Security For All

Last week Dr. Anton Chuvakin posted this succinct blog entry inquiring “Which Blogger Will Post 2009 Predictions First?” Since almost immediately Michael Janke posted “Janke’s Official 2009 Technology Predictions”, I guess I’m a little late (curses foiled by Janke again!). But not to be outdone and dying to try on my old testament prophet hat I decided to post my prophecy for 2009. Now for those less theologically inclined, prophecy is less about making predictions and more about connecting the dots, as in you have been behaving like this so expect that usually with a divine attribution. While I’m certainly no Ezra or Jeremiah I think I’m pretty safe with the following prophecy.

Beware ye greedy purveyors of unwise sub-prime mortgages and pernicious credit default swaps for your time of litigation is at hand.

It’s not hard to imagine that with all of the billions, yea even trillions, lost in the recent market collapse that there will be hell – or rather shareholders, FTC, FDIC, and litigants of all stripes – to pay. I think we can expect a a whole lot of work in the e-Discovery sector. But before the aforementioned greedy purveyors breathe any sighs of relief due to their carefully eliminated electronic tracks, just remember – this is not 1999 and courts are disinclined to cave in to the old “we lost the archive” or “the amount of data you are asking for is unmanageable” excuses. Take for example this case mentioned in the Electronic Discovery Blog wherein the defendant tried to convince the judge that the burden of producing the electronic evidence was too onerous, and then still failed to pony up when the court gave them direction.

In an ongoing dispute regarding discovery of e-mail on backup tapes, plaintiff requestor had asked for recovery of e-mail boxes on two backup tapes and had provided search terms. Defendant producers had searched only the mailboxes of seven individuals whom requestor had sought to depose. The court had granted requestor’s motion to compel producers to search all mailboxes on the tapes (as well as an additional tape selected by requestor) as the results were producing “meaningful discoverable information.” The court suggested however, “that Plaintiff be more artful with its search terms and that Plaintiff utilize a list of the people, provided by Defendants, to review whether all mailboxes needed to be searched. The court also granted Defendants the opportunity to narrow the search terms.”

Producers failed to provide the list suggested by the court and did not narrow the search terms. The results of the search produced thousands of documents, and producers sought relief from being required to review and produce all of the results.

In weighing the circumstances, the court acknowledged the massive amounts of electronic information which had been involved in the case, along with the burdens of working with it. However, “the court gave Defendants numerous tools by which to reduce the burden of e-mail discovery, including an opportunity to limit Plaintiff’s search terms and an opportunity to provide a list by which the number of peoples and the number of boxes being searched could be reduced. Defendants did not take advantage of these opportunities. Defendants must now lie in the bed that they have made.”

That’s harsh, but hey, like I said this ain’t 1999, and today’s courts have been to this rodeo a few times, cowpokes. Or how about this case from the Electronic Discovery Blog wherein the defendant tried to argue that the only person who understood their email system was a consultant from Switzerland who refused to testify. Sorry, no takers on this excuse either.

Producer had argued that the requested information was irrelevant to requestor’s claims, and that the only source of information on producer’s systems was an independent consultant in Switzerland who had refused to testify. The court observed that the designated deponent has a duty of being knowledgeable on the subject matter identified in the area of inquiry. A corporation must prepare its selected deponent to adequately testify not only on matters known by the deponent, but also on subjects that the entity should reasonably know.” The court further stated:

In modern litigation, discovery almost always involves the production of documents stored on computers, servers and other electronic facilities. It is commonplace in litigation to inquire of a corporate defendant the steps it took to find and produce documents relating to the litigation, as well as the corporation’s electronic document storage and retrieval systems, in order to ensure that discovery was diligently completed. Where a defendant has failed to produce any meaningful documents in response to Plaintiff’s discovery requests, the need for and relevance of this inquiry is unquestionable.

Looks like the days when you could dazzle ‘em with your brilliance or baffle ‘em with your steer manure have waned considerably. Playing ignorant doesn’t seem to fly either.

So back to the prophecy. Expect litigation. Lots of litigation. And don’t expect  sympathetic courts. We bailed them out so we could crucify them. How very biblical. Thus spake the prophet Joseph.