Computer forensics

PCs are increasingly becoming a vital source of clues for solving today’s high-tech crimes

Think of a TV programme with a crime scene and there are usually some common components – a body, a bloodstained weapon and a couple of glasses covered in fingerprints for a murder, perhaps.

But what of the computer sitting in the corner? Could this contain evidence of contact between the victim and their killer?

Increasingly, you’ll see the computer bagged as evidence too, in shows like CSI or Without a Trace.

The relatively new field of computer forensics is, like other forensic sciences, becoming a popular area for study at the moment, and not just because of the TV. With virtually everyone using a computer, demand for forensic analysts and the availability of post-graduate courses for those who want to learn about computer forensics are both on the increase.

The use of forensic evidence from computers and other digital devices has become a common feature in investigating many crimes. No longer are computers simply seen as tools to commit a crime such as fraud; they can now bear witness to events leading up to other crimes, such as research and planning, or email exchanges between the suspect and victim.

The digital post-mortem In a criminal investigation, procedure and documentation are the two most important factors that determine how an examination is conducted. The forensic analyst works methodically through a process that can be split into four broad stages – acquisition, identification, evaluation and presentation.

Acquisition is concerned with the forensically sound capture and preservation of digital and physical evidence, which is paramount for the investigation. The computer and its hard drives are crime scenes in their own right and must be secured and preserved, so once the computer has been seized, every sector of the hard disk has to be captured to produce a forensically sound copy.

You can’t just rush in and connect the disk from a seized computer to a forensic computer to examine it – Windows may write data to the drive as soon as it detects it. The problems don’t stop there either; as soon as you access files or folders on the disk their associated Last Access dates and times will be updated, potentially destroying valuable information.

Even if this sort of mistake is avoided, there is a good chance virus checking software on the forensic computer will almost certainly try to check the disk, quarantining any suspect files it finds. To sidestep these difficulties, forensic examiners use a piece of equipment called a hardware write-blocker, which is designed to stop all write commands reaching the hard disk, effectively rendering it a read-only device.

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Source: itweek.co.uk

Most Businesses Have No Plan for Their Electronically Stored Information

Organizations are vulnerable to the new Federal Rules of Civil Procedure (FRCP) announced on December 1, 2006. "There are some aspects of the new e-Discovery rules that are positive, given the extremely ambiguous legal environment that exists for electronically stored information," says John F. Mancini, President, AIIM. "However, as is evident from results of our recent research, the expectation that the new rules create -- that organizations have control over their electronically stored information -- is problematic at best for most organizations."

As part of AIIM's mission to educate business and government end users, they are holding a free seminar on e-Discovery Tuesday, March 6 at the Sheraton Anaheim Hotel. This seminar will help organizations of all types and in every industry learn why a plan for electronically stored information is not only a necessity, but an imperative.

During the full-day seminar, attendees will be part of an interactive, virtual courtroom that will illustrate typical problems a business may encounter, how these issues could impact the e-Discovery phase of litigation, and what would happen if the organization were to go to court. This is an opportunity for attendees to benchmark themselves against their peers when it comes to information management and policies/practices that keep them in compliance. Case studies will be presented throughout the day and time will be allotted to visit with solution providers, talk to industry experts, and network with other local end users.

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Source: MarketWire

FaceTime Announces New e-Discovery Compliance Options for Search and Retrieval of IM, Web Conferencing and Chat Conversations

FaceTime Communications, the leading provider of solutions for securing and managing IM, P2P and Web-based greynets, today announced new capabilities to simplify search and retrieval of real-time communications for e-Discovery, and regulatory and corporate compliance regulations. With IMAuditor 8.5, companies can more easily and cost-effectively adhere to compliance requirements through multi-level auditing, role-based administration, and enhanced controls for electronically stored information. By partnering with major storage archiving as well as email compliance vendors, the FaceTime solution offers a significant cost savings through consolidation of logging, archiving and auditing using a single platform.

New Federal Rules of Civil Procedure that became effective on Dec. 1, 2006 require that organizations manage their data in such a way that it can be produced in a timely and complete manner when necessary during legal discovery proceedings. These new requirements, combined with governmental regulations including Sarbanes-Oxley, the Gramm-Leach-Bliley Act, the Health Insurance Portability and Accountability Act (HIPAA), and various Securities and Exchange Commission requirements, place an increased mandate for organizations to archive electronically stored information for easy production and retrieval.

"Our research shows that the majority of corporations are not aware of the business impact of the new Federal Rules for Civil Procedure," said Michael Osterman of Osterman Research. "Businesses need to take stock of how they are archiving all electronic information, including IM and Web-based chat, and put into place polices for its secure storage and retrieval. Technical solutions such as those offered by FaceTime can significantly lighten the regulatory burden and prepare companies to face legal action."

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Source: PRNewswire

Why we hate lawyers in IT: Reason No. 1,997

As if IT weren't hard enough, now you can't boot your laptop without a lawyer getting in the middle

One reader writes in to ask: "I have been in the IT field for over 20 years, in several different companies. Why does it seem like in the past year I spend more time meeting with lawyers than the business people? I understand Sarbanes-Oxley issues, but my current company has been public for seven years, and we have always had "compliance" reviews, but I have been in six meetings in the past eight months with our chief counsel and other lawyers in attendance. Is this happening everywhere, or should I be concerned that something is up?"

It's not just you; we've gone crazy. As if IT weren't hard enough, now you can't boot your laptop without a lawyer getting in the middle.

Why? There have been astounding levels of legislation passed or pending in the past few years directly relevant to the use, misuse and downright abuse of data. Privacy issues alone are going to keep annoying lawyers employed for many years. The Sarbanes-Oxley Act, while not new, is being so violently contested that your company will be spending a fortune on legal fees whether you comply or not. Either way, the lawyers win.

No one likes lawyers. It's not even one of those "you hate them until you need them" things; I hate them even though I need them. It's not lawyers personally, mind you. I like most of the lawyers I am forced to use. It's the fact that I'm forced to have them (if ever there were a better self-propagating group of folks than lawyers, I can't figure out who it would be). They write the laws, then sit on both sides of those laws. They have guaranteed employment. Even the crappy ones do OK because there are always dumber, crappier people somewhere down the legal food chain who can't navigate the system because the system was designed by lawyers, for lawyers. It's even enforced by lawyers turned judges and ensured sustenance by lawyers turned politicians. It's brilliant if you think about it.

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Source: Computerworld.com
By: Steve Duplessie

Court Narrows Discovery Requests, Finding Information Sought "Not Reasonably Accessible" Because of Undue Burden

Ameriwood Industries, Inc. v. Liberman, 2007 WL 496716 (E.D. Mo. Feb. 13, 2007)

In this case, plaintiff alleged that defendants improperly used confidential information while in plaintiff’s employ to sabotage plaintiff’s business relationships. Defendants asserted that plaintiff's lost sales were due to plaintiff's own mismanagement and not defendants' alleged misconduct. Defendants requested all plaintiff's documents and communications concerning the television stand business made during the relevant period, and identified six individuals who may have responsive information. Plaintiff argued that the request was unduly broad and overly burdensome and that the documents, the majority of which were electronically stored, numbered in the hundreds of thousands. Defendants moved to compel production of: (1) its internal communications and documents regarding plaintiff's original equipment manufacturer (“OEM”) television stand business, its customers, and its management for the period from October 2005 through March 2006; (2) plaintiff's employees' communications with customers regarding the OEM television stand business for the same period; and (3) documents relating to plaintiff's 2006 Consumer Electronics show presentations.

Citing Fed. R. Civ. P. 26(b)(2), the court noted that the recently amended Federal Rules of Civil Procedure set forth a burden-shifting analysis for courts to use in deciding whether to compel production of electronically stored information:

On motion to compel discovery ..., the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

2007 WL 496716, at *2. The court observed that, for the six individuals identified by defendants, plaintiff had identified some 52,124 potentially responsive emails and 4,413 additional computer files, such as Microsoft Office files. Based on this showing, the court found that the information was “not reasonably accessible” because the request was “unduly burdensome,” and turned to defendants for a showing of good cause.

The court stated it considered the factors laid out in the advisory committee's note to Fed. R. Civ. P. 26(b)(2), namely:

(1) the specificity of the discovery request; (2) the quantity of information available from other and more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; (6) the importance of the issues at stake in the litigation; and (7) the parties' resources.

The court found that defendants' requests were not narrowly tailored to seek only information relevant to the affirmative defense. It concluded that defendants failed to show good cause to order disclosure of the communications and documents, even if the court were to limit the request to the documents involving the six employees.

Accordingly, the court granted the motion in part and ordered plaintiff to produce documents responsive to categories two and three only.

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Source: eDiscoveryLaw.com

'The Eight E's': Ascending the Computer Forensics Ladder

Though computer forensics is a young discipline, it's not the exclusive province of new graduates of computer forensics degree programs. It's a natural career extension for IT and law enforcement professionals and peripatetic lawyers with a dominant geek gene. Expertise in litigation and computer forensics also opens the door to lucrative opportunities in electronic data discovery consulting. Here are "The Eight E's" to becoming a skilled CF expert:

Exploration: The lion's share of CF knowledge is self-taught. The best examiners are insatiably curious and voraciously read about software, hardware, registry keys, root kits, etc. They live for figuring out how it all fits together. Fortunately, there's a wealth of information: in books (search Amazon.com for "computer forensics") and online (www.e-evidence.info) in discussion forums, product FAQs, user groups and confabs.

Education: A computer science or law degree is nice, but you can study animal husbandry so long as you go on to study CF in a comprehensive way. Professional certifications that legitimately demonstrate training, testing and practical experience have value in helping courts, clients and potential employers assess your qualifications. Supplement your college degree with as many courses and certifications as your time and budget allow.

Excellent programs are offered by universities, vendors, professional associations and the government, such as New Technologies Inc., Guidance Software, Access Data, the International High Technology Crime Investigation Association, the International Association for Computer Information Systems and the Federal Law Enforcement Training Center). But don't fool yourself into thinking that a weeklong boot camp will qualify you as a CF expert. In a battle between an experienced examiner and one with an advanced degree, juries may defer to the latter. Some jurisdictions require licensure to perform forensic investigations.

Experimentation: The ability to construct illuminating experiments and the patience to elicit data are hallmarks of a skilled examiner. If you need to know how metadata changes when a user touches a file, you'll be prepared to testify if you've proven your theory by competent experimentation. Experiment with systems, applications and operating systems to understand how they work.

Experience: There's no substitute for applying your skills and testifying in real cases. How can you get that experience? Apprentice to a veteran examiner or offer to perform a "shadow exam," to see if you find something he or she missed. Assist attorneys or local law enforcement at little or no cost.

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Source: Law.com
By: Craig Ball

Daylight Saving Time: When clocks spring forward this year, will IT fall down?

Circle March 11 on your calendar

With echoes of the Y2k scare of seven years ago, IT administrators in the U.S. face changes to Daylight Saving Time (DST) this year, prompting concerns about a potential IT crisis that must be recognized and resolved quickly.

Signed into law in August 2005, the federal Energy Policy Act of 2005 moved the start of DST from the the first Sunday in April to the second Sunday in March and delayed the return of standard time in the autumn by a week, to the first Sunday in November. The idea: Shifting the time change by a few weeks can save on energy use.

For IT, that means every software and hardware system relying on time stamps should now be checked, evaluated and tested -- and, if need be, patched with software updates or modified to work properly. But with a wide range of security issues, compliance requirements, spam-fighting efforts and other concerns already on their to-do lists, many IT administrators are only now evaluating what the DST change will mean and how they need to respond.

Gartner Inc. issued a statement today urging companies to take the issue seriously, saying "disruptions at an IT infrastructure and application level are likely" and "will have significant implications for organizations around the world." The Stamford, Conn.-based research firm said interruptions could affect calendaring applications, billing software and security programs as well as travel and trading schedules.

"This is a minor problem compared to the big code changes required in the recent past for issues like Y2k or the euro conversion," said Will Cappelli, an analyst at Gartner. "However, significant business damage and liabilities, as well as nuisance, could occur from applications performing their processing at the incorrect time if organizations do nothing."

In the meantime, the clock is ticking.

Complicating the effort is the fact that not all vendors have said whether and how their software and hardware might be affected. That's been one of the challenges for Rudy Ebisch, the assistant director of the infrastructure group at a large global manufacturer of home and office products, who asked that his company not be named.

With nine major software platforms to deal with, Ebisch and his staff have been working for about a month to determine what they need to do to prepare for DST. During their investigation, they found that more than 100 older, unsupported applications are based on the Java Runtime Environment (JRE), which has to be patched to properly reflect the time changes.
"There are a thousand things that are going to fall through the cracks," Ebisch said. "Everything is running JRE. It's pervasive. Who is going to look at all of that and figure out what needs to be patched?" There was stuff we knew we had to check [for JRE use], but now there's a hundred other things we have to check."

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Source: Computerworld

Metamorphosis of In-House Counsel Continues

More than a decade ago, in-house attorneys were seemingly safe in their corporate cocoons, and as such, the prospect of compliance with Sarbanes-Oxley[FOOTNOTE 1], billion-dollar class action settlements, $100 million SEC fines, threats of investigations by the Department of Justice, the SEC, the IRS, the House Ways and Means Committee, and other regulators, seemed remote. Today's in-house counsel are all too familiar with the mantra that they must play a significant part in corporate governance and in managing a corporate crisis.

In 2006 in-house attorneys were confronted with a myriad of potential exposures, many of which will continue through 2007 and beyond. The highlights of 2006 included: §307 of SOX, backdating stock options, new rules of federal civil procedure regarding electronically stored information, the McNulty Memorandum, Federal Rule of Evidence 502, liability to outside third parties, investigating boardroom leaks, and multi-jurisdictional practice and licensing. This article will profile certain of the more critical exposures and briefly discuss the protection afforded by employed lawyers professional liability insurance as in-house counsel continue to undergo a metamorphosis from corporate confidante to corporate gatekeeper.

CONFIDENTIALITY AND PRIVILEGE

Although §307 may be credited with having initiated the metamorphosis of in-house counsel from corporate confidante to corporate gatekeeper, in-house attorneys have yet to experience its "bite." Interestingly, although the Securities and Exchange Commission has taken the position from the outset that an attorney had a definite role in corporate governance,[FOOTNOTE 2] it has also consistently reiterated that it did not want enforcement of the rules to have a chilling effect on zealous advocacy by lawyers. It further advised that it was not seeking cases on the "fringes," but rather the focus is on evidence of potentially serious misconduct such as subornation of perjury and alteration of documents.

In public speeches, various staffers from the SEC have advised that more actions against attorneys were on the horizon, particularly with respect to their roles in internal corporate investigations as there is significant potential in that area to hide ongoing fraud. Ironically, late last year U.S. Treasury Secretary Henry Paulson in his attempt to take the sting out of SOX, called for regulatory balance. This led to the formation of the Paulson Committee whose mission is to reduce certain burdens imposed by SOX. The committee's proposals are being structured as such so that they may be adopted via rulemaking by the SEC and enforcement policy changes at the Department of Justice. As for §307, although in-house counsel may be an SEC target for now, they continue to take a "wait and see" approach with respect to this exposure.

BACKDATING STOCK OPTIONS

While all eyes may have been on §307 in 2006, the issue of backdating stock options was emerging and continues to grow at a phenomenal rate. At last count, National Economic Research Associates (NERA) reported that in 2006 approximately 22 lawsuits were filed alleging stock option backdating. Further, to date, more than 140 companies have disclosed problems with misdated stock options, 105 companies are under investigation by the SEC, Department of Justice, or both, and 121 companies face derivative lawsuits as a result of options misdating. Approximately 15 general counsel nationally have been forced out of their positions as a result of the stock option backdating issue. Certain general counsel were found to be intimately involved in the creation and implementation of the stock options programs or they may have benefited personally from such programs, or both.

The SEC, Department of Justice and plaintiffs' bar seek to impose civil and criminal liability by asserting claims of negligence, misrepresentation, fraud, conspiracy, failure to disclose, breach of fiduciary duties, violations of the securities laws, and related allegations. The pressure on in-house counsel to report irregularities and monitor their company's financial condition is mounting. In-house counsel have exposure for: inadequate SEC filings that fail to disclose economic consequences of the options transaction; advice provided to the board of directors when the decision to grant options was made; and ratification of work performed by outside counsel, among other scenarios.

ELECTRONIC INFORMATION

To further compound the stress on in-house counsel, on Dec. 1, 2006, the Federal Rules of Civil Procedure[FOOTNOTE 3] were amended for the first time in decades to accommodate the "new information age." As such, Electronically Stored Information is discoverable and it must be preserved and produced just as paper documents are produced. Discovery demands for the production of documents include ESI as well.

Amended Rule 26(a) now requires that a party must voluntarily (without awaiting a discovery demand) timely identify or produce ESI in its possession or control which it intends to use to support its claims or defenses. In-house counsel must be able to preserve, locate, gather, review and duplicate ESI in order to produce it. This task seems ominous and complex, and for in-house counsel, it is. The corporate gatekeeping function will now also include significant interface with Information Technology departments. The tech savvy IT department will add to the varied groups with whom the in-house attorney must contend.

Amended Rule 26(f) has received significant attention as it requires parties "as soon as practicable," but in no event later than 21 days prior to the Rule 16 initial scheduling conference, to meet and confer regarding preservation of ESI, the form in which it should be produced, privilege or work product issues, and any other issues involving ESI. The federal courts (and most state courts are beginning to follow suit) now expect parties to address e-discovery issues in their proposed discovery plan. In fact, the federal courts are armed with means to rectify abusive or obstructive electronic discovery via sanctions. Consider that liability can ensue for employees who erase or copy over computer tapes or a subpoena served on a law department that fails to conduct a full search of electronically stored information or notify employees with document preservation rules.

Rule 37(f) provides a narrow safe harbor by preventing courts from imposing sanctions if a party fails to provide ESI which has been lost as the result of routine and good faith operations of the entire electronic information system. The party who has lost the information, however, must still prove that reasonable and timely preservation was made. In addition, the federal rules provide that a party need not produce ESI that is not reasonably accessible, but inaccessibility must be proven should the opposing party voice objections. Overall, the rules as amended pose significant risk to in-house counsel now and into the future.

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Source: Law.com
By: Susan F. Friedman

E-mail Archiving Software Helps Manage Messages

Automation relieves the stress of storing and finding e-mail messages for e-discovery and regulatory compliance.

March 1, 2007 - With so much business conducted via the Internet, executives at Winged Keel Group Inc. decided the staff had to save each-and-every e-mail message, simply to keep the boutique life insurance and long-term disability firm on the right track.

"We are a technologically advanced company, so a lot of our business was being conducted via e-mail," says Pramod Navani, managing director of operations at the New York-based insurer. "A few years ago, our company instituted a rule that no one was allowed to delete e-mails."

In what seemed like less than an Internet minute, the new policy-while deemed necessary in the increasingly virtual environment-resulted in a couple of real-world headaches.

First off, Winged Keel trusted that its employees would adhere to the rule but had no automated means of ensuring compliance. So, in essence, employees could-advertently or inadvertently-erase or alter e-mail communications.

Second, and perhaps even more troubling, e-mail inboxes and outboxes were growing at an extraordinary rate, and the burgeoning storage requirements were slowing down the company's IT system considerably. And the lost time meant an increase in the cost of doing business, Navani says.

As a result, Winged Keel executives decided the company would have to invest in a system that helps manage and archive e-mail communications. After a review of systems the company chose e-mail archiving from Fortiva Inc., Norwalk, Conn.

While Winged Keel may have been ahead of the pack, other insurance companies are beginning to find themselves in similar situations.

To reap the benefits of electronic communication, carriers have to address e-mail management issues, particularly archiving. At the same time they face regulatory compliance concerns and legal discovery issues.

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Source: InsuranceNetworking
By John McCormack

New E-Discovery Rules Pose Challenges for Banks

Banks need to focus on putting policies in place to govern electronic information, say experts.

Q: What challenges do the new e-discovery rules, effective as of Dec. 1, 2006, pose for banks?

Barry Murphy, Forrester Research: The challenges are really the same for all organizations, whether a bank or a consulting company or a biotech firm. The only difference is that banks are under more government regulation (e.g., SEC) than some other industries and often do discovery specifically for regulatory requests.

The Federal Rules of Civil Procedure (FRCP) amendments really affect organizations in three ways. First, they require a framework for early attention. Organizations not ready to address issues when litigation or regulatory requests hit will immediately be behind. Second, they give a safe harbor for data destruction, meaning there are no penalties for deleting electronically stored information in keeping with routine operation of IT systems if the party took reasonable steps to preserve it. However, this means that organizations must have granular retention policies in place, and technology to enforce those policies and audit the enforcement as well.

Finally, there is the requirement for native file production. Organizations must be able to produce electronically stored information in its native format with its metadata intact and prove a valid chain of custody. Again, this spotlights the need for technology to manage the full life cycle of information.

John Mancini, AIIM: The new rules have complex implications for all organizations, including banks. Companies need to know what electronic information they are storing and where it is. They need policies in place governing the management of electronic information, they need to follow those policies and they need to be able to prove compliance. The it's-too-hard-to-produce argument won't stand up anymore. These sound simple and basic on the surface. But according to AIIM surveys, the environment in most firms is barely controlled chaos.

Cliff Shnier, Aon Consulting: First, these are amendments to the Federal Rules of Civil Procedure and are therefore only applicable to matters in the federal courts. While all state courts will amend their respective rules in ways that are similar (some have done so already), this process is not yet complete. Second, for the most part these amendments codify, clarify and resolve the case law on electronic discovery that has developed over the last 10 to 15 years. The effect of amending the rules nationwide is to remove all doubt about whether or not electronically stored information is discoverable.

Examples of such rules are: the requirement for an early meet-and-confer [Rule 26(f)], the issue of electronic data that is not reasonably accessible [Rule 26(b) 2 (B)] and forms of production of electronic data to the other side [Rule 34(b)], and Rule 45 third-party subpoenas, which are particularly relevant to banks. Banks differ from other companies because they have to consider both their own risks when sued directly and their procedures that must be followed when subpoenaed as a third party, which happens frequently given the nature of banking.

Q: Are banks' systems prepared to deal with the new e-discovery rules?

Murphy, Forrester Research: In my experience, banks are only ready for specific discovery requests, like those relating to SEC Rule 17a-4. To comply with that rule, many banks have deployed e-mail archiving systems. However, they have done so only for one set of workers — brokers. Discovery truly applies to all employees and to all kinds of content, not just e-mail. The large banks I've spoken with have yet to connect records management with e-discovery, which says to me that they are definitely not ready to deal with the amended rules proactively.

Mancini, AIIM: In general, banks and other organizations with pre-existing requirements related to electronic information are probably in better shape than most to deal with the new electronic discovery requirements. They already have some experience with managing electronic information in a structured fashion.

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Source: BankTech
By: Peggy Bresnick Kendler

Europe seeks data on e-mail accounts

FRANKFURT, Germany - Some European countries are proposing outlawing the use of fake information to open e-mail accounts or set up Web sites, a move intended to help terror investigations.

The German and Dutch governments have taken the lead on the proposals, crafting legislation that would make it illegal to provide false information to Internet service providers and require phone companies to save detailed records on customer usage.

The aim, analysts say, is to make it easier for law enforcement to access information when they investigate crimes or terrorist attacks. But Europeans have long cherished their privacy, railing against measures that would see personal information stored for government examination.

"The people of Europe have a long record of fighting for their personal freedom, and are unlikely to accept such regulations being imposed upon them," said Graham Cluley, a senior technology consultant with the London-based consulting group Sophos.

The Germans and Dutch are moving well ahead of a 2009 EU deadline to implement its Data Retention directive, which calls for storing names and addresses of Internet subscribers, including those who use Web-based e-mail accounts.

Some details of the proposals have yet to be worked out. For instance, most of the major Web-based e-mail providers such as Google's Gmail or Microsoft's Hotmail require nothing more than a user name and a password to set up an account. Real names and addresses are not requested.

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Source: heraldnet.com

Google Era of Apps Dawns

Will the search king also become known as the apps king, leading a movement against Microsoft?

It has been more than 10 years in the making, but Google is quietly emerging as the undisputed leading innovator in hosted applications to rival Microsoft's desktop dominance.

The search king on Thursday solidified its position with the introduction of Google Apps Premier Edition, the pay version of its free hosted applications (see Google Premieres Apps for Pay). Google may have also set the industry’s new commercial standards with its low pricing, service guarantee, customer support, and a partner program that already boasts 10 companies.

Google brings the "credibility to make it work,” Pund-IT Research analyst Charles King said.

Salesforce.com may have already set the commercial parameters of the hosted apps business, but Google has the marketing machine and the reputation to force even conservative customers to begin making comparisons, according to Mr. King.

“Companies can use Google’s $50 price as a reference point so they can look at what Microsoft Office costs and compare that with Google’s price over the course of the lifetime of that version of Office,” he said.

They can also do the same for its service level agreements, support, and its set of allied companies building hooks into Google’s hosted apps, he concluded.

For companies such as Toronto-based Fortiva, a hosted email-archiving service vendor, the success or failure of Google’s partner program will be key.

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Source: redherring.com

Pinpoint Labs Provides Computer Forensics Tools

Pinpoint Labs created the following utilities to assist forensic examiners and litigation support professionals. We believe they will allow you to reduce examination and report creation times as well as quickly locate duplicate or suspect files.

Pinpoint FileMatch

FileMatch is a utility that scans for duplicates of a specified file in ultra-rapid fashion. In a recent test, FileMatch was able to locate two copies of a specified file in 58Gb of allocated space in just 28 seconds! For litigation support professionals and legal teams alike, this means that matching a file from one production set to its corresponding file in another is only moments away! Beyond litigation, this little tool is a must-download for Law Enforcement as well as any investigator needing to do a "Search and Destroy" for specific files.

Pinpoint Hash

Forensic examiners often need to quickly obtain the hash values for potential evidence files for reports or to verify their results. This tool integrates into the "Send To" functionality of the Windows Explorer shell. Just right-click on a file and send to Hash, the program does the rest. Say goodbye to the days of having to open a hashing program, then browse out to a file from the dialog box.

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Source: newswiretoday.com

E-Mails Reveal Owner Lied in Process of Selling Radio Station

A federal judge in Miami has given a Delaware company the right to buy a radio station after e-mails revealed that the station's owner lied about trying to sell the station to a rival bidder.
U.S. District Judge Jose E. Martinez granted plaintiff Qantum Communications' motion for summary judgment Feb. 9, giving the private investment firm the right to purchase WTKE-FM in Fort Walton Beach, Fla., for $3 million.

In a strongly worded order, Martinez also found that defendants Ronald Hale Sr. and Florida-based Star Broadcasting breached the sales contract and misled the court. Florida corporate records list Hale's son and wife as the registered agent and directors of Star Broadcasting, but court papers show Hale acted as director of the company.

Judge Martinez said, "This Court finds that there is clear and convincing evidence of a pattern of serious misconduct on the part of the defendants during the course of this litigation."

Qantum asked the judge for sanctions against the Hale and Star, arguing that they acted in bad faith, delaying the resolution of the case, thereby costing Qantum money. Martinez granted the request, and will hold a hearing to determine damages.

The case is a testament to the value of electronic discovery, said John O'Sullivan, a partner at Hogan & Hartson in Miami who represented Qantum.

"Ten years ago, this would have been a he-said, she-said case, and it would have been a tricky case even if we knew the defendants weren't telling the truth," he said. "But people are sometimes very casual with their e-mails, and in this case we had conclusive proof of breach of contract."

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Source: law.com

New lawyers help keep track of e-data

Intellectual property firm Brooks Kushman expands to work with new e-discovery rules.

In addition to spam, viruses and other online nastiness, the business world's reliance on e-mail and the World Wide Web has given corporations one more thing to worry about: how to track electronic documents in case they are sued.

For law firm Brooks Kushman, it's been a challenge and an opportunity.

The challenge comes in the form of the nation's new e-discovery rules, which went into effect in December. The rules require U.S. companies to keep better track of electronically stored information -- e-mails, instant messages and the like -- when they share evidence before a trial.

The opportunity is a chance for the Southfield-based intellectual property law firm to expand its practice.

Over the past two months, Brooks Kushman has added two attorneys to help improve its core business and boost its e-Discovery Compliance area, one of the fastest growing areas in the legal profession.

For example, some 91 percent of 568 e-mail, database and compliance professionals with more than 20,000 employees surveyed by Enterprise Strategy Group said their organizations had already been issued a discovery request for e-mail last year.

At Brooks Kushman, its newest e-discovery watchdogs are Daniel M. Stock, former in-house counsel at Ford Motor Co., and Phyllis Golden Morey, who also has experience at Ford and automotive supplier Lear Corp.

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Source: detnews

Postini Announces New Solutions for Communications Compliance and Management With Google Apps Premier Edition

Postini, Inc. the globalleader in on-demand communications security and compliance solutions foremail, instant messaging and the web, today announced that it has joinedthe Google Enterprise Professional(TM) program. Postini is offering newcommunications management and compliance solutions that are designed toallow businesses worldwide to recover lost messages, control businesspolicies, protect from threats, and comply with legal and industry mandatesfor e-discovery and production of email. These new Postini solutions areintegrated with Google Apps(TM) Premier Edition, also announced today, andare available as unified and on-demand services that can be deployed inhours.

"We know that security, compliance and productivity are essential for astrong enterprise communications solution; we're excited to have Postini asa partner in the Google Enterprise Professional program, providingadditional functionality in these areas," said Kevin Smith, Head ofEnterprise Partnerships at Google. "Postini's solution delivery through anon-demand model should work well for customers ready to move beyondtraditional software deployment."

"Google is redefining how communications and productivity applicationsare delivered to businesses. All companies have the same pressure tosupervise use, control content, protect from threats, and comply withregulations -- with far fewer IT resources than ever before," said QuentinGallivan, president and chief executive officer at Postini. "They need aneasier way to buy and deploy world-class solutions. Google and Postinideliver just that in an on-demand model."

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Source: PRNewswire

Metamorphosis of In-House Counsel Continues

General counsel's role is still evolving from confidant to gatekeeper

More than a decade ago, in-house attorneys were seemingly safe in their corporate cocoons, and as such, the prospect of compliance with Sarbanes-Oxley[FOOTNOTE 1], billion-dollar class action settlements, $100 million SEC fines, threats of investigations by the Department of Justice, the SEC, the IRS, the House Ways and Means Committee, and other regulators, seemed remote. Today's in-house counsel are all too familiar with the mantra that they must play a significant part in corporate governance and in managing a corporate crisis.

In 2006 in-house attorneys were confronted with a myriad of potential exposures, many of which will continue through 2007 and beyond. The highlights of 2006 included: §307 of SOX, backdating stock options, new rules of federal civil procedure regarding electronically stored information, the McNulty Memorandum, Federal Rule of Evidence 502, liability to outside third parties, investigating boardroom leaks, and multi-jurisdictional practice and licensing. This article will profile certain of the more critical exposures and briefly discuss the protection afforded by employed lawyers professional liability insurance as in-house counsel continue to undergo a metamorphosis from corporate confidante to corporate gatekeeper.

CONFIDENTIALITY AND PRIVILEGE

Although §307 may be credited with having initiated the metamorphosis of in-house counsel from corporate confidante to corporate gatekeeper, in-house attorneys have yet to experience its "bite." Interestingly, although the Securities and Exchange Commission has taken the position from the outset that an attorney had a definite role in corporate governance,[FOOTNOTE 2] it has also consistently reiterated that it did not want enforcement of the rules to have a chilling effect on zealous advocacy by lawyers. It further advised that it was not seeking cases on the "fringes," but rather the focus is on evidence of potentially serious misconduct such as subornation of perjury and alteration of documents.

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Source: Law.com

Department of Justice Employs Breakthrough E-Discovery Technology to Quickly Uncover Key Information

Anti-trust division extends department's use of MetaLINCS' automated analysis technology

MetaLINCS™, a leading provider of packaged E-Discovery software for litigation readiness and compliance-related investigations, today announced the Department of Justice (DOJ) Anti-Trust Division is extending its use of the MetaLINCS Enterprise E-Discovery Suite™ for use in corporate oversight and enforcement actions. Featuring the industry's first guided analysis technology, the MetaLINCS Enterprise E-Discovery Suite helps the DOJ speed up the process of discovering relevant information within electronic messages and documents, and improves the accuracy of investigations. MetaLINCS software enables the DOJ to use early analysis functionality to quickly locate important information exchanges between key players prior to reviewing each document.

E-Discovery is now the most costly component of the legal and investigatory process, and as it grows in complexity, the associated costs and risks continue to soar. The ability to assess cases at their earliest stages can reveal important information quickly, reducing overall E-Discovery costs by as much as 75 percent. Early assessment can also lead counsel to conclude that 80 percent of the data they processed is irrelevant, not requiring further examination. Such early insight can inform initial strategic decision-making and drive more favorable case outcomes.

"With MetaLINCS software for advanced email and document analysis, the Department of Justice Anti-Trust Division has a secret weapon in its litigation arsenal that is making it easier for them to quickly find and understand pivotal information," said Ramon Nunez, CEO of MetaLINCS. "Government organizations often lack the human and financial resources necessary to efficiently navigate through the thousands of emails typically associated with each case and today's manual E-Discovery processes are too slow and tedious to allow for a fast, comprehensive understanding of the information at hand. Organizations like the DOJ need a standalone E-Discovery product that is licensable, user-friendly, cost-effective and easy to maintain.

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Source:

ONSITE3 Launches DXR Mobile at Paralegal SuperConference Miami 2007

ARLINGTON, Va.--(BUSINESS WIRE)--ONSITE3, a leading global provider of eForensics, eDiscovery, eReview and consulting services offering one source litigation support for law firms and corporations, is pleased to announce the launch of its Document Exchange & Review (DXR) Mobile service, provided in a portable appliance platform designed specifically for electronic data discovery, review and production. On demonstration at ONSITE3’s exhibit during the upcoming Paralegal SuperConference Miami 2007, the new service utilizes a convenient industrial strength laptop-based system that can travel and be used almost anywhere, securely process 5 to 10 gigabytes of electronic discovery data per day, store up to 100 gigabytes of processed data and permit rapid searching and review from the same platform.

ONSITE3’s DXR Mobile service is ideal for use in sensitive environments such as in international cases in which privacy laws impact where electronic discovery data can be mined and processed. DXR Mobile can also allow quick searches during trial to pull up relevant documents, depositions and testimonials to respond to and refute witness’ statements.

As the needs of a case or processing requirements change, clients can upgrade to ONSITE3’s DXR Hosted service, an online platform ideal for geographically dispersed teams of reviewers, or DXR Enterprise service, a scalable robust in-house appliance platform designed for serial litigation or whenever frequent access is required for eDiscovery data. Both upgrade paths enable processing from 30 to 50 gigabytes of data per day. DXR Enterprise supports a maximum storage capacity of up to 2 terabytes, while DXR Hosted is capable of scaling to meet even larger client requirements.

“If there is one thing clients have asked us time and time again, it’s how ONSITE³ can help them spend less time and money on electronic discovery projects,” said Mark Hawn, CEO of ONSITE³. “We are excited to add DXR Mobile to the DXR line of services because it puts a great deal of control into our clients’ hands with literally zero software or hardware investment on their part. The electronic discovery challenge posed by recent changes to the FRCP affects both small and large law firms alike. We will continue to offer flexible services that empower our clients to remain in control of electronic discovery processes no matter who or where they are.”

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Source: BusinessWire

To Metadata or Not to Metadata?

The new e-discovery rule may not answer the question

The amendments to the Federal Rules of Civil Procedure addressing e-discovery issues, effective Dec. 1, 2006, include revisions to Rule 34, concerning production of documents. The amendments address the format in which electronically stored information is to be produced. Essentially, parties are to discuss and reach agreement regarding the form in which electronic information is to be produced.

The new federal rules do not specifically address an important aspect of the e-discovery battlefield, though: what to do about "metadata," the "data about data" that is part of every electronically stored document or file that, typically, went unnoticed in the age when producing hard copy documents was the norm. So when must metadata be produced? Recent case law illustrates that the new rules do not address the question directly.

New Rule 34(b)(ii) provides:

Unless the parties otherwise agree, or the court otherwise orders: ...

(ii) if a request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable ...

The New Jersey Civil Rules amendments effective September 1, 2006, include a similar provision. See N.J.R. 4:18-1(b)(2) (substituting "shall" for "must").

The Comment to the federal amendment discusses at length the meaning of this provision, including the ability of the requesting party to specify a form (e.g., "native"; exported; converted; or hard copy) and of the producing party to object to the form specified by the requesting party or, if none is specified, the rule's "default." The Comments do not address specific terminology, perhaps to remain as generic as possible in an area where the technology is ever-changing. "Native" form usually means "duplicates of the actual data files" from the producing party's computers' hard discs, servers, etc. However, "native" also may be used to mean electronic files that have not been exported, or converted to a format such as TIFF or PDF, or had information stripped or scrubbed from files, for purposes of production in litigation.

The Comment also discusses the intention behind what might initially be understood as the specified alternative forms of production (i.e. "ordinarily maintained" or "reasonably usable"), and includes an important caveat: "the option to produce in a reasonably usable form does not mean that a responding party is free to convert [the information] ... to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation." As an example, the Comment continues: "If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature." (Emphasis added.)

Thus, although a responding party may prefer to produce its electronic documents in a hard copy format or after being converted to electronic formats such as "TIFF" (Tagged Image File Format) images or "PDF" files, the Rule would appear to require -- absent agreement or order -- that the documents be produced in an electronic format to facilitate searching and analysis by the requesting party with as much facility as by the responding party. Some might argue that any exported or converted electronic format, such as TIFF or PDF, "degrades" "searchability," even though these formats may be searchable for some things. The Comments do not necessarily mean that electronic files cannot be "scrubbed" to remove information that is not requested or is not relevant, as long as the files are reasonably usable.

Of course, given the size and nature of a litigation, the stored or archived format of the producing party's documents, or the type of documents being produced, the parties may agree that an electronic form other than a duplicate of the original is preferable, since the expense of dealing with such documents may not be warranted or otherwise appropriate, and hard copy or converted formats, such as PDF, may be sufficiently searchable and more readily "Bates" numbered for production.

Converted documents may help avoid issues, such as the potential waiver of privileged information. Unless matters such as the authenticity or alteration of documents already are at issue, the parties might not want to bear the expense of producing "native" file documents, or with the risk of the receiving party's unintended alteration of "native" files, once produced. Even where authenticity or alteration is an issue, the parties may be satisfied to limit the scope of "native" production. (However, the parties still must be aware of their preservation responsibilities, regardless of the production format, see, e.g., Treppel v. Biovail Corp., 233 F.R.D. 363, 372 n.4 (S.D.N.Y. 2006)).

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Source: Law.com
By: Robert E. Bartkus

Legal Departments Tell Firms to Get on the Tech Train

As in-house counsel get more tech-savvy, they're insisting that law firms come along

When Aon Corp. slashed its outside counsel roster from about 400 to 23 law firms in 2005, it quizzed the firms about their tech offerings. "We asked them about extranets, e-billing and litigation management," says David Cambria, director of legal operations at the Chicago-based insurance giant.

But Cambria says that he didn't really care whether firms had all of those products. He had another agenda: "I wanted to know if [the firms] were playing in the same pool as me," says Cambria. When they crafted the tech section of their request for proposal, Cambria and his colleagues started from the assumption that all the firms they were interviewing had experienced, capable lawyers. But "we wanted to take it to a higher level, and the most successful firms were the ones that told us how they'd help us do what we do better, with technology," he says.

Aon isn't alone. Law departments, once the hardware and software stepchildren of the legal profession, are steadily, if gradually, adopting more sophisticated ways to aid their work, according to Corporate Counsel's 2007 In-House Tech Survey.

What's changed? Traditionally a cost center, legal departments have come under increasing pressure to keep costs down at the same time that they're struggling to keep their technology current. "General counsel are being held to budgets," says Woods Abbott, senior manager of legal operations-corporate at Raytheon Co.

This year's survey, our fourth in which we queried the technology heads of Fortune 500 corporations, shows that in many respects, law departments have had a technical awakening, and finally are getting the goodies everyone else in corporate America takes for granted.
Among our findings: The BlackBerry has finally conquered the in-house legal market -- 88 percent of the companies surveyed use it. And the march to the laptop continues, despite worries about theft, damage and the security of wireless Internet networks. "Finally, technology is percolating through legal departments," says Rees Morrison, a consultant for Summit, N.J.-based Hildebrandt International Inc.

This newfound knowledge has made company lawyers even pushier when it comes to their outside counsel. In the past, law departments asked firms in a general way about their tech prowess. Now, says Jeffrey Schwartz, information technology partner at McDermott Will & Emery, clients are requiring firms to actually implement the technology that they've been boasting about.

Legal departments also reported that they've requested a specific technology from their outside counsel, such as e-billing, or access to their case materials via the firm's extranet. And a fifth of those surveyed, including The Boeing Co., Cisco Systems Inc., and General Electric Co., said that they actually based a hiring decision on a firm's technical offerings -- 5 percent more than answered yes to the same question two years ago, the last time we did the survey. In fact, two companies, American Electric Power Inc. and Johnson Controls Inc., said that they had fired a firm because of its poor technology offerings. (AEP didn't return follow-up calls for comment, and Johnson Controls declined to name the firm.)

Law departments are also demanding -- and getting -- more inroads into their outside counsel's networks. More firms, 24 percent, are giving in-house lawyers access to their knowledge management systems. And access to law firm extranets has become the norm, with 64 percent of respondents saying they have this ability. In turn, more than a third of our respondents said they'd set up extranets for their outside counsel.

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Source: Law.com
By: Anthony Paonita

Don't Let Your Employees Become Security Nightmares

Although difficult to imagine, your best worker may hold the key to your company's worst security nightmare. Technologically armed employees who routinely use BlackBerry devices, personal digital assistants, laptops and tiny flash drives to transport critical information to and from the office can wreak havoc on a corporation -- with no intention to do so.

A frequently overlooked and, therefore, extremely dangerous employee is the one who has access to critical information and then innocently misplaces, misuses or disposes of a gadget with that data on it. In this era of increased use of technological devices by employees, savvy employers should take immediate steps to safeguard their organizations by preparing employees to use these tools, protecting their information and implementing thoughtful policies around the use of portable information devices. Employees entrusted with access to confidential information are often insufficiently prepared to manage the technologies they use properly.

CASE IN POINT

As one example, a former Morgan Stanley executive sold his BlackBerry on eBay, but neglected to erase the information on it. More than 200 internal company e-mails and a database of more than 1000 names, job titles and contact information for the company's most senior-level executives were sold for $15 to a random stranger. The resulting nightmare ensued merely because the executive innocently believed that once he left his position, the information would somehow be erased from the device.

BEWARE!

The information age moves at warp speed. Gadgets that may be commonplace for a company's IT workers and younger employees may be confusing to more senior level management. It is critical that companies prepare employees to use personal devices, clearly outlining how these tools are to be used and the dangers inherent in their use. Technologies abound to help businesses protect themselves against the mishandling of information stored on personal devices -- whether that misuse is intentional or not. Portable devices can be password-protected.

Critical company information can be made available on a need-to-know basis. Gadgets can be equipped with encryption software that renders them unreadable to anyone except their rightful owners. There are even methods by which a personal digital assistant can be remotely disabled if it goes missing. Every company owes itself and its clients a thoughtful risk analysis, taking these technologies and procedures into careful account.

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Source: Law.com
By: David C. Henderson and Matthew E. Feiner

Magistrate Judge Explains Why Discovery Sanctions Against Defendant Were Not Warranted

Williams v. Sprint/United Mgmt. Co., 2007 WL 214320 (D. Kan. Jan. 23, 2007)

Previously, Chief District Judge John W. Lungstrum had remanded this matter to the Magistrate Judge for factual findings concerning and an explanation of the reasons for the denial of plaintiffs' motion for sanctions. This opinion sets out Magistrate Judge David J. Waxse’s explanation of why he denied plaintiffs' motion to the extent it sought to impose sanctions upon defendant for its alleged failure to produce all spreadsheet materials in native format, its failure to timely produce the spreadsheet materials that were produced, and its conduct in re-producing spreadsheet materials in non-native format that had already been produced in native format.

First, the Magistrate Judge listed several reasons why it found that defendant should not be sanctioned for initially producing certain spreadsheets in .tif format rather than native format. Two of the reasons were that none of plaintiffs' original discovery requests for the RIF spreadsheets specified that the spreadsheets should be produced in their native format rather than as .tif images, which was the parties' original agreement, and that defendants ultimately produced all the spreadsheets it had in native format.

Second, the Magistrate Judge found that, while defendant did take a long time to produce the spreadsheets at issue, it offered detailed explanations that demonstrated the delays were neither willful nor motivated by a desire to obtain a tactical advantage.

Third, the Magistrate Judge found no evidence that defendant intentionally or negligently re-produced duplicate documents in bad faith or otherwise acted in any manner inconsistent with a good faith effort to produce documents in response to all the discovery orders and plaintiffs' discovery requests. He found that the mere production of duplicate documents, without any evidence of bad faith or improper motive, did not constitute sanctionable conduct. The Magistrate Judge noted that plaintiffs were aware that defendant was producing documents in response to multiple requests and court orders, and they should have therefore expected a certain amount of duplication. Furthermore, the Magistrate Judge found that plaintiffs' own actions in making repeated requests that documents be reproduced in different formats also contributed to the duplicate production.

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Source: ediscoverylaw.com

New search engine provides live answers from experts

Instead of listing URLs, Jyve links users to humans via live chat, IM and phone

February 20, 2007 -- Jyve today launched a new search site that links users directly with people who can answer their questions.

San Francisco-based Jyve, a maker of plug-ins for the Skype peer-to-peer Internet telephony network, describes the new site as an "ask engine," where user searches provide a live chat, instant message or phone call from a person with expertise in the search topic. Users can get how-to advice and tips on topics as varied as learning a language, buying a computer, mountain biking or cooking, the company said.

When a user types in a question, notices are sent to the desktops of logged-in members who have identified the topic as one in which they are knowledgeable. Members then can chat live on the site or have one-on-one conversations using IM or phone calls. Searchers can evaluate the profile of the person responding before interacting privately.

"Jyve literally brings the knowledge stored in people's minds worldwide online," said Charles Carleton, co-founder of Jyve, in a statement. "We're seeing all sorts of specialized search engines being introduced, but real people still know lots of things that aren't easily found on the Web."
The site lets users rate the answers they receive, and members can set up arrangements where they are paid for professional services, using Jyve's online metering system, the company said. Jyve is free until members make money; after that, the company charges a 10% commission for each transaction.

The site also allows manufacturers to refer their customers to Jyve for live help with consumer products and services.

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Source: ComputerWorld

MessageGate, Symantec Integrate

FEBRUARY 20, 2007 BELLEVUE, Wash. -- MessageGate, Inc., a leader in practical e-mail governance, today announced integration of MessageGate Archive Categorization with Symantec Enterprise Vault, providing archive categorization and retrieval functionality to the archiving framework in which Enterprise Vault customers already exist.

Effective Dec. 1, 2006, the Federal Rules of Civil Procedure (FRCP) require companies to make relevant information available with greater speed and accuracy than ever before. The result is a peaking demand by businesses for advanced archive and categorization capabilities.

“As part of the new requirements, corporations are responsible for maintaining a good working knowledge of what corporate e-mails contain and to manage their archives accordingly,” said Mark Levitt, senior analyst, IDC. “Best practices dictate that companies classify e-mail prior to archiving in order to catalogue retained records and simplify retrieval activities.”

“Under the new FRCP requirements, corporations need to know what corporate e-mails exist and what content those e-mails contain and to manage the archives accordingly,” said Mark Levitt, vice president for collaborative computing and the enterprise workplace at IDC.

“Classifying e-mails as they enter archives helps to minimize the cost and time for identifying and retrieving e-mails containing discoverable information in a lawsuit.”

MessageGate Archive Categorization intelligently categorizes e-mails prior to archival, adding supplemental information and meta-tags to each message. In turn, this allows messages to be indexed and enables specific attribute requests when retrieving files in Enterprise Vault.

Integration between Symantec Enterprise Vault and MessageGate Archive Categorization represents a cost-effective and scalable approach to e-mail classification. The technology is easily deployed and supports Windows, Linux and Solaris operating systems, providing businesses a complete solution to manage the complexity of storing and retrieving e-mail records.


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Source: DarkReading

E-Discovery Survival Guide For Corporate Counsel

When the e-discovery amendments to the Federal Rules of Civil Procedure took effect on December 1, there was a widespread feeling of panic among corporate counsel and, indeed, many members of the bar, as well. Some articles in the popular press reported that the amendments require corporations to retain virtually every electronic document ever created.
Fortunately, the situation is not nearly as dire as rumored.·

While no one course of action is appropriate for all corporations, there are some basic steps to prepare for that first e-discovery challenge, none of which guarantee success. On the other hand, failure to recognize the challenges of complying with the e-discovery rules is more likely to lead to disaster.

Here are a few thoughts on recommended survival tactics to maneuver through the e-discovery minefield.

1. Update and enforce your records management policy.1
Prudence and good corporate management dictate that every business should have a records management policy. Such a policy informs employees about the documents they are required to keep as a matter of law or regulation or business necessity. It establishes procedures for the maintenance of records, and equally important, it outlines when records may permissibly be destroyed either because the legal retention period has expired or the business necessity no longer exists.

Having a sound records management policy and system in place are the first steps towards meeting the e-discovery challenge. One of the grave risks of e-discovery – indeed all discovery in litigation or governmental inquiries – is the loss of critical evidence without a justifiable explanation. A records management policy provides the framework for outlining to the opposing party and the court the types and categories of records that are likely to exist, and if not, why. It also increases the efficiency with which relevant documents are likely to be located and produced. If properly practiced, the recycling or destruction of records at the termination of the retention period will reduce the need to wade through documents that should have been disposed of years earlier.

In the context of electronic discovery, it is important to ensure that records management policies recognize the many different types of electronic documents that may be created in a corporate environment and provide adequate instructions to employees regarding their duty to preserve and the manner, method and location of preservation. For example, a policy may mandate that work-related documents or information created on a lap top or a remote PC must be downloaded to the corporate network for preservation. A policy may also mandate that employees save all work product to a designated server rather than their individual hard drives, thumb drives or other removable media, and designate the naming convention for such documents.

2. Adopt Litigation Early Warnings Strategies.

Long before the e-discovery rules were put into place, courts imposed a duty to preserve all "relevant documents" once litigation is "reasonably foreseeable." What documents are "relevant" and when litigation becomes "reasonably foreseeable" are questions of fact for each case. Unfortunately, these fact issues all too often create opportunities to second guess decisions made prior to the filing of the lawsuit. To minimize the risks, both house counsel and records managers should be attuned to the need to watch for and anticipate potential litigation and be prepared to implement a litigation hold when that contingency arises. Among other things, the client’s records management policy should recognize the possibility that a legal hold may be imposed on certain documents or categories of documents for anticipated or pending litigation.
While the requirement to preserve documents in a litigation hold is not new, the focus on electronic documents has greatly increased since the adoption of the e-discovery rules. This means that systems must be in place to ensure the preservation and accessibility of relevant electronic documents.

A good early warning system trains managers and officers of the need to advise corporate counsel of the risk or threat of litigation, or of incidents that customarily give rise to litigation. The preservation duty may be triggered by an event that is reasonably likely to lead to the filing of a lawsuit, e.g., a motor vehicle accident, although the event may not ordinarily come to the attention of house counsel. An early warning system would ensure that the information is communicated through the proper channels to determine if and when litigation is "reasonably foreseeable" for purposes of a litigation hold.

3. Correct implementation of the litigation hold is essential.

It is no longer adequate simply to send out a memo stating: "We’ve been sued; please hold all relevant documents." Proper implementation of a litigation hold requires:

Providing detailed and adequate instructions to employees about what must be held by subject matter and document type.

Personal follow up with the key employees to ensure that the memo has been received, acknowledged and implemented.

Periodic compliance checks to promote ongoing adherence.

There are likely to be multiple personnel changes during the course of protracted litigation. Personnel need to be advised of their duty to preserve existing documents and, where appropriate, documents created in the course of ongoing business, as they rotate in and out of the company or change positions. If anything, the loss of a relevant document during the pendency of a litigation hold is even a greater risk of sanctions than a failure to hold the document in the first place. The latter may be excused on the basis of a record management policy or lack of notice, while the former may be deemed spoliation or gross mismanagement.

To view the entire article, click here
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Source: Mondaq
By: Arthur L. Smith

E-discovery Rules Send Message on Archiving

Users turn to software for storing and retrieving e-mails, instant messages

With its early embrace of Linux and its highly reliable online banking site, KeyBank NA is among the most efficient, cutting-edge banks in the U.S. when it comes to IT — but that wasn’t the case in one area until recently.

When Al Coppolo was asked by lawyers at the KeyCorp operating unit to produce old e-mails for litigation or regulatory compliance, he would have as many as four members of his IT team trudge to an off-site storage facility to retrieve tapes, mount them on servers and painstakingly search for the requested messages.

“It was a completely manual environment,” said Coppolo, executive vice president and director of infrastructure at Cleveland-based KeyBank. “Sometimes we would have to look through copies of the same e-mail on multiple tapes if there were multiple replies.”

The process was so laborious and time-consuming that his team just barely met a 30-day internal deadline for producing e-mails. And, Coppolo noted, the number of legal requests was only growing. Moreover, in December new federal e-discovery rules went into effect that spell out requirements for submitting electronic documents as evidence in civil court cases.

Automating the Process

There are several technology alternatives available to companies looking for help. KeyBank opted for a full-blown archiving and content management system from AXS-One Inc., installing the software late last year to support a 300TB e-mail archive.

The bank bought AXS-One’s namesake software from Sun Microsystems Inc. as part of a compliance and content management product bundle. AXS-One can manage both e-mail and instant messages, and it captures a copy of each message that is sent or received. To give users one-click access to old messages, it creates message “stubs” in their e-mail directories.

Coppolo said the tools are working well enough that he hopes to eventually train KeyBank’s legal team to use AXS-One in order to free up his IT staffers for other tasks.

The increased need for companies to be able to produce electronic evidence is “a pretty serious issue,” said Michael Osterman, an analyst at Osterman Research Inc. in Black Diamond, Wash.

To view the entire article, click here
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Source: ComputerWorld
By: Eric Lai

Have you resold your data to crooks?

Meet 'Ted,' 'Betty' and 'Bob' ... even if they don't want to meet you

Think that data on your discarded hard drive is as good as gone? There’s a good chance it’s not -- even if you reformatted it. That’s the finding from a recently released study by Fulcrum Inquiry LLP, a Los Angeles-based litigation consulting company that performs computer forensics.

Fulcrum Inquiry analyzed 70 used hard drives purchased from 14 different sources. The company was able to recover private data from 63% of the 60 drives that were still operational.

The results illustrate that companies and individuals alike still don’t know how to properly safeguard confidential material, despite well-publicized breaches to corporate data integrity and the need to protect personal information.

"The study was mainly to take the pulse of what the market was doing," says Steve Peskaitis, computer forensic manager at Fulcrum Inquiry. "And quite honestly we were really surprised. We thought we wouldn’t find anything, but it was quite to the contrary."

Fulcrum Inquiry purchased and studied the drives in November, December and January. The company bought them off e-Bay and from computer show vendors, recyclers and stores that specialize in used computer equipment. Some drives came from individuals; others came from professional organizations, such as companies, state government, schools and hospitals, says Peskaitis, who declined to release the organizations’ names.

What they found

The information on the drives obtained ranged from ordinary items, such as vacation pictures and Web browsing details, to highly sensitive material such as Social Security numbers, bank account and credit card numbers, and confidential government documents.

Fulcrum Inquiry, in its release of the study findings, cited three examples as representative of what it was able to recover.

The first hard drive belonged to "Nurse Betty," who worked in a hospital pediatric ward. Fulcrum Inquiry was able to recover confidential medical records along with patients’ names, conditions, medications and doctors. The company notified the hospital about its findings and returned the drive; the hospital says it plans an investigation into why its own processes had failed to properly cleanse such information.

To view the entire article, click here
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Source: ComputerWorld
By: Mary K Pratt