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On Discovery and Email

If you’re involved in any sort of civil legal action in the US Courts – whether that be claims of patent violation, defamation, sexual harassment or anything else – there’s a point in the pre-trial process where the opposing lawyers can request information from you, and also from any third-parties they believe may have useful information. This phase is called Discovery.
US civil discovery has very few limits: you can demand, backed by the power of the court, any material or information that might be reasonably believed to lead to admissible evidence in the case. That’s much, much broader than just relevance, and it allows fairly prolonged fishing expeditions not just for admissible evidence, but also for background information that will allow the opposing legal team to better understand both the case and the people and companies involved in it. Often the discovery phase leads to both sides agreeing on how strong a case it is, and deciding to settle or drop it rather than taking it to trial.
One aspect of discovery is interrogatories and depositions – asking someone a list of questions, and having them reply in writing or in person. While most people will be honest in their replies in that situation, they’re under no obligation to be helpful or cooperative beyond answering, minimally, the questions they are posed. (In a spam case I was involved in as an expert many years ago one of the lawyers was explaining what the oppositions lawyers might ask and told me “If they ask ‘What do you recall was said about <X>?’ you can tell them that I said he was an asshole.”). The information from these can be vital, but it’s a lot of effort to acquire, and unless you already know enough to ask the right questions you might not discover anything useful.
Asking someone to provide documents is another aspect. That might be a literal paper document, or I’d guess more commonly nowadays, electronic data. “Provide copies of any email your employees sent or received that mentioned <plaintiff’s company>.”, “From what IP addresses at what times did this user log in to your system?” …
As someone who does data analysis I love electronic documents. It’s relatively easy to mechanically grovel through thousands of pages of data and crunch it into summaries that you can use to make decisions, or to focus on a useful subset. Give me someones mailbox and I can do the easy stuff, like find any mention of a company, or any link to a companies website. But I can also find the messages they sent while they weren’t in the office. I can do semantic analysis and find the emails that use angry language. I can find all the attachments that were used, open them up and analyze the contents. I can sometimes find where in the world they were when the email was sent – down to which hotel bar, or which office in a building. I can crunch the routing data of their mailbox (and other peoples) and see who they communicated with – and make recommendations as to whether it would be worthwhile to subpoena those people. I can build relationship graphs. And all this applies not just to their work mailbox, but also their private gmail addresses, if it’s a reasonable assumption that any communication there might lead to any relevant evidence – and, well, it’s always a reasonable assumption. (And that’s just email – I can often pull similarly useful data out of web logs and forum posts and so on too).
The discovery process can be long, and can consume a lot of resources (time, legal fees) and work focus from the people targeted by it. Making analysis easier (and hence cheaper) makes it reasonably possible to expand and extend the discovery process to find additional data. Whether that’s good for you or not depends on the details of the case and whether you are the one doing the discovery.
None of this is intended to be legal advice, nor even a description of the process by someone with any legal training – it’s just some aspects I’ve noticed from my limited experience of the process as an expert working with some very good lawyers.
Finally, another piece of advice a lawyer I was working with gave me some years ago was “Always assume that anything you write anywhere may be made available to opposing counsel. And when it comes to legally sensitive matters, use email just for sending copies of documents that will be provided to opposing counsel and for scheduling ‘phone calls where you’ll discuss other details. Nothing else.”.

Happy Sweet 16, Yahoo.

Yahoo mail turns 16 today, and in celebration Yahoo is giving all their mail users presents.

Delivery is about helping you succeed

I was talking with another delivery person today who’s dealing with a customer struggling with some issues. As most of these discussions go, we get to the part where we have to tell the customer that what they’re doing looks problematic from the outside. And then the customer gets all upset and angry and starts complaining to account reps or managers or executives.
The challenge of delivery is working with clients who don’t want to hear they have to change what they’re doing. Some senders deflect better than a 3 year old caught with her hand in the cookie jar.
I think all of us in the delivery space, or at least most of us, want our customers and clients to succeed in their email goals. We want you to have a great mailing program. But when your delivery is having problems, getting to a great mailing program means doing something differently.
These changes can be hard, both in terms of thinking differently about email and how it works and about business models. Some business models make it extremely difficult to use emails. We understand that. We don’t make the rules, we just explain them.
We want your mail to work.

ICANN goes after Dynamic Dolphin

ICANN sent a letter to domain registrar Dynamic Dolphin notifying them of their non-compliance with the ICANN Registrar Agreement.
HT: Neil Schwartzman
(Today appears to be retro-blogging day. First I blog about s.1618 then I blog about Scott Richter.)

This message is sent in compliance with the new email bill section 301. Under Bill S.1618 TITLE III passed by the 105th US Congress, this message cannot be considered SPAM as long as we include the way to be removed, Paragraph (a)(c) of S.1618, further transmissions to you by the sender of this email may be stopped at no cost to you by sending a response of “REMOVE” in the subject line of the email, we really will remove you immediately.
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When did you check your security last?

A few years ago security and breach protection was all the topic of the day in the email space. There were some high profile break ins at ESPs and data companies and everyone was looking at their security. Companies were vocal and public about their security enhancements. Many in the email industry even used the term “advanced persistent threats.”
Security seems to have taken a back seat to Yahoo releasing user names, and Gmail introducing tabs in the inbox and all the myriad of tiny details that we feel we have some control over.
But security still should be at the forefront of our minds. Just today Adobe announced a major compromise resulting in both a customer information leak and a source code theft.
It serves as a reminder to all of us that security threats are ongoing and we cannot become complacent.

Losing friends and influencing people

I download a lot of ESP white papers. Not because I’m looking for an ESP, but because I think it’s important to know what’s happening in the industry and what topics people think are important. I understand fully that white papers are a lead generation tool and I can expect followup from sales people at the places I download papers from. This is all well and good.
Generally the emails I get are polite, introduce the company to me, and ask if I have any questions or would like to talk. I tend to respond that I’m not looking for an ESP, and that I appreciate their contact. If I’ve blogged about said white paper, I will mention that and give a link to the post. I don’t want to waste a sales person’s time when said person can be working with potential customers.
Overall, these interactions have been pleasant and cordial. That makes the unpleasant few stand out even more.
There’s one memorable case where the first email from the sales rep had the subject line, “Meeting Time Tomorrow at 10am.” Wait. What? As I was checking email from bed before getting up, that subject line had me dashing out of bed to figure out what I had forgotten and work out how badly my schedule was messed up. Thankfully, my schedule wasn’t messed up, this was just an aggressive sales person optimistically claiming we had a meeting set. The email assured me that said sales person would continue to follow up with me until “we were able to connect.”
There is a place for aggressive selling techniques. This is the kind of sales drive that will work in certain situations. But I’m not sure it’s the appropriate opening when nothing is known about the target. In this case it certainly wasn’t a good opening. A number of companies ask me for ESP recommendations, and I tend to recommend those I know. I don’t think I’ll be recommending the above ESP to any customer. Their sales process was just that off putting.
Not quite the result Mr. Over Eager Sales Person expected.

This month in email: September 2013

Looking back through the month of September there were a couple things talked about on the blog.

Google wiretapping case, what the judge ruled

Yesterday I reported that the judge had ruled on Google’s motion to dismiss. Today I’ll take a little bit deeper look at the case and the interesting things that were in denial of the motion to dismiss.
Google is being sued for violations of federal wiretapping laws, the California invasion of privacy act (CIPA) and wiretapping laws in Florida, Pennsylvania and Maryland. This lawsuit is awaiting class certification for the following groups.

Judge sides with plaintiff, refuses to dismiss wiretapping suit against Google

Judge Koh published her ruling on Google’s motion to dismiss today.
It’s a 43 page ruling, which I’m still digesting. But the short answer is that Google’s motion was denied almost in total. Google’s motion was granted for two of the claims: that email is confidential as defined by the California Invasion of Privacy Act (CIPA, section 632) and dismissal of a claim under Pennsylvania law.