Monday, January 29, 2007

Lawyers Across the Nation Cheer: Windows Vista May Usher in Era of Full Employment!

If, like me, you have plans to stand out in the freezing weather in order to grab the very first witching hour copy of the new Windows Vista, print this post to read while standing in line to pass the time. Obviously, it can double as a source of heat should you choose to burn it, or in a pinch might be used to handle other personal sanitation emergencies. In any event, this is the first blush at the bankruptcy lawyer's ESI summary of the good, the bad and the "litigation opportunities" rife with the new operating system. For the record, I will not be standing in line for Windows Vista, that is the cover story I am using with my wife so that I can purchase the long-awaited and anguished-over Playstation 3. That is our little secret...

At the reported cost of some $6 billion in development, Windows is ushering us (and our clients, and their creditors, and our litigation targets) into the next era of personal computing. At first blush, the new platform does seem to have some pretty cool bells and whistles, especially in terms of "live icons", looping video for wallpaper, and the uber-cool 3D Flip pages. Some of the highly touted innovations though, consist of nothing more than a re-packaging of existing Windows features; or, in many cases, the features are eerily similar to existing products that others, such as Google, already offer for free.

Despite the predictable re-warming of some older goodies (and despite the fact that my music interface program of choice crashes constantly after I installed the latest version of the rival Windows Media Player), Windows Vista gives me reason to cry and to cringe all at once.

In my previous post, I extolled the virtues of Jack Seward, and those true believers that would be fit to carry his... well, carry whatever that forensic types carry around. While there obviously is a time and place for the men-among-men like Seward, all three people that read my recent article in the Texas Bar's Bankruptcy Section newsletter (thanks Mom) know that I prefer an approach light-heartedly referred to as the Nitro Fish effect. Some cases, and some situations, just wont require the golden touch of a forensic something or other, and this may be especially true in medium sized, and smaller, cases. As a great philosopher of our time once said, "Poor folk have poor ways." (Thanks Dad).

Windows Vista may actually make this approach a little more realistic, thanks to some of its enhanced features. In furtherance of my belief that God favors litigators, Windows Vista is a two-edged sword, in that it may also make it easier to prove that someone wasn't minding the store.

One of the "new" applications in Vista is the Instant Search feature. Imagine combining any Windows Help program with Google Desktop, and that is pretty much Instant Search. The Instant Search appears to index and make searchable everything that is on, or has ever been on, the computer. As soon as a user begins typing in the Search term, Windows automatically pulls up an index matching the letters being typed in by the user. For example, if I want to determine if my wife has been sending fan mail to NHRA pretty boy Ron Capps from my computer, I would enter the letter R into the search menu, and everything from raindrops to Run-DMC might appear in the results screen. As I complete the search phrase, the index results narrow until I get to "Ron Capps" which could contain anything from internet pages visited to emails sent and received, to Word documents containing or related to that phrase.

For bankruptcy lawyers and litigators, here is the practical effect. If Mom and Pops Bakery is about to file Chapter 11, or has just been sued by a trustee, there is a good chance neither Mom nor Pops really know what discoverable information may be on their computer. With Instant Search, counsel can provide a list of search terms and know within mere minutes whether or not that particular computer is likely to contain relevant ESI.

***Important Practice Note and Disclaimer*** In some instances, this type of indexing and searching may result in changes to the hard drive, or may otherwise alter ESI documents. If an intensive forensic investigation is contemplated, find a local disciple of Jack Seward before conducting such a search.

If the case is of a more traditional bent, meaning that a document is a document, and everyone is really interested just in what the documents say... then search away. When it comes time to "meet and confer" (which ultimately may become "meet and geek" conferences), it is much easier to truthfully represent to opposing counsel that a search of a particular computer was conducted, when it was conducted, and what the results were. If a discovery dispute later develops, you can rest assured that your opposing counsel will conduct just such a search. One can imagine the proliferation of motions for sanctions that will read like a modern day Letter of Patrick to the Soldiers of Coroticus if you fail to disclose that which was so readily, and obviously, accessible.

Instant Search has some obvious benefits/threats for bankruptcy lawyers. Here comes the scary stuff...

Many of us unfamiliar with the term metadata still mistakenly use the phrase at cocktail parties by making weird, unhip references to the "mega data pile of paper on my desk back at the office." If that is you, then brace yourself. Instant Search not only indexes and searches the name and content of the documents that it produces as a search result, it also searches the metadata so that its results pull in a broader scope of documents that might somehow be related to the search. In my earlier example, while searching for Ron Capps love letters, if the name Ron is squirreled away in metadata somewhere, that document will be reported in the results, even though the name Ron doesn't actually appear on the face of the ESI document. I have goose bumps...

Now the really scary stuff. Picking up on the internet trend of "tagging" documents, Vista makes it much easier for users to "tag" documents, which is really a hip Seattle way of customizing the metadata attached to an ESI document. By tagging documents, users can make an electronic path connecting various forms and formats of documents, data bases, songs, pictures, videos, web pages and similar applications. Instant Search includes the "tagging" data in its search results. Instant Search can report documents that, on their face, have little or no connection at all; but are connected in some manner important or relevant to the user.

Taking the Ron Capps example a step further (certain to get me into 13 kinds of trouble), consider the following.

1) An unsigned letter confessing true love to an unnamed pretty boy of Funny Car fame. The ESI document is stored as a word document. The author tags the letter as "RON" and also tags it as "true love".

2) A .pdf version of a marriage license. Hidden comments attached to the .pdf include "Oh, Ron, how I pine for you!" The .pdf marriage license is also tagged "true love".

3) A song stored as a Windows Media Audio file, or .wma file, having nothing to do with Ron Capps or drag-racing. A user tags the .wma file as "Ron's song".

4) A spreadsheet containing only reaction times, elapsed times, and race positions but no other identifying information. User tags it "Ron's finishes"

5) Home made video of Ron Capps forming a brand new baseball cap, otherwise untitled. User tags it as "Ron's photoshoot".

Without the tagging, it is likely that many of these different forms of ESI would not be produced in a search for Ron Capps. This feature may make it easier for me, and for my opposing counsel, to find important, related information that might not otherwise be revealed without expensive forensic assistance. My flesh is crawling, especially with the knowledge that metadata can already be customized in existing Windows products. Vista just makes it more "user-friendly" to do so.

In the next post, we will explore some of the networking, security and preservation issues that Windows Vista also brings to the forefront. In the mean time, I will be breaking in that new PS3 I have so longed for...

(Personal disclaimer - My loving wife and I are both huge fans of the NHRA's Ron Capps. We had the great opportunity to be his guests during qualification rounds at last years O'Reilly's Fall Nationals, and loved every moment! Capps is a perfect gentleman, a loving husband, and a proud father. With any luck, he will also pull off a Championship Season this year!)

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