Federal Judge Warns of E-Discovery Pitfalls

By Larry Seltzer  |  Posted 2008-04-04 Print this article Print

As the legal system finds its footing in a world of digital evidence, businesses need to establish serious records management policies.

The issue of how to manage legal evidence discovery in the age of electronic data will be prominently aired during the RSA Conference April 7-12 in San Francisco.

Magistrate Judge John M. Facciola of the United States District Court, D.C. Circuit, will be speaking on emerging issues in electronic discovery and digital evidence and their increasing impact on civil and criminal lawsuits.

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In a first for RSA, he will also preside over a sample "trial" involving a dispute over computer data offered as evidence. Facciola spoke to eWEEK on these matters and how businesses should be preparing for potential legal proceedings in a digital age; excerpts will be available soon.

That a federal magistrate would be invited to speak at a major security conference highlights the fact that the legal system is only now adjusting, on the fly, to a world where evidence comes primarily as electronic data. While those working in the technology industry are accustomed to rapid change, legal systems that have evolved over hundreds of years based on a view of data as being printed on paper haven't adjusted as readily.

A magistrate judge such as Facciola does not usually preside over a case, but decides procedural matters in them, such as pretrial motions. These decisions are often key in setting precedent for how evidence is collected and how will discovery proceed. Magistrate judges, unlike "Article III" judges, are not nominated by the president and serve for a fixed term. They are appointed by the Judges of the Court. Facciola has been serving in the D.C. Circuit for eight years and is in his second term.

Many attorneys are concerned about the potential for e-discovery to swamp the system. In such an atmosphere of uncertainty, how can businesses conduct themselves to avoid making matters worse?

Consider the fate of American Express, which lost one count of a recent case because the court refused to admit its electronic corporate records, because, Facciola said, "there had not been a sufficient showing as to how the information came into existence, and ... the information provided as to how it came into existence was, in the court's view, insufficient."

How could such a thing happen? Facciola said the problem is a lack of proper records management. It's easy to see how businesses can be preoccupied with, for instance, making widgets, but the failure to keep electronic records that can be authenticated is no longer a reasonable option. The really bad news is that software that properly assists such record keeping is a relatively new phenomenon.

Larry Seltzer has been writing software for and English about computers ever since—,much to his own amazement—,he graduated from the University of Pennsylvania in 1983.

He was one of the authors of NPL and NPL-R, fourth-generation languages for microcomputers by the now-defunct DeskTop Software Corporation. (Larry is sad to find absolutely no hits on any of these +products on Google.) His work at Desktop Software included programming the UCSD p-System, a virtual machine-based operating system with portable binaries that pre-dated Java by more than 10 years.

For several years, he wrote corporate software for Mathematica Policy Research (they're still in business!) and Chase Econometrics (not so lucky) before being forcibly thrown into the consulting market. He bummed around the Philadelphia consulting and contract-programming scenes for a year or two before taking a job at NSTL (National Software Testing Labs) developing product tests and managing contract testing for the computer industry, governments and publication.

In 1991 Larry moved to Massachusetts to become Technical Director of PC Week Labs (now eWeek Labs). He moved within Ziff Davis to New York in 1994 to run testing at Windows Sources. In 1995, he became Technical Director for Internet product testing at PC Magazine and stayed there till 1998.

Since then, he has been writing for numerous other publications, including Fortune Small Business, Windows 2000 Magazine (now Windows and .NET Magazine), ZDNet and Sam Whitmore's Media Survey.

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