November 4, 2025 | Data Exposure
Metadata, Murder, and Media: Digital Evidence on Trial
Host: Jenny Hamilton, General Counsel, Exterro
Guest: Jeffrey Mayer, Partner, Akerman LLP
The Karen Read murder trial gripped the nation with its dramatic allegations—but behind the headlines, it was digital evidence that took center stage. From text metadata to mobile tracking and surveillance video, forensic data shaped both the legal arguments and the media narrative.
In this episode of Data Xposure, host Jenny Hamilton, General Counsel at Exterro sits down with Jeffrey Mayer, Partner at Akerman LLP to unpack what this high-profile case reveals about modern data risk. They explore how preservation missteps, investigative decisions, and public scrutiny can expose gaps—not just in legal teams, but across security and IT as well.
This case is a powerful reminder: when digital evidence goes public, your systems, processes, and people better be in sync.
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Episode Transcript
Jenny Hamilton
The Karen Read case may look like a true crime headline that at its core, it's a data story. What happens with digital breadcrumbs become the most persuasive witness in the room. I'm Jenny Hamilton, general counsel at ero, and this is Data Exposure. Today I'm joined by Jeff Mayer, a partner at Akerman, LLP, and a seasoned trial lawyer who spent his career in the courtroom, not just the conference room. Jeff seen how technology has transformed the practice of law sometimes for the better, sometimes in ways that make getting to the truth harder, not easier. We're looking at the courtroom drama and the Karen Reed trial through the different lens, an in-house corporate one, because the same questions that define the trial, the data, who owns it, who controls it, where is it, how do you interpret it, show up in every organization that faces digital efforts under pressure. So Jeff, before we get into the case, give us our listeners a sense of your background because you're a litigator's litigator, I'd love to know what kinds of cases have defined your practice and how do you think about evidence?
Jeff Mayer
Sure. Well, I've always been a commercial litigator since law school as my core activity going a courtroom representing businesses in court, so that includes all kinds of cases, contract cases, a lot of cases with a scientific element to them or statistical element to them. So broken appliances, software cases, cases about brittle steel in the automotive industry, vinyl materials as well as less sciencey type of cases involving insurance or antitrust or other things. I've also done quite a bit of pro bono work or work outside that core in criminal law, either as an appellate lawyer or as a volunteer lawyer. And I've also more recently spent a lot of time representing mostly women, not only women who have been, in our view wrongly cited by the local child agencies for abuse and neglect. And so that usually results in a short administrative hearing and we've had a lot of success on that. So mostly commercial, lot of focus on science and the intersect between science and the law, but hopefully some other experiences as well.
Jenny Hamilton
I know you've also followed the trajectory of digital evidence and how it affects what happens in the courtroom. You followed the cases, sanction cases specifically on spoliation and tracked the federal rules of civil procedure, how they've changed the electronic discovery practice, if you will as well.
Jeff Mayer
Sure. I mean, that's sort of swallowed up a lot of our time that we didn't take any time on early on. I mean, when I first started about giving away what year I graduated, the typical thing was the partner would order us into a giant room and fumble through boxes, which never happens anymore. And now we spend most of the early part of the case on digital evidence. Even on a small case, there's all types of evidence that's out there. Emails, obviously, everybody has a phone with text messages, social media plays a big role, and then all types of stuff collects data. Now. I mean, we know your old former employer, Deere based itself, a data company in many ways with all its farm equipment collects data that's not just unique to Deere, it's many companies are collecting data all the time, supermarkets, restaurants, wherever you are, there's data hidden somewhere in the company and the lawyer has to find it. And so we have to figure that out early on and it's pretty time consuming, but it pays off
Jenny Hamilton
And we'll talk some more about how it pays off in this case, in this context, and then as applied to our work in house. So let's talk about the case. When it first hit the headlines, what caught your attention?
Jeff Mayer
Well, I tend to think everybody's innocent in the news. I mean, our country has a long history of injustice, and so there've been many, many cases over the years where people have been wrongly accused and let go. And there's been a big intersection between science and finding people who are innocent and freeing them from prison. You think about all the junk science that we've seen, bite experts who've put people in prison or on death row. Many people went to prison for fake fire science. People would come in and almost like reading a Ouija board would read the burn marks and say, this must be arson. And people went to prison for that for a long time. And so I've always followed, not really professionally, no one's paid me to do it, but where are we on people who are wrongly accused and what is the justice system doing about it?
So I kind of keep an eye out for that kind of stuff, and Massachusetts has had a problem with that. You have the kid at MIT was accused of stealing scientific articles and then killed himself. You had a US attorney who did all kinds of civil forfeiture stuff. So when this case came up, there's something about it. Why wasn't in the news if it was just a hit and run, which is what it was portrayed as early on, why was it around? I mean, you wouldn't normally hear about a hit and run from a long time away. So it kind of caught my eye and then more and more stuff kind of turning up and I began following it. Now, just a quick disclaimer, there are people who follow this case seven hours a day. I mean, who know every little detail of the case.
I've seen the testimony, at least clips of it, and I've read some of the motions. We may get some things wrong here. We're not trying to be the experts on the case. We're trying to look to less so if anyone's listening, you've got something wrong, tell us, but be nice about it. Be kind because there's so much information. In this case, there have been one criminal trial, a second criminal trial, a civil trial, various other spinoff trials for people like bloggers or witnesses or other folks that unless you're really full-time studying it, you're going to get some things wrong potentially and hopefully won't do that. But again, be kind on that front.
Jenny Hamilton
That's our article. That's what
Jeff Mayer
Caught my eye is why was this a case in the news? And then as information started coming out, it just didn't sit right, it didn't feel right. So I started following it and trying to get to the primary sources, which I typically try to do with a case like this that is the motions that are filed. See if you can actually see some of the testimony, read some of the testimony, read some of the rulings to get a sense of is it a case of injustice or just another case of that's tragic but not that interesting from a sense of is the system doing the right thing?
Jenny Hamilton
And it really blew up on social media, right? You had sent me some tiktoks and like you mentioned, there's a social media component to this that made this take on a life of its own. I have seen a lot of it, but I haven't listened probably to as much trial testimony as you so mention.
Jeff Mayer
Yeah, it's a tragedy, Jenny. I mean that's really, but question is why is it a tragedy and what are the people in the area doing about it? Is it a coverup? Is it a broader issue of justice in Massachusetts? So that's really what caught my eye about it, and that's why it's an important case.
Jenny Hamilton
And in fact, it started off as this local tragedy as you mentioned, and then social media turned it into something bigger. Now you have police officers, bloggers, everyday people who are picking it apart and looking at tiktoks, creating tiktoks, creating timelines. And then I realized it was a big deal when I was actually going on site to visit a longstanding client of ours and one of the leads for the IT team was on the phone when we walked in the building together for our meeting. And I asked her what's going on? And she said, oh, I'm listening to the Karen Retrial. I'm listening to the mobile device testimony, which we'll get to and in, she spent a lot of time when she wasn't in meetings following that because it does have implications for our work if this is a specialty that you practice in. But it was interesting how everyone became this digital forensics expert all of a sudden, and we'll look at some of the things that were more important in these discussions. One of the central facts was for Reed to have any liability for this supposed hit and run. Then her boyfriend, John O'Keefe, had to be dead basically by a pretty specific timeline. The specific time, which would be in your view, Jeff, what would that be?
Jeff Mayer
I think that the number that was put out at trial, it moves slightly, was 12:35 AM essentially, and this gets to some of the data, one of the pieces of data that helped her was the time that her wifi, home wifi connected to her cell phone. And then you can do basic calculations about how long it would take to drive from where the hit and run occurred to when that connection occurred. And so while you could bicker a little bit over that amount of time, it is a discreet amount of time. And so if he had passed away after the drive time could have started, then she wasn't responsible because the prosecution theory was that the impact was horrendous, that he effectively died immediately or was capacitated immediately. So if he's moving around or seen or there's no body there after that time period, then she could not have been responsible because the electronic evidence placed her back at the house some distance away. And so that a lot of the digital evidence is over that specific time before and after.
Jenny Hamilton
One of the things, and we've worked together a long time that I always appreciate about you is you do have a way of looking at all the different facts and the digital evidence in particular and zeroing in on things that are more dispositive. And in this case, there's so much context and really drama around what happens the night that he dies that that's hard to do. And I think that's lent itself to a lot of social media discussion and interest and intrigue. We'll come back to this fact that you're really zeroing in on as, Hey, this is really crucial. And we'll start with taking a step back, looking at the larger picture of what happened that night for people who didn't follow the trial and aren't very familiar with it. So it's a snowy night in January in suburban Boston, a group of off-duty cops, friends, spouses, they're meeting up at the local bar.
It's a lot of drinking. One of the police officers is John O'Keefe. This is Karen Reed's boyfriend, Karen Reed drives him there. And then later that night that she drops him off at this friend's house where the party continues and then in the morning he's found basically dead on the front lawn. People in the house seem apparently unaware of his death. And now Karen Reed's accused of manslaughter because she's running over him while she's backing up. There's damage to the car that seems to match the injuries. It looks like an open and shut case from that perspective. And then we get back to all of this other stuff, other drama, like she was fighting with him that night. She left lots of voicemails, angry voicemails for him. There seems to be some background drama between her and one of the other police officers that works with John O'Keefe and maybe some animosity there.
And a lot of people who they all know each other intimately well spend time together. And so against that backdrop, we look at when passes away the time of his death and is it really that simple that she dropped him off and they were fighting and she hit him with her car and then went home and he died out there in the snow. It gets more complicated from there because at some point local police start to recuse themselves. They decide to handle the investigation with this so-called independent state trooper Michael Proctor. Later he turns out to have personal ties to people in the house and the way he conducts the investigation and his bias against Karen Reed also comes out. And then there's a local blogger that you refer to name as Turtle Boy, which takes up Karen Reed's defense and he starts posting videos, interviews in his own theories. And now this is not just a trial, this is a huge movement to free. He
Jeff Mayer
Went to prison, turtle Boy was put in prison for at least two months by the locals for witness intimidation. And so he's on trial now. I think on some of the charges were dropped, but some are going forward as well. So he was a controversial figuring in his own right.
Jenny Hamilton
So how did that come about?
Jeff Mayer
Well, he was approaching the witnesses in the trial. I mean there are two backdrops here that are interesting. One is directly relevant to our discussion and one is important but not really relevant, which is the important backdrop is the local people there, including Turtle Boy and others believe that the whole system there is corrupt. We're not going to express a view on that. But that was driving them that this is just another example of the local authorities acting in a corrupt fashion and that's what drove Turtle Boy. So that is what got a lot of people worked up locally, and that's foot people. You have the police side, you have the non-police side saying you're corrupt. And then the police saying, no, we're good people. We save lives. And that really divided the community. And Turtle Boy was definitely on the side of, you guys are bad people and I can do anything.
I want to try to uncover the wrongdoing. The other aspect, which I think drove a lot of the interest is this could have happened 70 years. There's nothing really high tech about the death, right? 70 years ago they could have gone to a local bar, the Waterfall had some kind of feud, dropped her boyfriend off and run 'em over. And there's nothing, and I don't mean this negatively, there's nothing really special about the people involved in the sense of that they're not secret agents or strapped up with special devices. And yet the simple interaction generated vast amounts of data. So you have to say, okay, is all interactions like that is every single case, every single situation like that. It just so happened that the publicity here and the fact that out of state LA attorneys got involved and other things happened that provided the defendant the resources to dig up all this data. But I think also that's what generated interest was people realized, wow, even this interaction, which tragic was ordinary and not high tech, it was just arguably drunk girlfriend runs over drunk boyfriend after fight, or alternatively drunk boyfriend goes into house with other drunk people and there's a fight and he dies and stumbles out in the cold or something similar. But people realized I think that wow, we're really tracked that closely that just walking around at night drunk generates terabytes of data. So both of those things I think drove the interest.
Jenny Hamilton
Yeah, I love that thread. So let's pull on it. So in terms of data, we've got Apple Watch logs, wifi connections, the vehicle black box data.
Jeff Maye
Well, you've got the Apple Watch though. Apple watch is at least three kinds of data that turn 0.1, the clock two the steps. The defense said the Apple Watch showed the guy was walking around after the death date, death time. So if he was walking around and going into the house, which is what the defense said, then obviously she couldn't have run him over because her wifi connection, which is another source of data, was back at the house. And then there's a temperature sensor, which I wasn't aware of. And so that played into some of the medical testimony because if he was at a certain level of temperature warmer than you'd expect him to be, if you'd been out in the cold for seven hours, then she also couldn't have killed him. So you had the clock, you had the steps, you had the temperature on the Apple watch, you had the car entertainment system with its own data.
You had the car, and I'm not familiar with it closely, but it's some kind of cycling black box system. Every time there's a quote, significant event such as accelerating to 40 miles an hour, suddenly that gets recorded, but it's kind of incomplete data. It's not continuous and it's not necessarily time. So you just have a sequence like cycle 41, cycle 42, cycle 43. So there was this one cycle that the police were focused on, but no one could say when it happened. So that was another data. And then you had the home wifi hookup that clock, you had the entertainment system clock, which apparently differed from the Apple Watch clock.
You then had various webcams, some of which were enforced and not like there was a public library webcam between the house where John O'Keefe was found and the Karen Reed, John O'Keefe house where they lived together, which is always on apparently. But that night, for whatever reason, there was no footage of her driving by one way or the other. And then you had the Google searches, which are very interesting as well, which weren't directly relevant to his condition of his body, like the temperature or the steps or where she was like her entertainment system or her GPS or her wifi connection, but also shed light arguably on what was going on in the house. And then you had text messages between the people in the house in the middle of the night, why are they up if they're drunk and just came back from the bar calling each other. So each of these, I think they're eight or nine or 10 different clocks sources data about where all the people were, what they were doing. And this is in the middle of the night and that all had to be reconciled. So it's quite the job
Jenny Hamilton
And that's the job of a trial lawyer. So this is what you have to do in your own cases, whether it's quasi-criminal or it's a civil case or you're representing an organization. So what stands out to you in this list as a trial lawyer? What did you look for first?
Jeff Mayer
Well, two things that were most interesting obviously were his Apple Watch data. Was he walking around or not? As well as the Google search, the house long to die in cold. And the reason why those were both interesting is you think on the jury think that this is stuff that's ascertainable. Like a lot of us wear fitness watches or watches that have us walking around and there's a clock on our watch and we think, well, clock's pretty accurate. Is it off by a 10th of a second maybe, but it's not going to be off by five minutes. And then check your steps every day or your company checks your steps. So was he walking around or not past that time? And then the Google search issue it's called has long to die in cold. There was a typo instead of how long to die in cold, but one of the people in the house did a search called, has Long to die in Cold.
And she said she did it at seven in the morning after the body was discovered because Karen Reed asked her to do it. But the defense said the data said, well, she did it at 2:23 AM which would suggest that she was, instead of sleeping unaware of his death, was somehow aware of it because he'd been in the house and come outside. So again, I thought that was ascertainable. I mean, again, I don't know the ultimate answer to that, but you'd think that either of those two pieces of data along with the wifi connection would solve the case. If you know what time she was back at the house and his Apple Watch said he was walking around or walking into the house, she didn't do it. On the other hand, if his Apple watch stopped recording any bodily function at 1235 in the morning, then okay, she might have done it because that's when she was actually driving there and dropping him off.
And then for the Google search, the people in the house said, oh, we didn't know anything about it. It's mystery. We got up. It was very sad. He was dead on our front lawn. And so if they did the Google search at 2:23 AM as opposed to in the morning, then they're lying. They're all lying. Those two things struck me as ultimately, why don't we know the answer to that? Why do we having a trial on this that goes on for two months and millions of dollars? So does it cast out on all of our electronic evidence that each side had their experts, the prosecution had someone to say, oh no, the Google search was done in the morning. The defense said it was done that night. They had a bunch of testimony over exactly when the steps were and what they meant and how all the clocks were different.
And you're just left with thinking, okay, that's not even certain. We're surrounded by all this electronic data and we have to have a trial over stuff that our common sense would say, yeah, I did take about 8,000 steps today and I was in downtown Chicago or downtown Portland, but we don't know that apparently, or at least the court system lets us argue about issues that should be open and shut. I mean, for the Google search, it's kind of like, well, we just ask Google, right? Why didn't anybody ask Google? I don't know the answer to that. I talk with some people who used to work at Google who may or may not be my son, and he said, Google has logs on that, but they may not keep them. So I don't know the answer, but it's just very interesting as a trial lawyer, I'd say, why don't we win on that one way or the other? Why do we have to have a trial?
Jenny Hamilton
And I'm going to even take this out of the criminal context and take it out of the digital world. As I started practicing in the early two thousands where the cases weren't so focused on digital evidence, and it's still a lot of paper and a lot of witness testimony, and that was something that struck me right off the bat outside of law school, which is you can start to go through the discovery process and you can interview people and do depositions and you can start looking at the documents and you're never going to have all the pieces of the puzzle. And I think that's the thing where our expectations have shifted to the value of digital evidence, which is there's so much of it that surely we'll get to a point where we have a lot more pieces of the puzzle and more certainty and this will get easier.
And I think what's so interesting is this is 23 years after I had that moment of God, this is what makes this job hard, is there's too many missing pieces I thought that I would have access to as a litigator in the discovery process. And this is almost too much, right? There's like now we have this digital evidence, it's expectation that it's going to solve the crime and it's too much and there's still all this contradiction. And they also want to do a shout out to the in-house e-discovery teams because this is something they live every day. And you think that you solve one challenge and okay, now you have a way to find more pieces of the puzzle and streamline the job, and there's going to be some sort of certainty as to what happened when it happened, what happened, and you make progress and then there's something else that comes along or there's this conflicting evidence or you think it's going to be easier to collect something off of the intranet and produce and the challenge of it.
Or mobile phone, mobile phones. I remember being part of a teaching conference for federal judges to talk to 'em about mobile phone data. And it was a debate before we even got rolling about whether mobile phone data is relevant, every single case. And so you've got this issue and then the relevance issue, and then you have this idea of that people don't understand what's actually on the mobile phone and what's in the cloud. So you go down all these little detailed bunny trails and still may not get to the answer. So I just find that interesting. This case is a real example of that,
Jeff Mayer
That there's now, maybe it's a full employment act for electronic evidence experts and lawyers because you actually had people arguing over things that if you asked me before I read about this case, I'd say, well, yeah, the Apple Watch says you're walking around at one in the morning unless you can show me the Apple Watch is broken somehow, or someone corrupted the data that you're walking around at one in the morning, right? I mean, you're measuring your steps not doing something else. So the fact that you could argue about all these things and you couldn't figure it out. And going back to what you said, Jenny, when I was a clerk, I clerked the Arizona Supreme Court. And so one of the things that Arizona has and had at a rule is every capital conviction automatically is appealed to the Arizona Supreme Court. Every murder conviction goes to the Arizona Supreme Court for review.
You don't even have to appeal. And so those are people who are sentenced to death and people who are sentenced to life in prison for murder. And so as a clerk, your job is to read the transcripts first. No one else has looked at it there. No appellate briefs, no one telling you what's in them because it hasn't actually been appealed. You have to do the review briefs will come in later, but when it comes in, you got to read 'em. You're looking for things to tell the judge about. And what was odd about those with just what you said is you'd think having watched television shows about murder, that having read this entire file, things should be clear. So we had cases ended up being a published case where we reversed the conviction, but there was a guy who had best friend and his wife, and he always had a thing for the wife if that was the prosecution's theory, and she was found raped and murdered in their house on a Super Bowl Sunday.
He was convicted and sent it to death for this. And of course his stuff was all over the apartment, but the explanation there was he was their friend, he was there all the time, his fingerprints and everything, and we had a burn on his hand and she was found with a hair curler and some scratches on his arm, but he'd been in a Super Bowl Sunday party around the same time in a short sleeve shirt. And there like 30 people said, I didn't see any scratches on his hand. I didn't see any burns. He didn't look sweaty, he didn't look like he'd been driven all the way across Phoenix and then come back after murdering someone. So is that dispositive? No, but it's just troubling, right? It was always troubling that how could that happen? Do we have the wrong person?
And he was reversed because they led in testimony that she hearsay testimony from her before she died that said she was afraid of him. So that was ruled to be a six minute violation. But that was an example where you'd think you'd know he's got burns on his arm and he's got scratches on his arm and he always had a thing for her and was creepy around her, and her friend is saying she was afraid of him and his fingerprints are in the bathroom and his DNA is everywhere. And it's like, nah, there's still something that's not clear. And when someone sentenced to death, you're like, yeah, I better be pretty sure about what we're doing. So yeah, in this case, an example of that, why don't we know?
Jenny Hamilton
Well, and it seemed more certain in the first trial, right? There was a theory that it was pretty simple, like he mentioned in the beginning of the conversation that it was a hit and run basically. And he passed away because she hit him with her car when she was dropping him off at his friend's house. And yet the second trial, she was acquitted. And in part because there's so much contradiction of the evidence that seemed a little more clear the first time, and we've talked a little bit about all the different pieces of digital evidence that led to this doubt that maybe it was the second theory, the defense theory, that there something else happened to him in the house and then he went outside for whatever reason and passed away in the yard. And so I think about, well, how did this case take that kind of turn?
What were the mistakes the prosecution made? And then what's the takeaway from that, whether it's a criminal context or a civil context. So I want to talk about some of those things, and I've kind of categorized 'em in four different pillars. One is the technical competence of the legal team in these digital heavy cases. You've also got the process, the process by which you collect your evidence and process your evidence and what mistakes were made in the process. And then you've got the technology piece of it that we've already touched on. That's a key pillar in any of these cases, the technology and understanding them. And then I'm going to push on a little bitty, bitty tiny area of electronic discovery law, which is actually substantive area of law, which is preservation of the evidence. You could consider that part of the process, but the preservation piece here was pretty significant. So if you don't mind, let's talk a little about the technical competence and how that may or may not have played a role in the Karen Read trial.
Jeff Mayer
Yes. Well, first of all, you got to get a decent expert. I mean, the prosecution was utterly embarrassed at the trial because they put on an expert for one of their key points and his webpage said he'd graduated from college and had some other stuff, but mostly his college degree. And the defense got up and said, you didn't really graduate from college, did you? And he's like, well, no, not really. He had been on the nine year plan and nothing wrong with it, but don't put it on your webpage if you're an expert with a million people watching you on YouTube testifying live. So he is utterly humiliated. And then he told lie after lie after lie, including why he didn't get his degree. He said, well, I took these courses, but these weren't available. None of that was true. It was all just one lie after another.
So if you're the jury, you're just going to say, I don't believe anything This guy says he doesn't have the credentials he says he had. And then he lied about that too. So it was just humiliating. So that's sort of basic. Somebody on your team needs to be focused on these issues. It's unbelievable to me that you have a multi-person team in a case that's going on television and is probably the most publicized case of your entire life. And you don't know whether your key expert has a college degree or not. That's who you pick. So that's bad. And if you look at how the defense structured their team, again, they probably internally were very familiar with all the issues, but they had one lawyer who did all the expert stuff together, and he was able to integrate all his exams into one theme, which is she didn't do it.
You can't prove that she was where you say she was. And he got a lot of key concessions by comparing the different expert testimony from the prosecution. Like we talked about the clocks, the clocks all didn't match, so the timelines didn't match up, the timelines just didn't match up. And sure it was a minute here, a minute there, but this was a case where a minute mattered. And if they couldn't be careful about that, why should you trust them on anything else? The prosecution also was sloppy in ways you can't be sloppy on. We talk with lawyers about proofreading, but they had some timelines and they just had, the year wrong was obviously the year was wrong. They meant 2022 instead of 2023 or something like that, right? Just a typo. But they got grilled on that. And it's true, a woman's life is at stake, a man who may have been murdered by her, his search for justice, his family search for justice at stake, and to get the year right in your timeline.
I mean, that's not good. And so they lost a lot of trust with their experts, both because they didn't have enough of a coordination between the different reports and match them, and then they somehow forgot to check whether experts were competent or not, which it is hard to understand. Now, you could explain it away by saying maybe their case was so weak they couldn't get anybody who was capable to sign on, but giving them some benefit of the doubt that they believed in their case. You have to handle the basics of understanding the evidence and the different expert reports and how they fit together. And the defense did that, and the prosecution did not.
Jenny Hamilton
From my time in house, you had attorneys in particular who took a lot of ownership of understanding the basic technical issues when it came to digital evidence, the electronic discovery rules, which were changing a lot in the early two thousands, the effect on their case and the importance of being able to answer questions about how that evidence should be handled by the core team. So it made a big difference with the attorneys who really just, I felt like overly delegated to other people or the eDiscovery team and say, you'll figure it out. And then once in a while there'd be this great fact of digital evidence that you like, see this is why this matters, because this actually does tell the story of what happened and is dispositive. So when you get those wins, then the teams take notice. But a lot of it, I think they just either get overwhelmed or they feel like this is just something that can be delegated entirely to the other groups. And to have that level of coordination and engagement by one of the attorneys on the team, I think to your point, made the biggest difference.
Jeff Mayer
Yeah, it was obvious.
Jenny Hamilton
And that also is apparent early in the case too. So let's talk about preservation preservation's an area where, in this case, in the Karen Readtrial, you had a fair number of preservation issues. What was one of them that really stood out to you?
Jeff Mayer
Well, there are probably four interesting preservation issues including the dog. So I probably divide 'em up. They're the rogue witnesses who destroyed stuff, which really hurt the case and maybe does probably. So there's sort of stuff that wasn't collected or collected improperly. And then there's the dog, which is an odd preservation, but played an important role. So in terms of the destruction, which really to me dooms the case in my own heart, two of the people in the house were police officers. They had some kind of military connection. I don't remember what it was, but somehow they learned that they were going to get a subpoena for their phone or allegedly learned. But we do know the day before they were going to be served with a subpoena for their phone, they both drove to a military base and disposed of their phone in some kind of special shredding device that made it impossible to reconstruct the phone ever.
So why did they do that? Well, their explanation was I getting a new phone or I felt like it was time, it's just not credible. So maybe the stuff on the phone would put 'em in jail for murder. I don't know. But whatever it did after that point in my heart, I was like, if I were on the jury and the people on the house as they knew nothing about this event and were committed to justice for John O'Keefe drove to a military base to completely obliterate their phone the day before they were supposed to turn it over. I wouldn't believe anything they said. So how did the prosecution handle it? The people who were not corrupt, they let their people go rogue. And I don't know, no matter what else came out in this case, if I were on the jury, I would ever be able to convict her if people in the house did that. It doesn't follow the same thing with the dog. The dog's an odd thing, but he had his
Jenny Hamilton
Tell us what happened with the dog.
Jeff Mayer
So is poor. Mr. O'Keefe had scratches on his arm. And so there was a debate over whether that came from being hit by the car in his arm and from the taillight, which shattered or because he went in the house and the dog, which had been known to bite people, scratched him and bit his arm. And so the defense had someone who said, now those are dog bite injuries, and there's no way if a car hit his arm, it wouldn't just have scratches, it would be mangled. And the prosecution, someone would say, no, those are classic marks you'd get from being hit by the plastic on a cracked taillight on a car. And oddly enough, the family in the house, the same people who got rid of their phones, this was a dog they'd had for seven years. It was the family dog, I think it was called Phoebe, I can't remember.
But the day after this happened, they decided to rehome this dog and it went to somebody else. So nobody could ever check. And there were efforts made to track the dog down, but the paper record where the dog went were confusing. So people debated whether this German shepherd that they said was Phoebe, really was Phoebe. It was just odd, not only getting rid of the dog, but the fact that you couldn't find the dog again. But that was evidence. You could have then looked at the bite marks and looked at the dog's mouth, but the dog went away. Then there were the missing things like the webcam from the library. Where did that go? Why didn't the police go grab that right away? And then he said there was a process, and this isn't really electronic evidence, but it's emblematic after he died and was on the front lawn, stuff was collected in solo cups like blood samples and tissue samples rather than in evidence bags.
It's very odd, again, because what they had, so the lab tech was walking around with solo cups, with blood, his alleged blood in them, and they got crucified on the stand because that's not the process. The process would be to label it and put it in a bag and seal it and keep it. And so that stuff was actually never even tested. So all the stuff they said was blood. Nobody ever knew if it was blood or not. It could have been anything, right? Could have been grime or grit. So there was complete failure on the prosecution to preserve things, or even lately, we learned to understand what they had. So this guy, Proctor testified at the first trial, he was the lead investigator. He had terrible things on his phone about Karen Reed, including looking for her nude photos and saying she should kill herself.
And saying stuff like The people in the house won't get in trouble because they're cops. Just awful stuff. So actually he got fired after the first trial by the Massachusetts State Police for his work on the trial. And he went on a pity party and went on one of these news shows and said, that's not me. It's not me at all. I'm a nice person. I made some mistakes, use some int temperate language. He appealed his firing and then he just withdrew it last week because apparently told everybody, although everything on the phone was deleted, and so did the prosecution think that, but he didn't understand there was a thing called cloud storage because apparently all his text messages going back to 2013 have been saved in the cloud, which now they found, and now some of the law enforcement officers are going to turn it over to the court and it's going to impact not only the reed situation, but also many, many other cases.
But why didn't the prosecution know years ago that their lead investigator was conducting official business on his cell phone, that he had terrible messages, and then in fact, all of them were backed up to the cloud and they were never turned over in either of her cases or any of these other cases. So that's just complete failure in all these fronts of the prosecution to collect the dog, collect the text messages, know what's in the cloud, collect the webcam information, collect the physical evidence, all of it. It's just they had no attention to that. And assuming that she was guilty, and I don't believe that's true, but let's say she was, it would've been the failure to conduct preservation to me is permanently bars you from convicting her, even if there was more compelling evidence against her. When the dog's gone, the phones are gone, you don't have the cloud messages, the webcam is gone. How can you convict her beyond a reasonable doubt because you're missing evidence that would've helped her potentially. So yeah, preservation, and that's the first thing on your to-do list. And they didn't do it for years. So that was the problem.
Jenny Hamilton
And I can't speak to the criminal context, not the type of law I practiced, but in the civil context, we've talked about this in the past when you have looked at the sanctions that come out of a lack of process and preservation issues, and you've boiled it down into what are things you need to be thinking about doing in-house to stay out of this kind of trouble? And you've boiled this down in the past in terms of the process. And so what would you say is the key learning coming out of this for anybody who that's part of their job is to make sure that they're preserving data?
Jeff Mayer
I mean, you just have to make it part of your job description and put it number one on your list overall. I mean, it has to be the first thing you do because you can't fix it later.
Jenny Hamilton
And I think that,
Jeff Mayer
Yeah, I bill 'em with a job description. I mean, it has to be in somebody's job description
Jenny Hamilton
And it has to be in a lawyer's job description. The burden is on ultimately the attorney to, maybe they aren't the person who's taking all the steps to preserve, but they have a duty of oversight. And that's what the judge is expecting. Somebody who has a license is actually paying attention to what's being done.
Jeff Mayer
Yes, the lawyer has to do it, but not only the lawyer, there needs to be somebody. It can't be something that, yeah, it's not my job to do it. I actually have to have someone, in my view, if you want stuff done, you have to be in your job description. You have to be paid and evaluated on it. So if you do a good job, you get compensated and praised for it and good reviews. If you don't, you're accountable for it. But if it's not in anyone's job description, then it won't get done.
Jenny Hamilton
And I think that your point about the timing of it, that it has to be prioritized is the first thing you do and do it quickly. And something I've heard you say in the past is better done than perfect. So start early and take action. And then as you know more, you can preserve more, but you've got to start. You can't wait until the data may be gone. And then in terms of the process, I think about the lesson learned here is you can look at, you don't have to look at all the testing, all the evidence. You can see that there just wasn't a process. And again, I'm not talking about the criminal context, but in the in-house contexts in the corporate world, I think of it in terms of do I have a story to tell about what the process is? And again, to your point that I've heard you make in the past, it's not about telling a perfect story, but it's having a story that there is a process and there was an effort to follow that process.
Jeff Mayer
Yes, when we looked at all the cases for sanctions and think about the real world, we looked at dozens and dozens of cases in the past, not in the last two years, but in the past you and I did that. And we found that if you had a process and you were timely with the process and followed it in reasonable good faith, you never got sanctioned that those three things protected. You had to have something written down ahead of time and said, this is what we do when X happens. You had to start it when you're supposed to start it. And then if you did it, no one could go back later and say, well, you didn't collect such and such, so you're going to get punished in court. It just didn't happen. Someone fell down that either had no process or they waited or they just didn't take it seriously.
And those three things really protect you. And what I found is when you talk with clients who aren't skilled at this, the hard thing is to find somebody to care because it's always somebody else's problem. It's like, well, we need to do this. And then you end up calling it yourself with, and we haven't done it, why not? Well, I had this project and that project and something else, but this has to get done. Well, I can't do it in charge of the important upgrade on such and such and what we have to do it if there's somebody internally
Jenny Hamilton
About the job description,
Jeff Mayer
Yeah, somebody's got, it's got to be somebody who's like, not only am I the bad guy, if I do it poorly, I'm the good guy and I'll get raises and bonuses if I do it well. Right? You can't just make someone the scapegoat. You have to say, we are looking to you to lead this important process when it comes in. And if you do, that will be considered in your review and you'll be rewarded for it. I see other things in law, people who are discrimination training or people who have to do safety stuff. Most companies who have safety issues at work have somebody who is there, their job is safety. Their job is to keep a safe workplace and to be the pain in the ass who says, no, you can't have open electrical wires dangling in the men's room, right? That's unsafe or no, the ladders have to be new or whatever it is. And if the company has a safe workplace record, they say, you did a great job. You got a raise, you got a bonus, you got a promotion. And the same thing true with preservation, because it's going to cost the company reputation, money, who knows what else it might cost 'em intellectual property rights. If you get sued and you can't prove that this is your confidential information or that you can't prove that you developed the technology and whatever it might be, you could lose a lot. So just like a safety issue, somebody needs to be in charge of it or more than won somebody.
Jenny Hamilton
I mean, that was one of my key takeaways early on when this became an area of expertise, the electronic digital evidence that it wasn't going to work to do this part-time on top of other potentially higher priority responsibilities as seen by the company. So the company says you could handle product liability cases and this is your main job, and that's the priority. Maybe not a great analogy because electronic evidence and eDiscovery fits well with managing litigation and they're copacetic. And in fact, there needs to be the credibility to be able to build a program of eDiscovery that you've litigated cases and you understand the practicalities that your stakeholders like the litigators are dealing with so that they can't be completely upended by this new, fun, exciting area of law. But at the same time, there's an emphasis and a priority put on it. And there are a lot of in-house lawyers and legal professionals who support this work, who struggle when the company, when the doesn't put a job description it or recognize it and reward it as a priority because of the timing issue.
You can't do it later if you don't have the evidence later on, it got destroyed. There's a lot of things that don't work with the litigation process and can't be successful. So that I would wholeheartedly agree that at some point, if you have enough litigation or enough legal issues where you need this kind of information, you have no choice eventually. But to put a program around it and treat it like another type of job that, like you said, safety as something that's a routine issue that the company regularly faces, or eventually something is going to happen, and it may not be s, you may not lose the case, but you can spend a ton of money trying to fix a preservation issue in one case, and you just eventually get tired of that ad hoc, non programmatic, non-pro oriented approach. It wears people out. So on top of that, if you do keep your company out of trouble because, and you don't have a program, you get tired. It's total heroic effort all the time. And so that's where eventually companies who deal with these issues regularly who get burnt, tend to be more supportive if they're not already forward thinking about it, they tend to be supportive of, okay, we need to invest in this. We would anything else that could have an impact on the organization financially, legally, et cetera. Because there's just too much effort involved in fixing things on the backend and it can't always be done.
Jeff Mayer
Yeah, if you go back to probably the first lesson we're talking about with the Reed case is even what we consider uneventful or ordinary interactions, tragic or otherwise, produce terabytes of data nowadays. So you can be a small business with limited litigation, and you think of easy examples. You might have a claim of sexual harassment and maybe you have security cams and you don't preserve that footage and your person says, I didn't do it. Okay, the footage is gone. You might have a safety issue in terms of whether the security system was turned on. You can have a, I don't do this particular kind of work, but I know about these policies, you're you're supposed to only deliver cash at certain times with certain numbers of people when you leave a business. And maybe you don't have the record of when the security system was on or when people left or the logs when they left.
So you can't prove that they went with two people or three people similar items like that. And of course, every case now, even a small contract case has text messages. So there's a breach of contract, and the key people say they get to their deposition and say, yeah, I was texting about this with the defendant and they said it was fine with the text messages. I don't have 'em anymore. Okay. So you can't prove the most important thing that you have. So even small businesses or small cases raise this challenge of preservation because we all have data now if we're just walking around or talking with our business partners or whatever it might be, but we're being photographed where voices are being recorded, our watches are saying where we are, we're commenting on our obligations in real time, often in text messages. And so there are preservation issues, and that also ties to cost issues we haven't touched on either. But generally, I would say, as you're pointing out, Jenny, if you focus on preservation earlier, it's going to cost you less both in terms of the cost of preservation and the benefit you get in resolving cases.
Jenny Hamilton
And along with that, this work is getting so complicated that any more, you need access to technology. I remember that back in the day we were developing processes and that was great, but at some point you need to be able to go find the data and collect it. And what do you have to do that? And a lot of companies have developed their own workarounds or gap fillers, but at some point, if you have to do this enough times, then you need purpose-built technology. This is what it knows how to do, because otherwise you're going to get into those issues where you're not collecting things defensively, you're not able to prove your process is reasonable and defensible and repeatable, like the consistency piece as well. And there's so much of the logs that you've brought up in the Karen Reed trial that in the past we didn't necessarily have all that we call metadata or logs or audit trails of things to even access and use in court.
Now you need that. Sometimes you think it can hurt you, but there's so many cases now where you need that really granular level of information about what was done when. And that's where I think a lot of other companies struggle is that they try to add a hacket with the tech or build their own. And eventually, to your point about it, this is usually not their core job function. And they will find other things to prioritize, and they'll neglect the tools that you are depending on to get your job done, and then you're left holding the bag because,
Jeff Mayer
Yeah, I don't want to use the word neglect because people do what they're paid to do. I mean, you always see this at different organizations. It's like, why didn't you do this other thing that you're not paid to do because paid to do this other thing? Well, you should done this also. Well then why don't you pay me to do it? I mean, people, they work for recognition. They work for money. And if you don't put it in that box, I wouldn't call it neglect. What are the signals from the organization? What matters to the organization? And if nobody's responsible and nobody's paid for it and nobody's evaluated on it, but they're evaluated on whether or not they install the latest Oracle upgrade, or whether or not the executives mobile devices are working correctly or else get screamed at by the CEO from their vacation in Suriname, they're going to do the thing that they're told to do financially and organizationally first,
Jenny Hamilton
Or what they're worried about being screamed at about. So let's kind of transition here about the tech and how we see it shaping evidence going forward. So Jeff, looking ahead, how do you see technology reshaping the evidence? Now we have ai DeepFakes real-time forensics. Are we heading towards more clarity, more confusion?
Jeff Mayer
Well, I think as a general, the arc of justice bends towards truth. I mean, we saw in the past, I mentioned earlier, so many poor examples of science, so many miscarriages of justice. I think those have been limited by the new evidence and better evidence. So in that sense, yes, the new evidence is better in some theoretical sense for justice, and it's a good thing even if you have some confusion. But the problem is, and this is what you're touching on with the deep fakes ai, I think are twofold. One is cost. I mean, Karen Reed, her legal bills are $5 million. Why can she afford to do this? Well, because the attorneys from LA and other places have volunteered their time because they think it's an injustice. And also, presumably everybody thinks they're going to get paid in the end, the Karen Reed movie or bio, whatever. And so she can ultimately pay it
But what about for everybody else, even a significant company, every time you have terabytes of data, what do you do about it? So there's this cost issue, and related to that is a very difficult issue with the relationship between judges and juries. So I think most of the defense lawyers would judges to be more of a gatekeeper. The Daubert standard has been around for a while to keep out certain kinds of evidence, but a frustration I think and not with the judges themselves. I'm not criticizing the judiciary. They have to work under the standards that exist of why can't there be more control over what actually gets in front of a jury? Because do we have to try everything to the excess or can somebody just step in and say, yeah, this is insane. I don't care that some people think this might be true.
It's not enough. We're not going to try that. And that's what happens to arbitration. That's the goal of arbitration is maybe someone can just say, well, we'll just give ring to the arbitrator and we don't have to go through all that stuff, and they'll figure it out and they'll be logical and sensible about it. But it's a big issue because yes, I don't think people ultimately think it's impossible to detect deep fakes or fake evidence or manufactured evidence or things like that. It's just the burden of it. If you're in court and there's somebody like the guy without a college degree who shows up and says, yep, that's genuine, or it's partially genuine, or this is the actual time on the clock, and you tell your client, yeah, we're going to spend a million dollars on this case going to trial and to ask a jury to do such and such, they're just going to say, forget it.
Let's just settle the case. So we have to think about, in a very broadest sense, does all this new electronic information require different rules and standards? I mean, in a very small way. For example, it used to be that any release of privilege document was a waiver of privilege, but that proved impossible because we had so many documents. Everyone agreed, and now it's in the rules. It said, well, if I inadvertently release some privileged documents, I can bring them back unheard of 30 years ago. So it's the same thing going forward. Do we need a procedure, a practice, a way of dealing with these very expensive issues without going to the judgment in the case? Is that tightening the expert standard? Is it creating expedited processes or procedures? If you're dealing with electronic evidence, is it accepting for certain kinds of cases? We're not going to dig deep.
Do you really, on every contract case involving a hundred thousand dollars contract case, do we have to dig deep into everybody's text messages? Do we have to gather all the manufacturing data in every commission case? Do we need to get all the voice records of all the salespeople who may or may not have sold something? I mean, these are difficult issues because everybody who wants something and can fund it, whether on contingency or hourly or for pro bono, like with Karen Reed says, yeah, let's dig into everything. But on a day-to-day basis, that is an unacceptable answer for people. For companies, even really large companies, everyone operates under a budget. So I think ultimately we will get closer to accurate answers. How we do it, I think it's very open because the cost, the time, the burden is so great that it may itself interfere with the process when in fact, most of us would agree given true serum, that in a lot of cases all that doesn't matter. You can decide it on some other things.
Jenny Hamilton
I see that too with, again, going back to training the judiciary, that the cost to educate a judge on how to identify a deep fake or how to evaluate the credibility of evidence of where the data is in the cloud or on the phone. These are things that they're worthwhile investments in the sense of thought leadership and participating conferences and educating all the practitioners, how to zero in on what's actually relevant and dispositive and worth the time and effort and money, because otherwise, to your point, it easily spirals out of control like it did in the Karen Readcase. So it's ironic we have more data than ever, more ways to get it wrong, more expense, more burden that hopefully a more correct outcome. And this is where we got with our discussion, the care and retrial. So thank you for coming on. Thank you for sharing your expertise and experiences with us and how to make more sense of what happened there and how to apply it to our own practices.
Jeff Mayer
Sure. And thank you for having me on. I'll just say all my views, of course, my own, my firm has nothing to do with the Karen trial. We don't even have an office in Massachusetts. So my commentary is that of someone who's very interested in these justice issues as an individual. I'm not speaking for anybody else, and for all the Karen Reed people on either side, again, if you hear this and we made mistakes, be kind because we're looking for forward looking impacts, and we don't want to be confronted for all our errors on TikTok or anywhere else,
Jenny Hamilton
A burden with solving the case in every detail
Jeff Mayer
Of it. Well, I have my thoughts of what happened, but those will be kept to myself.
Jenny Hamilton):
Well, here's what stands out to me after this conversation is the case is not just about the tragedy in Boston, and it's about how fragile the truth still can be when it comes to data and outpacing the process, competence, preservation, process, technology. These are still the foundations in keeping lawyers in our companies credible when we're under scrutiny. And I really appreciate Jeff for taking us inside the story and reminding us that behind every headline, there's still evidence that has to hold up in court and in context.