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.
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