By Larry G. Johnson, Esq.
While the "paperless office" has been an ever-elusive goal of information managers for years now, we all know the truth: we are awash in paper like never before. In the litigation environment, paper - tons of it - remains a mainstay of pretrial discovery. Soon, "smart" paper - paper embedded with invisible information that can tell you a lot about a document, such as its author and machine of origin - will make paper even more important in the discovery process.
For many big-case law firms, "electronic discovery" still means basically: scanning paper into graphic images (e.g., TIFFs or PDFs) and extracting text with Optical Character Recognition software (with varying degrees of success), often even when the same content is available in original digital format with 100% of the text intact. And after the paralegals and associates have coded relevant documents using computers (typically with software like Summation, Concordance or Ringtail), how do the litigators want to see the distilled results? For most: on paper, of course! Three-ring binders upon three-ring binders of the stuff!
I often chastise lawyers for favoring paper printouts over the digital originals with their useful metadata plus easy portability and text-search capabilities. But now lawyers may have a good reason to want production of paper evidence as well as computer-generated files. Because documents, especially those created by color laser printers, and paper soon to arrive with tiny embedded Radio Frequency ID (RFID) chips, have or will have significant evidentiary value.
Let's look first at what you probably already have significant amounts of in your office: printouts from color laser printers (many now being sold well below $1000). Did you know that these printers print a unique serial identification code made up of almost invisible, tiny yellow dots on every page printed?
Manufacturers of color laser printers like Xerox and Canon agreed to help governments fight counterfeiters by incorporating a unique ID generator in each unit sold. According to an article hosted at PCWorld.com, "the millimeter-sized dots appear about every inch on a page, nestled within the printed words and margins. 'It's a trail back to you, like a license plate,'" according to a Xerox spokesman. "One way to determine if your color laser is applying this tracking process is to shine a blue LED light - say, from a keychain laser flashlight - on your page and use a magnifier."
In their efforts to co-operate with law enforcement, manufacturers maintain databases of the unique serial numbers so that they can be matched with any document produced by a specific printer they have sold. So far, it appears that this co-operation has been extended to law enforcement agencies only, but there is no statute or other legal proscription to prevent enterprising lawyers from getting the same data through the civil discovery process. The implications are huge: a color laser-produced document can be tracked to a specific printer source, and from there to the person or limited number of persons whose computer outputs to that printer.
Radio Days Via Paper
Even more portentous will be the eventual business use of "smart" paper using RFID or RFID-like technologies. RFID tags are already being put to massive use by such giants as Wal-Mart and the Department of Defense. At a cost of pennies apiece, an RFID tag is typically a tiny chip that is manufactured with a unique embedded number (Electronic Product Code, or EPC) and equipped with a very small antenna that will broadcast its number to an RFID reader nearby. The reader can link the RFID's unique number to a database which contains information about the item. Unlike bar codes that have to be individually read by a laser device pointed at it, RFIDs are activated by radio frequencies and "announce themselves" to the reader, not unlike the way a radio works. Thus, for example, a person with an RFID reader can walk past warehouse shelves full of RFID-tagged merchandise, and after one pass one can know how many items are on those shelves, what they are, who made them, when they were shipped, expiration dates, and so on.
The recently adopted universal standard for the Electronic Product Code used in RFID tags, by the way, makes it possible for the generation of billions upon billions of unique numbers for billions of mass-produced items. The 24-digit hexadecimal number system guarantees virtual inexhaustibility.
There are also tiny RFID chips that can be programmed with small amounts of information, essentially EPROMS, so that a link to an external database is not necessary. Example applications include bracelets or under-skin implanted chips in humans with data such as medical history and medications, or in pets with owner information.
Now imagine paper with embedded RFID tags unique to each piece of paper you buy, where the tags in the paper can either link to a database with all the digital metadata automatically captured (plus, optionally, other data), so a permanent record is instantly made between a piece of paper and its computer origin. The implications for records management and pretrial discovery are obvious.
Sound far fetched? Well, here is a press release from a Japanese paper manufacturer that was published on its web site on November 10, 2004:
"Japanese company Oji Paper announced November 8 that it has jointly developed technology to embed semiconductor chips in paper during papermaking processes. According to the JCN network, the embedded chip is 0.5x0.5mm and comes with a built-in antenna for wireless transmission at frequencies of between 13.56MHz to 2.45GHz. This breakthrough technology enables mass production of chip-embedded paper."
It's widely accepted that trial lawyers and their support staff spend some 90% of their time on discovery and motions related to it. With printed identifying codes already available from color laser printers, and with the advent of RFID chips embedded in paper, the terrain for discovery and digital data management has gotten a whole lot bigger.
Chip-Embedded Paper for Wireless Transmission, http://www.physorg.com/news1917.html
Government Uses Color Laser Printer Technology to Track Documents, http://news.yahoo.com/news?tmpl=story&cid=1093&u=/pcworld/118664&printer=1
Dutch track counterfeits via printer serial numbers, http://www.pcworld.idg.com.au/index.php/id;1002274598
Beyond the Bar Code, http://www.technologyreview.com/articles/04/12/innovation11204.asp
There's not a lot of middle ground on the subject of implanting electronic identification chips in humans, http://news.zdnet.com/2102-9584_22-5319869.html
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