A litigation tool from outer space?

I am old enough to remember how it was prior to the advent of the Internet and, of course, even before the world of computers. I am also old enough to remember, as I write this, having just watched on television the reports from the Peninsula Hotel, where Senator Trillanes and Gen. Danny Lim entered the hotel premises to use it as a base for their call to abort the Arroyo presidency.

This is, in fact, an old strategy employed even in the world of computers. Remember Ross Perot, that eccentric man who once gave the New York City Police Department 20 walking horses, who founded Electronic Data Systems Inc. (EDS), ran for president of the United States and lost? He had this penchant for hiring former Marines and Army Green Berets as staff. This paid off when two of his employees were taken hostage in Tehran during the Iranian revolution. Receiving no support from the State Department at that time, in February 1979 Perot assembled a strike force of employees, hired ex-Green Beret Col. Arthur “Bull” Simons to lead them and mastermind their release in a commando raid.

The reason the Perot employees were being held hostage by the revolutionaries was to convince EDS to come back and man the computers it had left behind during the American evacuation. Their ransom demand of $12.75 million could not possibly be paid because the Iranian banking system had broken down.

How did this man, Ross Perot, get so wealthy? In 1962 he founded the company and championed a “cafeteria management” style of data processing. His company would run a customer’s computer on a turnkey basis. He landed a huge Blue Cross/Blue Shield contract in Texas and EDS was on its way. When EDS went public, Perot’s stock was worth $16 a share. By March 1969, it had climbed to $169. By May, it was down to $29, and Perot had set a Wall Street record for the largest paper loss ever.

At the Massachusetts Institute of Technology’s Digital Computer Laboratory, a man named Ken Olsen was asked by his boss, Norman Taylor, to build a small computer to test the memory they planned to install in the Air Defense Command’s so-called SAGE computer they were building. It had to be an informal arrangement and money wasn’t formally allocated. Also, it had to be completed in 10 months to perform its task.

Olsen was a hardworking, extremely capable but odd kind of guy. One of his colleagues said of him, “He’s a nerd. He’ll never go anywhere.” Olsen looked the project over, then told Taylor it could not be done in 10 months. The latter’s response was, “Then do it in nine and I’ll buy you a case of Scotch.” Olsen did not drink, but he accepted the challenge and did it.

That machine provided the conceptual foundation for “Olsen’s Programmed Data Processor” — the microcomputer — the product with which he founded Digital Equipment Corporation, the world’s second largest computer company in its time.

That was a number of years ago. The new breed is young, bright, energetic, and infused with a vision — microcomputers stacked miles high, offices awash in binary code, kids welded to computers. The old breed is rich. Some are movers and shakers, others are moved and shaken. Some have gone from rags to riches, others from riches to rags. Some are gurus, some are frauds; most are a tantalizing combination. Some were trained in the discipline, while others fell into it from other occupations. A few, it sometimes seems, have come from outer space.

Those citizens here and in other parts of the world who believe in their country’s judicial systems do not necessarily have to resort to a forcible measure such as Ross Perot’s route. When one is involved in litigation or is the petitioner in a judicial proceeding, there still must be some degree of faith in the effectivity of the judicial system. I myself hold the Supreme Court of the Philippines, led today by Chief Justice Reynato Puno, in very high regard.

Whatever it is in today’s world, the Internet has become one of the most prolific sources of evidence. It has become a great litigation tool and an effective evidence-gathering instrument. Both the lawyers and those who employ attorneys can use the Internet prior to filing a lawsuit, to aid in the determination of what lawsuit is appropriate, and especially to help in pre-trial investigations, which of course influence trial techniques.

Evidence gathering often involves a search for data in word-processing files, databases, spreadsheets, and communication files. Much of this sort of e-data is in the possession of the ISPs (Internet Service Providers) and those who operate the Internet’s backbone. Those who litigate on behalf of both the public and the private sector are targeting the Internet. Regulatory agencies generally are among the most active requesters of e-data and, as we all know, e-data has played crucial roles in both civil and criminal investigations.

Before the arrival of the World Wide Web, e-data was rarely the focus of pre-trial investigators. Today, specific requests for e-data are regularly made and rigorously enforced. It is standard procedure to take depositions from e-mail administrators, Internet desk personnel, and e-database managers. Standard operating procedure calls for taking a number of different depositions to ensure proper production of evidence.

Internet e-data has become a part of the litigation process for several reasons. First of these is the fact that the legal community has access to data-processing tools that can make use of vast amounts of e-data. Such tools did not exist 15 years ago. Today an inexpensive personal computer can be loaded with off-the-shelf software and can identify, locate, retrieve, and review large volumes of disparate e-data.

Another reason for Internet data’s role in the litigation process is that users are putting literally everything into e-mail and e-databases that are stored on the Internet and in Intranet/Internet archives. Even Bill Gates and his extremely knowledgeable colleagues may regret having availed themselves of such conveniences.

Internet users may labor under the illusion that e-mail communications are transitory and direct, and that such messages can be totally and permanently deleted at will. These Internet users fail to appreciate that nearly all of the Internet’s e-mail and e-databases are backed up. They also don’t understand that they have few, if any, legal rights to exclude others from using the e-information they have created. This is particularly true when litigation compels such disclosure.

Another reason that Internet e-data has become a part of the litigation process is because of the necessity for Internet backup systems, which are in place to save data in the event of one of the frequent communication failures in a highly fault-tolerant system that anticipates such failures.

Courts allow the discovery of these backup systems. In theory, therefore, all parties will have access to a reliable source of information that consists of precisely who said what to whom and when, assuming the integrity of the data has been preserved. Most firms, ISPs and Internet backbone operators make backup e-data tapes or databases every day and save them for an extended period of time in secure facilities.

As a litigation tool, the Internet is certainly in a class by itself when you consider that the entire library of the Philippine Supreme Court can be transmitted halfway around the world or around the Philippines in a matter of seconds. It would seem, indeed, that this technology came from outer space. 

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Thanks for your e-mails sent to jtl@pldtdsl.net.