Attorneys Jessica Mederson and Josh Gilliland discuss how Tron is an allegory for electronic discovery. Jess and Josh discuss other topics explored in Tron, including Net Neutrality and the Stored Communication Act. Josh outlines major issues in electronic discovery and solutions.
My great-great-grandmother told a 130-year-old lie.
At least, I think she did. If she did not, her son could have been very liberal with telling the story of his father to his son.
The Gilliland family believed a Drew Lowe Gilliland was a Texas Ranger. The oral history my grandfather told of the grandfather he never knew, made the Texas Ranger sound very brave.
Legend has it that “Drew” went off on a secret mission on behalf of the US Government, chasing Shanghaiers in California for three years, leaving his pregnant wife behind. “Drew” came home three years later, only to find his wife had remarried. The new husband apparently had gone into hiding out of fear of “Drew” (as my grandfather told the story). As a sign of peace, “Drew” left his guns at home, so he could go talk to his wife’s new husband in town. Sadly, Drew was shot in the back by someone he once arrested.
The story was always dramatic, with “Drew” dying in the arms of his wife, complete with crawling home on his hands and knees (never mind the other people in town who apparently saw Drew get shot). Four generations have had the name “Lowe” as a middle name in his honor.
Reality (evidenced in court documents and newspaper articles) tells a very different story. A reality discovered after my step-mother conducted extensive research on Ancestry.com. She always found it profoundly odd that “Drew” left a pregnant wife for three years. I always found other facts odd, like “Drew” being one of the original Texas Rangers, because that would have placed him several decades earlier in time.
The real history includes a second-degree murder conviction, a failed appeal, a pardon involving two governors, a habeas corpus writ based on the unconditional pardon and a my great-great-grandmother successfully securing a divorce.
A Saddler, Not a Ranger
There was no Drew Lowe Gilliland in the 1870s. His name actually was Lorenzo Gilliland. In one newspaper article he went by Low and another Lowe (newspapers also go back and forth in spelling the last name as Gilliland and Gilleland).
Lorenzo was born in 1851 and died in 1889. Lorenzo married a woman named Minnesota Dunn.
Lorenzo was a saddler in the Dallas area in the 1870s. The Texas State Historical Association described this time period as one of “general lawlessness.”
A man named Samuel Stevens publicly accused Lorenzo of stealing a watermelon and engaged in other antagonistic behavior towards Lorenzo.
Lorenzo started carrying a small gun in his pocket after being publicly insulted by Samuel Stevens.
Lorenzo encountered Stevens again in 1874. Samuel Stevens was armed and on horseback.
A fatal gunfight followed resulting in Stevens’ death.
Lorenzo was arrested a year later and convicted of second-degree murder.
Lorenzo was sentenced to hard labor for 10 years.
His son was born on May 13, 1875.
Pardon the Bad Timing
Minnesota Dunn petitioned Governor Richard Coke for a pardon of her husband. After Governor Coke was elected to the US Senate, Governor Richard Bennett Hubbard, Jr., issued the pardon signed by Governor Coke, finding the gunfight had been in self-defense. [Dallas Morning News February 26, 1887].
The pardon reached the prison the day after Lorenzo Gilliland escaped. [Dallas Morning News February 26, 1887]. He had been imprisoned for 3 years.
Lorenzo spent 12 years hiding in California, not knowing he had been pardoned. During this time, Minnesota had the marriage nullified, not on the basis of abandonment, but for Lorenzo’s murder conviction.
The Writ of Habeas Corpus
Lorenzo eventually learned that he had been pardoned and returned to Texas.
After returning to Texas, Lorenzo was arrested and tried for escaping from prison before a Texas Judge named Aldridge. The Court held that Lowe’s pardon had been unconditional and could not be revoked by the fact Lowe escaped from prison after it had been issued.
A Man of Poor Character
Lorenzo developed an extreme hatred of Chinese immigrants. This possibly developed while hiding in California and influenced by the vile Nativist politics that supported the Chinese Exclusion Act of 1882. He simply might have been a racist all of his life.
Lowe had a “hobby” of following a Chinese man who, according to Lowe, was charged with the murder of a widow and a “large household of children” in Los Angeles, California. [August 30, 1887 Dallas Morning News].
Approximately a month after returning to Texas, Lowe conducted a “raid” on a group of Chinese men eating dinner to catch the “killer.”
The odd endeavor went poorly. It sounded like 19th Century version of racial profiling by a lunatic, complete with Lowe rambling about details of the “murders” and million dollar reward.
The story ended with Lowe being arrested for insanity.
No Riding Off Into The Sunset
According to one newspaper, “L.J. Gilliland” eventually became a deputy sheriff in Texas.
This was after at least one stay in a California insane asylum and one arrest for lunacy. [Special to the Gazette – Dallas Tex Aug 2,1887 & Dallas Morning News, September 14, 1888]
Lowe went to Whitewright, Grayson, Texas determined on seeing some Chinese men arrested for a [probably imagined] crime.
Lorenzo ended up in a fight with the local Marshall named Chowing who killed him on November 1, 1889. Lowe was 38 years old. [Dallas Morning News, November 3, 1889]
Lorenzo Gilliland ruined his life over a watermelon; he was killed because of his racial prejudice and unstable mind.
Of Great Mistakes & Cries for Mercy
From the tone of the newspaper articles, it truly sounds like Lorenzo Gilliland needed advanced psychotherapy. To be fair, Lorenzo experienced the total destruction of his life, almost entirely self-inflicted beginning with the killing of Samuel Stevens. While Governor Coke believed Stevens’ death was in self-defense, Lorenzo did start carrying the concealed weapon after the watermelon incident. I cannot help but wonder if Lorenzo created the situation where he had to defend himself, because of the “raid” Lorenzo conducted on the Chinese men many years later.
Lorenzo Gilliland might have been completely in the right to kill Samuel Stevens in self-defense. The newspaper accounts make it sound like they had either been business partners of some sort or just did not like each other. Whatever the case was, Lorenzo’s killing of Stevens triggered a very long nightmare, including enduring hard labor as a convict for three years (the same amount of time “Drew” was supposed to be chasing Shanghaiers in California); escaping from prison the day he was pardoned and unnecessarily going into hiding for twelve years; losing his wife (again due to his own abandonment of her while on the run in California); never knowing his son; and experiencing the terror of 19th Century insane asylums.
The combination of all those trials would shatter most minds into tiny jagged pieces.
The real hero in the story was Minnesota Dunn. God only knows how hard her life was trying to provide for her son while Lowe was in prison. She would married a man named Lemon, ultimately moved to California and successfully raised a son.
Minnesota Dunn told her son Drew a noble lie that lasted over 130 years. Drew lived his life believing that his father was a heroic Texas Ranger killed by an outlaw. Drew Gilliland had a very successful career in law enforcement in Ventura, California, raising a son and a daughter, who were told the heroic story of their grandfather.
Unless….Ventura Sheriff Drew Gilliland knew the truth about his father and told a lie to my grandfather.
A lot of lawyers are geeks. A lot of geeks are lawyers. So it should come as no surprise that a lot of judges are Star Trek fans and they aren’t afraid to show it. Below are my favorite Star Trek quotes…from the bench:
First, our judicial system aspires to be Vulcan, not human or Klingon:
Jones v. South Jersey Industries, Inc., 2011 WL 3802243, 13 (N.J.Super.A.D. 2011) (The Court is providing a jury instruction to counter any passion aroused by a witness’s outburst)
“Your role is to determine fact[s]. Nobody can tell you what to do in that area. That’s entirely your decision. If you get to the issue of damages, I will instruct you as follows: number one, you should determine not only that portion of the case but all [of] this portion of the case without using bias or prejudice; in other words, we want you to be—and I’m going to date myself a little bit by saying this. Do you remember Star Trek, the original one with Mr. Spock? Mr. Spock could look at things totally logical. He was not influenced by passion. He certainly wasn’t influenced by prejudice, and that’s … how you need to look at a case. You need to look at a case for the facts as you see them. You need to look at the case for the law. You apply the facts to the law, and that’s how you come up with a decision. You don’t allow sympathy to enter into your decision.”
Jackson v. Harrington, 2011 WL 7143189, 21 (C.D.Cal. 2011)
(The Court is discussing with a prospective juror the juror’s ability to be objective)
The court: Yes. I understand. And I’m emotional. I understand that, too. Were you a fan of Star Trek?… And you said McCoy, the doctor who was so emotional who just ran off the wall at the drop of a hat whenever something emotional would occur. And you had Spock always standing there, placidly not affected at all by the emotion of the situation. And that’s what we want in this case. We understand that it’s not easy. It’s not easy. But to the extent that you possibly could dedicate yourself to doing exactly that, in other words in being fair, you don’t say, well, I’ll be fair to the People.”
Second, everyone loves The Wrath of Khan and Spock’s sacrifice:
South Yuba River Citizens League v. National Marine Fisheries Service, 804 F.Supp.2d 1045, 1063 (E.D.Cal. 2011)
FN5. Although the court declines plaintiffs’ invitation to speculate as to whether it is a worse injury for an individual salmon to be cut by sharp metal edges or die on dry land, Pls.’ Reply Brief 12, the court will note that in this case the court is most concerned with the survival and recovery of the species, and not the comfort of any individual salmon moving its way up the ladder. Put another way, “logic clearly dictates that the needs of the many outweigh the needs of the … one.” Star Trek II; The Wrath of Khan (Paramount Pictures 1982).
Robinson v. Crown Cork & Seal Co., Inc., 335 S.W.3d 126, 162-163 (Tex. 2010)
Appropriately weighty principles guide our course. First, we recognize that police power draws from the credo that “the needs of the many outweigh the needs of the few.” Second, while this maxim rings utilitarian and Dickensian (not to mention Vulcan FN21), it is cabined by something contrarian and Texan: distrust of intrusive government and a belief that police power is justified only by urgency, not expediency.
FN21. See Star Trek II: The Wrath of Khan (Paramount Pictures 1982). The film references several works of classic literature, none more prominently than A Tale of Two Cities. Spock gives Admiral Kirk an antique copy as a birthday present, and the film itself is bookended with the book’s opening and closing passages. Most memorable, of course, is Spock’s famous line from his moment of sacrifice: “Don’t grieve, Admiral. It is logical. The needs of the many outweigh …” to which Kirk replies, “the needs of the few.”
Third, another favorite source of quotes is Captain Kirk’s opening monologue:
In re Marriage of Ross, 2007 WL 1632365, 4 (Cal.App. 4 Dist. 2007)
This is also particularly true for Calvin’s argument, contrary to his contention the California codes are invalid, that the Uniform Commercial Code (UCC) is the “supreme codified law of the planet” which makes his separate claim to all property in this dissolution matter superior to any purported community property claim. With apologies to the former television series Star Trek, we decline “to boldly go where no [rational analysis] has gone before.” ( Star Trek: Episode Introduction monologue.)
In re Party Masters, Inc., 1992 WL 106259, 1 (Bkrtcy.N.D.Ill.,1992)
“Star Trek” has been a part of American culture during the last half of the Twentieth Century. To paraphrase its famous opening lines, this action is the voyage of two Star Trek convention promoters into litigation before this bankruptcy court; they explore and mix strange legal theories and ask the Court to seek out justice and do equity in this lawsuit of their creation; they boldly go where very few wise litigants have gone before—both parties assert contradictory and conflicting theories based on oral contract. Like the Star Trek characters battling in outer space, these parties struggle in the inner void left by their mutual failure to write down and document the terms of their agreement.
Fourth, “Beam me up, Scotty” is often quoted, but what makes this quote special is the detail in the citation:
Aquifer Guardians in Urban Areas v. Federal Highway Admin., 779 F.Supp.2d 542, 559 (W.D.Tex. 2011)
Perhaps Homo sapiens will experience a Darwinian epiphany to take better care of their home before they return to it. The alternative is a Captain Kirk moment: “Beam me up, Scotty!” FN62
FN62. “Beam me up, Scotty!” is a catch phrase which made its way into pop culture from the science fiction television series Star Trek. It comes from the command Captain Kirk (played by William Shatner) gives his chief engineer (played by James Doohan). Montgomery “Scotty” Scott, when he needs to be transported back to the Starship Enterprise. James Doohan, Beam Me Up, Scotty: Star Trek’s Scotty–In His Own Words (Pocket Books 1996).
Fifth, the Klingon Dictionary may replace Black’s Law Dictionary as the go-to dictionary for legal definitions:
Norwood v. Vance 572 F.3d 626, 630, 637 (9th Cir. 2009)
(The majority opinion)
The district court declined to give the proposed instruction because the meaning of deference would not be “clear to a lay person.” But “deference” is not Urdu or Klingon; it is a common English word.
(The dissent)
I must, however, acknowledge that the majority is quite correct in intuiting that, unsurprisingly, there is no Klingon word for “deference.” See generally Marc Okrand, The Klingon Dictionary (Star Trek 1992).
Sixth, even Star Trek technology has made appearances in judicial decisions:
County of Westchester v. Town of Greenwich, Conn. 793 F.Supp. 1195, 1207 -1208 (S.D.N.Y. 1992)
We first examine the first branch of the easement criteria, the open, visible, and adverse requirements for a prescriptive easement. We have no trouble concluding that the County’s use of the glide paths was open and visible. Aircraft regularly passing overhead during their landings and takeoffs are hard to miss. And defendants have offered no evidence that any Stealth fighters operated on runway 11/29 or that any of the aircraft used the infamous Romulan cloaking device.FN11
FN11. For those unacquainted with the television series “Star Trek,” this reference is to a device used by a civilization of beings called Romulans which rendered their spacecraft invisible to the naked eye.
Seventh, don’t ever confuse Star Wars and Star Trek:
Faith v. Clark, 2012 WL 2376327, 14 (E.D.Cal. 2012)
THE WITNESS: Dr. Masters, among the forensic community, is considered—essentially equivalent to a John F. Kennedy in terms of his integrity, competence and ability. For younger folks in the jury, probably that don’t know about John F. Kennedy, don’t have the same feeling, probably better to think of Dr. Masters as Obi Wan Kenobi, which my daughters, the last of the great Jedi warriors portrayed by Alec [Guiness] in Star Trek.
THE COURT: Star Wars.
THE WITNESS: Star Wars—thank you very much.
And, finally, I had to share this, the second-oldest Star Trek reference I could find and the first to take judicial notice of Star Trek’s cultural impact:
Golden Triangle Broadcasting, Inc. v. City of Pittsburgh 483 Pa. 525, 538, 397 A.2d 1147, 1153 (Pa. 1979)
As the “Star Trek” era is ushered into our lives, this Court must be prepared to keep its perspectives progressive and its definitions flexible, or else this Commonwealth will fail to acquire modern, technological manufacturing operations.
Josh @bowtielaw and Jessica @eDiscMatters, each with a JD in geekiness, discuss Dr. Horrible’s Sing-A-Long Blog, focusing on theories of civil and criminal liability for both Dr. Horrible and Captain Hammer for the death of Penny.
(This is the discussion of a fictional web series. Nothing should be considered legal advice.)
“Josh, what is eDiscovery?”
The greatest challenge in eDiscovery is usually explaining what eDiscovery is to a family member or a very technophobic attorney.
I have found the best way to describe eDiscovery, Cyber Security and Records Information Management is with the 1982 classic movie TRON.
eDiscovery can rightfully confuse attorneys with its complexity. With that said, TRON does an excellent job conveying the basic concepts of electronic discovery.
For anyone wondering, there are no characters named “Native File” or “Metadata” in the original film (However, there is a Ram).
Let’s go on the Gaming Grid to review how TRON is the ultimate allegory for eDiscovery:
TRON involves a programmer (a User) named Kevin Flynn who worked at ENCOM. Three years before the film, Flynn created multiple video games, which were stolen by an executive named Ed Dillinger, Sr. Dillinger took credit for the games and rose to the top of senior management of ENCOM.
Dillinger wrote the program named Sark and significantly enhanced the Master Control Program. The MCP essentially was a self-aware application and content archiving program with the desire to take over the world (it hacked the Pentagon and Kremlin, boasting it could run the world several thousand times better). The MCP could “appropriate” other programs it found useful, thus making itself stronger.
Flynn opened an arcade after Dillinger’s rise to power and Flynn’s termination at ENCOM. Seeking vindication, Flynn tried numerous times to hack into ENCOM’s system to find the video games he created to expose Dillinger as a fraud.
Another ENCOM programer, Alan Bradley, created the security program named TRON. To update the 1982 computer terminology, TRON was effectively an independent cyber-security program that monitored ENCOM’s system against other computer systems (the ultimate in cloud-computing security). Think of TRON as the enforcer of the Stored Communication Act, HIPAA, Wire Tap Act and every state privacy law rolled into one highly skilled Navy SEAL Ninja.
Dillinger locked Bradley out of the ENCOM system after learning of TRON. This prompted Bradley and Flynn to team up, along with Bradley’s girlfriend (and Flynn’s ex), to hack into the ENCOM system to shut down the MCP and find the files proving Dillinger was a fraud who stole Flynn’s programs.
And that is when the MCP digitized Flynn, bringing him into the virtual world.
Flynn’s adventure across the Grid focused on three key elements: 1) Survive the Gaming Grid; 2) TRON communicating with “Alan-1” in the real world for instructions on shutting down the MCP (exploring mild Net Neutrality themes, since the Grid was not a “free system”); and 3) destroying the Master Control Program (not forgetting the original goal to find the stolen files).
However, this adventure did not involve write-blockers, dongles and early case assessment, but Light Cycles, tanks and disk battles.
eDiscovery, in its purest sense, is about finding electronically stored information that supports a party’s claims or defenses.
Magistrate Judge Andrew Peck articulated the goals of reviewing eDiscovery as follows:
The objective of review in eDiscovery is to identify as many relevant documents as possible, while reviewing as few non-relevant documents as possible.
Moore v. Publicis Groupe & Msl Group, 2012 U.S. Dist. LEXIS 23350, at *27 (S.D.N.Y. Feb. 24, 2012) (Emphasis added).
In Flynn’s case, that was the video game source code stolen by Dillinger and “archived” (hidden) within the Master Control Program (providing the Records Information Management and computer forensics aspect of the story).
Sadly, document review in eDiscovery does not have Light Cycles, disk battles or glow in the dark outfits (many attorneys and paralegals agree all of which would dramatically enhance document review).
Document review does have computers with attorneys sitting in front of them, clicking boxes such as “Relevant” or “Attorney-Client Privilege.” While this is definitely not like flying a Recognizer in the search of relevant ESI, that essentially is the goal of document review: Find the data that proves your case.
And then capture it.
Flynn’s Arcade: Powering Up Document Review
Serious gamers do not play video games by randomly hitting buttons. That is a sure fire way to crash a Light Cycle or for Q*bert to jump off the cube pyramid.
No one conducts document review by just hitting buttons in any form of computer-assisted review. Just as in playing a video game, reviewing electronically stored information requires a strategy. It also requires knowing how the controller works.
Even though “computer-assisted review” does not involve 8 bit tanks that merge with data streams, attorneys can find electronically stored information with software specifically designed for attorneys to use in reviewing data. For example, attorneys can identify key individuals in a law suit with features such as “visual analytics,” enabling an attorney to see patterns of messages in a data set.
There are many other wonderful technologies available to attorneys to truly analyze the data in their law suits, whether it is a cell phone or a Terabyte hard drive. However, this technology is dependent on having the “metadata” in order to make any use of these advanced search features. Simply put, “metadata” is the foundational building blocks of a digital world (or The Grid in the words of Kevin Flynn).
There are multiple kinds of metadata. These were best explained in Aguilar v. Immigration & Customs Enforcement Div., 2008 U.S. Dist. LEXIS 97018, at *13 ( Nov. 21, 2008):
Substantive Metadata: Reflects changes made by the user, including prior edits or editorial comments.
Embedded Metadata: Embedded metadata consists of “text, numbers, content, data, or other information” that appears in native files with spreadsheet formulas, hidden columns, hyperlinks, references and fields, and database information.
System Metadata: Reflects information created by the user or by the organization’s information management system.
Aguilar v. Immigration & Customs Enforcement Div., 2008 U.S. Dist. LEXIS 97018, at *13 (Nov. 21, 2008) citing United States District Court for the District of Maryland; Suggested Protocol for Discovery of Electronically Stored. Information 27.
Attorneys need embedded and substantive metadata as a matter of right in order for today’s litigation review applications to actually analyze the data.
Without this information, reviewing eDiscovery is thrown back to a time when Pong was new.
Case management orders that prohibit any metadata without good cause arguably frustrate Federal Rule of Civil Procedure Rule 1’s requirement that cases “are administered to secure the just, speedy, and inexpensive determination of every action and proceeding,” by increasing the cost of document review with additional hours wasted searching for ESI that otherwise would be searchable.
Once a database is populated with extracted text and relevant metadata, attorneys are ready to enter the Gaming Grid of reviewing ESI. There are multiple strategies on how to conduct review, but all have the same figurative goal of shutting down a MCP.
For example, Plaintiffs reviewing eDiscovery can plan their discovery review to find responsive ESI that supports their cases of action.
Virtually all review software has “issue tags” that can be customized for attorneys to “tag” discovery the attorney deems important. Instead of naming an issue tag “Hot,” have it named “Breach of Contract” and the other causes of action within the complaint.
Additionally, “Breach of Contract” can have “sub-issues.” These sub-issues can be the elements of the causes of action as defined by the local jury instructions.
Defendants reviewing discovery can set-up their litigation support database to identify ESI that supports their defenses.
Another option is to review for discovery responsive to the Plaintiffs’ discovery requests. As I described in my blog Bow Tie Law in a post entitled Adventures in Statutory Construction of FRCP Rule 34(b)(2)(E):
While conducting review for ESI or documents responsive to a specific request, create issue tags at that time for the production requests. For example, “Request for Production 7,” would be RFP007. The three digit number system would allow for easier sorting in a data by discovery request.
When ESI is determined to be responsive to a request, code it accordingly with its request code. At the time of production, add that field of information with the other extracted text/metadata fields to be produced. Logging this information can increase organization for both the requesting and producing parties to a lawsuit.
Tragically, attorneys and eDiscovery professionals cannot be digitized and enter a computer to find responsive electronically stored information. This would certainly give new meaning to “form of production.” However, using litigation support software with strategic planning can improve document review exponentially compared to reviewing boxes of paper or static images without extracted text.
Reindeer Flotilla: Cyber Security & The Practice of Law
Cyber security is an understated theme of TRON. While the term “hacking” is used in the movie, the use of personal computers and hacking as we understand it today is very different.
The 21st Century definition of “cyber security,” according to PC Magazine Encyclopedia, is “The protection of data and systems in networks that are connected to the Internet.”
In TRON, Flynn’s Group 6 password to hack into the ENCOM system is Reindeer Flotilla. Two words that just do not go together, which is one way to form a password. Adding special characters, numbers and at least one capital letter are other commonly used strategies for secure passwords.
How is this relevant to attorneys?
There are numerous rules and ethics opinions regarding cyber security, cloud computing and other technologies specifically for attorneys. For example, California has California State Bar Professional Responsibility and Conduct Formal Opinion No. 2010-179.
Opinion No. 2010-179 addressed whether an attorney violates their duties of confidentiality and competence when transmitting or storing confidential information that might be susceptible to third parties (or in simpler terms, using public WifFi at a coffee shop to send client emails or conduct document review). Opinion No. 2010-179 (See, Espresso, WiFi, & Confidentiality with a Twist of Lemon for a complete discussion of the Opinion on Bow Tie Law).
The Opinion stated the following regarding an attorney using a public WiFi Connection:
“[D]ue to the lack of security features provided in most public wireless access locations, Attorney risks violating his duties of confidentiality and competence in using the wireless connection at the coffee shop to work on Client’s matter unless he takes appropriate precautions, such as using a combination of file encryption, encryption of wireless transmissions and a personal firewall.”
Opinion No. 2010-179, page 7.
An attorney’s duty of competency and confidentiality are interwoven with cyber-security concerns. Whether an attorney is working from home or behind the firm’s firewall, attorneys must think beyond “reindeer flotilla” in protecting client confidences.
Flynn Lives (in eDiscovery)
TRON is the perfect eDiscovery example. The story’s core involves the search for smoking gun files that showed Dillinger stole Flynn’s video game designs. That essentially is the goal of document review in any lawsuit.
While “The Gaming Grid” in eDiscovery is usually the fields of extracted text and metadata in review software, the premise of both the film and eDiscovery is exactly the same: Find the relevant files supporting your claims.
However, while glowing outfits might be optional for document review, it is never acceptable courtroom attire.
End of Line
Joshua Gilliland, attorney blogger for www.bowtielaw.com and www.thelegalgeeks.com, discusses Relevance under the Federal Rules of Evidence and the California Evidence Code (No part of this video should be considered legal advice).