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Will Using the Onion Browser = Adverse Inference?

I'm a big fan of the podcast, ESI Bytes. It's conducted by Karl Schieneman of Review Less, and covers all areas of electronic discovery. His frequent guest is Judge Facciola, a recently retired magistrate for the District Court for the District of Columbia. Judge Facciola issued well known opinions in United States v. O'Keefe stating that the Federal Rules of Civil Procedure could be referred to for the handling of ESI in criminal cases, and emphasized the importance of having a sound methodology for keyword searching. A very interesting question was posed to the Judge during a recent podcast on "Big Dark Data and the Criminal Internet; eDiscovery's Next Frontiers". He was asked if the mere use of an anonymous browser such as Tor (The Onion Router - which often used to make illegal transactions online) within a corporate environment where it was not standard business practice to use one was sufficient to give rise to an adverse inference in and of it self, and if it was up to the party that had used the browser to justify its use, and provide access to the data from its searches. The Judge responded that this was a responsible way to look at the problem. [See around the 59:00 point in the podcast]. I could be wrong but a search through the K&L Gates Electronic Discovery Case Database does not indicate there is much case law on this issue. I bet there will be soon . . .

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