record has integrity.

But such assumptions go out the window when we stop dealing with artifacts, and start dealing with pure information objects than can be undetectably edited . . . The modern electronic file lives not as an artifact one can hold in one’s hand, but as pure information that can be reordered at will. …

Accordingly, the current system of foundation allows litigants to place into evidence almost anything they want so long as they can get a witness with some nexus to testify that a document is what it is claimed to be. They can employ a sort of legerdemain. If we are to be intellectually honest, there is almost no preliminary burden of proving digital information is authentic.

In the future, in certain defined areas we may want to devise a regulatory scheme, or even a larger system of evidence, that requires legitimate proof of authenticity before digital records are thrown into the ring of evidence. The bottom line is that today, any trivial showing is likely to serve as a foundation for getting digital evidence admitted.

One of the interesting qualities of Paul’s writing is his ability to go from high abstractions to well grounded practicalities. He does that here by immediately examining the practical consequences of his prior bottom line conclusion.

Does it do a practitioner any good to understand digital evidence? If a trivial showing is all that is necessary to get something into evidence, then why even bother understanding things? . . .

First, judges may well begin demanding authentication foundations that do more than constitute trivial showings. They may start ruling that, although it is rational, it is not allowable for juries to in effect guess that a record of information is authentic if an authenticating witness cannot testify with any personal knowledge about integrity of information, dates and times, or the identity of authors, signers, or transmitters. This higher standard has already appeared in at least one case, and may increase in the future, and is exemplified by In re Vee Vinhnee, 336 B.R. 437, 2005 WL 3609376 (9thCir. BAP (Cal.) 2005), discussed in detail in Chapter 8. Unless you know how to oppose the authentication foundation of your opponent, you will miss out on this opportunity to exclude evidence from being admitted.

But remember that the main fight in any battle over truth is not the concept of admissibility, but rather the weight of evidence.

The current evidence codes simply do not work for authentication of ever-malleable computer files. The laws need to be updated and refined. As Paul puts it:

Obviously, a new logic and system of proving and testing authenticity needs to be developed. Then, legal rules that allocate burdens and presumptions, and that determine accepted foundations, need to be fine-tuned.

Hearsay

The same comments as to inadequacy of the current laws applies equally to the important doctrine of hearsay. Computer systems now routinely generate their own information and reports independent of any declarant or other witness. The viability, reliability, and accuracy of the information is not subject to testing by cross-examination. How do you cross-examine a computer? I am reminded of the famous conversation with the rogue computer, Hal, in Stanley Kubrick’s movie, 2001: A Space Odyssey (1968), which George Paul also quotes:

Hal: I’m sorry you feel the way you do, Dave. If you’d like to check my service record, you’ll see it’s completely without error.

Bowman: I know all about your service record, Hal, but unfortunately it doesn’t prove that you’re right now.

Hal: Dave, I don’t know how else to put this, but it just happens to be an unalterable fact that I am incapable of being wrong.

Bowman: Yes, well I understand your view of this now, Hal.

Again, the failure to adequately scrutinize computer generated records opens the legal systems to abuse, inaccuracies, and uncertainties. Here are Paul’s words on machine generated statements and the hearsay rule:

The law now routinely lets such statements into evidence, after defining them outside the hearsay rule simply because the assertions are “not made by people,” or after utilizing a business-records exception that was never intended to apply to such statements in the first place. In fact, the nature of these assertions has yet to be fully explored by the law. New rules about the admissibility of such out-of-court statements are necessary. There is a need for a new doctrine, a twenty-first-century manifestation of the hearsay rule if you will, here called “systems reliability.”

Judge John Facciola wrote the Foreward to Foundations of Digital Evidence. Here is Judge Facciola’s reaction to Paul’s criticisms of the application of current hearsay rules to the admission of digital evidence:

Paul’s exploration of the hearsay rule as applied by the courts is not pleasant reading for a trial judge like me. The courts have not covered themselves with glory. Instead, as Paul convincingly shows, the courts have reached radically different and irreconcilable results in the application of what is supposed to be a relatively simple question: was this digital information a “business record” produced in the ordinary course of business? The problem is that the business record rule and digital information have little in common.

Judge Facciola then goes on to conclude that Paul’s observations and ideas on evidence are revolutionary.

It may be odd to describe Paul, an obviously bookish Yalie who practices law, as a revolutionary but he has, like it or not, earned that title. He is, after all, suggesting an entirely new way of looking at how digital information should be considered by the court, and the consequential need to create new rules of evidence based not on tradition but on how digital information actually comes into creation.

Conclusion

My conclusion is that you should buy yourself this book for the Holidays and then set aside several large blocks of time to read it. It is best enjoyed like a fine wine, with small sips and plenty of thinking time in between chapters, if not paragraphs, to savor and digest the ideas and insights. This is not an easy book to read, but it is worth the effort.

I predict many types of readers will love this book and refer to it time and time again. First of all, there are the e-discovery lawyers, paralegals, records managers, technicians, technologists, engineers, and thinkers like you and me. The kind of people who are trying to attain a better understanding of this new field of technology/legal practice we are co-inventing together. George Paul gives us deep insights into the Ninth Step and thereby sheds light on the whole process.

Second will be the law professors and law students studying evidence. A seminar on e-evidence should be offered by every law school in the country, along with a separate course on e-discovery. See: William Hamilton The E-Discovery Crisis: An Immediate Challenge to our Nation’s Law Schools, and Shannon Kirk’s “Teach Your Children Well” – A Case for Teaching E-Discovery in Law Schools. Paul’s book should be the core text for a class on electronic or digital evidence, along with a few other books and articles, including, Judge Grimm’s Lorraine, and, I not so humbly suggest, my article HASH: The New Bates Stamp, 12 Journal of Technology Law & Policy 1 (June 2007), which also concerns itself with authentication of digital evidence.

Third, and perhaps they will be the last to find and embrace it, but this book will be invaluable to trial lawyers. Although this book has heights of poetic fancy, it is balanced by many down to earth practical sections. Indeed, Part Four of Foundations of Digital Evidence is written by several expert contributors, namely Ed Chase, a software engineer for Adobe; Grace Powers, V.P. and Senior Legal Counsel for Countrywide Financial Corp.; Timothy S. Reiniger, Executive Director of the National Notary Association; Stephen Mason, Barrister and author of numerous publications on digital evidence; Victor Limongelli, Presdient and CEO of Guidance Software; and, Steven W. Teppler, Senior Counsel concentrating on technology law for the KamberEdelson law firm. This last section of the book with Appendices constitutes over one-half of the book. It contains case studies to provide real-world illustrations of the points made by Paul in the first half of the text. 

As the adversary process moves from its current center in e-discovery, where it does not belong, into issues of evidence and trial, where it does belong, the value of this book will grow. Motions in limine will replace motions for spoliation as the dispute de dato. Also, one can hope that as the cost of e-discovery comes down, more and more cases will actually go to trial. The percentage of cases tried in the federal system may triple from its current level of only 2%, to 6%. The trial lawyers of the future who do more than simply litigate, and actually try cases, will need to understand this book, or at least have associates assisting them who do.

To close, I would like to share a few more of the words of George Paul that I find particularly compelling from the first chapter, New World of Evidence at page 16:

Certainly there are radically different structures, behaviors, and technologies supporting writing than there were when many of our profession studied the law for the first time. Quite simply, our old abstraction about documents no longer serve us. Society needs to put on new conceptual glasses, with different lenses and new frames, to now compose different shapes and forms so that we all can sense the new reality clearly. Old abstractions keep us captured in a bottle of outdated concepts.

Lawyers have a special role in society. When you really want to know what happened – in a dispute in business, or in a marriage, or in a government scandal – you call the lawyers, and they pore over information, including the writings involved. The New Empiricism means that lawyers must understand the workings of informational records better than any other social group. If not, they lose their effectiveness – their status and power in society. The simply cannot do their job – what people expect them to do – unless they have these core competencies.

This book seeks to lay a foundation for core competencies.