Vogel Internet, Information Technology and e-Discovery Blog : Texas Internet, Information Technology, eCommerce & E-Discovery Lawyer & Attorney Peter S. Vogel : Gardere Wynne Sewell Law Firm : Dallas TX

When Amazon remotely deleted George Orwell’s 1984 from the Kindle reading devices last week I’m sure that George Orwell rolled over in his grave. Orwell’s novel written in 1949 predicted that Big Brother’s censors would erase anything that the government found objectionable by sending down a “memory hole.” I’m happy to report that my paperback copy that I read in junior high school is still on my library shelf!

What Happened? 

When Amazon discovered that its source of the Orwell’s 1984 and Animal Farm did not have the rights to the books, Amazon remotely deleted copies from the Kindles. This got some headlines and irritated many, but since Amazon did not have the right to distribute the books it did the next best thing, it deleted copies. 

 Where Are We Going With This? 

The Free Software Foundation is soliciting support from many sources (including librarians, publishers and major authors and public intellectuals) to present a petition to Amazon asking that Amazon reconsider its use of software called digital rights management (DRM). DRM is software that restricts the use of copies and devices so for instance the version of 1984 that Amazon distributed could only be viewed on a Kindle and Amazon could delete copies. This runs against the grain of the Copyright Act’s "first sale doctrine" that permits a purchaser of a copyrighted book to sell that copy, but not make other copies. Many individuals are concerned about users of copyrighted materials are losing their rights guaranteed under the Copyright Act. It also seems that George Orwell’s predictions may have come true, not necessarily in 1984, but in 2009.
 

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In May when President Obama released a 40 page “Cyberspace Policy Review” it seemed pretty clear that the appointment of a Cyber Czar was imminent, however recent reports are that no one wants the job! In spite of three-year study report from the National Academy of Sciences that stated that the US was not Cybersafe released a few weeks before the President released his “Review”, we still cannot find a Cyber Czar. Without question Cyber Czar is a great title, but the individuals who turned down the job had good reasons which include a lack of clarity about how much power the new job would really have and to whom the Cyber Czar would report.

Shortage of Cyber Experts

While Cyber attacks persist we just got a report from the US government that there is a shortage of Cyber experts which only makes things worse. Because many of the Cyber expert jobs in the US government are classified and what job titles these people vary, it is not clear how many individuals are employed in this arena. However the Pentagon claims to have more than 90,000 individuals involved with Cyber security, and there are estimates of up to 45,000 other non-defense Cyber security workers. But yet there is a shortage given of the scope of these cyber attacks.

Our Future’s At Stake

In May the President stated that “America economic prosperity in the 21st century will depend on cybersecurity,” but not much progress has been made. Clearly it’s time the President to give the new Cyber Czar clarity on the job’s power and reporting authority. The US needs a Cyber Czar to take a leadership role. The world has become dependent on the Internet and as a result it is essential that we have adequate Cyber security to protect the economy now and in the future.
 

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Since more than 95 percent of all information is electronic and it's estimated that upwards of 97 billion emails are sent each day, it is no wonder that every lawsuit has electronic evidence. All IT shops protect themselves from disaster with the knowledge that every computer will fail, but computer systems are not designed to provide easy access for lawyers and judges.

In today's world, it is no wonder that every lawsuit has electronic evidence. Unfortunately, for the most part, lawyers and judges do not understand IT or the Internet. As a result, litigation generally misses the mark regarding what is now referred to as "ESI," or electronically stored information. It is in your best interest to learn more about the legal issues regarding e-discovery to be prepared, since surely everyone reading this article will be impacted in the future, if not already.

Litigation in the United States is controlled by state or federal court systems, or, alternatively, by private arbitrations governed by the rules of the American Arbitration Association -- or some other organization, like JAMS, which is a leading private alternative dispute resolution (ADR) provider.
Most people are familiar with the trial system because of television and movies, but are unfamiliar with arbitrations in which the hearing (rather than trial) is conducted by non-judges of one to three panel members (most often lawyers, but sometimes industry experts).

IT has become an integral part of the search for ESI in virtually every lawsuit, but lawyers do not always know what to ask or, even worse, how to interpret the answers received back from IT. So, this article will give some advice about what IT needs to be aware of in order to be prepared.

What Is Discovery?

Generally, after a lawsuit or arbitration is filed, there's a period of time referred to as "discovery" that extends to just before the trial or hearing. Simply put, this is a time when each party of the suit has a chance to ask questions of the other parties. Each side is entitled to inquire about the claims and defenses, so that when the trial occurs there are no surprises. In fact, if a party withholds information, it may be penalized by losing the trial -- or a mistrial may be called by the judge or arbitration panel. The evidence that is collected in discovery is used at the trial or arbitration hearing to prove or disprove specific claims.

There are four primary categories of discovery:
• written questions referred to as "interrogatories";
• requests for the production of documents and things;
• requests for admissions; and
• oral testimony called "depositions."

READ THE ENTIRE ARTICLE AT TechNewsWorld Part of the ECT News Network (published on July 9, 2009)

In Conclusion

Judges and arbitration panels are having to come to grips with the fact that they have to understand ESI, since every case has some critical evidence that is only electronic. However, only about 5 percent of the cases filed actually go to trial, and most litigation is settled during the discovery process.

Clearly, IT has a role in every lawsuit because of ESI. As a result, the better prepared IT is for litigation, the better things will turn out.
 

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National Animal Identification System (NAIS)

Here are the NAIS objectives: “To protect the health of U.S. livestock and poultry and the economic well-being of those industries, we must be able to quickly and effectively trace an animal disease to its source. When a disease outbreak occurs, animal health officials need to know:
* Which animals are involved in a disease outbreak
* Where the infected animals are currently located
* What other animals might have been exposed to the disease”
All laudable, but are these objectives practical?

RFID (Radio Frequency Identification)

Although below public radar the use of RFID has been around for decades, and used in a myriad of applications including US Department of Defense (DOD), healthcare, CPG (consumer packaged goods), manufacturing, and retail. Healthcare uses RFID to help track wounded troops in war zones and keeping up with specimens in hospitals. As well a few years ago DOD mandated that all suppliers use RFID, but what really got more public scrutiny was when Wal-Mart began testing RFID on all products. As a result in 2004 the Federal Trade Commission conducted a workshop to explore RFID as many consumer privacy and security concerns got more visibility.

So it seems reasonable to track livestock to avoid major disease outbreaks if we can track DOD supplies and hospital patients. However at what cost and who pays? Ultimately consumers will pay higher food prices if the livestock tracking is required, but the need for high speed Internet in rural America is also essential for this proposed tracking system to work.

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