Authenticating Website Print Outs by Darren Chaker

Computer Forensics, Ediscovery | Posted by Darren Chaker
Dec 23 2011

As the use of computer forensics increase, Darren Chaker notes that so will objections to print-outs containing evidence may be excluded for one or more reasons. The hearsay objection is a valid objection. If the hearsay objection is made by the opposing party, exceptions to the hearsay rule also apply. If the downloaded print-outs are not offered to show the truth of the matter asserted the hearsay objection will not apply. [Evidence Code § 1200, Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1573, fn. 2, 27 Cal.Rptr.3d 863]

Authentication may be the basis for an objection. See Evidence Code § 1552. On the subject of authentication, the print-out may be not properly authenticated. However cases have recognized that print-outs can be made from website information, and if so such print-outs give rise to ‘self-authentication’. [Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1574, fn. 2, 27 Cal.Rptr.3d 863]  Read more... (510 words, estimated 2:02 mins reading time)

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Sanctions for Spoilation of Evidence and Litigant Sophistication

Ediscovery, Electronic Discovery, Spoilation Sanctions | Posted by Darren Chaker
Dec 15 2011

Darren Chaker writes about a new case where deleted email and required sanctions. In PIC Grp., Inc. v. LandCoast Insulation, Inc., 2011 WL 2669144 (S.D. Miss. July 7, 2011). In this commercial liability litigation, the court reviewed the recommendations of a special master assigned to investigate alleged discovery abuses and provide a report on the plaintiff’s motion for sanctions. In his report, the special master found the majority of the defendant’s conduct constituted gross negligence, exemplified by the defendant failing to turn over e-mails it claimed had been destroyed, but in actuality resided on an external hard drive directly connected to the e-mail server and clearly labeled “backups.”

Further, the defendant’s de facto in-house counsel willfully ran a scrubbing program on his laptop just hours before the special master arrived to inspect his files and no litigation hold or preservation plan was ever put in place. The special master recommended sanctions covering the plaintiff’s additional expenses, to be paid directly by the defendant and not indemnified by an insurer. The defendant argued that such sanctions were too harsh given its relative lack of technical sophistication and the lack of prejudice to the plaintiff, and challenged the court’s authority to sanction directly without the possibility of indemnification. Setting aside all of these objections, the court adopted the special master’s recommendations and ordered the plaintiff to tabulate its costs stemming from the discovery misconduct for the purpose of assessing sanctions.

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No Expectation of Privacy in Work Computer by Darren Chaker

Computer Forensics, Ediscovery, Electronic Discovery | Posted by Darren Chaker
Oct 03 2011

By Darren Chaker

In an expected decision, the court found Holmes v. Petrovich Development Co. 191 Cal.App.4th 1047,  119 Cal.Rptr.3d 878 Cal.App. 3 Dist.,2011, that an employee who uses a company email account

A client did not have a reasonable expectation of privacy in her communications with her attorney using her employer’s company e-mail account and her employer’s computer, and thus the communications were not covered by the attorney-client privilege in the employee’s subsequent lawsuit against her employer and supervisor. The employee had been warned that the account was to be used only for company business, that e-mails were not private, and that the company would randomly and periodically monitor its technology resources to ensure compliance with the policy. Just as it would be unreasonable to say a person has a legitimate expectation that he or she can exceed with absolute impunity a posted speed limit on a lonely public roadway simply because the roadway is seldom patrolled, it was unreasonable for the employee to believe that her personal e-mail sent by company computer was private simply because, to her knowledge, the company had never enforced its computer monitoring policy.

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Computer Search Law by Darren Chaker

Computer Forensics, Ediscovery, Electronic Discovery | Posted by Darren Chaker
Oct 03 2011

By Darren Chaker

Counter forensic techniques are great, but most counter measures are out the window when consent is given. Consent to search is like a buffet. Pick some, leave others, or pick nothing from long line of food. The crux of consent can be found in United States v. Most, 876 F.2d 191, 198 (D.C. Cir. 1989), “[A]n individual need not shut himself off from the world in order to retain his fourth amendment rights. He may invite his friends into his home but exclude the police; he may share his office with co‑workers without consenting to an official search.” Another way to put it is found in United States v. Lyons, 706 F.2d 321, 325 (D.C. Cir. 1983), where the court held, “One may freely admit guests of one’s choosing–or be legally obligated to admit specific persons–without sacrificing one’s right to expect that a space will remain secure against all others.”  The few examples given below are some of the most common instances where people give up any expectation of privacy with a computer.  Read more... (1197 words, estimated 4:47 mins reading time)

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Fourth Amendment Inapplicable to Phones

Computer Forensics, Ediscovery, Electronic Discovery | Posted by Darren Chaker
Sep 27 2011

By Darren Chaker

In People v. Diaz, 51 Cal.4th 84, 2011 WL 6158 (Cal.), the California Supreme Court addressed whether police may read text messages contained on a phone belonging to a person who has been arrested consistent with the Fourth Amendment. The court also addressed a secondary issue whether reviewing the text messages 90 minutes post arrest was proper. The court answered each question in the affirmative. (Of course, I will add counter forensic techniques used to retain your privacy below.)

For example, the content of a user’s email account, stored on an email provider’s computers, are akin to the contents a wire containing telephonic communication. Email users store “virtual” papers and effects (emails) in a “virtual” containers (the email account) that is owned by another (the email provider); the user’s password serves as the key to the locked virtual home, assuring its exclusive use.  Read more... (1118 words, estimated 4:28 mins reading time)

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Virtual Child Porn Conviction Reversed

Computer Forensics, Electronic Discovery | Posted by Darren Chaker
Sep 22 2011

By Darren Chaker

In most child porn cases computer forensics is utilized to convict. In People v. Gerber, 196 Cal.App.4th 368, 2011 WL 2206896 (Cal.App. 6 Dist.), a defendant’s act in placing a picture of a child’s head on the body of a nude adult woman did not violate the child pornography possession statute. Penal Code § 311.11 makes it a crime to possess pornography while “knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct.” The defendant had used computer image manipulation software to place the picture of his daughter’s head on the naked bodies of female adult women. Police found this material after a computer forensics search. As odd as the photos sound, the fact is – it’s not against the law. But this did not stop needless litigation by the Santa Clara District Attorney to prove this point and now creating bad law where other odd behavior may be excused.  Read more... (329 words, estimated 1:19 mins reading time)

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Consent to Search Computer

Ediscovery, Electronic Discovery | Posted by Darren Chaker
Sep 21 2011

By Darren Chaker

Deciding to decide what is and what is not on your computer requires computer forensic evalution. Often times, files are downloaded by mistake. In this circumstance counter forensic software is key to destroy material in an effort the files no longer exist. Nonetheless, most people do not take measures to delete unwanted information obtained online. In fact, many people consent and allow people and police to search there computer.

Consent  to search is like a buffet. Pick some, leave others, or pick nothing from a long line of food. The crux of consent can be found in United States v. Most, 876 F.2d 191, 198 (D.C. Cir. 1989), “[A]n individual need not shut himself off from the world in order to retain his fourth amendment rights. He may invite his friends into his home but exclude the police; he may share his office with co‑workers without consenting to an official search.” Another way to put it is found in United States v. Lyons, 706 F.2d 321, 325 (D.C. Cir. 1983), where the court held, “One may freely admit guests of one’s choosing–or be legally obligated to admit specific persons–without sacrificing one’s right to expect that a space will remain secure against allothers.”  The few examples given below are some of the most common when people give up any expectation of privacy with a computer.  Read more... (1274 words, estimated 5:06 mins reading time)

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Surreptitious Data Mining Found “Terrifying” by Darren Chaker

Ediscovery, Electronic Discovery | Posted by Darren Chaker
Sep 21 2011

ComScore Inc.’s surreptitiously installed data-mining software monitors users’ online activity, stealing a “terrifying” amount of
personal data, a putative class-action lawsuit filed in Illinois federal court alleges. Harris et al. v. ComScore Inc., No. 11-CV-5807, complaint filed (N.D. Ill. Aug. 23, 2011).

Plaintiffs Mike Harris and Jeff Dunstan sued Reston, Va.-based ComScore in the U.S. District Court for the Northern District of
Illinois, alleging unjust enrichment.

The five-count complaint also states claims under the Stored Communications Act, 18 U.S.C. § 2701; the Electronic Communications Privacy Act, 18 U.S.C. § 2510; the anti-hacking Computer Fraud and Abuse Act, 18 U.S.C. § 1030; and Illinois’ Consumer Fraud and Deceptive Practices Act, 815 Ill Comp. Stat. 505/1.

The plaintiffs seek to lead a nationwide class of all U.S. citizens and entities whose computers have ComScore’s software installed.
Dunstan seeks to lead a nationwide subclass of all U.S. citizens and entities that have incurred expenses to have the software removed.  Read more... (326 words, estimated 1:18 mins reading time)

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