Warn FBI, Auditor, Examiner, Adversary, Regulator, Investigator or Inspector General
Ediscovery Production Strategy-Services for Text, Email, Twitter, Facebook Google+ or Other Social Network Records
Subpoena . . . tax audit . . . court order . . . police raid . . . search warrant . . . criminal investigation . . . regulatory proceeding . . . administrative summons . . . grand jury inquiry . . . litigation discovery demand -- any of these could compel or motivate a party holding e-records to reveal or produce them.
But often the party that receives (or seizes) the records should be expected to safeguard them after they arrive.
Laws requiring the safeguarding of records are many and diverse. One small example: As a business discloses information to the federal government, it can (if justified) tag or annotate the information as a “trade secret.” By so doing, the business warns government employees that they violate federal law (18 U.S.C. Section 1905) if they abuse the trade secret, such as disclose it to a competitor or to the news media.
Legally speaking, the tagging or annotating of records can be strategically powerful. But when a large quantity of e-records (SMS, chat, e-mail, Web 2.0, iPhone, BlackBerry) is involved, manual annotation is laborious and expensive.
Emerging technology affords a solution. Technology empowers producing parties to annotate (label, tag) records with ever-better precision and efficiency.
When records like instant messages are disclosed under law, it is becoming more common that they be disclosed in an electronic format that supports annotations, such as XML.
Electronic annotation (commenting) enables highly granular, specifically-targeted legal notices. Targeted annotation can give the producing party an advantage. The advantage is more apparent when large numbers of record are at issue and different records require different notices.
By long-standing practice, lawyers often mark disclosed records with warnings or reservations of rights. But historically these notices were expressed as general, blanket statements in transmittal letters. (See footnote.)
When numerous records are involved, blanket statements may not be as effective as specific, record-by-record annotations. Suppose for example that five million email records are being produced. Within those records are, say, 2137 that contain personally identifiable information (PII), which the producing party is obligated to safeguard. The producing party may better fulfill its obligation by specifically annotating each of the 2137 with strong warnings, rather than with general notices covering the whole five million. (Example: “WARNING: This email may contain private data protected by law. Access on need-to-know basis only.”)
According to Ranjit Sarai, e-discovery consultant at Messaging Architects, “Annotations can involve advanced services in e-record production. Manual annotation of individual records can be very time consuming. But we can recommend or develop routines for identifying relevant records and placing the prescribed annotations on them. We can facilitate collaborative, team annotations. We can also help bring the appropriate attention to annotations. Some annotations should be understated. Others should scream out in blinking neon lights.”
Update: Tags and annotations can be inserted according to varying degrees of granularity, whether record-by-record, word-by-word, or something else. US intelligence agencies are managing massive databases on terrorists by tagging each word, one-by-one. A tag can show, for example, the level of security clearance an analyst needs in order to see the word. Advanced search software can prevent an analyst from seeing information for which he does not have adequate clearance, while alerting him that the database may contain additional information relevant to his inquiry, access to which will require higher authority. Siobhan Gorman, "How a Team of Geeks Cracked Spy Trade," Wall St. J., 4 Sept. 09.
Mr. Wright delivers education on cyber defense law under the SANS Institute.
Footnote: A case known as Teachers Insurance(1) suggested that when a company discloses information to the Securities and Exchange Commission, it waives attorney-client privilege on that information, unless it explicitly reserves its privilege rights. Applying that idea, a company in another case(2) attempted to make such a reservation of rights in the transmittal letter sent with documents disclosed to the SEC.
(1)Teachers Insurance and Annuity Assn. of America v. Shamrock Broadcasting Co, 521 F. Supp. 638 (SDNY 1981).
(2)In re Subpoena Duces Tecum to Fulbright and Jaworski and Vinson & Elkins, 183 Fed. Sec. L. Rep. para. 99,505 (DDC 1983).