Effective Keyword Selection Requires a Mastery of Storage Technology and the Law

Selecting keywords for searching large volumes of electronically stored information (“ESI”) is an unavoidable, but necessary step in the process of electronic discovery. The parties to a case, or the court, may choose the terms for the search. However, an efficient alternative to both options involves a mediator, neutral, or special master with a thorough understanding of the legal elements of the case and the technology systems that will be subject to keyword search. This alternative can benefit both parties, as well as the court, because a “technology-aware” mediator can expedite an agreement that allows both parties to maintain oversight of the keyword selection process. This serves both parties’ interests because, as the Zubulake court noted, “[i]t might be advisable to solicit a list of search terms from the opposing party for [the purpose of preservation], so that [opposing counsel] could not later complain about which terms were used.” A poorly designed search term list guarantees that the parties will have to perform a series of subsidiary searches as gaps and problems in the original search become apparent. This can easily be mitigated with a mediator who knows the relevant law and technology. An effective search that results in responsive items being identified begins with the intangible creativity that forms a bond between knowledge of the law and technology

Limiting the Affirmative Defense in the Digital Workplace

From 2009 to 2011, there were more than 30,000 sexual harassment claims filed in the United States. The ubiquitous availability of digital technology devices has facilitated many instances of sexual harassment. Such sexual harassment occurs through unprovoked and offensive e-mails, messages posted on electronic bulletin boards, and other means available on the Internet. To date, courts remain silent on this issue. Should this type of sexual harassment be treated differently from physical sexual harassment? The surprising answer is yes. This Article suggests a new judicial framework for addressing sexual harassment perpetrated through digital communications. This framework accounts for the real-world technology in place in the digital workplace and the legal framework that courts have constructed in connection with affirmative defense to sexual harassment. The fundamental difference between digital and physical sexual harassment is the employer\u27s ability to monitor and block offensive digital communications and thus prevent digital sexual harassment. This possibility of prevention is the underlying reason for treating the two forms of harassment differently and for modifying the existing affirmative defense. This Article proposes that when an employer fails to use available technology to prevent known digital sexual harassment issues, the affirmative defense should be modified or unavailable. Adopting this approach would compel employers to use monitoring and blocking technology as a way to eliminate digital sexual harassment in the workplace

The Legal Status of Software, 23 J. Marshall J. Computer & Info. L. 711 (2005)

This article by cyberlaw specialist Daniel B. Garrie is intended to serve as a guide for judges to ensure that judicial decisions reflect an understanding of software’s multiple facets and its relation to the boundaries of the law. The article is designed to provide a high-level overview of software and then examine software in greater depth for specific legal areas likely to spawn legal disputes directly involving software. Included within the article are a brief overview of the current legal framework evolving with respect to software development (including an examination of the 2005 Supreme Court case Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.), a broad overview of software, and a series of tutorials on the cutting-edge technology that will likely be subject to litigation in the future

Coddling Spies: Why the Law Doesn’t Adequately Address Computer Spyware

Consumers and businesses have attempted to use the common law of torts as well as federal statutes like the Computer Fraud and Abuse Act, the Stored Wire and Electronic Communications and Transactional Records Act, and the Wiretap Act to address the expanding problem of spyware. Spyware, which consists of software applications inserted into another\u27s computer to report a user\u27s activity to an outsider, is as innocuous as tracking purchases or as sinister as stealing trade secrets or an individual\u27s identity. Existing law does not address spyware adequately because authorization language, buried in click-through boilerplate, renders much of current law useless. Congress must act to make spyware companies disclose their intentions with conspicuous and clearly-stated warnings

The Voyeur among Us: Navigating Around the Global Spyware Epidemic

Spyware poses a serious threat of privacy infringement to unassuming internet users across the globe. Existing European legislation attempts to protect end-users from unethical review and use of their personal data. Outlawing spyware technology and strengthening the legal consent requirement for data- mining may offer end users additional assurances that their privacy rights are upheld, as well as more tangible shelter from the existing spyware epidemic. These proposed solutions, however, will only create successful safe havens for internet users by obtaining international buy-in

Digital Forensic Evidence in the Courtroom: Understanding Content and Quality

With the widespread permeation of continually advancing technologies into our daily lives, it is inevitable that the product of those technologies, i.e. digital information, makes its way into the courtroom. This has largely occurred in the form of electronic discovery, or “e-discovery,” where each party involved in an action provides the relevant information they possess electronically. However, in cases where information is hidden, erased, or otherwise altered, digital forensic analysis is necessary to draw further conclusions about the available evidence. Digital forensic analysis is analogous to more traditional forensic analysis. For example, in criminal cases where a firearm was used in the commission of the crime, but the gun is not readily admissible, forensic science is necessary to trace the origin of the weapon, perform fingerprint analysis on it, and compare fired bullet casings to ensure the weapon used and the weapon analyzed are one and the same. In sum, digital forensics is the preservation and analysis of electronic data. These data include the primary substantive data (the gun) and the secondary data attached to the primary data, such as data trails and time/date stamps (the fingerprints). These data trails and other metadata markers are often the key to establishing a timeline and correlating important events

Digital Forensic Evidence in the Courtroom: Understanding Content and Quality

With the widespread permeation of continually advancing technologies into our daily lives, it is inevitable that the product of those technologies, i.e. digital information, makes its way into the courtroom. This has largely occurred in the form of electronic discovery, or “e-discovery,” where each party involved in an action provides the relevant information they possess electronically. However, in cases where information is hidden, erased, or otherwise altered, digital forensic analysis is necessary to draw further conclusions about the available evidence. Digital forensic analysis is analogous to more traditional forensic analysis. For example, in criminal cases where a firearm was used in the commission of the crime, but the gun is not readily admissible, forensic science is necessary to trace the origin of the weapon, perform fingerprint analysis on it, and compare fired bullet casings to ensure the weapon used and the weapon analyzed are one and the same. In sum, digital forensics is the preservation and analysis of electronic data. These data include the primary substantive data (the gun) and the secondary data attached to the primary data, such as data trails and time/date stamps (the fingerprints). These data trails and other metadata markers are often the key to establishing a timeline and correlating important events