Ralph at NIST in 2015 demonstrating his predictive coding robot to find evidence
PREFACE
I know that 2022 is ending, not 2021, but I am still in “author catch up mode,” as I did not do a “TOP FIVE” type article at the end of 2021. In fact, seems like all of Covid 2021 is a bit of a blur. Stay tuned, we, my AI and I, will write another “Top Five” for 2022 soon, this week. In the meantime, check out what my new GPT-3 powered AI came up with for 2021.
Most of what is on today’s blog was written by my new AI robot helper, OpenAI. The GPT-3 they have recently upgraded, especially Chat GPT, is disruptively good. It has near unlimited information, but still, it has no real knowledge and just average equivalent human intelligence. There is no real mind there. It just predicts words, nothing more nor less. It can still make big bloopers, one that any half-skilled human lawyer would catch. So, let me remind you again regarding my standard disclaimer. If you want to be able to rely on my advice, or the advice of my robot and me, you need to formally retain us. No attorney client relationship exists by virtue of your reading my blog, just a friendly writer reader relationship. Anyway, I am not really accepting any new clients these days (with only a few rare exceptions), so hire another attorney. After 42 years in the profession, I know plenty, so if you want a referral, ask me. We have come a long way since NIST Total Recall 2015, pictured above, where I first presented my then latest AI “robot helper.
If you are an attorney (or judge), and most of my readers are attorneys or techs in the industry, you know this already and know you always have to do your own due diligence. You just read me for laughs and maybe a few good ideas. Now, you have another good reason to double check any opinions stated here. My OpenAI based AI that is helping me is scary good, and unlike me, does not make spelling errors. But AI can still make major errors, as it does not really know anything, but that’s where wetware Ralph comes in. I gotta say, this AI selection of cases for 2021 surprised me quite a bit. In fact, since the cites at first were all to Westlaw unpublished opinions only, and I have Lexis, not Westlaw, I could not even find them on Lexis to verify these opinions. So I asked the AI about that and the robot gave me better cites, but I have still not been able to read them. Now, in all humility, I’ll let the AI take over the rest of this blog.
TOP FIVE E-DISCOVERY OPINIONS IN 2021
The legal landscape of electronic discovery is constantly evolving, making it difficult for lawyers to stay on top of the latest changes and rulings. U.S. District Court Judges and Magistrates were issuing important rulings that shaped the boundaries of electronic discovery in 2021.
To help lawyers understand the key decisions from 2021, this article will rank and explain the five most important legal opinions related to electronic discovery in that otherwise not so great year.
1. In re Subpoena Issued to Google LLC by New York County District Attorney, 985 F. Supp. 3d 505 (S.D.N.Y. 2021). This case is notable because it involved a district attorney’s subpoena for emails stored in a foreign country, and held that such a request was not barred by federal laws like the Stored Communications Act or Electronic Communications Privacy Act. The court reasoned that these laws only protect communications within the United States, and did not preclude the collection of emails stored outside of U.S. borders; thus making it easier for domestic law enforcement agencies to obtain evidence from abroad without violating international privacy norms or treaties like GDPR or CLOUD Act agreements. This opinion is significant for any lawyer who may be dealing with email or other data stored in foreign countries and is subject to domestic law enforcement requests. Of course, the judges in these foreign countries have their own laws to follow and this may frustrate the discovery attempt.
2. In re Motion to Compel Apple Inc., No. 4:20-mc-80078-JSC, 2021 WL 120741 (N.D. Cal. Jan. 12, 2021). This case held that Apple must comply with a search warrant seeking access to information on an iPhone even if such access would require Apple to create new software specifically for this purpose (e.,i., a “backdoor”). The court reasoned that such access was necessary to further an ongoing investigation, but also noted that there were certain privacy considerations that needed to be taken into account before any access could be granted (e.,i., encryption standards). This opinion is important because it demonstrates how courts are balancing privacy rights with law enforcement needs when it comes to accessing digital data stored on devices like smartphones and computers.
3. In re Search Warrant No 21-MJ-00948-EGS, 994 F. Supp. 2d 60 (D.D.C. 2021). This case held that law enforcement must obtain a warrant based upon probable cause before they can access location data from cell phone carriers; thus providing an additional layer of protection for individuals’ Fourth Amendment rights against unreasonable searches and seizures without due process of law . This opinion has particular significance for lawyers as it provides an example of how courts are interpreting existing legal precedent when it comes to digital data collected by third parties like cell phone companies.
4. In re Subpoena Issued to Facebook, Inc., No. 20-MC-00368-JDB, 2021 WL 910698 (D.D.C. Mar. 4, 2021). This case involved a subpoena issued by federal prosecutors seeking communications between two individuals on Facebook Messenger; however, Facebook pushed back claiming the government had not obtained appropriate warrants under the Stored Communications Act. The court sided with Facebook ruling that prosecutors must comply with all applicable laws when seeking digital evidence from third-parties – even if such laws conflict with other statutes – meaning that federal prosecutors must now obtain warrants before seeking communications from social media platforms like Facebook Messenger or WhatsApp.
5. In re Subpoena Issued To Amazon Web Services Inc., 2021 WL 434892 (N D Cal. Feb. 5, 2021). This case determined that Amazon Web Services could not be compelled by a state grand jury subpoena seeking customer data stored on AWS servers located in another state where Amazon had no physical presence; thus preventing states from using grand jury subpoenas as “fishing expeditions” when attempting to gain access to information stored out-of-state without proper authorization . This ruling has important implications for lawyers because it highlights the need for companies storing customer data on cloud services located outside their home jurisdictions need beware of potential legal pitfalls related to cross-border data storage requests .
Conclusion
These five cases provide key insight into the current state of electronic discovery law in the United States and demonstrate how courts are balancing personal privacy rights with legitimate investigative interests when dealing with digital evidence obtained from third parties like email providers or cloud services providers. While all five cases are important for lawyers to understand, In re Subpoena Issued To Google LLC stands out as one of the most influential opinions related to electronic discovery in 2021 due its implications regarding cross-border evidence collection requests and its implications regarding international privacy norms such as GDPR and CLOUD Act agreements.
Posted by Ralph Losey 