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Practice Tip: 'It's NOT Electronic Paper'
Is data really different? Does the information we routinely manipulate, transmit and delete everyday pose fundamentally new issues with respect to evidence and discovery in litigation than the paper of the past centuries? As the courts and clients struggle with the growing complexities of electronic information, the federal judiciary has begun exploring proposals aimed at addressing the challenges of electronic discovery, including safe harbor provisions, clawback options and peculiarities of legacy data. While several of the current federal proposals are still open for comment, it is worth taking a moment to consider the fundamental properties of electronic data and how conventional thoughts on evidence do or do not apply. As comforting as it would be to think of electronic evidence as just digital paper, the reality is that there are some inherent properties of electronic evidence that make it fundamentally different from conventional evidence. Specifically, electronic evidence differs in quantity, duration, content and context from conventional evidence in ways that challenge many fundamental assumptions of discovery.
The quantitative difference of electronic information is obvious when compared to conventional evidence, but what many neglect to consider is that the quantity of electronic information is quickly approaching the limit of what humans can process in a realistic period of time. It is now not uncommon for a case to involve a large fraction of, if not more than, a terabyte of data. To put this in perspective, if you were to print out a terabyte of data from a typical office it would easily produce a stack of paper over 30,000 feet high. That is a scope of review that is formidable for any firm. Now imagine that same review 2 or 3 years hence as the amount of data continues to grow and the 3 to 5 terabyte cases become more common. How exactly can you organize a comprehensive review of that amount of data? How long will a meaningful review take? Will the concept of 'complete review of the evidence' be replaced by statistical methods as a means of practically dealing with this challenge, or will court timelines extend into decades. It's not just that there is more information than before; it's that there is so much more that the task reaches the bounds of practical review. This has as yet undiscovered implications for things as fundamental as the rules of evidence.
The permanence of information is also something fundamentally different with electronic data than all other prior forms. Paradoxically, electronic data is both more permanent and more ephemeral than other forms of information. It is more permanent in that it proliferates so easily that it is difficult to eliminate every instance of a piece of information if it has been distributed to multiple sites. Between friends forwarding e-mails other to friends, to servers at various locations being backed up on different schedules, the net effect is that information that is even moderately distributed is almost impossible to destroy in all its locations and forms. The next time you watch a movie where the plot involves the protagonist desperately trying to expose some dastardly government secret think of this ' why wouldn't they just e-mail the information to everyone in their contact list with a message for it to be forwarded on similarly?
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.