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Digital Evidence and E-Discovery
Forty nine cents of each dollar spent on electronic discovery is wasted as a result of lawyers not understanding how to properly scope a preservation effort or use forms of production and collection that are both defensible and reasonable. How do lawyers stay abreast with new technology that might become a possible source of evidence and where do they get that information? Why do solo lawyers and small firms need to know about electronic discovery?
In this episode of The Florida Bar Podcast host, Adriana Linares chats with Computer Forensic Examiner Craig Ball about electronic evidence, e-discovery, and how important it is for litigators to understand this data acquisition process. Craig explains why small firms and solo lawyers should be interested in e-discovery, if they want access to electronic evidence, and why printing physical copies of documents for storage is no longer practical. He also talks about the denial that many lawyers have regarding their need to understand and use new tech and provides resources online where lawyers can go to become more informed about e-discovery. Craig discusses why law firms should insist upon certain electronic competencies from their lawyers, like understanding the appropriate means by which to do reasonable searches of electronically stored information, and why he thinks the bar associations have not done enough to stress the importance of such knowledge. He then closes the interview with an analysis of emerging tools designed specifically to assist small firms and solo practitioners with e-discovery and provides specific software options that can help lawyers with the collection and preservation of evidence.
Craig Ball is a trial lawyer and computer forensic examiner who focuses his practice on serving as court-appointed special master and consultant in computer forensics and electronic discovery. He is a founder of the Georgetown University Law Center E-Discovery Training Academy and serves on the academy’s faculty. Craig received his J.D. from, and teaches Electronic Discovery and Digital Evidence at, the University of Texas School of Law.View transcript
The Florida Bar Podcast
Digital Evidence and E-Discovery
Intro: Welcome to the official Florida Bar Podcast, where we cover Practice Management, Leadership, and what’s happening in Florida Law, brought to you by The Florida Bar Practice Resource Institute. You are listening to Legal Talk Network.
Adriana Linares: Hello and welcome to the official Florida Bar Podcast brought to you by the Practice Resource Institute on Legal Talk Network. The Practice Resource Institute is the Florida Bar’s online center for practice management information, dedicated to Florida attorneys.
My name is Adriana Linares. I am your host today. I am a legal technology consultant and trainer. I have been working around and with the Bar for a couple of years now, always very happy to be helping out, and obviously very honored to get to host this podcast for everyone.
I am particularly honored to have our guest today, Mr. Craig Ball, who is a forensics expert. I am going to let him introduce himself in a minute, inflate his head a little bit for a moment before I ask him to do that.
And just say out loud that Craig is one of the smartest people I have ever met in my entire life, and I meet a lot of people; I know lawyers are all generally very smart, but Craig is definitely at the top of my list. He is an absolute expert in his field and I really appreciate his time in talking to us at the Florida Bar Podcast.
He has been a speaker many times at the General Practice Solo & Small Firm Technology Conference. I am sure he will be back again. I am really glad that instead of just a small audience like that getting to hear your words of wisdom Craig that maybe many, many, more will listen to it through the Bar Podcast.
Thank you so much for being here.
Craig Ball: Thank you for having me Adriana. It’s a pleasure to be here. It’s always a pleasure to work with you. You asked me to introduce myself, so I will do that, if I may. I am a trial lawyer, many years, trying cases in court and later migrated to my first love, which is technology, trained as a computer forensic examiner, and I also teach law school and write. I am a professor, adjunct professor, I should be clear, at the University of Texas School of Law, where I teach Digital Evidence and Electronic Discovery. I also teach at the Georgetown University Law Center Summer Boot Camp on Electronic Discovery Issues.
I have been the longtime author of a magazine series that ran for many years as a print publication and as a blog called ‘Ball in your Court’, where I muse about issues of electronic discovery and about computer forensics.
Adriana Linares: Your favorite topics.
Craig Ball: Well, I have many favorite topics, but those are the ones that allow me to earn a living.
Adriana Linares: Well, I wanted to start off by asking you a common question that I get from lawyers a lot, which is, let’s say there — maybe not in a large firm, if you are in a large firm E-Discovery is the type of thing that might get outsourced to a litigation support department or you might have people to help, but a lot of times I feel that the solos that I encounter, or even the small and the midsize lawyers feel that E-Discovery isn’t something that they need to know or should know, because why do they need to know that, what do you have to say about that?
Craig Ball: Well, they don’t, as long as they are say not doing anything involving litigation, but if they are going to be representing people in disputed matters or turning to the courts as advocates, they are probably going to want to have access to evidence, and today virtually all evidence is born digitally and will never find its way into a non-digital format.
More importantly, increasingly evidence isn’t the kind of thing you can turn to someone and say, hey honey, print this out for me.
Adriana Linares: So actually let me stop you right there, because a lot of what I see is the printing of things like emails, PDF files, and a lot of law firms that will store and file documents as printed versions and then expect that to be useable later. Isn’t that a bad idea?
Craig Ball: Well, it’s not a practical idea. We have spent a lot of money and effort as lawyers over the course of the last 30 years since the advent of the personal computer determined to turn things that were not generally meant to be documents on paper and paper like formats into paper.
Adriana Linares: Very determined group you are.
Craig Ball: We are. We have managed to hold back the time and technology that has changed the rest of the world. We are like ostriches with our head in the sand, and because we are so in control of the legal system.
I mean, think about it, the legal system is controlled by lawyers and judges who are just lawyers, who often they are a Senator, and as a consequence of that we have been able to be in denial in terms of the way digital evidence lives today.
Think about it, most of what we do today is no longer a carefully crafted memo that will be printed out and so forth. We now deal with things as dozens or hundreds of fractured messages as an email string.
Adriana Linares: Right, tapped out with two thumbs. We don’t even use ten fingers anymore, just two.
Craig Ball: We don’t even use words anymore. How often do we commute with an emoticon? So what does that mean? Much of what we deal with today that is evidence isn’t a document, even though we try to define it as a document. In fact, look at any lawyer’s definition of document in their request for production, you are likely to see such things as telegrams. Well, Adriana, I would imagine you have never received a telegram in your life.
Adriana Linares: Never, no.
Craig Ball: If you have seen one it’s been in the movie, and yet, we continue to ask for things like telegrams and phono belts, I am not kidding. Go to the average definition of document and you are going to find that what we have done over the years has just continued to stick with the idea of a document. And then throw in email, throw in electronically stored information, but we are moving away from documents.
When you talk to your Alexa —
Adriana Linares: Yes, she is right there.
Craig Ball: She just woke up because I said her name, when you talk to Alexa, you are using voice commands, you are not using text, you are using voice. When you make a gesture on your device, on your iPhone, you are using physical movement as a metaphor. And we talked about emoticons a moment ago; leet speak; there are all kinds of things today that really are no longer documents, nor do they lend themselves to being documents.
Adriana Linares: And it’s overwhelming actually I think for attorneys sometimes to try and figure out how to ask for all of that evidence.
Actually, Alexa is a perfect example. Let’s talk about her for just a moment. So for our listeners who have not found the beauty and the amazingness that is an Alexa, Alexa is a device that Amazon developed and created, and it’s essentially a virtual assistant, it plays music, I can ask it the weather. I can do it right now.
Alexa, what’s the weather?
Alexa: In New Orleans, it’s 77° with clear skies and sun. Tonight, you can look for clear skies, with a low of 63°.
Adriana Linares: So Alexa is an amazing device.
Craig Ball: Well, it’s the Echo. To be clear for those who want to buy it, it’s the Echo or the Dot or the Tap, but Alexa is its personality.
Adriana Linares: It is. But what many attorneys might not know or realize or even think about is anything you ask Alexa to do is recorded and sent to your Amazon account, and it stores all of those recordings until you go in and delete them.
Craig Ball: Yes, exactly, you can delete them in toto or singly, but try to download them, try to preserve them to meet your obligations and litigation. And it not only records what is said, but it records the ambient sound. So it may have evidence of a domestic quarrel, for example, that may be evidenced, or it may have evidence in a murder case, who knows.
The point is that we are accumulating these other non-documentary forms of information that are going to be crucial to these cases. And we currently don’t have a strategy, often we don’t have a mechanism that the average lawyer can use to preserve this information, let alone review and produce it.
Adriana Linares: And how do they stay abreast of everything, so I guess what I was getting at earlier with a device like Alexa is it must be so overwhelming for them, every new device that’s coming out, every new technology that we are all amazed by and run out to buy becomes a possible source of evidence. What do you say to them when they look at someone like you, and I am sure that they do and they say, I can’t keep up, how do I keep up, do you tell them to hire an expert, is that the answer? Is the answer bring someone in when you are overwhelmed?
Craig Ball: Well, even though I make my living that way, that’s not the answer, and it can’t be the answer, because the majority of cases don’t have a budget. I mean, it’s hard enough to bring equal access to justice in this world to be able to get the money to hire a lawyer, let alone to have that lawyer assisted by an expert.
So we have got to insist upon a level of competence in counsel when it comes to electronic information. We are already seeing that in such states as California, which has identified nine basic skills on electronic discovery that they have indicated a lawyer must have to be competent, and the rule there is becoming either be competent, associate someone who is competent, or you must decline the case.
Adriana Linares: Are you able to rattle off those nine competencies or close?
Craig Ball: They are basically — sure.
Adriana Linares: And not to interrupt you, but just to say because they are probably pretty reasonable, and I imagine that if other states were going to adopt some standards that they might be the same. So if was an attorney looking to think about, what would those competencies be ahead of time?
Craig Ball: They are very simple, more aspirational than they are specific. There will be things such as be capable of identifying potentially relevant information, be capable of communicating the duties to preserve and collect to your clients, be capable of collecting electronically stored information in ways that are going to preserve its integrity and completeness. Be knowledgeable about appropriate means by which to do reasonable searches of electronically stored information. Be able to advise and counsel your client about electronic —
Adriana Linares: Oh my gosh, this list is getting crazy.
Craig Ball: But they are all — basically they are saying, when you are dealing with evidence that’s electronic, you should be as competent with that evidence as you would if you were a criminal lawyer dealing with criminal evidence, physical evidence, or if you were dealing with evidence of financial, tax records, if you are a tax attorney, the thing is the currency of what we do as trial lawyers today is almost exclusively electronic evidence. How can you be competent to represent people without the ability to marshal and manage the evidence that is necessary to prove their cases or to disprove their cases?
Adriana Linares: And how do they get that information and education? I assume there is CLE and there are courses, are there any particular resources that you like to share and send people to when they ask?
Craig Ball: Yes, but the listeners aren’t going to like how I am going to preface this. I am going to say is you have got to try. You have to actually make an effort. There is a great deal of frustration among the Bar that this isn’t happening by osmosis, that what they learned in law school is proving inadequate. And I think that what has happened over the course of the last 30 years since the personal computer, and even if one has been a lawyer only as little as say 10 years, is we have seen the emergence of such things as social networking, an extraordinary turn to mobile devices, to the cloud.
These things have happened while we were not paying attention as lawyers or while we were telling ourselves, and I say this with much more concern, while we were telling ourselves, we shouldn’t have to know this stuff and so therefore we won’t.
And if you go to a large firm as a young lawyer, the older lawyers who have very little to impart with regard to electronically stored information choose instead to say, oh, that’s not lawyer stuff. We have got people to do that stuff.
So I call it the problem of the circle of competence. The people who run the Bars will never draw a circle of competence that leaves themselves standing outside of the circle. So what do you do then it’s going to require the passage of time. It’s going to require the Grim Reaper to come and take those people away, the people who think that they can still do things the way they did it in the 80s and 90s, and realize that a new generation of lawyers, even though they are not more adept at electronic discovery, at least look first to electronically stored information. They look first to the Internet. They look first to Wikipedia.
Old and traditional paper-based approaches to information are secondary or tertiary to their thinking and because of that appreciation that the answers they get are electronic, that the trails they leave are electronic, they will at least be more attune to the need to understand and collect and preserve that information.
Now, to get back to your initial question, and I read an article recently, which you can always tell when it’s a man talking, because there’s a lot of talking before they actually say, and now to answer your question.
Adriana Linares: Land this plane, Craig, come on.
Craig Ball: Got it. To answer your question is, yes, there are resources out there. There are readings out there. I know I publish a lot, other people publish a lot. It’s free. You don’t have to spend a lot of money. You just have to make a decision, you know, I am going to stop feeling weak on this area. I am going to stop trying to avoid electronic information, because I am not so afraid of showing that I am not the smartest person in the room. It’s more important to me to understand it and provide competent representation.
So I mentioned the Georgetown Boot Camp, for example, in less than a month I will be spending a week with hopefully 50-60 students at Georgetown Law School. Some will be lawyers, some veteran lawyers, some new lawyers, some will be in-house, outside, many will be IT tech, legal support, lot of different people, and we will spend a week working on exercises for them to understand how electronic data lives and moves and changes, things that they are going to spend a lot of energy with me saying, why should I have to know this stuff, it’s not law. The answer is because it’s information, and a lawyer’s currency is information.
So we all get them past it, and once we get them past it, once they build that foundation where they understand a little bit about how data lives, their fear goes away, their apprehension goes away.
Adriana Linares: Is this stuff hard?
Craig Ball: No, it’s no harder than what lawyers have had to learn in law school. The thing is they applied themselves in law school and they don’t quite know how to get in with electronically —
Adriana Linares: They don’t know where to start.
Craig Ball: In a sense they don’t know where to start, and there are simple resources. I don’t want to push my own blog, HYPERLINK “http://www.ballinyourcourt.com” ballinyourcourt.com.
Adriana Linares: It’s a great resource, please push it.
Craig Ball: But it is a resource, it’s a way to get started. So if a lawyer needs to read something written on what’s metadata, what are backup tapes, and how do I deal with them, what are databases and how do I deal with them, not how do I deal with them as an information technologist, how do I deal with them as a practicing attorney. I have written primers on those topics.
Adriana Linares: Yes, they are very good, very well-written, very easy to understand, even I can understand them.
Craig Ball: Accessible is the goal here, and hopefully quirky enough to be readable.
Adriana Linares: Yes, but funny too.
Craig Ball: Thank you. You mean like funny, ha-ha, how can you even think I am funny? No, I am sorry. I was starting to go into this Joe Pesci —
Adriana Linares: It’s all those.
Craig Ball: It wasn’t that. She is too young. At any rate, there is a lot out there, there is Wikipedia, there is any number of webcasts. There are a lot of vendors.
Adriana Linares: Lot of CLEs.
Craig Ball: Tons of stuff, most of which is free. The problem with CLE is it’s kind of a 10,000 foot view that generally is, you really need to learn this stuff. Well, where is the next step? We need a Manhattan.
Adriana Linares: We need a list.
Craig Ball: We do. We need a basic curriculum, and that’s what I have been working on with others; Judge John Facciola is a good example of someone. He and I have been working together for over a year now on developing a core curriculum. These are the things we think you need to know. I just finished yesterday the latest update of my workbook. My workbook is like 150 pages and it’s literally a workbook.
Adriana Linares: Where do they get it?
Craig Ball: Well, they can get it at my website.
Adriana Linares: Oh good.
Craig Ball: But it’s a workbook like we had when we were in grade school, where you could open it and there was an explanation, a problem, you worked through the problems, and mine is all built around online tools. So you don’t have to buy any software, everything you need is kind of there to work through these exercises.
And they may seem a little obscure; an exercise about hashing, an exercise about encoding, an exercise where you extract say geolocation data from photographs to track down an embezzler.
Adriana Linares: That’s fun. So I am glad you mentioned online tools. I have been around in the business for a long time, not necessarily in litigation, but obviously when you work in law firms there is a lot of litigation support happening, and I remember the cost of E-Discovery processing and preserving, gathering, mashing and producing useable data has always been very, very expensive.
But I feel that over the past few years obviously there are a lot of these vendors that are coming out, more and more legal technology vendors and most lawyers know what to do with it, and a lot of them are online, web-based, you don’t have to have a server these days, you don’t necessarily have to have the storage, and maybe you don’t even need the expert in-house.
How do you feel about those types of tools and the evolution as you have watched them appear in the market, are they good, are they not as good, do you have some that you like, that you say this is affordable and it’s for a smaller case, these are the tools you want to look for and look at?
Craig Ball: Well, true. Let me say first that the most important tool to bring to it is a modest level of competence in the lawyer. I did some research some years ago and was able to determine that on the order of $0.49 of each dollar spent on electronic discovery was wasted purely as a consequence of the lawyers not knowing how to do such things as properly scope a preservation effort or to be able to use forms of production or forms of collection that were both defensible and reasonable.
Adriana Linares: That’s a staggering number.
Craig Ball: It’s staggering, half of every dollar we spend is just thrown away because the lawyers are not competent in E-Discovery, but the essence of your question is best answered this way.
About eight years ago I issued a challenge to the E-Discovery industry called the EDna Challenge. EDna was a small firm lawyer who had one associate and one paralegal, and EDna had, at that time, it was about 10 GB of data coming in, plain vanilla stuff, the kind of thing we would see; email from Outlook, Word documents, PowerPoint presentation, spreadsheets and so forth, and she wanted to do a review and a production and she wanted to do it, at that time the EDna Challenge was a $1,000. Eight years ago, in the first iteration of EDna there was no —
Adriana Linares: Challenge not met.
Craig Bell: Simply it was not feasible. I had forensic technologists quite literally from all over the globe contribute their ideas, and some of them they were like, she should take the $1,000 and buy booze and tranquilizers kind of thing, because this wasn’t going to happen, but even those who did suggest workable ideas, it was a cobbled together, not very satisfactory outcome.
Shortly after that an organization called Nuix came out, and I say with great pride and great admiration, came out with a tool called HYPERLINK “http://www.prooffinder.com” prooffinder.com. I would not ordinarily mention a product by way of an endorsement, but what I love about Proof Finder is —
Adriana Linares: It’s still there then.
Craig Bell: It’s still there. It costs $100 per year. So it would be hard to imagine a lawyer who couldn’t afford Proof Finder. Now, Proof Finder, to sweeten the pot, all of that $100 goes to charity, to support children’s literacy and the Room to Read Program, and that’s why I so admire this program, because not only is it an amazing tool that is beautifully suited to the small firm practitioner and affordable by all, but everything you pay for it goes to charity, so it’s a win, win, win in everyway.
It’s only going to process in a single tranche up to 15 GB of data, but that was more than ample for the EDna Challenge at the time, and it did everything EDna needed to do and a pony, as they say.
Since that time, since the EDna Challenge eight years or so have elapsed, now I issued a new EDna Challenge with 2016. I raised the volume of data. The complexity is about the same. There was now some SaaS information, Gmail in an MBOX takeout, for those who follow Gmail capabilities, and Edna now had $5,000 to deal with about 100,000 items.
Adriana Linares: It has been eight years, her firm has grown, she is successful.
Craig Bell: And the fact is information itself has mushroomed. When I was — eight years ago the average size of a person’s email collection was almost invariably under 2 GB; it’s now common for me to see something from 8-12 GB in a collection. So just by virtue of passage of time, replication of information, the use of more richer multimedia.
Think about it, the camera you used ten years ago maybe was 1 megapixel; the camera you would use today is going to be 5, 10, who knows. So we have seen this information expansion, and information is increasing in volume by 40% annual compounding.
So what we are seeing today, these are the good old days. People feeling overwhelmed today should take a look around and say, oh, wow, I am so lucky to live in a time of such little electronic information, of such little complexity, because five years from now it will be a brave new world of information.
So there are a number of things that have come out in the new EDna Challenge that I am happy to report on. Those who now submitted, there were a number of options, all within budget, and better than that, all purpose-built for the solo and small firm practitioner. So that instead of having a cobbled together, okay, let’s use something like dtSearch for this, let’s use Adobe Acrobat for this, let’s use another free utility for that, and trying to kind of bolt them together, now they are purpose-built tools, both behind the firewall, local applications like Nuix’s Proof Finder, for example. And there are quite a number of SaaS offering, Software-as-a-Service, or cloud-based offerings that will handily allow Edna to do all of the tasks she must do, from processing of data, deduplication, DeNISTing, which is the taking away of junk files, the use of advanced analytics like predictive coding and concept clustering and —
Adriana Linares: Nobody knows what you are saying right now.
Craig Ball: Well, you would be surprised, I mean the idea is, we know that there’s too much stuff and a lot of it are duplicates. It’s not uncommon to have anywhere from 20 to 50 to 100 of the same exact thing. And any lawyer that has even done a paper review knows how mind numbing it is to see the same thing over and over again.
So we are able to bring it down to single instances of one unique instance of it in these tools, and that way fairly characterize that as responsive or non-responsive, privilege or not privilege, without risking inconsistent assessments of identical information.
DeNISTing, as I mentioned, is techniques that are used to get rid of the normal detritus that comes with installing an application. All of us have —
Adriana Linares: System files that are irrelevant.
Craig Ball: System files, exactly. The screensaver photos that Windows provides, a lot of stuff gets swept up in a collection and it’s nice to have a reliable way to sweep it away and that’s called DeNISTing, it refers to the National Institute for Standards and Technology that publishes digital fingerprints for these files that allow them to be found and excluded and so forth. And let’s say, advanced analytics, that allow you to see relationships between custodians of data senders of email and what have you, all the bells and whistles that may be you see when you go down the aisle at one of the technology conferences, rediscovery conferences, that stuff is in, even these low cost tools for the most part, then the ability to process the data out to the forms that will be requested by your opponent or to pass on to others, all these things used to be cobbled together are now purpose-built in a single integrated platform for very affordable court charges. And what we are starting to see emerge, Adriana, is the cloud.
Now lawyers hear about the cloud, they get an idea of the cloud and they know couple of buzzwords, but the fact of the matter is that the cloud not only is where your client state is going, and where you want to put the tools you are going to use to analyze it and work with it, but the cloud is a chance for solo and small firm practitioners to be able to rent computing capabilities that would simply be beyond their means. It’s like having a supercomputer for an hour. You can’t go borrow that from the local public library, but with something like Amazon Web Services or Microsoft Azure, you can literally configure a platform as powerful as the largest law firms in the nation, and though you won’t have it all the time, you will have it long enough and cheaply enough that you’ll be able to apply that kind of playing field leveling technology to your work.
Adriana Linares: So the technology is available, the technology is affordable, the information is out there, it is free to probably not very expensive to learn —
Craig Ball: Certainly within the means of lawyers and normal terrestrial small cases.
Adriana Linares: Right, so nobody has an excuse.
Craig Ball: Well, what’s the missing piece, is it’s all there but the lawyer has got to be the one to understand, and this is where it all falls apart. The lawyer’s position is, I shouldn’t have to know this stuff and even if I decide I want to know it, I don’t even know how to start learning it, and that’s a daunting problem. That’s a problem the Bars have done a poor job with, and I would include my own native Bar, Texas, the Florida Bar, all the Bars across the country have not made it their mission to make these kinds of resources, this kind of Manhattan project to salvage the skills.
I am aware of a certain age. I’ve tried a lot of cases, but people much younger than I am, often have tried no cases and have little prospect of acquiring the skills necessary to be advocates in court.
So as we see the trial skills fading were only being held by the grayest hair of the lawyers, at the same time those lawyers are the least well-equipped to deal with electronic information. We need to bridge that gap, bring those lawyers in to work with the younger lawyers on trial skills, and bring the younger lawyers and other resources that are there to help older lawyers integrate electronic information into their skill-sets. But nothing is being done significantly towards that end.
Adriana Linares: It’s a shame. Now you mentioned earlier Google Takeout. I want you to talk, if you don’t mind for a couple minutes, about maybe when it comes to the most commonly used digital resources today, so Gmail, Facebook, Twitter, Snapchat, LinkedIn, are there tips that you can give people on how to source that information and get it out of those places because I believe — I bet, they often believe it’s trapped in there, and Google Takeout is a great example. So maybe you can just spend a couple minutes talking, giving some tips about those very common. We talked about Alexa a few minutes ago and that’s not probably as common as the other ones we mentioned.
Craig Ball: And there are little or no established solutions for Alexa, but we’ve had a longer time to work with things like Webmail and certain aspects of social networking, so we have some proven approaches, and these are approaches that are essentially cost-free. I think that’s important. Most lawyers approach to meeting their obligation of preserved information, it is manifested by in some way or another telling their client not to delete stuff, and that’s it. You kind of understand you have to send this legal hold notice hopefully out when you anticipate litigation and that telling your client to do it shifts the burden, but it doesn’t.
Frankly a custodial preservation effort, and that’s what is telling your client to do it for the most part, is generally considered inadequate and it’s certainly inadequate in a very significant way in certain kinds of cases. I mean, you don’t tell someone accused of say sexual harassment, please preserve all information showing you are a chauvinist pig, I mean, it’s not going to work, right?
Adriana Linares: I mean, you could ask.
Craig Ball: Fox penthouse. You can ask and you are obliged to say it.
Adriana Linares: The least you can do is ask.
Craig Ball: But to assume that that will prove adequate is foolish on the part of the lawyer. So the lawyer has some manifest obligations to act. Now if your clients are using something like Facebook, and that means virtually everyone today, you have some limited opportunities within Facebook to preserve a large but not complete compliment of Facebook post. You can sort of preserve using Facebook’s takeout capabilities, its own archival capabilities that allow you to pull a copy of your client’s data out with their credentials or allow them to do it, you can get their contributions to the wall, their post, their messages and so forth, but you are not going to get their friend’s data, and so it’s a better than nothing approach but questionable.
But as you move towards other things, Twitter for example. Twitter has an amazing, comprehensive, very admirable, simple, free takeout process. You can ask Twitter to give you all your tweets from time immemorial and it will download them to you in an easy-to-view manner, and much the same way Google to its credit has come up with a comprehensive set of no cost mechanisms called Google Takeout and virtually any content you store in Google, whether it be your social networking content, your Google Gmail or other things, you can literally click a few clicks within Google Takeout and preserve it in a highly complete, highly functional form.
In the case of Gmail it’s a form called MBOX and that’s a classic form of email preservation, it’s unfamiliar to a lot of people who aren’t in the technology arena, but MBOX is a completely defensible way by which you can download this. And that should be a part of every lawyer’s repertoire. As soon as you have a case where you need to preserve someone’s Gmail, you can give guidance and instructions to your client about how to create those archives, hand them over the lawyer for safe keepings, authenticate them and so forth; same way with all new emerging things.
My complaint about Amazon Echo and Alexa is that they create the evidence without also providing the means to preserve and protect it, and I think everyone whether they be social networking providers, Internet service providers, software tool providers, well, they don’t build their tools for litigation. Litigation is a fact of life, and it’s not just litigation, it’s also privacy.
In order for me to be able to gauge my privacy exposure, I need to have a right to know what someone has about me and that should give me the right to get my own copy of that information.
Adriana Linares: So attorneys should care not only from their professional responsibilities but really personal too, which is something I care about very much as my privacy and all the stuff that you mentioned in Gmail I have gone in and paused a lot of the gathering of information like search history, YouTube history and all that stuff for privacy reasons, not even because I feel like, I am going to need it for litigation purposes but for privacy purposes, that’s a whole different podcast.
Craig Ball: It is, but unfortunately many litigants don’t go in and purge until they are under the obligation to preserve and that’s called Spoliation and that —
Adriana Linares: Like the records to show that there is no spoliation based on my settings, it has been like that for many years. I wanted to ask you —
Craig Ball: The record shelf so reflect counsel.
Adriana Linares: Thank you. You mentioned Gmail, which is very — we covered all the very popular ones, but I want to bring another one up just if lawyers are making a list of the types of things to think about and that’s Office 365. I am pretty sure that in the administrative settings it has a litigation hold option in there.
Craig Ball: The latest releases of Office 365 are very impressive in terms of their innate discovery ability not only for —
Adriana Linares: Great, oh, we should talk about that.
Craig Ball: — sure, this podcast or another, not only does it have a pretty robust ability to preserve email and to actually call and export the email in useful forms even including such things as a load file that facilitate moving the data into review platforms for lawyer review, but they also have similar capabilities with regard to SharePoint content, which in an enterprise environment is increasingly important resource and mechanism by which data is stored in excess.
Adriana Linares: So, I think the reason I want to say these things outloud is because if you are representing an individual, they are probably going to use Gmail, Yahoo!, the free resources, but if it’s a company that you’re working with or for or against, then you should know that Office 365, which is very popular and growing in use and subscriptions, has that service.
Craig Ball: As well as the more advanced versions of the in-house Microsoft product called Microsoft Exchange Server.
Adriana Linares: Yeah.
Craig Ball: So yes, Microsoft is kind of always Microsoft, it’s late to the party, but generally when it finally gets there, it brings something pretty good and I feel like Microsoft has finally gotten here with some pretty effective ways to integrate eDiscovery into their toolset.
Adriana Linares: Well, before we sign-off and I let you go, not that we have to hurry away although —
Craig Ball: We’ve got to find some better wine.
Adriana Linares: We need to find some — I apologize I don’t know what happened there. Any other tips like what’s a very common question that you get asked that, maybe someone sitting in their car thinking, oh, I wish she had asked him, I wish he had mentioned, is there maybe a top one or two that we didn’t talk about? What about text messages?
Craig Ball: Well, the text messages are a big challenge.
Adriana Linares: Sure.
Craig Ball: Mobile is a big challenge. Most people in the legal profession deal with mobile as evidence by fiction. They tell themselves so they have someone tell them, oh, anything you would have on your phone you’ll get from somewhere else you’re going to get it, which isn’t true —
Adriana Linares: Right.
Craig Ball: –and more to the point isn’t validated. I was in a class in Washington, DC last week and one of the students in the class when I talked about the amount of unique information available on your mobile devices, and look at how many people look at mobile devices all day long.
Adriana Linares: Oh, come on, all day.
Craig Ball: It’s crazy. For people between the age of 16 and 24, I think the number one reason they are going into emergency rooms now is because they walked into a stationary object while using their mobile device, I think you not.
Adriana Linares: No, it’s true.
Craig Ball: Mobile has changed us as human beings. How many times do we sit around a dinner table or you go to an airline waiting room or you’re in a line of Starbucks, and literally, every single soul is looking at device.
Adriana Linares: Right, and it’s fine. That’s the other thing, it’s acceptable. We can all sit around a dinner table and check our phone and it’s fine. It has changed our lives, and it certainly made it much more difficult for attorneys to try and deal with this aspect.
Craig Ball: But it hasn’t and it needs to make it more difficult for attorneys because right now attorneys generally deal with mobile phones by simply pretending that they don’t hold evidence, and yet they are a nearly complete record of every aspect of our lives today. And that’s not just me saying that, that’s the United States Supreme Court in Riley v. California, just two years ago.
Adriana Linares: It sucks you when you do that, it is.
Craig Ball: When I talk United States Supreme Court?
Adriana Linares: Yes, when you quote “US Supreme Court cases”, it is. Just throw it out there.
Craig Ball: Thank you very much.
Adriana Linares: So, one of the things that I was going to mention about text messaging, again, like a tip and things that attorneys don’t realize or just nobody really realizes it. Someone like me, I have an iPhone and I have an iPad, and I have a Mac. I have all my text messages coming on my iPhone, but guess what, they also come in on my iPad, and I get them on my Mac.
And the only reason I even have the Mac, honestly, is that when I am in flight I sign-up on Wi-Fi and I can text message on my computer which I love.
So I think those are the types of things that become so hard for anybody, even and especially an attorney who might be a little bit behind or just trying to get. Maybe your client says to you, oh, I reset my phone, I lost all my text messages.
Craig Ball: They often say that.
Adriana Linares: And they do.
Craig Ball: But only after they have the obligation to preserve the message, the court is all turned over.
Adriana Linares: And then for an attorney to know to ask, well, do you get your text messages on any other device, it is not something that they would normally ask, because they believe like you just said that it’s either just not there, it doesn’t have the information or maybe it is somewhere else.
So I think those are the things that are just so overwhelming to think about. And on top of that, on the Mac it preserves it in a whole little file in there that you can see everything, even after the message has been deleted and closed, you can still go in and find them. So I think it’s just a lot.
Craig Ball: Well, the thing about it is that even though it’s accessible to the user, to you or I to go look at our messages, it’s literally a couple of clicks.
Adriana Linares: Right.
Craig Ball: But, if you now must preserve that information in such a way that you can move it into the kind of software that lawyers use to review electronic evidence and consider it for production is responsive or label it as privileged, there are very few avenues that will facilitate that.
You and I have a friend who recently got a subpoena and that friend had to preserve text messages and when that friend approached me, I had to say it’s a very difficult problem. When you look at your phone and you say I need to export my text message, how do you do that? You are a technologist, how do you export text message?
Adriana Linares: Fortunately, we were able to help her because I had done that —
Craig Ball: In a profession.
Adriana Linares: Yeah, but I knew, right, so here was this weird person who happened to be in the conversation, not a weird person but someone who has done that and I said, well, you just need to attach it, attach your iPhone, she is a PC-user, right?
Craig Ball: Right.
Adriana Linares: So we actually just need to attach it to my Mac and I have this $399 program. What’s the name of it? I can’t think of it now, that very easily extracts the entire text message history and puts it is an Excel file.
Craig Ball: Is it forensically defensible? Is it collecting all of the metadata? We don’t know, and that’s the problem about it.
Adriana Linares: Actually I think it was, it was pretty good.
Craig Ball: It probably is just fine.
Adriana Linares: Yeah, it was better. Well, her attorney was satisfied, but the question is —
Craig Ball: But if the attorney tries to introduce the information, how was the attorney going to lay the proper foundation for showing the integrity of the evidence.
Adriana Linares: And here is where I was offended as the friend — I said to her — she sat there for a long time and took screenshots of the text messages she was trying to preserve.
Craig Ball: Because life is not short at all.
Adriana Linares: Right, and I said, wait a minute, what are you doing? She said, oh, I have just spent half the day taking a screenshot of the text message exchange that my attorney wants and emailing her the pictures, and I said, are you kidding me? I said, your attorney should have known that there is a way to extract those messages.
Now I’m not saying the attorney needed to give her the exact solution but as someone who I am paying to give me advice on how to do this, for her attorney to not have said, there is probably a program out there, but instead the attorney — and then on top of that, the attorney accepting all these text message images that cannot be usable.
Craig Ball: Okay. Now those text message images are not searchable, you can’t search them.
Adriana Linares: So how did the attorney —
Craig Ball: You can’t search them.
Adriana Linares: — right, so the attorney doesn’t even say to her, oh, well, thanks for these 400 emails you just sent me, one screenshot, I can’t use these, that’s not what happened, I had to stick my nose and say, look, let me help you, and I think that as a consumer and friend of someone who uses lawyers and as someone who hires lawyers, myself, I’m offended by that.
Craig Ball: Well, the attorney is paid by the hour and it’s a disincentive to finding the necessary efficiencies. You were very kind to say you don’t think the attorney should’ve put forward the solution. I am less kind. My belief is, if you work in family law for example, and you’re instructing your clients to preserve text messages or Gmail or social networking, you don’t just tell them, hey, do this thing that I don’t know how to do and I can’t tell you how to do, you need to do the legwork and figure out how to give them a legally defensible and affordable solution; that’s part of the job.
Adriana Linares: I agree.
Craig Ball: Or it needs to be.
Adriana Linares: Well, Craig, we have babbled on, I hope this was – well, I know this was useful and helpful to many guests. Before I let you go, I just want to make sure that you one more time give everyone an opportunity to learn more about you, follow you, friend you, RSS Feed you, how can our listeners keep an eye on the ball?
Craig Ball: Thank you. I would ask you to — first of all, if you are looking for articles go to HYPERLINK “http://www.craigball.com” craigball.com, they are all free and it won’t try to sell you anything including my services, and if you’re interested in learning about electronically stored information, computer forensics in easy approachable language, you might want to subscribe to my blog, it’s HYPERLINK “http://www.ballinyourcourt.com” ballinyourcourt.com, it’s free, it won’t try to sell you anything, at least I won’t try to sell you anything. What is it? WordPad or whoever it is —
Adriana Linares: Sure. Right, there might be an ad in that.
Craig Ball: Somebody else may put an ad on there, but it won’t be me, and anyway, I try to blog as frequently as I can, and again, I write for a lawyer and let’s support audience so it’s not intended to geek you out, it’s hopefully intended to geek you in.
Adriana Linares: I do appreciate your time and I do want to ask you to tell everyone outloud, what the services are that you do provide.
Craig Ball: We will wash your car, mow your lawn —
Adriana Linares: And hey, we should tell them that fancy title you have as a —
Craig Ball: Yes, I love my title, it’s great.
Adriana Linares: What is that fancy title you have?
Craig Ball: My title is — and I don’t assign this, this is assigned by the court because most of what I do is I serve as a Rule 53 court appointed special master, apparently master was not masterful enough but I had to be special. Apparently I ride the short buster master school or something, that’s not a politically correct one, I am sorry. But in the new era of no political correctness now, I am trying to get with the program.
Adriana Linares: Yeah, you are fine.
Craig Ball: So yeah, I am a special master and I do some consulting on the side on matters of electronic discovery and computer forensics.
Adriana Linares: Awesome. Well, I would hire you, if I needed to.
Craig Ball: Well, you will get me very inexpensive.
Adriana Linares: Wow, you are a sweetheart. Well, thank you again so much, Craig, for being here with us. I really appreciate your time. Glad we were in the same city. We could do this together.
Craig Ball: Where are we?
Adriana Linares: We are in our favorite city.
Craig Ball: New Orleans, Louisiana, ye. Le de bon ton roulette. Laissez le bon ton roulet. We haven’t really been drinking, we’ve just been trying.
Adriana Linares: Yes, we did try. Well, for all you listeners who want to lean more about what you’ve heard today, make sure you visit the official Florida Bar Podcast on the PRI section of the Florida Bar website. Of course, make sure you go to HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com, take a look at all of the other podcasts that are out there, of course, they are geared toward legal, lawyers, paralegals, so lot of great information out there.
So that brings us to the end of our show. I am Adriana Linares and thank you for listening. Join us next time for another great episode of the official Florida Bar Podcast.
Outro: The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.
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