“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).
As already established, I love Joss Whedon. While Buffy will always be my first love, I think everything he does is great, each in its own special way. Dr. Horrible’s Sing-Along Blog is fantastic for so many reasons, including: (1) its inspiration in the 2007-08 Writers Guild Strike; (2) its music; (3) its use of Neil Patrick Harris; and (4) Joss’s classic move of turning convetion on its head, in this case, by making the hero an insufferable stuffed shirt. (Nathan Fillion is great as Captain Hammer but he’ll always be Johnny from Two Guys, a Girl, and a Pizza Place to me, while Ryan Reynolds will always be Berg.)
In addition to a reputation for excellence, Joss also has a well-deserved rep for killing off beloved characters. In Dr. Horrible, of course, [SPOILER ALERT!] he killed the adorable, sweet, much loved Penny. And while he killed her by impalement (a possible MO, per Josh, my partner in geekdom), it was as a result of the misfire of the Death Ray created by Dr. Horrible, although it was Captain Hammer who pulled the trigger. Nevertheless, Dr. Horrible got the credit, in the eyes of the Evil League of Evil, for murdering Penny. The question for The Legal Geeks, however, is what would the courts say about Dr. Horrible’s liability for Penny’s death?
In this situation, Dr. Horrible’s role would be similar to that of a gun manufacturer. He created the Death Ray but he didn’t pull the trigger. Indeed, he didn’t want Captain Hammer to pull the trigger, probably because the Death Ray was pointed directly at him at the time. (Captain Hammer’s willingness to fire on a clearly-vanquished enemy can be compared to Captain Mal Reynold’s shooting of unarmed opponents. This unusual willingness to have heroes act in morally grey ways is another Joss trademark, and one Josh and I discussed in comparison to George Lucas’s redo of Han Solo’s cantina gun shot.)
Dr. Horrible could argue that, as a gun manufacturer, he’s covered under the Protection of Lawful Commerce in Arms Act (the “PLCAA”), enacted by Congress in 2005. This Act was passed in part to prevent lawsuits against manufactures of firearms “for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed or intended.” This statute, which exempts manufacturers of legal, nondefective firearms from liability in products liability actions for criminal use of the firearms, would presumably not apply here for two reasons. First, while semiautomatic assault weapons may be legal, a “death ray” is probably not a legal firearm. Second, the death ray was presumably defective, as it misfired dramatically after a mere drop to the floor (Dr. Horrible wasn’t the best at making these weapons – the Freeze Ray didn’t work consistently either).
Assuming the PLCAA doesn’t protect him from liability, the question is whether Dr. Horrible can be held liable for the product he created. Dr. Horrible lives in California, where the general rule is that a manufacturer can be held liable for dangerous products, although there is no duty to warn of a product’s known risks or obvious dangers. With regard to the Death Ray, the dangers of firing it are obvious, although death by impalement would not be an obvious danger, so Dr. Horrible couldn’t use that general rule to protect him from a suit by Penny’s family.
A key question for the jury in a case brought against Dr. Horrible by Penny’s family would be whether the Death Ray failed to perform as safely as an ordinary consumer would expect when the product is used in an intended or reasonably foreseeable manner. Firing the weapon at a bad guy (by a hero, no less) is arguably a reasonably foreseeable use of the death ray. That same gun exploding into deadly shrapenel, however, would not be an example of a gun performing as safely as an ordinary consumer would expect, thereby making Dr. Horrible liable.
If a negligence claim was brought in addition to a products liability test, the issues would be the same, although Penny’s family would also have to prove that the defect in the death ray was caused by Dr. Horrible’s negligence. Again, a death ray that explodes after being dropped once is a poorly designed death ray and Penny’s family would have a strong argument that Dr. Horrible was negligent in designing the death ray.
Of course, this entire discussion may be moot because, as a result of Penny’s death, Dr. Horrible became a powerful evil leader. Captain Hammer, meanwhile, was reduced to many hours in intensive therapy and was unable to stop Dr. Horrible. So the courts may not have the capability to impose a judgment against Dr. Horrible — making him truly judgment-proof.
Jessica Mederson and Joshua Gilliland interview Ian Campbell on ILTA 2012 and the new features in XERA. Ian discussed eDiscovery, advanced search technologies of XERA, his love of soccer and his favorite Canadian rock and roll band.
Attorneys Jessica Mederson and Josh Gilliland reviewing “self defense” under Common Law and the Model Penal Code in analyzing whether Han Solo was legally justified in shooting Greedo first in the original Star Wars (Episode IV).
Han Shot First.
There is no question about it.
And in 1977, no one questioned it.
However, the legal question remains, was Han Solo legally justified in killing Greedo (Provided the Empire’s Doctrine of Fear had similar Common Law traditions)?
For those who do not have the scene memorized, here is the dialog from the original version from IMDB:
Greedo: [In Huttese; subtitled] Going somewhere, Solo?
Han Solo: Yes, Greedo. I was just going to see your boss. Tell Jabba I’ve got his money.
Greedo: It’s too late. You should have paid him when you had the chance. Jabba’s put a price on your head so large, every bounty hunter in the galaxy will be looking for you. I’m lucky I found you first.
Han Solo: Yeah, but this time I’ve got the money.
Greedo: If you give it to me, I might forget I found you.
Han Solo: [stealthily going for his blaster] I don’t have it with me. Tell Jabba…
Greedo: Jabba’s through with you! He has no use for smugglers who drop their shipments at the first sign of an Imperial cruiser.
Han Solo: Even I get boarded sometimes. Do you think I had a choice?
Greedo: You can tell that to Jabba. At best, he may only take your ship.
Han Solo: Over my dead body!
Greedo: That’s the idea… I’ve been looking forward to this for a long time.
Han Solo: Yeah, I’ll bet you have.
[Han blasts Greedo, then heads out, tossing the bartender a coin]
Han Solo: Sorry about the mess.
Enter the 1990s
The 1997 re-release of Star Wars has Greedo firing his blaster before Han.
Moreover, Greedo wildly misses in extremely close quarters, if not point blank range.
This made Greedo not just a horrible shot, but an extremely bad bounty hunter.
Greedo should have been a Nerf Herder.
Here are the basic facts: Han is stopped at gunpoint by Greedo. During the entire conversation in the bar, Greedo has his weapon pointed directly at Han. There is a dispute over money, with Han saying “Over my dead body,” to which Greedo replies, “That’s the idea. I’ve been looking forward to this for a long time.”
Second, let’s review the Model Penal Code on using deadly force in self-defense. The MPC states:
§ 8.02 Use of Deadly force
[A] Common Law – Deadly force is only justified in self-protection if the defendant reasonably believes that its use is necessary to prevent imminent and unlawful use of deadly force by the aggressor. Deadly force may not be used to combat an imminent deadly assault if a non-deadly response will apparently suffice.
[B] Model Penal Code – The Code specifically sets forth the situations in which deadly force is justifiable: when the defendant believes that such force is immediately necessary to protect himself on the present occasion against:
1. Death;
2. Serious bodily injury;
3. Forcible rape; or
4. Kidnapping.
The Code prohibits the use of deadly force by a deadly aggressor, i.e., one who, “with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter.” [MPC § 3.04(2)(b)(i)]
The issue under common law is whether Han reasonably believed that deadly force was necessary to prevent imminent and unlawful use of deadly force by the Greedo.
Under the Model Penal Code, the issue is whether Han believed deadly force was immediately necessary to protect himself against 1) Death (in the event Greedo fired first); 2) Serious bodily injury (a blaster wound likely do serious injury if not fatal) or 3) Kidnapping (Greedo arguably could have intended to take Han to Jabba the Hut.)
The next issue is whether Han was required to “retreat” from Greedo.
The rules state:
§ 8.03 Retreat Rule
[A] Common Law – If a person can safely retreat and, therefore, avoid killing the aggressor, deadly force is unnecessary. Nonetheless, jurisdictions are sharply split on the issue of retreat. A slim majority of jurisdictions permit a non-aggressor to use deadly force to repel an unlawful deadly attack, even if he is aware of a place to which he can retreat in complete safety. Many jurisdictions, however, provide that a non-aggressor who is threatened by deadly force must retreat rather than use deadly force, if he is aware that he can do so in complete safety.
A universally recognized exception to the rule of retreat is that a non-aggressor need not ordinarily retreat if he is attacked in his own dwelling place or within its curtilage [the immediately surrounding land associated with the dwelling], even though he could do so in complete safety.
[B] Model Penal Code – One may not use deadly force against an aggressor if he knows that he can avoid doing so with complete safety by retreating. Retreat is not generally required in one’s home or place of work. However, retreat from the home or office is required: (1) if the defendant was the initial aggressor, and wishes to regain his right of self-protection; or (2) even if he was not the aggressor, if he is attacked by a co-worker in their place of work. However, the Code does not require retreat by a non-aggressor in the home, even if the assailant is a co-dweller.
Finally, we must consider whether Han had a “reasonable belief” about Greedo’s threat. The Model Penal Code states:
§ 8.04 “Reasonable Belief”
The privilege of self-defense is based on reasonable appearances, rather than on objective reality. Thus, a person is justified in using force to protect himself if he subjectively believes that such force is necessary to repel an imminent unlawful attack, even if appearances prove to be false.
Courts are increasingly applying a standard of the “reasonable person in the defendant’s situation” in lieu of the “reasonable person” standard. Factors that may be relevant to the defendant’s situation or circumstances include:
| 1. | The physical movements of the potential assailant; | |
| 2. | Any relevant knowledge the defendant has about that person; | |
| 3. | The physical attributes of all persons involved, including the defendant; | |
| 4. | Any prior experiences which could provide a reasonable basis for the belief that the use of deadly force was necessary under the circumstances. |
Applying the facts to the Model Penal Code and Common Law, Han was justified in shooting first and killing Greedo. Without a doubt, having a blaster pointed directly at Han put his life in danger. Additionally, Greedo’s statement “That’s the idea. I’ve been looking forward to this for a long time,” communicated Greedo’s intent to kill Han. Shooting first was the only away to prevent Greedo from using deadly force himself.
As for the retreat issue, Han was already at gunpoint and cornered in the booth when Han shot Greedo. It is unlikely Han could have retreated with his back to the wall and in a seated position. Shooting his way out appeared to be his only option.
Finally, reasonable belief: Han was in Mos Eisley Spaceport, a wretched hive of scum and villainy. Second, Greedo had his weapon pointed at Han the entire time, with Han cornered in a booth. This should be sufficient to show the reasonableness of the threat to Han’s life.
While Han was justified in shooting first, a better question is why did Malcolm Reynolds shoot the Alliance pilot who was surrendering in Serenity?