
Mark Cuban's Plan for Limiting Scope of Discovery in Lawsuits - mazurk
http://www.institutionalinvestor.com/article/3378986/banking-and-capital-markets-trading-and-technology/mark-cubans-plan-for-limiting-scope-of-discovery-in-lawsuits.html
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rayiner
The article misses an important aspect of the situation, which is that
discovery can be one of the most time-consuming and expensive part of any
lawsuit. Typically, both sides will review all the documents that are relevant
to the claims of the suit, precisely because of the danger raised by Cuban of
the opposing side taking statements out of context. Automation makes some of
this work quicker, because computers are getting pretty good at sorting
relevant from irrelevant documents, but it'll be quite awhile before a
computer can puzzle through the communications pertaining to a sale and figure
out whether any statements can be construed as showing an intent to trade on
insider information.

So ditching the paper trail can have benefits even if you didn't do anything
wrong, because having fewer records can lead to lower discovery costs.[1] On
the other hand, it could easily backfire. In many ways, the best way to
counter an accusation of wrongdoing, say a sale that had suspicious timing, is
to paint a detailed narrative, using records, of how the sale came about in a
totally valid way. When you ditch the paper trail, you also lose the ability
to point to hard evidence that no wrongdoing occurred. This is particularly
relevant in a civil suit, because the burden of proof is only "more likely
than not." Without a detailed record, the circumstantial evidence can easily
be enough to tip the balance in favor of the plaintiff/prosecution.

Moreover, in the absence of documentary evidence, I imagine plaintiffs and
prosecutors will do more old-fashioned lawyering: putting witnesses on the
stand to testify. This can be extremely expensive in and of itself (what's the
monetary value of taking your CEO out of commission for a few 7-hour
depositions?) Moreover, it can lead to replacing a relatively neutral
documentary record with unpredictable individual testimony. One of the
highlights of the Microsoft antitrust trial was Gates' deposition testimony,
which, when presented in court, made the judge laugh out loud (not in a good
way).[2]

It's interesting to note that the large banks, which get sued regularly, have
taken the exact opposite tack. Absolutely everything is recorded, including
internal instant messaging. It's expensive for the bank to hire lawyers to
comb through all this information, but on the flip-side, they have a detailed
paper trail showing that everything was done by the book.

[1] In a way, it returns us to the status quo of the 1960's and 1970's, before
the rise of electronic discovery making lawsuits significantly more expensive.

[2]
[http://www.cnn.com/TECH/computing/9811/17/judgelaugh.ms.idg/](http://www.cnn.com/TECH/computing/9811/17/judgelaugh.ms.idg/)

~~~
declan
>Microsoft antitrust trial was Gates' deposition testimony, which, when
presented in court, made the judge laugh out loud

I was in the courtroom when that happened, and you're right. My Wired article
at the time said that "Gates gave narrow, evasive, and definition-twisting
responses..."
[http://archive.wired.com/politics/law/news/1998/12/16589](http://archive.wired.com/politics/law/news/1998/12/16589)

What follows is a side note to Mark Cuban's point, but it's about Bill Gates
and this _is_ HN, so indulge me for a moment...

What we should also remember is that Thomas Penfield Jackson, who heard the
case, was a preternaturally biased judge, very anti-Microsoft and pro-DOJ, who
brought sympathetic journalists into his chambers _during the trial_ for
private chats likening Bill Gates and other MS execs to "drug traffickers" and
"gangland killers."

The appeals court properly slapped Jackson down and handed the case to a
different (and unbiased, as far as I could tell) judge:
[http://archive.wired.com/politics/law/news/2001/02/42071?cur...](http://archive.wired.com/politics/law/news/2001/02/42071?currentPage=all)
[http://archive.wired.com/politics/law/news/2001/06/44886](http://archive.wired.com/politics/law/news/2001/06/44886)
"rampant disregard for the judiciary's ethical obligations... comments were
not only improper, but also would lead a reasonable, informed observer to
question the district judge's impartiality..."

If you're a smart, biased judge you'd presumably forego the cheap shots of
laughing aloud in court and taking potshots at Bill Gates in chambers -- then
go as far as you can in your final opinion. But Jackson proved to be a dumb,
biased judge, which actually worked in Gates' favor when the appeals court
reversed the order that would have carved up Microsoft into multiple pieces.

~~~
CamperBob2
Also interesting to contemplate: yes, Jackson was an incompetent, biased, and
generally pathetic excuse for a judge, but it's hard to argue that both
Microsoft and its customers wouldn't be better off if the company had, in
fact, been broken up. Sometimes a blind squirrel (or a sleepwalking one in
this case) can still find a nut.

~~~
declan
Even after spending far too much of my life covering the Microsoft antitrust
trial for Wired, I don't actually know whether that's the case or not. I don't
think anyone does.

The original order, if I recall properly, would have created Microsoft
Hardware with Windows/phones/TV boxes/handhelds/etc., and Microsoft Software
with Office, IE, BackOffice, Outlook, etc. Note this predated the Xbox, Bing,
etc.

Maybe it's true that Microsoft Software in this alternate universe would have
turned to the cloud earlier than our MS did, but remember Microsoft Software
was still pretty much desktop software with the exception of MSN (remember
that?). Maybe Microsoft Hardware would have done a better job with mobile
devices. Or maybe we wouldn't have seen devices like the Xbox or Kinect
without those cross-business subsidies, and the Playstation wouldn't have any
real competition today, and there would be less search competition without
Bing and the MS money flowing into Yahoo, etc.

Really too many variables.

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drivingmenuts
I'm calling it now: the counter will be law to require businesses to store all
electronic conversations for a period of X years. Failure to do so will lead
to a charge of hiding or destroying evidence.

Which, mind you, I'm not totally against.

Sure, Cuban _may_ have good intentions with this, but really he's just making
it easier for unethical people to be even more unethical.

~~~
_______-_______
This is already true in certain areas of the public sector. Florida, for
instance, has broad public records laws. Since any written communication with
a government employee about government business must be archived, the
institution I was formerly affiliated with couldn't implement IM unless we
enabled archiving for every IM conversation (probably not all conversation
were subject to the rule, so you err on the side of caution and record them
all).

~~~
npsimons
See Sarbanes-Oxley:
[https://en.wikipedia.org/wiki/Sarbanes%E2%80%93Oxley_Act](https://en.wikipedia.org/wiki/Sarbanes%E2%80%93Oxley_Act)

------
btreecat
So I went to read the privacy policy on the cyberdust site and came across
this gem in section 6.1:

"Your information, and the contents of all of your online communications
(including without limitation chat text, voice communications, IP addresses
and your personal information) may be accessed and monitored as necessary to
provide the Service and may be disclosed: (i) when We have a good faith belief
that We are required to disclose the information in response to legal process
(for example, a court order, search warrant or subpoena); (ii) to satisfy any
applicable laws or regulations (iii) where We believe that the Service is
being used in the commission of a crime, including to report such criminal
activity or to exchange information with other companies and organizations for
the purposes of fraud protection and credit risk reduction; (iv) when We have
a good faith belief that there is an emergency that poses a threat to the
health and/or safety of you, another person or the public generally; and (v)
in order to protect the rights or property of Radical App, including to
enforce our Terms of Service."

If you needed any more proof that this is just security theatre, check out the
FAQ as to why they need your email:

"We require you to enter your email address upon sign up so that you can
recover or reset your password if you forget it."

No way will this get me to switch from textsecure.

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palebluedot
"Disappearing" message apps like this will obviously cut down on the volume of
logged messages. However, like snapchat, I worry that it lulls users into a
false sense of privacy and security -- and it is naive to think you'll always
know when a screenshot is taken. And this false security may breed a cavalier
/ sloppy attitude in what you say and send.

As I've told my kids (and I think this applies here), do not assume that the
messages either disappear, or stay private. Or that you will even know that a
screenshot has been taken.

* photos of the phone can be taken

* 3rd party apps may be able to take screenshots w/o notification

* security breaches in the messaging company

* messaging company logging data even when they say they are not

* Poor app implementation / caching

* Etc.. etc...

I try to assume that my family, friends, and enemies will eventually see and
read what I send.

------
doragcoder
Were they trying to be ironic, by providing screenshots of the application?
For which the messages should have disappeared? I guess there were no obvious
identifying cues from the app. But a person could make them in the message
sent back. So this suffers from the same problems as other "ephemeral" apps,
the "screenshot", right?

~~~
strathmeyer
Assumably faking a screenshot of text is much easier than of a picture. And
the messages are being deleted as a specific needed feature to both of the
users; you wouldn't message a journalist with it and not expect other humans
to be able to find out about it.

------
skynetv2
someone came on Shark Tank and proposed an app that would capture incoming
messages and not show them unless you know a password and the procedure. The
app owner intended it for secretive messages between two people. O'Leary
immediately pounced and said it would be great for corporations, banking and
investment because so much info is sensitive and a loss of a phone can be
devastating.

Cuban said he didnt like it, that it promoted cheating and didnt want to think
his loved ones were cheating.

how is this different? so instead of secretive messages between two people,
its secretive messages between two people in the context of regulation. of
course, the self disappearing nature is new addition to the same concept, like
Snapchat.

~~~
drzaiusapelord
I'm assuming that ST is scripted television for the most part (as much as
'reality' TV can be scripted) and the people who do all the legwork and pick
these products sit with the "sharks" before hand trying to drum up a dramatic
narrative for the show. Cuban was just playing his role to counter the other
guy. That's how you get ratings and that's how you get paid. Anything past
that is giving these guys way too much credit.

Cuban's "good guy" narrative on ST is a character he plays. This proposal is
more the "real" Cuban, someone who fights for the interests of the 1%.

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mooneater
Its the text equivalent of "lets move this conversation to a phone call". With
all that that implies. (Unlike any potentially on-the-record IM).

------
sbierwagen
[http://en.wikipedia.org/wiki/Analog_hole](http://en.wikipedia.org/wiki/Analog_hole)

------
NoMoreNicksLeft
I was under the impression that this violates CALEA.

~~~
tedunangst
I think most people's impressions of CALEA requirements are pretty far off
base.

------
joncp
I wonder if this article could be made even more slanted.

~~~
snowwrestler
I agree, but I think they are writing to their audience.

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wfjackson
It came out in a court filing that Google's internal IM system(based on Gchat)
is completely off-the-record(OTR) to avoid discovery while Google removed the
OTR option for Gchat for the public.

I guess potentially incriminating conversations like the below are now held
over company IM instead of company email.

[http://www.theverge.com/2011/05/12/google-android-skyhook-
la...](http://www.theverge.com/2011/05/12/google-android-skyhook-lawsuit-
motorola-samsung)

~~~
jkn
The OTR option is still there, see the "Hangout history" checkbox in the
Hangout's settings. They did remove the global option to choose the default
setting though. By default history is on for regular accounts and off for Apps
accounts.

