{"id":1443,"date":"2016-11-10T17:45:43","date_gmt":"2016-11-10T22:45:43","guid":{"rendered":"https:\/\/abovethelaw.com\/?p=442322"},"modified":"2016-11-10T17:45:43","modified_gmt":"2016-11-10T22:45:43","slug":"alt-legal-did-a-little-data-governance-decide-the-whole-election","status":"publish","type":"post","link":"https:\/\/abovethelaw.com\/legal-innovation-center\/2016\/11\/10\/alt-legal-did-a-little-data-governance-decide-the-whole-election\/","title":{"rendered":"alt.legal: Did A Little Data Governance Decide The Whole Election?"},"content":{"rendered":"

\"servers\"I have written on the consequences of Hillary Clinton’s email issues previously, both in terms of potential jail time for noncompliance with a Congressional subpoena<\/a> and comparatively to Tom Brady\u2019s response to requests for his cell phone<\/a>. Today, reeling from the stunning results of Tuesday’s election, let’s look at whether missteps in information governance cost Clinton the entire election.<\/p>\n

A quick recap, in case today’s the first day of electricity for you.<\/strong><\/p>\n

On October 3, 2016, FBI agents execute a search warrant and seize former Congressman Anthony Weiner\u2019s iPhone, iPad and laptop in connection with an investigation that Weiner was sexting with an underage girl (pretty salaciously<\/a>). The laptop appears to have been shared between Weiner and his then-wife and top Clinton aide Huma Abedin. In the weeks that follow, the FBI discovers, through metadata searching, that some of the emails on the laptop may have been transmitted from Secretary Clinton\u2019s private email server.<\/p>\n

On October 28, FBI Director James Comey sent a letter to Congress<\/a> supplementing his testimony regarding the Clinton email investigation, stating that the FBI learned of the existence of new potentially classified emails and that they were \u201ctaking appropriate investigative steps designed to allow investigators to review these emails.\u201d<\/p>\n

That same day, Director Comey sends a letter to the Bureau<\/a>, stating that while they typically don\u2019t inform Congress regarding all of their investigations, he felt he needed to supplement his earlier testimony and that \u201cit would be misleading to the American people were we not to supplement the record.\u201d He admits that \u201cin the middle of an election season, there is significant risk in being misunderstood.\u201d<\/p>\n

On October 29, Secretary Clinton holds a press conference<\/a> where she calls the investigation \u201cnot just strange \u2013 it\u2019s unprecedented, and it\u2019s deeply troubling.\u201d Incidentally, as to whether this was actually unprecedented, Politifact<\/a> researched a comparable time when something was reopened on the eve of an election: an indictment of Caspar Weinberger, former defense secretary to Ronald Reagan and George H.W. Bush, refiled the week before Bush\u2019s re-election vote in 1992. Of course, Bush lost that race to Arkansas governor Bill Clinton, husband to future U.S. Senator, Secretary of State and presidential nominee Hillary Rodham Clinton.<\/p>\n

The \u201cappropriate investigative steps\u201d mentioned by Comey include the FBI obtaining a search warrant on October 30, a hat tip to the ol\u2019 Constitution of the United States. Legally, the FBI could not go on a fishing expedition seeking evidence on Weiner\u2019s laptop for an unrelated investigation, although such fishing is apparently a somewhat common practice<\/a>.<\/p>\n

In the days following, there is rampant speculation about Comey\u2019s intentions, including secondhand sources citing pressure from some of his top deputies and his own wife.<\/a><\/p>\n

On November 4, ranking members of the House Oversight committee sent a letter<\/a> to the DOJ IG, claiming that Rudy Giuliani went on a morning news show and \u201cbragged\u201d about obtaining information about the FBI\u2019s finding days in advance of Director Comey\u2019s letter to Congress. The letter condemned \u201cunauthorized and inaccurate leaks from the FBI\u201d and called for a \u201cthorough investigation to identify the sources of these and other leaks from the FBI.\u201d<\/p>\n

On November 6, two days before the general election, Director Comey sends another letter<\/a> to Congress, stating that the investigative team has been \u201cworking around the clock to process and review a large volume of emails.\u201d During this search, the team \u201creviewed all of the communications that were to or from Hillary Clinton while she was Secretary of State\u201d and based on that review, \u201cwe have not changed our conclusions.\u201d<\/p>\n

In the final two days of the campaign, Trump\u2019s primary position on Comey is summed up<\/a> as follows: \u201cYou can\u2019t review 650,000 new emails in 8 days.\u201d But as anyone well-versed in ediscovery knows, it\u2019s simple: you systematically cut the noise out and just review the ones that matter<\/a>.<\/p>\n

On November 7, polls show that in the 11 days leading up to the election since the first Comey letter to Congress, the race has tightened. Hillary Clinton is leading in most battleground states by a small margin, and while the election may be close, Trump\u2019s electoral math seems insurmountable. The final RealClearPolitics poll average<\/a> gave Hillary Clinton a 3.2 point lead nationally.<\/p>\n

After a long election day with record turnout in many states, around 2:30 a.m. Eastern time on the morning of November 9, 2016, Hillary Clinton calls Donald Trump to concede. Most networks declare a decisive victory for Donald Trump, having won almost every state needed on his path to 270 electoral votes. At his celebration at the New York Hilton on Sixth Avenue, President-elect Trump thanked Secretary Clinton<\/a> for a hard-fought battle.<\/p>\n

Exit polls show that around 6 out of 10 surveyed were bothered by Clinton\u2019s email policy<\/a>.<\/p>\n

On Friday, January 20, 2017, barring any wild turn in events, Donald J. Trump will swear an oath on the West Lawn of the U.S. Capitol and be inaugurated as the 45th<\/sup> President of the United States of America. Clinton, leadership in both parties, Judge Merrick Garland, and most of the world will scratch their heads.<\/p>\n

What did anyone learn from this?<\/strong><\/p>\n

First off, did Comey\u2019s letter hurt Clinton\u2019s chances? According to Nate Silver, it appears that it had a meaningful impact<\/a> in the final days before the election.<\/p>\n

Then, accordingly, could better data governance saved the election for Clinton? It is possible. We\u2019re not just talking about Hillary\u2019s email server and its existence. Why would Huma Abedin share a laptop with Anthony Weiner with State Department emails? Even with the entire drama around Clinton\u2019s email investigation, it was more or less put to rest in July with Director Comey\u2019s original view that while reckless, the behavior was not enough to prosecute. Had Abedin\u2019s emails not been found on Weiner\u2019s laptop, even the specter of resurrecting the investigation would have been foreclosed.<\/p>\n

But though we are living in an era where parties are severely punished for poor data governance, I wonder if we are applying disproportional standards to different technological eras. In 2009, when Secretary Clinton was appointed into her role, Yahoo! was still a viable search engine and Twitter was just getting started. In 2009, Apple began to see widespread adoption of its newest smartphone device, the iPhone 3GS (I am pretty sure that back then, my firm had just given me the color-screen Blackberry and I was still grieving the loss of the clicky-wheel). Native electronically stored information and ediscovery were just becoming more commonplace than digitized paper records. Data processing for ediscovery was somewhere in the $1,500 per GB range for processing<\/a> (by the way, today that cost is usually a fraction of that, or for some, included without charge<\/a>), and ediscovery routinely used to cost millions of dollars in a litigation budget for an average case.<\/p>\n

It really was a different world. We have increased our sophistication, availed ourselves of advanced technology and globalization through overseas managed services, and the average email user has far greater awareness around security and privacy.<\/p>\n

Given how far we\u2019ve come, could Clinton really have seen the risk of this coming back in 2009? That one day, using a personal IT network for her communications (like her predecessor Colin Powell had advised<\/a>) would lose her the highest office in the land? That her top lieutenant would marry a sex addict whose seized laptop would somehow contain intermingled emails? That Donald Trump, empowered by WikiLeaks, the Russians, and FBI Director James Comey, would use these emails as sufficient bait for the Electoral College votes needed?<\/p>\n

To see all of that coming would require an extraordinary level of foreseeability that boggles human imagination.<\/p>\n

But these are extraordinary times.<\/p>\n

\n

Ed Sohn<\/a> is VP, Product Management and Partnerships, for Thomson Reuters Legal Managed Services<\/a>. After more than five years as a Biglaw litigation associate, Ed spent two years in New Delhi, India, overseeing and innovating legal process outsourcing services in litigation. Ed now focuses on delivering new e-discovery solutions<\/a> with technology managed services. You can contact Ed about ediscovery, legal managed services, expat living in India, theology, chess, ST:TNG, or the Chicago Bulls at edward.sohn@thomsonreuters.com<\/a> or via Twitter (@edsohn80<\/a>). (The views expressed in his columns are his own and do not reflect those of his employer, Thomson Reuters.)<\/span><\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

Given how far we\u2019ve come, could Hillary Clinton in 2009 really have seen the risk of this coming?<\/p>\n","protected":false},"author":671,"featured_media":337486,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[228,11],"tags":[97,1177,387,157,36,1772,222,60,223,1064,1065,1773,1774,48,1028,1029,225,7,31,428],"class_list":["post-1443","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-politics","category-technology","tag-alt-legal","tag-anthony-weiner","tag-donald-trump","tag-e-discovery","tag-ediscovery","tag-election-2016","tag-email","tag-email-scandals","tag-emails","tag-fbi","tag-federal-bureau-of-investigation","tag-hillary-clinton","tag-huma-abedin","tag-information-governance","tag-james-b-comey","tag-james-comey","tag-politics","tag-technology","tag-thomson-reuters","tag-thomson-reuters-legal-managed-services"],"acf":[],"yoast_head":"\nalt.legal: Did A Little Data Governance Decide The Whole Election? - Above The Law's Legal Tech Non-Event<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/abovethelaw.com\/legal-innovation-center\/2016\/11\/10\/alt-legal-did-a-little-data-governance-decide-the-whole-election\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"alt.legal: Did A Little Data Governance Decide The Whole Election? - Above The Law's Legal Tech Non-Event\" \/>\n<meta property=\"og:description\" content=\"Given how far we\u2019ve come, could Hillary Clinton in 2009 really have seen the risk of this coming?\" \/>\n<meta property=\"og:url\" content=\"https:\/\/abovethelaw.com\/legal-innovation-center\/2016\/11\/10\/alt-legal-did-a-little-data-governance-decide-the-whole-election\/\" \/>\n<meta property=\"og:site_name\" content=\"Above The Law's Legal Tech Non-Event\" \/>\n<meta property=\"article:published_time\" content=\"2016-11-10T22:45:43+00:00\" \/>\n<meta name=\"author\" content=\"Ed Sohn\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Ed Sohn\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"7 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"WebPage\",\"@id\":\"https:\/\/abovethelaw.com\/legal-innovation-center\/2016\/11\/10\/alt-legal-did-a-little-data-governance-decide-the-whole-election\/\",\"url\":\"https:\/\/abovethelaw.com\/legal-innovation-center\/2016\/11\/10\/alt-legal-did-a-little-data-governance-decide-the-whole-election\/\",\"name\":\"alt.legal: Did A Little Data Governance Decide The Whole Election? - Above The Law's Legal Tech Non-Event\",\"isPartOf\":{\"@id\":\"https:\/\/abovethelaw.com\/legal-innovation-center\/#website\"},\"primaryImageOfPage\":{\"@id\":\"https:\/\/abovethelaw.com\/legal-innovation-center\/2016\/11\/10\/alt-legal-did-a-little-data-governance-decide-the-whole-election\/#primaryimage\"},\"image\":{\"@id\":\"https:\/\/abovethelaw.com\/legal-innovation-center\/2016\/11\/10\/alt-legal-did-a-little-data-governance-decide-the-whole-election\/#primaryimage\"},\"thumbnailUrl\":\"\",\"datePublished\":\"2016-11-10T22:45:43+00:00\",\"dateModified\":\"2016-11-10T22:45:43+00:00\",\"author\":{\"@id\":\"https:\/\/abovethelaw.com\/legal-innovation-center\/#\/schema\/person\/7ca93136aa966020f559501bf9b5285d\"},\"breadcrumb\":{\"@id\":\"https:\/\/abovethelaw.com\/legal-innovation-center\/2016\/11\/10\/alt-legal-did-a-little-data-governance-decide-the-whole-election\/#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\/\/abovethelaw.com\/legal-innovation-center\/2016\/11\/10\/alt-legal-did-a-little-data-governance-decide-the-whole-election\/\"]}]},{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\/\/abovethelaw.com\/legal-innovation-center\/2016\/11\/10\/alt-legal-did-a-little-data-governance-decide-the-whole-election\/#primaryimage\",\"url\":\"\",\"contentUrl\":\"\"},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\/\/abovethelaw.com\/legal-innovation-center\/2016\/11\/10\/alt-legal-did-a-little-data-governance-decide-the-whole-election\/#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\/\/abovethelaw.com\/legal-innovation-center\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"alt.legal: Did A Little Data Governance Decide The Whole Election?\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\/\/abovethelaw.com\/legal-innovation-center\/#website\",\"url\":\"https:\/\/abovethelaw.com\/legal-innovation-center\/\",\"name\":\"Above The Law's Legal Tech Non-Event\",\"description\":\"A Legal Tech Adoption Guide For Perplexed Lawyers\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\/\/abovethelaw.com\/legal-innovation-center\/?s={search_term_string}\"},\"query-input\":\"required name=search_term_string\"}],\"inLanguage\":\"en-US\"},{\"@type\":\"Person\",\"@id\":\"https:\/\/abovethelaw.com\/legal-innovation-center\/#\/schema\/person\/7ca93136aa966020f559501bf9b5285d\",\"name\":\"Ed Sohn\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\/\/abovethelaw.com\/legal-innovation-center\/#\/schema\/person\/image\/\",\"url\":\"https:\/\/secure.gravatar.com\/avatar\/f55fa0f6876adbcaa4272f62c56676798361db971060629ca7a8ec80da94f295?s=96&d=mm&r=g\",\"contentUrl\":\"https:\/\/secure.gravatar.com\/avatar\/f55fa0f6876adbcaa4272f62c56676798361db971060629ca7a8ec80da94f295?s=96&d=mm&r=g\",\"caption\":\"Ed Sohn\"},\"url\":\"https:\/\/abovethelaw.com\/legal-innovation-center\/author\/edsohn\/\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"alt.legal: Did A Little Data Governance Decide The Whole Election? - Above The Law's Legal Tech Non-Event","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/abovethelaw.com\/legal-innovation-center\/2016\/11\/10\/alt-legal-did-a-little-data-governance-decide-the-whole-election\/","og_locale":"en_US","og_type":"article","og_title":"alt.legal: Did A Little Data Governance Decide The Whole Election? - Above The Law's Legal Tech Non-Event","og_description":"Given how far we\u2019ve come, could Hillary Clinton in 2009 really have seen the risk of this coming?","og_url":"https:\/\/abovethelaw.com\/legal-innovation-center\/2016\/11\/10\/alt-legal-did-a-little-data-governance-decide-the-whole-election\/","og_site_name":"Above The Law's Legal Tech Non-Event","article_published_time":"2016-11-10T22:45:43+00:00","author":"Ed Sohn","twitter_card":"summary_large_image","twitter_misc":{"Written by":"Ed Sohn","Est. reading time":"7 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"WebPage","@id":"https:\/\/abovethelaw.com\/legal-innovation-center\/2016\/11\/10\/alt-legal-did-a-little-data-governance-decide-the-whole-election\/","url":"https:\/\/abovethelaw.com\/legal-innovation-center\/2016\/11\/10\/alt-legal-did-a-little-data-governance-decide-the-whole-election\/","name":"alt.legal: Did A Little Data Governance Decide The Whole Election? - Above The Law's Legal Tech Non-Event","isPartOf":{"@id":"https:\/\/abovethelaw.com\/legal-innovation-center\/#website"},"primaryImageOfPage":{"@id":"https:\/\/abovethelaw.com\/legal-innovation-center\/2016\/11\/10\/alt-legal-did-a-little-data-governance-decide-the-whole-election\/#primaryimage"},"image":{"@id":"https:\/\/abovethelaw.com\/legal-innovation-center\/2016\/11\/10\/alt-legal-did-a-little-data-governance-decide-the-whole-election\/#primaryimage"},"thumbnailUrl":"","datePublished":"2016-11-10T22:45:43+00:00","dateModified":"2016-11-10T22:45:43+00:00","author":{"@id":"https:\/\/abovethelaw.com\/legal-innovation-center\/#\/schema\/person\/7ca93136aa966020f559501bf9b5285d"},"breadcrumb":{"@id":"https:\/\/abovethelaw.com\/legal-innovation-center\/2016\/11\/10\/alt-legal-did-a-little-data-governance-decide-the-whole-election\/#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/abovethelaw.com\/legal-innovation-center\/2016\/11\/10\/alt-legal-did-a-little-data-governance-decide-the-whole-election\/"]}]},{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/abovethelaw.com\/legal-innovation-center\/2016\/11\/10\/alt-legal-did-a-little-data-governance-decide-the-whole-election\/#primaryimage","url":"","contentUrl":""},{"@type":"BreadcrumbList","@id":"https:\/\/abovethelaw.com\/legal-innovation-center\/2016\/11\/10\/alt-legal-did-a-little-data-governance-decide-the-whole-election\/#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/abovethelaw.com\/legal-innovation-center\/"},{"@type":"ListItem","position":2,"name":"alt.legal: Did A Little Data Governance Decide The Whole Election?"}]},{"@type":"WebSite","@id":"https:\/\/abovethelaw.com\/legal-innovation-center\/#website","url":"https:\/\/abovethelaw.com\/legal-innovation-center\/","name":"Above The Law's Legal Tech Non-Event","description":"A Legal Tech Adoption Guide For Perplexed Lawyers","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/abovethelaw.com\/legal-innovation-center\/?s={search_term_string}"},"query-input":"required name=search_term_string"}],"inLanguage":"en-US"},{"@type":"Person","@id":"https:\/\/abovethelaw.com\/legal-innovation-center\/#\/schema\/person\/7ca93136aa966020f559501bf9b5285d","name":"Ed Sohn","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/abovethelaw.com\/legal-innovation-center\/#\/schema\/person\/image\/","url":"https:\/\/secure.gravatar.com\/avatar\/f55fa0f6876adbcaa4272f62c56676798361db971060629ca7a8ec80da94f295?s=96&d=mm&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/f55fa0f6876adbcaa4272f62c56676798361db971060629ca7a8ec80da94f295?s=96&d=mm&r=g","caption":"Ed Sohn"},"url":"https:\/\/abovethelaw.com\/legal-innovation-center\/author\/edsohn\/"}]}},"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/abovethelaw.com\/legal-innovation-center\/wp-json\/wp\/v2\/posts\/1443","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/abovethelaw.com\/legal-innovation-center\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/abovethelaw.com\/legal-innovation-center\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/abovethelaw.com\/legal-innovation-center\/wp-json\/wp\/v2\/users\/671"}],"replies":[{"embeddable":true,"href":"https:\/\/abovethelaw.com\/legal-innovation-center\/wp-json\/wp\/v2\/comments?post=1443"}],"version-history":[{"count":0,"href":"https:\/\/abovethelaw.com\/legal-innovation-center\/wp-json\/wp\/v2\/posts\/1443\/revisions"}],"wp:attachment":[{"href":"https:\/\/abovethelaw.com\/legal-innovation-center\/wp-json\/wp\/v2\/media?parent=1443"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/abovethelaw.com\/legal-innovation-center\/wp-json\/wp\/v2\/categories?post=1443"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/abovethelaw.com\/legal-innovation-center\/wp-json\/wp\/v2\/tags?post=1443"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}