Sanctions for E-Discovery Violations: By the Numbers

This Article reviews our comprehensive survey of written opinions from cases in federal courts prior to January 1, 2010, involving motions for sanctions relating to the discovery of electronically stored information (ESI) We analyzed each case for various factors, including date, court, type of case, sanctioning authority, sanctioned party, sanctioned misconduct, sanction type, sanctions to counsel, if any, and the protections provided from sanctions by Federal Rule of Civil Procedure 37(e) The survey identified 401 sanction cases and 230 sanction awards and showed that sanction motions and awards have increased over time, particularly in the last five years Sanctions against counsel are rare but are also increasing Sanction motions have been filed in all types of cases and in courts across the country Failure to produce ESI is the most common basis for sanctions Courts have used a variety of different rules, statutes, and powers to sanction parties for e-disco very violations, including Rule 37 and the inherent power of the court, and courts impose many different sanction types on e-discovery violators, including the severe sanctions of dismissal, default Judgment, adverse jury instructions, and sizeable monetary awards Rule 37(e) has not provided broad protection from such sanction

Sanctions for E-Discovery Violations: By the Numbers

This Article reviews our comprehensive survey of written opinions from cases in federal courts prior to January 1, 2010, involving motions for sanctions relating to the discovery of electronically stored information (ESI) We analyzed each case for various factors, including date, court, type of case, sanctioning authority, sanctioned party, sanctioned misconduct, sanction type, sanctions to counsel, if any, and the protections provided from sanctions by Federal Rule of Civil Procedure 37(e) The survey identified 401 sanction cases and 230 sanction awards and showed that sanction motions and awards have increased over time, particularly in the last five years Sanctions against counsel are rare but are also increasing Sanction motions have been filed in all types of cases and in courts across the country Failure to produce ESI is the most common basis for sanctions Courts have used a variety of different rules, statutes, and powers to sanction parties for e-disco very violations, including Rule 37 and the inherent power of the court, and courts impose many different sanction types on e-discovery violators, including the severe sanctions of dismissal, default Judgment, adverse jury instructions, and sizeable monetary awards Rule 37(e) has not provided broad protection from such sanction

Relationship between perceived and actual quality of data checking

Data quality is critical to reaching correct research conclusions. Researchers attempt to ensure that they have accurate data by checking the data after it has been entered. Previous research has demonstrated that some methods of data checking are better than others, but not all researchers use the best methods. Perhaps researchers continue to use less optimal data checking methods because they mistakenly believe that they are highly accurate. The purpose of this study was to examine the relationship between perceived data quality and actual data quality. A total of 29 participants completed this study. Participants checked that letters and numbers had been entered correctly into the computer using one of three randomly assigned data checking methods. Afterwards, they rated the quality of their data checking method. The sample correlations between perceived and actual data quality were small to moderate and confidence intervals for the population correlations did not include high values. We conclude that the relationship between actual and perceived data quality is not high

Blockchains, Orphan Works, and the Public Domain

This Article outlines a blockchain based system to solve the orphan works problem. Orphan works are works still ostensibly protected by copyright for which an author cannot be found. Orphan works represent a significant problem for the efficient dissemination of knowledge, since users cannot license the works, and as a result may choose not to use them. Our proposal uses a blockchain to register attempts to find the authors of orphan works, and otherwise to facilitate use of those works. There are three elements to our proposal. First, we propose a number of mechanisms, included automated systems, to perform a diligent search for a rights holder. Second, we propose a blockchain register where every search for a work’s owner can be recorded. Third, we propose a legal mechanism that delivers works into orphanhood, and affords a right to use those works after a search for a rights holder is deemed diligent. These changes would provide any user of an orphan work with an assurance that they were acting legally as long as they had consulted the register and/or performed a diligent search for the work’s owner. The Article demonstrates a range of complementary legal and technological architectures that, in various formations, can be deployed to address the orphan works problem. We show that these technological systems are useful for enhancement of the public domain more generally, through the existence of a growing registry of gray status works and clarified conditions for their use. The selection and design of any particular implementation is a choice for policy makers and technologists. Rather than specify how that choice should look, the goal here is to demonstrate the utility of the technology and to clarify and promote its role in reforming this vexed area of law

Blockchains, Orphan Works, and the Public Domain

This Article outlines a blockchain based system to solve the orphan works problem. Orphan works are works still ostensibly protected by copyright for which an author cannot be found. Orphan works represent a significant problem for the efficient dissemination of knowledge, since users cannot license the works, and as a result may choose not to use them. Our proposal uses a blockchain to register attempts to find the authors of orphan works, and otherwise to facilitate use of those works. There are three elements to our proposal. First, we propose a number of mechanisms, included automated systems, to perform a diligent search for a rights holder. Second, we propose a blockchain register where every search for a work’s owner can be recorded. Third, we propose a legal mechanism that delivers works into orphanhood, and affords a right to use those works after a search for a rights holder is deemed diligent. These changes would provide any user of an orphan work with an assurance that they were acting legally as long as they had consulted the register and/or performed a diligent search for the work’s owner. The Article demonstrates a range of complementary legal and technological architectures that, in various formations, can be deployed to address the orphan works problem. We show that these technological systems are useful for enhancement of the public domain more generally, through the existence of a growing registry of gray status works and clarified conditions for their use. The selection and design of any particular implementation is a choice for policy makers and technologists. Rather than specify how that choice should look, the goal here is to demonstrate the utility of the technology and to clarify and promote its role in reforming this vexed area of law

Introducing Disruptive Technology to Criminal Sanctions: Punishment by Computer Monitoring to Enhance Sentencing Fairness and Efficiency

The United States criminal justice system is the most punitive on earth. The total correctional population is nearly seven million, equating to a staggering one in thirty-eight adults. Most of the correctional population comprises offenders who are on parole or probation, and a high portion of these defendants who are on parole or probation reoffend during the sanction period. There has been a growing consensus among lawmakers and the wider community that reforms need to be implemented to reduce the cost of criminal sanctions and to improve their effectiveness. For example, the United States Sentencing Commission has recently proposed an amendment to increase the availability of sentences as alternatives to incarceration. Yet, with little hint of exaggeration, the sentencing system remains in a primitive state when it comes to adopting technological advances. This article seeks to address this failing as a means of overcoming the main shortcomings of current common criminal sanctions. Forty years ago, it was suggested that the most effective way to deal with crime was to assign a police officer to watch over each offender’s every move. The proposal was dubbed “cop-a-con,” and was unviable due to its excessive costs. Yet, technological advances now make this concept, or a similar concept, achievable in a cost-effective manner. This article argues that the sanctions that are currently utilized to deal with the most serious offenders—namely imprisonment, probation, and parole—can be replaced with technological monitoring, which can more efficiently, effectively, and humanely achieve the appropriate objectives of sentencing. Technological disruption in the criminal justice sector is not only desirable, but it is also imperative. Financial pressures and normative principles mandate that the United States can no longer remain the world’s most punitive nation. This article proposes a monitoring sanction using technological advances. This solution has the potential to more efficiently and economically impose proportionate punishment than current probation and parole systems do, while enhancing public safety

An Event-Aware Model for Metadata Interoperability

We describe the ABC modeling work of the Harmony Project. The ABC model provides a foundation for understanding interoperability of individual metadata modules - as described in the Warwick Framework - and for developing mechanisms to translate among them. Of particular interest in this model is an event, which facilitates understanding of the lifecycle of resources and the association of metadata descriptions with points in this lifecycle

Erasing the Bias Against Using Artificial Intelligence to Predict Future Criminality: Algorithms are Color Blind and Never Tire

Many problems in the criminal justice system would be solved if we could accurately determine which offenders would commit offenses in the future. The likelihood that a person will commit a crime in the future is the single most important consideration that influences sentencing outcomes. It is relevant to the objectives of community protection, specific deterrence, and rehabilitation. The risk of future offending is also a cardinal consideration in bail and probation decisions. Empirical evidence establishes that judges are poor predictors of future offending—their decisions are barely more accurate than the toss of a coin. This undermines the efficacy and integrity of the criminal justice system. Modern artificial intelligence systems are much more accurate in determining if a defendant will commit future crimes. Yet, the move towards using artificial intelligence in the criminal justice system is slowing because of increasing concerns regarding the lack of transparency of algorithms and claims that the algorithms are imbedded with biased and racist sentiments. Criticisms have also been leveled at the reliability of algorithmic determinations. In this Article, we undertake an examination of the desirability of using algorithms to predict future offending and in the process analyze the innate resistance that human have towards deferring decisions of this nature to computers. It emerges that most people have an irrational distrust of computer decision-making. This phenomenon is termed “algorithmic aversion.” We provide a number of recommendations regarding the steps that are necessary to surmount algorithmic aversion and lay the groundwork for the development of fairer and more efficient sentencing, bail, and probation systems

The Hardship That is Internet Deprivation and What it Means for Sentencing: Development of the Internet Sanction and Connectivity for Prisoners

Twenty years ago, the internet was a novel tool. Now it is such an ingrained part of most people’s lives that they experience and exhibit signs of anxiety and stress if they cannot access it. Non-accessibility to the internet can also tangibly set back peoples’ social, educational, financial, and vocational pursuits and interests. In this Article, we argue that the sentencing law needs to be reformed to adapt to the fundamental changes in human behavior caused by the internet. We present three novel and major implications for the sentencing law and practice in the era of the internet. First, we argue that denial of access to the internet should be developed as a discrete sentencing sanction, which can be invoked for relatively minor offenses in much the same way that deprivation of other entitlements or privileges, such as the right to drive a motor vehicle, are currently imposed for certain crimes. Second, we argue that prisoners should have unfettered access to the internet. This would lessen the pain stemming from incarceration in a manner which does not undermine the principal objectives of imprisonment—community protection and infliction of a hardship—while at the same time providing prisoners with the opportunity to develop skills, knowledge, and relationships that will better equip them for a productive life once they are released. Previous arguments that have been made for denying internet access to prisoners are unsound. Technological advances can readily curb supposed risks associated with prisoners using the internet. Finally, if the second recommendation is not adopted, and prisoners continue to be denied access to the internet, there should be an acknowledgement that the burden of imprisonment is greater than is currently acknowledged. The internet is now such an ingrained and important aspect of people’s lives that prohibiting its use is a cause of considerable unpleasantness. This leads to our third proposal: continued denial of the internet to prisoners should result in a recalibration of the pain of imprisonment such that a sentencing reduction should be conferred to prisoners