CEIC 2013: Leading Judges Speak on TAR and Digital Information in Criminal Prosecutions

Daniel Lim

Many thanks to Judges Vanessa D. Gilmore, (U.S. District Court, S.D. Tex. – Houston Division), David Waxse (U.S. District Court, Kansas), and Karla Spaulding (U.S. District Court, M.D. Fla.) for an engaging and informative panel at the CEIC® 2013 conference in Orlando.

TAR: Holy Grail or Helpful Tool?
Judge Waxse helped to start us off with a discussion of whether experts would be required to testify for the use of new technologies in discovery, such as technology assisted review (TAR).  While Judge Peck has indicated his view that such testimony would NOT be needed because Federal Rule of Evidence applies to trial, rather than discovery, Judge Waxse takes an opposing view.  

No one disputes that such technologies should enhance the ability to review documents faster. However, it remains to be seen whether TAR becomes the holy grail saving us from e-discovery tyranny, or whether it should be considered as most other technologies areas a tool that is only part of a larger, smarter process of managing e-discovery.

Digital Information in Criminal Prosecutions
Judge Gilmore helped to enlighten us on some practices and considerations to keep in mind for criminal prosecutions involving digital information. For example, a would-be perpetrator should keep in mind that, at least in the Fifth Circuit jurisdictions, if his or her cell phone is confiscated as part of an arrest for a federal crime, it WILL have its information completely downloaded by the government. In addition, Judge Gilmore went through the provisions of the federal sentencing guidelines to illustrate the importance of keeping track of damages to a corporation for the commission of computer crimes in order to increase the potential penalties for those who break federal laws relating to privacy and digital information.

Judge Spaulding discussed some of her recent cases where parties have filed motions to inspect databases and software used by investigators. The lesson to be learned is that investigators need to be prepared to have their digital records and software inspected by opposing parties, particularly in criminal investigations.

CEIC has the unique benefit of bringing together the best and brightest from a variety of backgrounds, including investigators, information security (IT), information security, legal departments, records management teams, and other corporate leaders.  Having the judges share their views and also get some feedback from those in technology was invaluable for all involved. 

Thanks to the judges and to all those who participated in our discussions, where everyone present benefited from hearing directly from true leaders in the legal profession.

No comments :

Post a Comment