Welcome to Module 1-C.

New Age of e-Discovery

This class talks about two things: how the information explosion can also trigger a justice explosion; and one of the most dramatic events in recent history, the Osama Bin Laden raid. This historical event shows the importance of electronic discovery to all aspects of modern life, including military.

We are at the Dawn of a Golden Age of Justice

The information explosion is about to trigger a justice explosion. It will happen as soon as law catches up with technology. It will happen as soon as law learns to harvest the vast new fields of digital evidence that technology has created.

We will then enjoy a much higher level of justice than we do now. Our judges and juries will reach just decisions more often because they will know more of the truth, more of the time. All justice is dependent upon truth, upon objective facts. The technology revolution has created far, far more information than ever before. As the law learns to retrieve this information there will be far, far more justice than ever before.

In law we find justice by the light of truth. We find truth by evidence of facts, the objective facts of past and present events and mental states. We find this truth through writings and through the testimony of witnesses, and sometimes through physical evidence, such as guns or fingerprints. Testimony is the oral account of witnesses as to the facts – what they saw, heard, and did. Although testimony is based upon solemn oaths to tell the truth, all lawyers and judges know that it is inherently subjective and never completely reliable. Testimony is built on the frailties of memory and observation. The great advances in technology have done little, if anything, to improve the reliability of our memory or our testimony. Our memory of facts remain as vague and subjective as ever. (Someday the polygraph may reveal intentional lies, but we are not there yet, and it will likely never reveal unintentional errors or subjective coloring.)

The law has learned that testimony only leads to a reasonably accurate account of objective facts when supplemented with writings (and physical objects, when applicable) made at the time of the events in question. Writings, traditionally called documents in the law, are understood in the broadest sense to include not only paper (the mere tip of the iceberg), but all electronic information, including videos and computer records. Writings are the guardians of truth, the refreshers of memory that keep people honest. They are the best, most accurate repository of objective facts, and have been for centuries.

This should give us great hope for the future of justice because the extent and complexity of writings is now exploding exponentially. As soon as law learns to search and retrieve this new explosion of electronic evidence, cases will be decided on more and better documentary evidence than ever before. Testimony will become more reliable because it will be checked and constrained by more and more contemporaneous writings. A new dawn of justice will become possible as intentional and unintentional lies are exposed. We will be able to decide cases based on more of the truth than ever before. The flood of new information, new writings, will generate a new age of justice that far exceeds anything we have seen to date.

It is a good time to be a lawyer. If you can ride and understand the tidal wave of new technologies and new writings, you can advance the cause of justice. You can find the writings needed for judges and juries to make their decisions based upon accurate evidence. The truth is out there in vastly greater quantities than ever before. Yes, it is intangible, just electronic pulses representing zeros and ones. Yes, it is sometimes hidden like a needle in a haystack. But it can be found. It will be found by the lawyers of today and tomorrow as we learn e-discovery.

We can all tap into the information age to fill courts with truth. The days of justice based on paper and candlepower are over. Lawyers should instead sing the body electric.

Hear this change of tune my fellow legal professionals. Join with me in a more positive approach. For every story of doom, gloom, and sanctions, tell two of victory, justice, and joy. Spread the word of how ESI was used to win the day. Let us not base our teachings on fear of failure, but on love of justice. Love is a far more powerful motivator. Love what you do. Do what you love. As Steve Jobs said: The only way to do great work is to love what you do. As Joseph Campbell said: Follow your bliss.

We need great work now from many in the law, great work inspired by love, love of justice, love of truth, freedom, and liberty. When we realize what is at stake, when we can see clearly the herald of coming good, the golden age of justice on the horizon, it is easy to love what we do. Discover this inner truth and your love of e-discovery will follow; your great works will change the world.

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e-Discovery Team Commandos

On May 2nd 2011, U.S. Navy Seals carried out the most dramatic seizure of electronically stored information in history. The ESI collection team also imposed immediate terminating sanctions on one of the most evil ESI custodians in history.

The size and speed of the Seals’ forensic collection of Bin Laden’s ESI was impressive and near flawless. It was carried out by the legendary and highly secretive Seal Team 6, a senior, very elite group in the Seals who are specially trained in the detection and seizure of information. There is no better, nor more dangerous, e-discovery collection team in the world.

According to CNN, Seal Team Six helicoptered in, collected ten hard drives, ten cell phones, five to ten computers, at least 100 computer disks (including thumb drives and DVDs), handwritten notes, documents, weapons and “an assortment of personal items.” In all 2.7 Terabytes of data were collected. They completed the whole project in just thirty-eight minutes. They lost one helicopter in the process, but, as Judge Scheindlin said in Pension Committee, no e-discovery project is perfect.

According to IT World, the data was initially sifted through at a secret site in Afghanistan. Another online news publication, Politico, claims that an anonymous government source told them that “hundreds of people are going through it now. It’s going to be great even if only 10 percent of it is actionable. They cleaned it out. Can you imagine what’s on Osama bin Laden’s hard drive?” It is “the motherlode of intelligence.”

Note that the Seals did not helicopter out with Bin Laden’s paper filing cabinet. They took his computers, his hard drives, his DVDs, his thumb drives. They took his life, his body. It was a good day for the United States. It was a good day for e-discovery.

 

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EXERCISEFind from news reports what you consider to be the most important information found on the computers seized from the Osama Bin Laden compound. What other military operations can you think of that have depended upon the use of computers and data analytics?

Discretionary Bonus Exercises: How were data analytics and crowd-sourcing used by the police and FBI to quickly catch the Boston Bombers in 2013? What types of information do you think they found on the surviving bombers cell phone? If you were a prosecutor, how would you argue the LOL text message found?

Students are invited to leave a public comment below. Insights that might help other students are especially welcome. Let’s collaborate!

Copyright Ralph Losey 2015

Ralph Losey is a practicing attorney who specializes in electronic discovery law. He is a principal in a U.S. law firm with over 50 offices & 800 lawyers where he supervises electronic discovery work and litigation support. Ralph has written over two million words on law and technology, including six books on electronic discovery. His latest books are "E-Discovery for Everyone" (ABA 2017) and "Perspectives on Predictive Coding" (ABA 2017) (ed. & contributor). His blog is widely read in the industry: "e-DiscoveryTeam.com." Ralph is the founder and principal author of "Electronic Discovery Best Practices" and "e-Discovery Team Training," a free online course covering all aspects of e-discovery. Ralph's sub-speciality is the search and review of electronic evidence using multimodal methods, including artificial intelligence. He also has a free online training program to teach these advanced methods - the "TAR Course." Ralph has devoted a month of his time each year since 2013 to research and test various AI-enhanced document review methods. In 2015 and 2016 Ralph and his Team participated in the TREC Total Recall Track experiments sponsored by the National Institute of Standards and Technology. Ralph has been involved with computers and the law since 1978. His full biography is found at RalphLosey.com. Ralph is the proud father of two children, Eva M. Losey and Adam Colby Losey, a high-tech lawyer married to another e-discovery lawyer, Cat Jackson Losey, and, best of all, Ralph has been married since 1973 to Molly Friedman Losey, a mental health counselor and life-long friend.

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