Now, thanks to advances in artificial intelligence, “e-discovery” software can analyze documents in a fraction of the time for a fraction of the cost. In January, for example, Blackstone Discovery of Palo Alto, Calif., helped analyze 1.5 million documents for less than $100,000.

Some programs go beyond just finding documents with relevant terms at computer speeds. They can extract relevant concepts — like documents relevant to social protest in the Middle East — even in the absence of specific terms, and deduce patterns of behavior that would have eluded lawyers examining millions of documents.

“From a legal staffing viewpoint, it means that a lot of people who used to be allocated to conduct document review are no longer able to be billed out,” said Bill Herr, who as a lawyer at a major chemical company used to muster auditoriums of lawyers to read documents for weeks on end. “People get bored, people get headaches. Computers don’t.”

Since I work in litigation support myself and have to search and read documents — I’ve had individual cases with over a million pages of documents — I welcome such tools as these. Still, the overall theme in the article seems to be that humans will lose jobs due to these tools:

Quantifying the employment impact of these new technologies is difficult. Mike Lynch, the founder of Autonomy, is convinced that “legal is a sector that will likely employ fewer, not more, people in the U.S. in the future.” He estimated that the shift from manual document discovery to e-discovery would lead to a manpower reduction in which one lawyer would suffice for work that once required 500 and that the newest generation of software, which can detect duplicates and find clusters of important documents on a particular topic, could cut the head count by another 50 percent.

What the article does not address is the enormous financial burden that e-discovery has imposed on both parties in modern civil litigation (see also here and here).

It used to be that each side would gather physical documents from files and storage boxes, review them for responsiveness, then produce them to the other side. Outside of large corporations, most parties would not have great volumes of such documents.

However, with the advent and pervasiveness of digital technology — computers, e-mail, servers, instant messaging, and so on — even a relatively small firm or organization can find itself with gigabytes, if not terabytes, of potentially relevant production. And, to avoid court sanctions, all of that has to be combed through and reviewed for responsiveness. Most organizations below a certain size just can’t afford to do that the old-fashioned way with “a platoon of lawyers and paralegals who [work] for months at high hourly rates”.

The article also does not address the existing document organization and search tools that are a bit less artificially intelligent — and a lot cheaper — than the tools he covers, but that still allow complex search terms to be set up. I make heavy use of dtSearch in most of the cases I work on (and can recommend it highly). I’ve also used such standard legal document management tools as Summation and Concordance.

After conducting a series of experiments comparing a sample Corsair 64GB SSD with a conventional Hitachi 80GB magnetic hard drive (HDD), the team found a layer cake of data recovery problems caused by the ‘garbage collection’ or purging algorithms used in SSDs to keep them at peak performance.

After examining an SSD for traces of data after it had been quick formatted, the team expected the purging routines to kick in around 30-60 minutes later, a process that must happen on SSDs before new data can be written to those blocks. To their surprise, this happened in only three minutes, after which only 1,064 out of 316,666 evidence files were recoverable from the drive.

Going a stage further, they removed the drive from the PC and connected a ‘write blocker’, a piece of hardware designed to isolate the drive and stop any purging of its contents. Incredibly, after leaving this attached for only 20 minutes, almost 19 percent of its files had been wiped for good, a process the researchers put down the ability of SSDs to initiate certain routines independent of a computer.

For comparison, on the equivalent hard drive all data was recoverable, regardless of the time elapsed, as a forensic examiner would expect

“Even in the absence of computer instructions, a modern solid-state storage device can permanently destroy evidence to a quite remarkable degree, during a short space of time, in a manner that a magnetic hard drive would not,” the team concludes.

The results are concerning on a number of levels, forensic, legal and technical.

Yeah, I’ll say, though I suspect most of the concerns are legal and forensic. Hat tip to Slashdot.  ..bruce..

At the same time, classic rotating storage devices — such as platter-based hard disk drives — are slowly being supplemented and in some cases supplanted by solid-state media, that is, storage devices that have no moving parts at all. In particular, solid-state disks (SSDs) look and behave just like classic hard disk drives, but with usually faster response times and much lower chance of hardware failure. In particular, USB drives have become ubiquitous as a mechanism for moving files between unconnected computers, while laptops are starting to offer SSDs as the principal internal storage for both speed and weight improvements.

So far, so good. Except that out of the University of California at San Diego comes research that shows that in many cases, standard file- and disk-erasing techniques leave behind recoverable data when used on SSDs:

At the Non-volatile Systems Laboratory we have designed a procedure to bypass the flash translation layer (FTL) on SSDs and directly access the raw NAND flash chips to audit the success of any given sanitization technique. Our results show that naïvely applying techniques designed for sanitizing hard drives on SSDs, such as overwriting and using built-in secure erase commands is unreliable and sometimes results in all the data remaining intact. Furthermore, our results also show that sanitizing single files on an SSD is much more difficult than on a traditional hard drive. We are working on designing new FTLs that correct these issues and also exploit properties of flash memory to maintain performance while sanitizing the flash drive.

I imaging that word of this will quickly spread to companies that perform computer forensics (including recovery of data for storage devices). In the meantime, many organizations may continue to make us of USB drives and internal SSDs in laptops (and, eventually, desktops), and by so doing may leave themselves open to discovery of data that they thought purged in the course of normal, documented operations.

Earlier today, I received an unsolicited e-mail (with attachments) from a 3rd year law student here in the US who is looking for a job. Since I’m not a law firm, as I think is quite clear from this website, and since the e-mail had a strange salutation (“Esteemed Mr. Webster, Partner:”) and sounded like boilerplate, I wrote this person back as follows:

If you did just a wee bit more research — such as actually look at my website — you’d discover that I’m not a lawyer, nor is my company a law firm. I’m an IT consultant who also does work as as a consulting/testifying expert in lawsuits that involve computer technology. If this is an example of the contacts you’re trying to make at actual law firms, I suspect you won’t have much luck.  You really do need to track down actual live people and speak with them.  Good luck on the job search.  ..bruce..

I was a bit surprised to get the following reply:

Bruce:

Your patronizing and condescending tone is not appreciated.  I’m glad you have your career made and are so far removed from the stress of finding a job as a fledgling attorney.  By your own admission, you state that you are not a lawyer, and have thus never had to look for a job as an attorney; but then you proceed to belittle and criticize my method, and to give advice regarding how to get a job as an attorney.

You’re right: in searching for the “Webster & Associates” that was contained in a list of law firms that was given to me from my Career Services department, I was not informed that the firm does not even have a website.  Thus, my cursory review of your website (I did look at your website), and the subsequent assumption that your firm was theirs, led to an innocent mistake on my part.  Fortunately for me, I had a kind-natured accidental recipient who understood the concept of innocent mistake and politely explained the matter in a nonjudgmental way.

The materials I sent to you were not intended for you and I hereby require you to destroy them and any copies of them as required by federal and state law.  Failure to do so, or the publication or distribution of any part of them, will subject you to liability for violation of those laws, including criminal and civil penalties and damages.  Thank you for your immediate compliance.

I was mostly amused, particularly at how quickly I had gone from “Esteemed Mr. Webster, Partner” to “Bruce” (apparently, contempt breeds familiarity). But because I like lost causes, I took the time to write said Third Year Law Student back:

What I said was well-meant advice. I’ve spent 35 years in another stressful (and, generally speaking, less lucrative and less stable) profession, namely information technology. I’ve done my own job hunting at various times in the past; I’ve also done a lot of interviewing and hiring as I’ve built engineering and consulting teams, so my comments were based on my own experience on both sides of the table. Also, I’ve worked closely with dozens of attorneys (and their law firms) all over the US for the past 10 years, so I probably have a better insight into the people and firms you’re trying to get to hire you than you do.

For starters, your greeting line:

Esteemed Mr. Webster, Partner:

made me wonder right off the bat if this e-mail was spam from India or somewhere else overseas, and second if this was a mass mailing. That’s not how cover letters/e-mails are typically sent to professionals within the US. A simple “Dear Mr. Webster:” would be far more appropriate and effective.

Your subsequent comment that

Webster & Associates is precisely the kind of quality organization where I am confident I can gain excellent experience and contribute to the legal field at my full potential.

told me that you knew nothing significant about my firm. That statement was also apparently made with no knowledge about the real “Webster & Associates”, since as you said, you could find no web site for them. Even if I were a law firm, it shows no actual awareness of the firm itself; it sounds like boilerplate language. Were I in your shoes (and, by the way, I did consider for many years going to law school myself, but decided I was just too old to be a first-year associate), I would try to find something specific to the firm — and preferably to the lawyer to whom I was writing — to put in here: location, practice areas, some major case that the firm and/or the lawyer worked on.

The fact that you would take such umbrage at my relatively mild (if brusque) comments — and then go so far as to write me back a clearly hostile letter, instead of just a simple “Oops, sorry.” or even not replying at all — makes me wonder if you’ve got the thick skin it will take to survive and succeed as a lawyer. As a first year associate, you will be at the bottom of the totem pole; you will be criticized, chastised, and cursed and yelled at for things that are not your fault (as well as those that are); and you’ll be expected do to the impossible on a weekly basis, then harassed when what you do isn’t perfect. (True, you could in turn yell at paralegals and secretaries, but that would be a fatal mistake — they have far more power to damage you and your career than you might realize.)

Oh, and while this aspect is changing, some law firms will still expect you to put in 2000 billable hours that first year; many law firms, like big consulting firms (I was a Director at PricewaterhouseCoopers), still work on the ‘pyramid’ model, and partners depend upon revenue from fully-utilized associates. (The change is not necessarily good news for you — those abandoning the pyramid model for the ‘diamond’ model usually don’t hire many, if any, first-year associates.) So the stress level will be pretty high.

Finally, your demands regarding your e-mail attachments are ill-advised and ill-founded (and frankly just plain impolite). You did clearly send them, unsolicited, to my e-mail address and to my firm (as you understood it to be, having been to my web site), so you can’t claim they weren’t intended for me. There’s no privilege or protective order attached to the documents, so while you can ask me to delete them, you can’t enforce your demand that I do so. (Simple question: under penalty of what? What civil or criminal action could you successfully bring against me for keeping that which you sent to me voluntarily and unsolicited by me in an effort to get me to hire you? The misunderstanding was entirely on your part, not mine.) I occasionally have practicing lawyers — partners, even! — accidentally send me things they didn’t intend to (usually due to e-mail address auto-fill-in); their requests that I delete the e-mail (and any attachments) are always polite and never demanding, since they know they cannot compel me to do so; it was their fault, not mine. And, of course, if you’re threatening me with legal action, I now have every incentive and right to hold onto your e-mails and attachments, since they would be critical evidence in said action.

In short: lighten up. Sheesh.

Finally — and this ties back to the previous few paragraphs – I personally know and correspond with over 100 practicing lawyers, most of whom work for major law firms here in the US (actually, I correspond annually with nearly 200 lawyers, but of those, I’ve probably only actually worked with 100-120). I’m talking about lawyers I know on a first name basis and for whom I’ve done work (sometimes more than once) as a consulting/testifying expert, and who therefore are far more likely to open and read my e-mails than they are to open and read yours.

So now, stop and think: what if, instead of the reply you wrote below, you had said, “Sorry for the misunderstanding — but since you clearly work with lawyers, can you think of any who might be interested in hiring me?” That could have led to a few exchanges between us as to what areas of law interest you the most, and that would have probably led to me either giving you some specific contacts at specific law firms (probably pre-vetted by me) or, better yet, having me forward your e-mail on to those specific contacts. It never, ever pays to burn bridges that you could possibly make use of later, even if it’s not quite clear how you can make use of them.

Best of luck in your job hunt; I know this isn’t the greatest time to be competing for opening slots at law firms, but that merely underscores how important it is that you go about your job hunt in an effective, efficient, and polite manner.  ..bruce..

P.S. Be advised that this e-mail exchange (but not your attachments) may well show up on my website, sans any identification of you, of course — I may be blunt, but I’m not cruel.

And here it is.  ..bruce..

UPDATE 02/04/10: I received a lengthy and humble e-mail from the Third Year Student apologizing for his/her initial response to me and outlining the various stress factors — general and personal — of coming out of law school right now. I very much understand them, and it’s far better that s/he blow up at me now rather than at a prospective employer later.  I’ll also note that the Third Year Student said in that e-mail that having this exchange up on this site “is a good idea…as a warning to others.” Class act, that.

UPDATED: 02/13/10: Due to the increasing amount of spam appearing in the comments, I’m changing the comment system to require registration. If you want to post a comment and have problems doing so, drop me a line.

Hat tip to Joel Miller for the quick update and the copy of the ruling. ..bruce..

Not since 1981 has the Supreme Court undertaken to spell out the kinds of inventions that are eligible for patent rights — the exclusive rights to produce or use an invented device or process, or to license it to others for a royalty fee.  Much has changed since then in the world of commerce, not least the digital revolution.  On Wednesday, the Court was asked to bring the law up to date — an effort that, it is clear, could be highly controversial, depending upon what path patent law modernization might take.

The new case is Bilski, et al., v. Doll (not yet assigned a docket number) — a case that has generated hot and even worldwide controversy since two inventors in 1997 filed an application for a patent on a new method of conducting business.  In much-simplified form, the method devised by Bernard L. Bilski and Rand A. Warsaw provides ways to hedge against the business risks that come with the inevitable rise and fall of prices for commodities.  (The petition filed Wednesday is available in a link contained within this press release.  The link includes the lower court decision at issue; it is a large file.)

On the one side of this controversy in its largest sense are those — like Bilski and Warsaw themselves — who argue that patents must be available to encourage innovation in devising new ways to conduct business in the global information-based economy, including encouragement for new ways of digitizing business methods.

On the other side are consumer advocacy groups and free-market devotees who worry that patent monopolies could tie up methods of creative thought processes, including teaching, judging, creative writing, making medical judgments, or picking juries (some current, real examples of claims).

There is also the possibility, or so it is argued, that the validity of thousands of existing patents may now be in question under a new test of patent eligibility that is at the center of the new case.  That is a test devised by the Federal Circuit Court of Appeals, in a 9-3 en banc decision last October rejecting patents on all of the Bilski-Warsaw claims.

Of course, this doesn’t mean that the Supreme Court will take the case. But if they do, it could have some profound implications for patent law, and in particular for process and software patents, depending upon how the justices rule and how broad or narrow their ruling is.  ..bruce..

Well, I just received an e-mail from Joel Miller of the ABA Intellectual Property Law Committee (of which I’m a member) that include two decisions:  a US District Court decision (Classen v. Biogen et al.) invalidating several patented methods for “evaluating and improving the safety of immunization schedules”, and a US Federal Court of Appeals ruling upholding that decision based on In re Bilski. Here’s the entire text of the latter’s decision:

In light of our decision in In re Bilski, 545 F.3d 943 (Fed. Cir. 2008) (en banc), we affirm the district court’s grant of summary judgment that these claims are invalid under 35 U.S.C. § 101. Dr. Classen’s claims are neither “tied to a particular machine or apparatus” nor do they “transform[] a particular article into a different state or thing.” Bilski, 545 F.3d at 954. Therefore we affirm.

Here are the patents that were held to be invalid (with links):

• US Patent 6,420,139
• US Patent 6,638,739
• US Patent 5,728,385
• US Patent 5,723,283

Interesting times ahead.  ..bruce..

In Edwards v. Arthur Andersen, the Court examined an employment agreement between Arthur Andersen and one of its former tax manager employees, Raymond Edwards.  The agreement contained a typical non-competition clause, prohibiting Edwards from working for or soliciting Arthur Andersen clients for limited periods after his employment ended.  Edwards later alleged that the non-competition agreement violated Business and Professions Code section 16600, which states: “Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”  The trial court ruled in favor of Arthur Andersen, but the court of appeal reversed, finding for Edwards.

The Supreme Court largely affirmed the ruling of the court of appeal, holding that the non-competition agreement was void.  The Court emphasized California’s strong public policy favoring open competition and employee mobility, and determined that non-competition agreements are permissible only if they fit within one of the statutory exceptions to section 16600.  Those exceptions authorize non-competition agreements in connection with the sale or dissolution of corporations, partnerships, and limited liability companies.  None of those exceptions were present in the Edwards case.

California law has long moved in this direction — non-compete agreements have always been hard to enforce in California, particularly in the technology industry — but the California Supremes have made it official and rather sweeping.

As the article goes on to point out, most companies are now left primarily with trade secret enforcement as a means of guarding against what they feel is unfair competition from former employees. However, that requires the company to take active steps to define and protect its trade secrets, including appropriate confidentiality and intellectual property agreements, as well as security measures (both physical and electronic). It also raises the perennial issue of what is a trade secret vs. what is domain expertise.

Hat tip to Mary Enmark at MMB.  ..bruce..

Since PDA-like devices date back to the 1980s, and John Sculley announced the Apple Newton — complete with a touch screen — in early 1992, a year before the earlier patent was filed, one wonders whether these patents can hold up under prior art, and it’s unclear why the patents were granted in the first place.

On the other hand, there are some curious information gaps on the web. Just last week (see entry for 05:29, 18 June 2008), someone stripped out the “History” section of the Wikipedia article on PDAs, which — before being deleted — documented PDAs going back to 1983. Likewise, a commonly-linked article — “The Evolution of the PDA: 1975-1995″ by Evan Koblanz — appears to have been pulled off the web. (Google doesn’t have a cached version, nor does the Internet Wayback Machine.)

Sounds as though someone may be trying to do historical revision in advance of trial. ..bruce..