The Friday before trial, [Lead investigator] Price discovered web pages for Winters on the social networking websites Facebook and MySpace. On Winters’s Facebook page, Price found several pictures of Winters and a photograph of what appeared to be firearms stacked on hundreds of thousands of dollars. On Winters’s MySpace page, along with pictures of Winters, there was a picture of wrapped packages that resembled many kilograms of cocaine packaged for sale. Winters’s counsel was not aware of the photographs until the first day of trial—the day before the government intended to introduce them. At trial, although neither of the parties was able conclusively to identify the photos, they were admitted.

On appeal, Winters argued that “it was an abuse of discretion to admit [the photos], because the government failed to lay a proper foundation and they were unfairly prejudicial.” Apparently, at trial, the prosecution’s attempt at authentication was the fact that they were found on Winters’ social media web pages, and Winters’ admission that the web pages were his. The prosecution didn’t just offer the photos into evidence for “their mere existence”, but to affirmatively link Winters to the charges he faced.

The Court had sympathy with both parts of the defendant’s argument:

A photograph’s appearance on a personal webpage does not by itself establish that the owner of the page possessed or controlled the items pictured. Because Price was not able to recognize and identify the objects in the photos or show that Winters… had possession or control of the pictured items, a proper foundation was not laid.

Nor can we ignore the failure of the court to exercise its discretion… to “exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice . . . [or] misleading the jury[.]“… Because the content depicted in the photographs cannot be tied to Winters… the photos have little probative value as to Winters’s involvement in the conspiracy. Even more significantly, the pictures, depicting over-whelming amounts of cash, several weapons with silencers, and substantial amounts of cocaine packaged for distribution, are highly prejudicial.

Sounds like good news for Winters, doesn’t it? Unfortunately for him, even if the photographs were deemed to have been improperly admitted, that’s not the end of the Court’s analysis. They could not set aside the criminal conviction unless “substantial rights of the complaining party” were affected. There was found to be evidence, independent of these photographs, which supported both convictions (conspiracy and possession of a firearm by a felon), and so the conviction was upheld.

But for the tech law enthusiast, basic principles of evidence still apply and are important to remember: however juicy or damning a photo may be, it still has to be properly authenticated. It seems like the prosecution got lucky here, and had extra evidence which supported the conviction.

Vice Chancellor Laster characterized the case as “an ideal non-expedited case in which the parties would benefit from using predictive coding.” He asked the parties to use predictive coding for discovery or else to “show cause why this is not a case where predictive coding is the way to go.” He also suggested that they use a single eDiscovery provider – “one of these wonderful discovery super powers” – to warehouse both sides’ documents and offered to choose a vendor if both parties could not agree on one.

This was a bold decision at the time, and now there’s an update…

The parties did, as requested, show cause not to go with predictive coding, and so that requirement has been taken off the table. Chancellor Laster’s very short order concluded that “based on the low volume of relevant documents expected to be produced in discovery by EORHB, Inc., … the cost of using predictive coding assistance would likely be outweighed by any practical benefit of its use”, and therefore that “the parties have agreed that there is no need for the parties to use the same discovery review platform”.

So there you have it – one of the higher-profile cases to recommend the use of predictive coding technology has now been convinced against its use. Let’s see how the trend continues to play out.

We all know the pitfalls of using social media, especially for those in the public eye. Recently a NBA player learned just how deep those pitfalls run when he was sued for defamation as a result of a comment he posted on Twitter. Devin Ebanks, a forward on the Los Angeles Lakers, was the defendant in a case where a woman claimed that he allegedly raped her. After he was cleared of the rape charge, TMZ – the foremost authority on all things scandalous in the world of the celebrity – published an article entitled “L.A. Laker Devin Ebanks Cleared in Rape Investigation”. That same day, Ebanks found his way to Twitter to make a seemingly innocent comment on the matter. A friend named Junior, (who had introduced him to the woman who accused him of rape) tweeted “Glad you got cleared”, which then led Ebanks to respond, “Thanks bro next time u wanna hook me up, dnt lol”.

Soon thereafter the woman anonymously sued him for sexual assault, including a claim for defamation for the comment he made on Twitter. The lawyers for the woman argued that the statement on Twitter amounted to his “adoption” of the TMZ article that they argued contained some inaccuracies.  To this issue the court stated in essence that even though the Twitter post and the TMZ article were published on the same day, the Twitter conversation did not specifically reference the article and used terms common to a discussion of the dropping of criminal charges.

The court went on to say:

“It is reasonable to infer that Junior saw the TMZ article, but it is not reasonable to then conclude that defendant adopted the contents of the Twitter article in the exchange with Twitter. At most, defendant’s Twitter comments confirm to Junior that the woman to whom Junior introduced defendant was the same on that alleged the rape. Under no reasonable interpretation can the Twitter comments by defendant be interpreted to adopt the content of the TMZ article by defendant.”

In a ruling that assured the continued presence of the infamous celebrity tweet, the court granted Ebanks’ motion to strike and ordered the woman’s to pay over $18,000 in court costs for filing a frivolous claim, as well as denying her claim to remain anonymous in the lawsuit.

The National Labor Relations Board (NLRB) has recently answered the question of whether a person can be fired for bad-mouthing their boss/company on Facebook with a resounding “NO.” Again.  Can you hear that?  It’s the wave of the future crashing through the walls of jurisprudence.  As we get into the DeLorean of privacy, Doc Brown says “Where we’re going, we don’t need roads.”  The future looks bright.

Fred Pflantzer worked as a tour guide for New York Party Shuttle (NYPS), LLC.  By his own admission, Fred jumped to New York Party Shuttle in hopes of making more money at his previous job, as a tour guide for another tour company.  Pflantzer, realizing the grass was not as green, started sewing the seeds of discord among the other employees of NYPS, with talks of unionizing.  As Pflantzer’s unhappiness reached a fever pitch he took to Facebook to air his discontent:

Needless to say, I started agitating for a union.  Guess what happened, I stopped being called for work.  I disappeared off the work sheet, not fired outright, but in effect kicked to the curb.

And even though New York Party Shuttle fought valiantly to justify its actions (seriously, one of NYPS’ main arguments was that Pflantzer was not even an employee but an independent contractor), in the end, the NLRB ruled that this speech was protected citing the National Labor Relations Act, section 8 (a)(1):

Sec. 8. [§ 158.] (a) [Unfair labor practices by employer] It shall be an unfair labor practice for an employer–

(1)   to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [section 157 of this title]

For those union hopefuls wishing to air their frustration via social media, be rest assured, you are protected.   However, the context of this holding only applies to those hoping to form a union. Those wishing to rip into their respective employers and are NOT in the midst of starting a union, be forewarned:  this ruling does not provide a safe harbor for you.

Our favorite tech giants continue to battle each other in the courtroom.  The District Court for Northern California issued an order on May 9th in response to a Motion to Compel where Apple sued Samsung and subpoenaed third party, Google, for e-discovery.  During the e-discovery meet and confer between Apple and Google, search terms and custodians were not agreed upon or even discussed.  So, Google produced e-discovery.  During a subsequent meet and confer, Apple requested Google provide search terms and custodians used in producing the e-discovery.  Apple wanted to know “how Google created the universe from which it produced documents.”

Google refused and argued to that the search terms and choice of custodians were “privileged under the work-product immunity doctrine.”  Google asked Apple to suggest search terms and custodians.  Apple refused and moved the Northern District Court of California to compel Google to provide search terms and custodians used in its production of e-discovery.  The California District Court found that Apple “failed to collaborate in its efforts to secure proper discovery from Google” and “made no effort to explore meaningful collaboration on obtaining the documents it believed were not produced.”  The Court, however, had to resolve the issue before it.

Google argued before the Court that providing a list of search terms and custodians was unduly burdensome.  Was this ironic?  The California Court thought so, that Google, “a pioneer in searching the internet” was “arguing that it would be unduly burdened by producing a list of how it searched its own files.”  In addition, Google provided no evidence that producing a list of search terms and custodians would be oppressive or burdensome.  A recent Foss Patents blog suggests “[g]iven Google’s expertise in search, this could only be intentional, of course.”

Finally, Google argued its third party status protected it from complete transparency in search term methodology and custodians, that the impact of requiring such lists “whenever unsubstantiated claims of production deficiencies are made would be extraordinary,” and that providing a list of search terms and custodians would open “the floodgates” to further discovery requests.

The Court explored the question (through analyzing DeGeer v. Gillis) as to whether it is “extraordinary” to expect non-parties to be “transparent about their discovery methods;” and concluded that third-party status “does not confer a right to obfuscation or obstinacy.”  So, Google was ordered to provide the list of search terms and custodians to Apple.  The Court, however, still left the door open for Google to argue undue burden in the production of further discovery.

The e-discovery 2.0 blog finds this decision noteworthy because, even in today’s technology assisted review (“TAR”) environment, it “illustrates that the use of search terms remains a viable method for searching and producing responsive ESI.”  The Foss Patents blog concludes the “ruling stresses that transparency and collaboration is essential to meaningful, cost-effective discovery.”

In the future, Apple and Google might benefit from conducting more thorough meet and confers regarding e-discovery.  Or perhaps our favorite tech giants might begin to advance arguments complaining that the use of search terms are unduly burdensome in light of more efficient and cost effective TAR options, such as predictive coding.

On May 7th, Dotcom’s legal team released a white paper, entitled ‘Megaupload, the Copyright Lobby and the Future of Digital Rights,’ and it certainly doesn’t pull its punches. In the introduction, the phrase “one of the clearest examples of prosecutorial overreach in recent history” is used. The prosecution is called “not only baseless, [but] unprecedented.” The most interesting allegation in the document suggests that the Motion Picture Association of America (MPAA) “conceived and executed” the legal pursuit against Megaupload. They say “[t]here is little dispute that the prosecution… has been driven principally by the MPAA”, but there’s not much evidence behind that assertion. Here’s a particularly aggressive section:

The U.S. government’s attack against Megaupload bears all the hallmarks of a contract prosecution: a case resting on erroneous theories of criminal law, littered with due process violations and prosecutorial abuses, carried out for the benefit of a select few in exchange for their political and financial support. In the name of eliminating copyright infringement, Hollywood has exerted a corrupting influence in Washington, leading us all down a slippery slope that not only threatens innovation and Internet freedom, but also has profound implications for constitutional principles of free speech, privacy and due process.

The entire white paper is worth reading. Of course, its claims are to be taken with a pinch of salt, but it’s certainly provocative and fascinating. There’s a long way to go in this case, and we’ll continue to keep you updated with all the developments. Just yesterday, for instance, the New Zealand Supreme Court allowed Dotcom leave to challenge the March decision. So this thing is going to stretch out even further.

As with other cases that have dealt with which eDiscovery costs are taxable, the court focused on 28 U.S.C. § 1920(4), which allows recovery for:

 ”[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.”

The lion’s share of Gallo’s bill of costs was comprised of “flattening and indexing ESI” ($71,910); “searching/review set/data extraction” ($15,660); and ”management of the processing of the electronic data,” “quality assurance procedures,” “analyzing corrupt documents and other errors,” and “preparing the production of documents to opposing counsel”, collectively $23,185.

The court, like others we’ve discussed in the past, relied on the Third Circuit case Race Tires America, which was unusually narrow in its interpretation of that statute:

[s]ection 1920(4) does not state that all steps that lead up to the production of copies of materials are taxable. It does not authorize taxation merely because today’s technology requires technical expertise not ordinarily possessed by the typical legal professional. It does not say that activities that encourage cost savings may be taxed. Section 1920(4) authorizes awarding only the cost of making copies.

The Country Vintner court followed Race Tires America pretty closely:

We find the Third Circuit’s reasoning persuasive. The court properly took into account the statute’s history, its plain language, and the Supreme Court’s narrow contemporary interpretation of the costs taxable under § 1920. All of these considerations support the conclusion that, in this case, subsection (4) limits taxable costs to those identified by the district court: converting electronic files to non-editable formats, and burning the files onto discs.

The Court points out that “§1920 is “limited to relatively minor, incidental expenses”", citing a Supreme Court case, before concluding that:

“in this case, only the conversion of native files to TIFF and PDF formats, and the transfer of files onto CDs, constituted “making copies” under § 1920(4).”

After that, the Court quickly sets aside Gallo’s request for “exemplification” fees, on the basis that “Gallo’s charges include neither authentication of public records nor exhibits or demonstrative aids.” So, the Fourth Circuit affirmed the district court, finding that:

only the conversion of native files to TIFF and PDF formats, and the transfer of files onto CDs, constituted “making copies” under § 1920(4), and that none of Gallo’s expenses constituted “[f]ees for exemplification.”

In summation (not to be confused with “in Summation“): a prevailing party claimed over $110,000 in ESI costs, and would up recovering a mere $218. How do our eDiscovery practitioners feel about this outcome? Is it a worrying sign of things to come?

In an continuing battle regarding the use of smartphones to hail cabs in NYC, a judge recently lifted a temporary ban on the e-hail program, giving it a green light, and moving it into test mode gear for the next year. The program seeks to test whether or not it is efficient and feasible for yellow cabs to answer e-hails from customers as opposed to plain old fashioned hails from the street corner. The program was all set to go after the ruling opened the door, but that door was promptly closed again by an appeal made by the livery and black car companies.  A decision on the appeal is now expected on May 20.

The pilot program is aimed at determining whether an e-hail system will function equitably for cab drivers as well as for customers in the city; or present the same problems experienced in the past such as taxi unavailability and discrimination. The pilot program, lasting for twelve months, and subject to final regulatory approval, would allow e-hail requests to be accepted through one touch access for the cab driver, while passing along limited information about the passenger and the destination to avoid discrimination.

The petitioners in the case, comprised of representatives from livery and black car companies, as well as one elderly man who did not own a smartphone, sought to persuade the court to cancel the pilot program before it began. The petition raised arguments ranging from lack of compliance with statutes and administrative codes, to non-compliance with environmental regulations and discrimination.  Petitioners argued that the program would blur the lines set by legislation, which have separated medallion cabs from livery cabs.

However, the crux of the argument presented by the petitioners argues that the use of smartphones violates several city regulations and that the Taxi and Limousine Commission overstepped its authority in allowing the program to go forward. The irony here is that it attacks the same smartphone technology that the livery and black car companies use to communicate with their customers currently. By attacking the legality of the use an implementation of smartphones it would seem as if it could potentially put the livery and black car programs at risk in the future.

In what appeared to be judiciary lightheartedness, the judge pointed out that petitioners failed to point to one specific statute or legislation which directly supported the contention that general legislative intent was to limit taxis strictly to street hails. Nevertheless, the judge in part stated that the main aim of the pilot program is to “try it out”, and see what outcomes occur, to determine whether the system will be prudent and practical for the city. The livery and black car companies are not going down without a fight, and are doing their best to head if off at the pass, however if things keep going in the city’s favor, the e-hail system may have the next year to prove its worthiness to taxi riders all over NYC.

First, let’s get back to what exactly the “seven level wipe” is. From the federal Statement of Offense:

[An individual named] W-1 told BLOCH that when a “seven level wipe” was performed on a computer, all of the programs and data that were on that computer would be wiped completely from the computer. W-1 further explained that after such a wipe, the computer would work again after the necessary software, including an Operating System (e.g. Microsoft Windows), was reinstalled on the computer.

After that, the Statement suggests that Bloch contacted W-1′s contact, and instructed him to perform the seven level wipe on three department computers. Once the incident came to light, it garnered national press attention, and led to his departure in October 2008. In 2010, the Department of Justice put out a press release that said:

The former head of the United States Office of Special Counsel (“OSC”), Scott J. Bloch, pled guilty today to Criminal Contempt of Congress for willfully and unlawfully withholding pertinent information from a House committee investigating his decision to have several government computers wiped[.]

Since then, there has been much back-and-forth, changed charges, withdrawal of pleas and the like. Various blogs have been covering the saga for many years, and Empty Wheel recently reported that Bloch is now trying to stop some of these blogs. If you follow that link, you can see the threatening letter that has been sent out, where Bloch accuses the recipients of “defam[ing him] by casting aspersions on [his] professional standing and ability to represent contractors.” As Popehat and Empty Wheel observe, though, the sentence “you are not commenting on any public matters that are current” is the most interesting in Bloch’s letter. The matter sure feels “public”, and with more developments expected in the coming weeks, it seems “current” too.

It’ll certainly be interesting to see what happens when Bloch’s sentence is passed down soon.

Poker—a game of luck or skill? Some courts have weighed in, calling it a game of skill. But that analysis applied to live games between real people playing with real cards. What about video poker? Simply pressing buttons on a video poker machine doesn’t require skill, right? For both John Kane and Andre Nestor, luck followed by skill led to big pay days—and big trouble. 

Kane, a Las Vegas denizen, liked video poker. A lot. In fact, Kane liked video poker in much the same way most people like breathing. As Wired’s thorough write-up of the case noted, Kane’s lawyer illustrated his client’s love of the game:

“Kane, according to his lawyer, played a lot of video poker. ‘He’s played more than anyone else in the United States,’ claims Leavitt. ‘I’m not exaggerating or embellishing. … In one year he played 12 million dollars worth of video poker’ and lost about a million, he says. ‘It’s an addiction.’”

In the midst of all that video poker, Kane discovered an exploit in the gaming machines. By following a complex series of steps, Kane manipulated the machine to substantially increase its payouts. As this defense motion to dismiss explained:

“[I]f an individual is playing a $1.00 video poker machine and wins a jackpot or any other winning hand, so long as the ‘double up’ feature is available for selection, currency can then be inserted into the machine or a voucher inserted into the machine. Once the currency or the voucher is inserted, the ‘double up’ feature will be disabled. At this point, one simply needs to change the value on the machine from $1.00 to ten dollars and a $1.00 jackpot will then become a $10.00 jackpot. The individual can then hit cash out and for instance, instead of winning $820.00, the player will win $8,200.00.” (emphasis added).

After Kane discovered the exploit, he told Andre Nestor, a friend from Pennsylvania, about it. Nestor applied the exploit to video poker machines in Pennsylvania casinos, winning more than $400,000. Eventually, the duo’s luck ran out, and the law came calling. But what began as state criminal charges soon became federal wire fraud and computer hacking charges. The men had been charged with violating the Computer Fraud and Abuse Act, a controversial law from 1986 reformists have yearned to amend. Specifically, the charges fell under 18 U.S.C. § 1030(a)(4), which prosecutes anyone who:

“knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period.”

Defense counsel attacked the federal hacking charges, first arguing that video poker machines are not “protected computers” under the statute. Citing case law that defined a protected computer as one that is connected to the internet and is used by a company in interstate commerce, defense counsel distinguished video poker machines:

“A video poker machine is not connected to the internet. Even if it was connected to an INTRA-net, through a secondary connection to a protected server, which was connected to the internet, which was used to communicate information and business across state lines, the nexus is not proximate enough to qualify this machine as a protected computer.”

Next, defense counsel argued that Kane never exceeded authorized access. The strongest support for their argument came from the Ninth Circuit in United States v. Nosal, another case involving a CFAA prosecution. The defense’s filing quoted the case:

“[Nosal stated,] ‘as long as an employee has some permission to use the computer for some purpose, that employee accesses the computer with authorization even if the employee acts with a fraudulent intent.’

. . .

John Kane did not use or access this machine in a way that would have gone beyond his authorized access. He simply pushed a sequence of buttons, and changed the payout of the jackpot on the machine. At worst, he took advantage of a flaw in the design of the machine, but did not go beyond authorized access to do so. Mr. Kane played the machine exactly the way the machine was programmed to play! He did not agree to any terms of use, or anything similar to an employment use restriction agreement. He used the machine as it was designed and within the parameters available to anyone who used the video poker machine.” (partial emphasis in original, partial emphasis added).

Finally, the defense broadly argued that the use of the CFAA against Kane and Nestor was an impermissible expansion of the Act’s true intent.

The defense counsel’s arguments were compelling enough to convince federal prosecutors to dismiss the CFAA hacking charges against both Kane and Nestor earlier this month. Both men still face wire fraud charges with trial set for August.

The DOJ’s decision is encouraging, not because the federal government endorses rampant video poker exploits, but because it serves as an example of the government reining in unwieldy and outdated legislation. CFAA reform may or may not come, but if federal prosecutors selectively apply the CFAA only when it is truly invoked, that’s a good thing.