The issues associated with Electronically Discoverable Information (ESI) hang over the legal profession like the threat of Katrina II hangs over New Orleans. Lets face it: most judges and attorneys would do anything to avoid confronting the complexities of ESI. However, judges are good at forcing lawyers to face up to bad stuff, so it’s impossible to avoid the subject.
Of course, in a huge case involving large sums of money it’s no problem hiring a consulting firm that does all the work for the lawyers, and guides them every step of the way. However, that’s only 1 case in 100, if that. What about all the “little cases,” where expensive consultants are not an option?
The answer, not surprisingly, is the “keyword search.” After all, if we can search a trillion documents using Google, why not use key word search to find documents relevant to litigation.
Sadly, key word search is not very reliable. For example, if you have a million documents how would you formulate a key word search that would be certain to collect documents that relate to to people under age 12? In fact, recently the courts have noted the shortcomings of key word searching and criticized its use.
An excellent article in the April 2009 ABA Journal discusses these issues in some detail, and the good news is that some “very smart people” are working on a solution. The bad news, as I said, is that key word search is not very reliable, and this poses a problem until the problem is solved by these masterminds. To quote from the article:
It would be the ultimate discovery for e-discovery: a perfect method to turn terabytes of digital data into a collection of case-relevant documents.
Three years ago, a handful of lawyers and scientists started the quest, a project to save litigation from being buried in an avalanche of electronic documents. Since then, the Text Retrieval Conference Legal Track has been using different types of computer searches to wade through huge piles of digital information, hoping to get closer to a complete picture of what is issue-important in a computer’s data stores.
The good news: The TREC Legal Track team believes it is close to finding a protocol that can work. The bad: The project also found disturbing problems with the way lawyers work today.
And the harshest conclusion: Keyword searching—what most lawyers use to find litigation documents—misses the majority of relevant documents. Or as Jason Baron, one of the Legal Track study coordinators, puts it, “Lawyers need to understand that the way they have been searching for electronic documents has some serious flaws.”
So, just what is the “TREC Legal Track”? Well, the TREC Legal Track web page has a number of documents that discuss the efforts underway. The papers are, based on my perusal, not for the faint of heart – they involve technical assessments of the effectiveness of various search. Lets hope we can get by on old-fashioned key word searches until the happy day arrives when the TREC folks, or someone, finds that protocol.
“How does the court have confidence that the public integrity section has public integrity?” Judge Emmett Sullivan, during the trial of former Senator Ted Stevens
Prosecutor: I already got no proof how the victim got hold of that heroin. Now you’re saying I can’t put Hodgins on the stand? Why? FBI Agent: You don’t wanna know the answer to that. Forensic Investigator: Why doesn’t she wanna know? Prosecutor: As the prosecutor in this case, I’m obliged to share everything I know with the defense. Forensic Investigator: [starts to explain…] Prosecutor: Whoa! Goodnight!
From TV Show “Bones”
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Prosecutors have a legal duty to provide criminal defendants with exculpatory evidence. Every criminal prosecutor knows this – it’s probably Rule No.1 for prosecutors: “YOU MUST GIVE DEFENDANT EXCULPATORY EVIDENCE.” This has been a constitutional right since the 1963 Supreme Court decision in Brady v. Maryland.
Rules 2 and 3 are, don’t forget Rule No. 1.
Today’s decision by the Obama Justice Department to dismiss criminal charges against former Senator Ted Stevens means that prosecutors at the highest levels of the DOJ forgot this rule (or disregarded it). This is an enormous embarrassment for DOJ, and a probably a career killer for the attorneys involved, who are likely to be sacked, at the very least. (Keep in mind that former U.S. Attorney General Roberto Gonzales has been unable to find a private law firm job 18 months after his resignation, apparently due to the stigma associated with the assistant AG firings and other controversies associated with his tenure. It’s a tight job market for lawyers these days, but not that tight.)
Vindication is probably small consolation for Senator Stevens, whose loss in the last senatorial election was almost certainly due to his conviction just before the election. At age 85 he may recover his reputation, but he’s not likely to recover his Senate seat.
The format will be as follows.Today we’ll have posts from Crane, Manne, Weiser, and Wright on aspects of Innovation for the 21st Century which focus on competition policy.Tomorrow, Professors Frischmann, Kieff, and Crouch will focus on the intellectual property related proposals.Professor Carrier will have the opportunity to respond to the posts Tuesday evening or Wednesday.And of course, we hope that both participants and our normal group of high quality commentators will find some time to mix it up in the comments.The participants have been given broad leeway to discuss general themes in Carrier’s work or hone in on specific policy proposals.
With the formalities out of the way, you can expect the first of Monday’s posts to start in the early morning and then we’ll add throughout the day with posts from Crane, Manne, and Wright.
Keep in mind that it wasn’t too long ago that the question “whether law profs could blog” without sacrificing all academic credibility and being pelted with rotten eggs by their more conservative colleagues was up in the air.
The issue here, presented in the context of a motion to dismiss, is whether adoption of a trademark as a search engine keyword constitutes a “use” under the Lanham Act. The Lanham Act requires “use in commerce” as a condition of infringement, and as Judge Gertner points out, various courts have taken different positions on whether purchase of a trademarked keyword to trigger a sponsored link on a search engine is a “use” of the trademark. Judge Gertner surveyed the field and noted that most of the courts that have considered this issue have found that utilizing a trademark in this manner does constitute “use” under the Act, and she sided with what she considers to be the majority view (the significant exception being the Second Circuit’s decision in 1-800 Contacts v. WhenU).
If you’re a lawyer with a case involving the complex interaction of physical objects (say a plane crash), nothing can compare to a video animation that faithfully recreates the event. Your expert can show it to the judge or jury, and vouch for its accuracy. Of course, it’s expensive to create one of these videos, but with Moore’s Law and better graphics software, it’s getting easier and easier.
And if you’re one of the many firms that creates these videos for lawyers, what better way to strut your stuff than to recreate the landing of US Air Flight 1549 in the Hudson River, with the actual pilot-controller audio overlaid? This is what Scene Systems, a forensic animation company, has done to show its skill. The two minute animation is here, with the recording of Sully and the controller synchronized to the action:
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