Deposition results

My Quote of the Day for yesterday was Sean wishing me “good hunting” in the deposition. That was very nice and even encouraging. But either Sean was unaware of the roles being played or he was supremely confident of my abilities. I was being asked questions for hours. I was the hunted, I was not the hunter. I’m certain that is how the PNNL lawyer saw the game being played. I viewed it as just a swamp I had to cross to get to the meadow on the other side when we can start doing our own hunting.

In a book I read about employment law and wrongful termination lawsuits the author, a lawyer specializing in employment law, said dispositions were the worst part. You are made to feel like crap. It’s the job of the opposing lawyer to do that. It’s distasteful and he couldn’t imagine anyone feeling good about things when it was over. My lawyer wasn’t that negative about it. He said I should be myself. I should tell the truth not only because it is legally required of me but because of the impression one makes when they try to be something other than what they really are.

When my lawyer told me this I doubted that he knew what that really meant to me. But I smiled and said I would do that. This advice was consistent with what my friend Eric Engstrom told me. Eric testified for Microsoft in one the anti-trust lawsuits the DOJ brought against them. Exec after exec testified and one by one the DOJ lawyer tore them to shreds. While Eric waited his turn to testify he made numerous trips to the bathroom and vomited. When Eric got on the stand he didn’t hold back. He didn’t try to conceal, give partial answers, or put a spin on things. He was blunt, he was outrageous, he was Eric Engstrom in his most candid and natural form. The same Eric Engstrom who once said to me, “I will consider myself rich when I’m standing on the moon with the sunlight reflecting off my visor as I’m looking at my initials carved into the soil. They will be big enough and deep enough that when people on the earth look up they can see I was there.”

The day after Eric’s testimony the newspaper articles told of Eric being the “white knight” that rode to the rescue. Eric told me that after the first couple of questions he had fun. It was something like “Whoo hooo! Can we do that again?” And they would. The lawyer who had littered the landscape with the bodies of Microsoft executives keep pitching what he thought were hardball questions to only have Eric do a line drive with them straight into the lawyers forehead. The court audience was laughing, the judge was laughing. Everyone, except the DOJ, was laughing.

Eric has a multiple IQ point advantage on me. In private we are probably both equally outrageous. In public Eric keeps it much more under wraps than I do. I, almost for certain, had a larger attack surface for my opponent to work with than Eric did. But my lawyer opponent isn’t the DOJ’s finest either.

I think it went well. As Barb and I lay in bed tonight and she went to sleep I keep going over and over in my mind how things went. Good, I think. Maybe even very good. There was that one time when I knowingly told a fib (by my definition, probably not in the legal sense). I just wasn’t sure how else to handle it. I’ll explain. Ignore the following techno babble unless you are a geek or one of PNNL’s lawyers who needs to read my blog as part of his or her job.

I was asked how I deleted the images of the PNNL hard disk I created on my own computer with the DVDs they gave us. They later demanded we give the DVDs back and delete any copies made. I told them I used a DOS prompt and typed “rd /s “, waited until it had finished removing all the files and all the subdirectories, I then ran a disk-wipe program that wrote zeros over the entire empty space on the hard disk. This latter step would assure that even a sector-by-sector read of where the original information would come up zeros. My opponent asked something to the effect, “So is there anyway that information could be recovered?” He asked an absolute question, my lawyer told me to interpret the questions literally, I was in full literal mode. I said, “It’s virtually impossible.” I had blurted out the truth and I knew he would jump on it before I finished saying it. Perhaps I could have said it differently, but I didn’t take the time to think about it. My mistake. I was also told to take my time before answering. He came back with “VIRTUALLY impossible? So it could be recovered in some way?” I then had to explain. I believed that the NSA has the equipment and skills to still recover the data. Perhaps some other agencies. It requires going down to the analog signal level and recovering the entire waveform of the magnetic field. It supposedly is possible to recover the lower level signal of the original data for some time after it has been overwritten. He asked if I had the capability to do that. I told him no. It was beyond my capability. That true answer depends on your definition of “capability”. I had some choices in answering that question. I could ask him for his definition of capability. Did he mean technical capability given a year or two of time and a couple $100K in equipment, racing against the time when the original signal on the hard disk would be completely faded into the noise? Given the ramp up time on my analog signal processing skills (I already have a MSEE but it would take some time to get back up to speed) and the required equipment did I think I had the capability to win the race? The most truthful answer is “Maybe”. It would be tough, but there is a non-zero chance I could do that given the procedure I had followed in the deletion. If you definition “capability” as me currently having the skills, the time, and the equipment to recover the data then the answer I gave is correct. I decided that I would take the risk–I would define “capability” in the manner that would put an end to this line of pointless questioning rather than prolong it without benefiting anyone except the lawyers sitting there getting paid by the hour.

As I lay in bed mulling the above issue over I realized that though I thought I was being somewhat evasive at the time I probably was actually telling the truth. I had forgotten that every Friday night my hard disk is automatically defragmented. During the week there are lots of additional files created and deleted as I compile programs, work on my websites, edit pictures, RIP music, download new audio books, etc. The new files and the deletions of files causes fragmentation. The defragmentation every Friday night physically moves data around on the disk. It temporarily moves parts of files to distant places on the disk to make room for a complete file in the now open spot. It move the temporary parts back into a position where it is contiguous with the rest of the file. The original magnetic image of their precious hard disks has already been at least partially overwritten with unknown and unknowable data. It has been scrambled far worse than I what I originally did. Each week more of it gets overwritten and more scrambled. I don’t believe I could recover it even if I had all the equipment right now. I certainly couldn’t recover all of it.

Other than worrying some over the above issue it was a fine day. No real surprises for me. He asked a lot of questions that I thought were pointless. In essence there was a lot of me saying “Yes, I did that, so what?” and “Yes, I wrote that, and your point is?” I suspect my opponent was surprised a time or two. But it’s tough for me to read people so I don’t want to claim I won any “points” unless he actually concedes them–which he did not. He was doing his job and I think he did as good a job as he could given the material he had to work with. I didn’t really notice my own stress until meal time. My appetite wasn’t quite normal. Not nearly as bad as putting on a Boomershoot, but it was noticeable.

Although it will be a while before I get to actually hunt, I should be able to acquire my hunting license by tonight.

3 thoughts on “Deposition results

  1. Just so you know, your agita excepted, I’m loving this. Can’t wait to hear more. As Simon Templar once said to Patricia Holm, oh, how I love to see the ungodly brought low.

    M

  2. If the overwrite issue really bothers you that much, buy a new HD, and move your data to it.

    Take the old HD out to the range, shoot it a few times, and mail the remains to the PNNL lawyers.

  3. Pretty sure that your disk wipe was more than sufficient to comply with DoD regs. If he wants to argue that you ‘lied’ because your high standards make you far more demanding than your former employers whom he represents, well, then, he’s too dumb to be allowed membership in the Bar… I’m sure your lawyer will tear him a new one if he tries. Glad to see you’re one step closer to getting your day in court.

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