Six Articles on Electronic - Craig Ball

Craig Ball © 2007
BitLocker
At the top of the Vista food chain, the Enterprise and Ultimate editions include a drive volume
encryption feature called BitLocker giving greater protection against data breaches from lost and
stolen laptops. BitLocker makes users access their data like twenty dollar bills at the ATM; but
for it to work, the protected machine must be equipped with a microchip called a Trusted
Platform Module or unlocked by a USB flash drive that serves as a key. Maybe Microsoft will
hook up with the Stones again to market Jumpin’ Jack Flash and Under my Thumb Drives.
The same encryption hardening a machine against identity theft and competitive intelligence can
hopelessly frustrate forensic examination and emerging remote search and collection tools for
EDD. Absent a robust key escrow program, companies will have a harder time enforcing
acceptable use policies or stealthily inspecting machines to identify candidates for litigation hold.
Rumors of a back door for law enforcement abound, but so far, Microsoft vehemently denies the
existence of a way around BitLocker. Instead, the feature is reserved to only the most costly
versions. Budget-minded criminals beware.
New Folders, New Formats
Updates large and small will impact e-discovery. For example, Vista banishes spaces from
standard folder names, so the Windows "My Documents" folder is now "Documents." Even so
trivial a change can wreck havoc with automated or scripted collection protocols and trigger
expensive do-overs if EDD systems and personnel aren't adaptable and vigilant.
There’s some encouraging news, too. Vista and Office introduce fundamental changes to file
formats that will, in time, dramatically impact EDD by lowering cost and complexity of both
review and production. One of the persistent objections to native file production of ESI is the
difficulty of redacting privileged content from native formats. Consequently, Microsoft's decision
to store Office 2007 files in XML bodes a sea change for EDD, not only because it facilitates
review but particularly because of the ease with which privileged content can be identified and
redacted in XML. It opens the door to widespread use of native file formats in production and
consigns the claim "native files can't be redacted" to “urban legend"
Search That Works?
A big EDD question mark hangs over Vista's enhanced search capabilities. Search in previous
Windows versions was literally and figuratively a dog. But Vista's search tool rivals Google
Desktop in speed, text search and metadata filtering. It may yet prove an ally to litigation hold
efforts if counsel circulates not only retention instructions describing targeted information, but
also specific queries to be undertaken in Vista Search--a task potentially facilitated by Vista's
ability to store programmatic searches in so-called "Search Folders."
The Big Picture
I've focused on a few of the many features of Windows Vista and Office 2007 likely to impact e-
discovery, but these products are just the most visible components in a roll out of more than
thirty Microsoft products that collectively promise to transform electronic discovery and digital
evidence in ways lawyers must anticipate and address. More wrenching changes will flow from
Microsoft's embrace of collaboration and integrated messaging. The static, single-author
printable document is evolving into something entirely new, organic and multiplayer.
Collaborative construction means much more metadata playing a much more crucial role as the
glue that holds "documents" together. Integrated messaging shifts IM and voice to center stage
and further undercuts paper and TIFF as viable forms of review and production. Both
developments signify fresh challenges in every phase of discovery.
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