eDisclosure Information Project

I have published articles recently on the prevalence of data in the increasingly wide range of devices which people use every day, perhaps without much thought. That lack of thought becomes significant when the data may be relevant for discovery purposes.

It is not just potential discovery data which may be captured by these devices. A marathon runner was apparently caught out by a mixture of photographic and performance data, and the difference between a marathon and a sprint can now, it seems, be captured by a wi-fi enabled condom. More on these diverse subjects below.

By “discovery” I do not simply mean because it is required for civil litigation or in the course of an internal regulatory investigation. It is relevant also to criminal investigations where data may help the authorities to obtain a conviction or, just as importantly, to help a suspect achieve acquittal.

My constant repetition on this subject has, I now see, omitted some unlikely-sounding sources.  I am obliged to Andrew Haslam of Squires Patton Boggs for drawing to my attention my first example, a heart pacemaker, which he found in an article headed Data on man’s pacemaker led to his arrest on arson charges. Continue reading →

Oh Lord, you will say. He’s only just given us one of his periodic lectures on the importance of understanding the trail of electronic evidence we all leave behind us. Can’t he give us a break for a few weeks?

Last Friday, I published an article called Finding the evidence for hot tub murder and the red-headed children of Greendale. Its purpose was to re-state my frequent reminder that most of us leave an electronic trail which, while not necessarily proving what we were doing or saying, or showing where we were (or were not) at a particular time, creates a presumption which may either support our recollections or undermine them.

The following day, Gordon Exall published on his excellent Civil Litigation Brief an article called Lawyers, litigation and memory: the Memory Illusion. It refers to a book by Dr Julia Shaw called The Memory Illusion: Remembering, Forgetting and the Science of False Memory. Gordon Exall explores the factors which influence the recollection of a witness, including the potential bias of loyalty – the “desire to assist, or at least not prejudice, the party who called the witness or that party’s lawyers” – as well as the effect of the litigation process on recollection. Continue reading →

I wrote in June about Analytics Hub – Analytics-As-A-Service from Xerox Legal Business Services. This is a new service which, as Xerox’s Rachel Teisch put it, allows you to

consolidate masses of data across legal cases and assess up to billions of prior document classifications made by attorneys to identify which documents are relevant for new cases, eliminate repeat reviews, automate the classification of document and identify data that could be a legal liability in the future.

Rachel Teisch’s point was that the use of data analytics can help anticipate a regulatory investigation, mitigate risk and, almost incidentally, improve productivity.

Karl Sobylak of Xerox Business Services has written an article called The SEC has data fever, and the only prescription is more data (analytics) on the (very good) Xerox Discovery Talk blog. The article’s theme is that the SEC and other regulators are increasingly using data analytics to back their investigations into corporate conduct, giving rise to a record year for enforcement actions. The SEC alone “obtained judgments and orders totalling more than $4 billion in disgorgement and penalties”. Continue reading →