Page 13 - January 2019 | Cleveland Metropolitan Bar Journal

CRIMINAL LAW

and vendors? Does a normal disclaimer
or electronic terms and conditions page
insulate the company? These are the difficult
questions clients face as they confront charges Michael Jackson, Retired Judge
of fraud and misrepresentation. Although
most vehemently maintain that all customers Cuyahoga County Court of Common Pleas
were clearly warned of risks and rewards,
the government naturally errs to the side of
customer protection.
The obstacles in place with these types of
cases are a different animal from those that an Mediator / Arbitrator
attorney may face in the traditional criminal
defense world. One of the primary and earliest Private Judge
issues that arises concerns jurisdiction. Due to
the long and far reaching arm of technology, 216-280-5502
these cases implicate law enforcement agencies
in numerous parts of the world. The employees, mej@wowway.com
locations, and physical data may be located
thousands of miles away from one another
and, more importantly, from the attorney’s
office. Undoubtedly, geography is challenging, Business / Public Sector
particularly for small and solo practitioners.
Often, the servers, platforms, and physical Malpractice / Injury
hardware in which data and evidence are stored Labor / Employment
may be in the control of a foreign entity or an
individual that has no obligation—or desire—
to turn it over. This jurisdictional element can
make obtaining the physical evidence difficult
when the United States’ affiliation may be only
as the charging entity. Obtaining the evidence
may involve extensive travel across the globe to relevant evidence. The sheer volume can Despite the challenges and obstacles, modern,
obtain the data necessary to prepare a defense. be overwhelming. The amount of data and tech-based cases allow attorneys to be at the
With binary option trading, brokers may be evidence in these cases is tremendous— forefront of an emerging and exciting area of law.
using platforms owned by foreign companies enough to fill an entire conference room from Moreover, because successful representation will
with no obligation to cooperate with the United floor to ceiling. As soon as the government often require presenting complicated technology
States government. This can, and often does, turns over terabytes of data, the task of in an understandable format, younger
make obtaining physical evidence and witness sorting through discovery becomes a much practitioners may have a unique advantage
evidence more problematic than in traditional more complex one. For clarity, a terabyte is over more experienced counsel. No attorney,
criminal cases. defined as 1,000 gigabytes, or in other words, especially young attorneys, should be afraid to
Another jurisdictional challenge in it would take 1,498 CDs to hold one terabyte dive into this practice area. Instead, they should
these cases comes by way of witnesses. The of information. In such cases, additional see this as an opportunity to alter the course of the
subpoena power of a defense attorney may manpower and financial resources must be law as it is being made. However, a bit of advice
no longer be nearly as effective in cases where allocated to this process. for those that take the plunge: tread the high tide
the potential witnesses live thousands of miles Not surprisingly, the overall cost to of tech with immense focus and unwavering
away in countries that do not recognize the effectively defend a tech case of this nature caution as the obstacles will be fierce.
authority of a subpoena emanating from the can be quite substantial. Major expenses
United States. Now, an attorney faces the harsh tend to include experts in the specific area of
reality of telling his or her client that their technology, travel expenses to meet with distant Madelyn J. Grant is an associate
employees and/or customers in these foreign witnesses and employees, resources to store attorney at Friedman & Nemecek,
countries may not be able to assist them in and sort through mass amounts of data, and L.L.C. Her practice is focused on
court, corroborate their version of events, or the costs commonly associated with litigation defending against complex cybercrime
otherwise provide information that is vital to of a case (e.g. motion practice, hearing and allegations throughout the United
the defense of the case. trial preparation, etc.). Additionally, due to the States and abroad. She co-teaches Cybercrime at the
After an attorney overcomes the obstacle complex nature of these cases and the amount Cleveland-Marshall College of Law. She has been a
of securing physical data located in various of data involved, they tend to take much longer CMBA member since 2018. For more information,
parts of the world, the next challenge becomes to resolve, which increases the overall costs Madelyn can be contacted at (216) 928-7700 or
understanding how to sort through the and expenses. mjg@fanlegal.com.
January 2019 Cleveland Metropolitan Bar Journal | 13