Google Can’t Search Its Own Documents
eWeek, October 21, 2008
In a legal suit between Sprint Nextel and some of its affiliates over the Sprint-Clearwire WiMax venture, Google (who was one of the investors in the venture) was issued a subpoena for documents related to the case. Should be easy for a company that builds and bills its products as an answer to this very problem, right? Think again. Ironically, Google said it would be too big of a hassle to shuffle through its own electronic files.
According to Google’s counsel, “Google can perform such a search, but because of its e-mail system, it cannot do so as easily and inexpensively as other, similarly situated companies.” Not shockingly, a motion to compel quickly followed suit.
The author posits that responses similar to Google’s in this case will lead to even more guidelines:
“All of this is why I get the sense that companies will be expected to take available technological measures to preserve documentation for legal proceedings and to search them thoroughly.”
The article goes on to describe the idea of concept searches: searches that analyze relevant results from the initial search and then puts them back into the system to locate additional similar information. The information is then categorized by topic and kept in a database that acts as an electronic repository.
“Why is an electronic repository better than a CD in a filing cabinet in the lawyer’s office? First, of course lawyers are all trustworthy, but the digital repository probably includes some way to demonstrate that the documents have not been tampered with.”
Probably includes some way to demonstrate that the documents have not been tampered with? Courts have been clear that their expectation for authentication rises above “probably.” Need proof? Check out one of the following cases:
- Lorraine v. Markel, 241 F.R.D. 534 (D. Md. 2007) – proponent failed to authenticate e-mails that were central to the scope of the arbitration agreement. In its decision, the court warned, “[i]f it is critical to the success of your case to admit into evidence computer stored records, it would be prudent to plan to authenticate the record by the most rigorous standard that may be applied.”
- In Re Vee Vinhnee, 336 B.R. 437 – proponent failed properly to authenticate exhibits of electronically stored business records. When comparing paper-based vs. electronic records, the court noted that “[t]he paperless electronic record involves a difference in the format of the record that presents more complicated variations on the authentication problem than for paper records. Ultimately, however, it all boils down to the same question of assurance that the record is what it purports to be.”
- United States v. Jackson, 208 F.3d 633, 638 (7th Cir. 2000) – proponent failed to authenticate exhibits taken from an organization’s website
- Rambus v. Infineon Tech. A.G., 348 F. Supp. 2d 698 (E.D. Va. 2004) – proponent failed to authenticate computer generated business records
- Indianapolis Minority Contractors Assoc. Inc. v. Wiley, 1998 WL 1988826, at *7 (S.D. Ind. May 13, 1998) – proponent of computer records failed to show that they were from a system capable of producing reliable and accurate results, and therefore, failed to authenticate them.