14 October 2008

Cyberspace - November 2008

Law Society Journal 



Some years ago I wrote about the widespread availability of free Internet access because people were buying wireless modems and not turning on the security settings. This is handy for holiday makers who can sneak a few emails or make a Skype (http://www.skype.com) phone call for free. In Sydney it's hard to find an unsecured wireless network, although in the USA they are much more common because many ISPs in the USA have download caps of 250GB or more (eg http://www.comcast.com). Australians with only 10 to 60 GB are a bit more jealous of our bandwidth and want to keep freeloaders out.


However, the main reason to secure your wireless network is security. Casual users can access files, alter your router settings (even lock you out!), use your network to download illegal items and do other damage. If you log into your wireless router you'll see that it offers at least WEP encryption, although you should also see WPA or WPA2. WEP encryption is thoroughly broken, and can be hacked in a few minutes, so the credit card industry is is going to ban WEP on any wireless merchant device from April 2009 (http://tinyurl.com/58tf7a). The standard also deals with many other issues designed to protect cardholder data, such as firewalls, not using default passwords, auditing and security testing.




I have been reflecting on the way we do discovery in large matters. I think that the days of the huge discovery with carefully indexed documents are numbered. If I was faced with more than a hundred thousand documents I would make an application to the Court at an early stage with a view to crafting careful orders for a custom discovery regime. Of course I would first attempt to agree the approach with my opponent and seek consent orders, but experience has shown that the lack of understanding of technology amongst the profession would make that very difficult. I suspect that the application could be expensive and involve expert evidence, but would produce a better result for all concerned.

Review of volumes of electronic documents to remove privilege can be a difficult task. One usually starts by set up full text indexes and doing keyword searches. Searching for the names of regularly retained law firms and their solicitors usually locates a lot of the material, but after that it's trial and error. The USA is trying to address inadvertent waiver by a new Federal Rule of Evidence (502) that provides that disclosure of privileged material does not amount to a waiver if it is inadvertent and reasonable steps were taken to avoid and rectify it. Of course, that only keeps the document out of evidence and your opponent will be on notice of the subject matter.


That is just one issue that you might address in a custom discovery regime. The Court has the power to make directions and orders for the conduct of proceedings (UCPR 2.1), and in the light of recent judicial comment about the cost of litigation it is probably timely that solicitors consider carefully how they can best deal with expensive, but procedural, matters such as discovery and inspection.

As an example, a series of related price-fixing cases in the USA (USD$731 million in fines!) involved 1,500 boxes of paper (2.5 million pages) and 280 GB of data (19 million files). This was clearly a task that could not be handled in the way we handle electronic discovery today. For a story on how one firm handled this see the article at Law.com (http://tinyurl.com/3v4o6y). I think that the lessons learned in these huge matters should be applied to much smaller matters.