Technology was late to come to the world of lawyers and law firms, long known for quill pens and steno pads. But now that it has arrived, it is spreading briskly.
Modern-day law firms, especially megafirms with offices around the world, rely heavily on a vast array of specialized software that helps them run nearly every aspect of their operations. From docketing cases to tracking hours to managing litigation to calculating bills, most legal practices depend on technological solutions.
"Within the past five years, technology in law firms has really, really advanced," said Randi Mayes, executive director of the International Legal Technology Association, an Austin, Texas, group that represents 1,700 US law firms and legal departments.
A primary driver of this evolution is the need for law firms to keep pace with the technology used by their corporate clients.
The explosion of electronic discovery has also forced law firms to become more tech-savvy.
And new federal statutes that require extensive financial reporting and electronic record-keeping, such as the Sarbanes-Oxley Act, have forced the rapid adoption of technology in the legal profession.
Technology has become critical to most industries, of course. But the legal profession resisted the age of technology much longer than many others.
"When I became a lawyer in 1990, the legal profession was a paper-and-pen business, and almost everything was done by typewriter and forms," said Alan Klevan, a Wellesley lawyer who chairs the Massachusetts Bar Association's law practice management section, which helps law firms use technology to enhance the practice of law.
Last month, the association hosted a legal technology expo in Needham that attracted several dozen technology firms that pitched their products to lawyers.
Now, however, the management of cases can be so complicated and time-consuming that technological assistance is critical. Software programs used by law firms handle receipts, billings, expenses, negotiating leases and insurance, personnel issues, time keeping, word processing, cost recovery, conflict checking, marketing, scanning, docketing, and data storage. Special tax-reporting software exists for trusts and estates departments, and financial software aids bankruptcy groups.
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Source: boston.com
Monday, December 31, 2007
Thursday, December 27, 2007
Unifying Management Of Physical & Electronic Records
In the past few years, executives have come to understand that maintaining and preserving company records is serious business. The pressure is coming from two directions. On one hand, compliance with regulatory mandates requires a strict program of comprehensive record keeping. In the US, Sarbanes-Oxley 404, Federal Rules of Civil Procedure (FRCP) Rule 26, the Health Insurance Portability and Accountability Act (HIPAA), SEC Rule 17a, NASD 3010 and 3110, and countless other regulations today not only formalize broad new record-keeping requirements, but stiffen penalties for non-compliance. On the other hand, records management plays an ever-increasing role in any company’s risk management strategy, particularly with regard to civil litigation. The ability or inability to produce records quickly and efficiently in response to a discovery request can sway legal judgments (plus associated market consequences) measured in billions of dollars. In addition to managing risks in litigation, a comprehensive program of records management is vital to lowering the risk and cost of routine audits, protecting valuable intellectual property rights, and ensuring business continuity in the wake of natural disaster or terrorist attack.
Simply preserving records is not enough. Effective record-keeping demands ironclad procedures to guarantee that everything that can be considered a record is captured by welldocumented and enforced business policies, and a reliable audit trail of all record-keeping activities. In addition, it means the ability to store an exponentially growing volume of records securely and cost-effectively, and find and retrieve records quickly and easily.
To complicate matters, the scope of what constitutes a record is continually growing larger. No longer confined to folders and microfilm in the company records room, most records today are electronic – word processing documents, database reports, PowerPoint presentations, emails, and faxes – and distributed throughout the enterprise. Now, even blogs and instant messages are considered records subject to regulatory compliance.
The amended Federal Rules of Civil Procedure, adopted at the end of 2006, go even further: Changes to Rule 26 and Rule 34 define electronically stored information (ESI) as a specific category of information to be disclosed in litigation discovery, removing the prior ambiguity over whether or not business data constitutes a “document”. The FRCP’s new eDiscovery rules substantially broaden the universe of discoverable information to include such things as digitized voice mail, surveillance tapes, and text messages.
To Continue Reading: Click Here-----------------------------------------
Source: ecmconnection
Monday, December 24, 2007
Attorneys Should Never Forget Who Is Responsible
After several high-profile court decisions and, more recently, the imposition of the amended Federal Rules of Civil Procedure relating to electronic evidence, attorneys and their clients are now more than ever under pressure to manage discovery of electronic evidence correctly in any litigation, regulatory inquiry or law enforcement matter.
Undoubtedly, any professional consultant or service provider who has helped manage electronic evidence for a large litigation or investigation has encountered the daunting task of documenting the process used to find responsive records amid terabytes of data. Data collection often occurs in multiple locations, including sites on the other side of the world. When the group of individuals key to the investigation or litigation changes or expands over time, or when client technology is archaic, inconsistent or poorly documented, it can be difficult to demonstrate due professional care.
Nevertheless, demonstrating the accuracy and completeness of the process used to collect and cull the data is critical to any litigation or investigation. This will only gain in importance as regulators, law enforcement officials and courts become increasingly sophisticated regarding electronic evidence. Therefore, producing parties must be able to account for 100% of the data collected, including explanations of all assumptions used in de-duplicating, filtering, rendering, displaying and exporting the data. Further, they must be able to defend any challenges related to spoliation, technologies, conversions or calculations used in their reports -- sometimes under rigorous examination by increasingly savvy regulators, law enforcement officials, courts and auditors.
Of course, legal education does not exactly focus on the technical skills and concepts necessary to effectively manage e-discovery, so most lawyers rely on technology-focused vendors to help manage and process the data to find responsive records.
This in itself can be nerve-wracking for the responsible attorneys. How are they to know if the evidence advisers are doing a thorough job if the attorneys themselves do not understand how the software works? Or where various types of documents are within the client's electronic records? And what happens if on the eve of trial it becomes apparent that hundreds or even thousands of potentially relevant documents were not even identified in the initial searches?
Not to be alarmist, but mistakes can happen without a consistent process in place. One of the primary errors comes in accounting for files after they have been processed -- or even worse, filtered -- rather than starting with the original body of data. This can greatly reduce the number of files included in the electronic evidence report and makes it impossible without starting over to know what was eliminated from the field.
For example, a service provider may arbitrarily define the universe of documents for processing without discussing the exclusions with the client or attorneys. Such definitions include limiting the processing scope to company e-mail files or Microsoft Office documents while ignoring personal e-mail files or other file types that may contain relevant information. Further, providers sometimes make no attempt to recover password-protected or recoverable deleted files. In many cases, these restrictions in scope are not documented and are found only after careful review of the results and interviews of the teams that performed the work for the client.
Similar to the decision to account for records only after they have been processed or filtered, undocumented scope restrictions make it impossible to account for 100% of the data without completely reprocessing the original sources. Obviously, this is expensive for the client and disruptive to its business. Most important, it is entirely avoidable by doing things right the first time.
There are no easy fixes to avoid these lapses. One extra comfort to litigators or companies responding to e-discovery requests may be found by hiring e-discovery professionals who operate under an established process. For example, professionals who are members of firms licensed by the American Institute of Certified Public Accountants (AICPA) work under strict professional guidelines. These guidelines include the principles outlined in AICPA's Litigation Services and Professional Standards Report. AICPA, Statement on Standards for Consulting Services, No. 1, para. 6. It is important to note that, in addition to the certified public accountants who are members or partners of the firm, AICPA member firms themselves are licensed and held to the highest standards of quality and professionalism.
The AICPA report offers four main guidelines for litigation services. It states that service providers should demonstrate professional competence, exercise due professional care, show adequate planning and supervision and obtain sufficient relevant data. By following these general guidelines, many common e-discovery pitfalls can be avoided.
Clearly, most electronic data professionals are not bound by the AICPA guidelines, and such overt regulation is not necessary. However, the guidelines are useful as a basis for a general discussion of e-discovery protocols to help attorneys choose qualified vendors and establishing expectations for discovery in their cases.
To Continue Reading: Click Here
-----------------------------------------
Source: Mondaq
By: Eric Schwarz and Vincent Walden
Undoubtedly, any professional consultant or service provider who has helped manage electronic evidence for a large litigation or investigation has encountered the daunting task of documenting the process used to find responsive records amid terabytes of data. Data collection often occurs in multiple locations, including sites on the other side of the world. When the group of individuals key to the investigation or litigation changes or expands over time, or when client technology is archaic, inconsistent or poorly documented, it can be difficult to demonstrate due professional care.
Nevertheless, demonstrating the accuracy and completeness of the process used to collect and cull the data is critical to any litigation or investigation. This will only gain in importance as regulators, law enforcement officials and courts become increasingly sophisticated regarding electronic evidence. Therefore, producing parties must be able to account for 100% of the data collected, including explanations of all assumptions used in de-duplicating, filtering, rendering, displaying and exporting the data. Further, they must be able to defend any challenges related to spoliation, technologies, conversions or calculations used in their reports -- sometimes under rigorous examination by increasingly savvy regulators, law enforcement officials, courts and auditors.
Of course, legal education does not exactly focus on the technical skills and concepts necessary to effectively manage e-discovery, so most lawyers rely on technology-focused vendors to help manage and process the data to find responsive records.
This in itself can be nerve-wracking for the responsible attorneys. How are they to know if the evidence advisers are doing a thorough job if the attorneys themselves do not understand how the software works? Or where various types of documents are within the client's electronic records? And what happens if on the eve of trial it becomes apparent that hundreds or even thousands of potentially relevant documents were not even identified in the initial searches?
Not to be alarmist, but mistakes can happen without a consistent process in place. One of the primary errors comes in accounting for files after they have been processed -- or even worse, filtered -- rather than starting with the original body of data. This can greatly reduce the number of files included in the electronic evidence report and makes it impossible without starting over to know what was eliminated from the field.
For example, a service provider may arbitrarily define the universe of documents for processing without discussing the exclusions with the client or attorneys. Such definitions include limiting the processing scope to company e-mail files or Microsoft Office documents while ignoring personal e-mail files or other file types that may contain relevant information. Further, providers sometimes make no attempt to recover password-protected or recoverable deleted files. In many cases, these restrictions in scope are not documented and are found only after careful review of the results and interviews of the teams that performed the work for the client.
Similar to the decision to account for records only after they have been processed or filtered, undocumented scope restrictions make it impossible to account for 100% of the data without completely reprocessing the original sources. Obviously, this is expensive for the client and disruptive to its business. Most important, it is entirely avoidable by doing things right the first time.
There are no easy fixes to avoid these lapses. One extra comfort to litigators or companies responding to e-discovery requests may be found by hiring e-discovery professionals who operate under an established process. For example, professionals who are members of firms licensed by the American Institute of Certified Public Accountants (AICPA) work under strict professional guidelines. These guidelines include the principles outlined in AICPA's Litigation Services and Professional Standards Report. AICPA, Statement on Standards for Consulting Services, No. 1, para. 6. It is important to note that, in addition to the certified public accountants who are members or partners of the firm, AICPA member firms themselves are licensed and held to the highest standards of quality and professionalism.
The AICPA report offers four main guidelines for litigation services. It states that service providers should demonstrate professional competence, exercise due professional care, show adequate planning and supervision and obtain sufficient relevant data. By following these general guidelines, many common e-discovery pitfalls can be avoided.
Clearly, most electronic data professionals are not bound by the AICPA guidelines, and such overt regulation is not necessary. However, the guidelines are useful as a basis for a general discussion of e-discovery protocols to help attorneys choose qualified vendors and establishing expectations for discovery in their cases.
To Continue Reading: Click Here
-----------------------------------------
Source: Mondaq
By: Eric Schwarz and Vincent Walden
The Letter of the IT Law
How companies are addressing the "capability gap" in compliance with the amended Federal Rules of Civil Procedure.
Lawyers may have been the only ones paying attention, but it's been just over a year now since the Federal Rules of Civil Procedure (FRCP) amendments on e-discovery went into effect, necessitating that companies take appropriate steps to improve how they respond to e-discovery requests, which basically refers to the methods by which electronically stored information is exchanged during a litigation process.
The numbers from a recent survey on corporate e-discovery by on-demand archiving provider Fortiva show a rising problem in managing this information, as well as a rising number of resources devoted to solving it.
The first step is acknowledging there is a problem, and one-fifth of companies surveyed admit that their business has opted to settle a lawsuit to avoid the cost of recovering and searching through electronic documents. Nearly half (47%) of respondents also admit being uncertain that their legal team can effectively review relevant e-mail in the 99-day window allowed under the law.
To address this costly "capability gap," 51% say they have implemented or are planning to implement search and review technology for e-mail. However, the tools must be backed up by a strict policy environment. More than one-third of businesses (36.7%) are already enforcing a formal retention policy for e-mail, while another 40% are currently in the planning stage to enforce a formal policy. Another 36% of respondents are currently planning to create and enforce a formal "litigation hold" process for e-mail and other data.
To Continue Reading: Click Here
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Source: Industry Week
By: Brad Kenney
Lawyers may have been the only ones paying attention, but it's been just over a year now since the Federal Rules of Civil Procedure (FRCP) amendments on e-discovery went into effect, necessitating that companies take appropriate steps to improve how they respond to e-discovery requests, which basically refers to the methods by which electronically stored information is exchanged during a litigation process.
The numbers from a recent survey on corporate e-discovery by on-demand archiving provider Fortiva show a rising problem in managing this information, as well as a rising number of resources devoted to solving it.
The first step is acknowledging there is a problem, and one-fifth of companies surveyed admit that their business has opted to settle a lawsuit to avoid the cost of recovering and searching through electronic documents. Nearly half (47%) of respondents also admit being uncertain that their legal team can effectively review relevant e-mail in the 99-day window allowed under the law.
To address this costly "capability gap," 51% say they have implemented or are planning to implement search and review technology for e-mail. However, the tools must be backed up by a strict policy environment. More than one-third of businesses (36.7%) are already enforcing a formal retention policy for e-mail, while another 40% are currently in the planning stage to enforce a formal policy. Another 36% of respondents are currently planning to create and enforce a formal "litigation hold" process for e-mail and other data.
To Continue Reading: Click Here
--------------------------------------
Source: Industry Week
By: Brad Kenney
Thursday, December 20, 2007
Microprocessor giants settle with Patriot Scientific
Patriot Scientific and TPL Group, co-holders of the Moore Microprocessor Patent Portfolio [MMPP], announced Tuesday that they have settled their suit for patent infringement with JVC, NEC Electronics, Panasonic, and Toshiba.
The suit revolved around clocking technology used in most microprocessors since 1994 and attributed to Chuck Moore.
The details of the settlement were not revealed, but the patent holders said the settlement includes the licensing of the technology to the defendants [above].
After some initial wrangling between Patriot Scientific and TPL back in 2005, both companies joined forces to file suit against microprocessor companies using the technology. The list of companies using MMPP includes every major chip manufacturer in high tech and in consumer electronics.
"Patriot bought the IP and started looking at everybody's chips and discovered, lo and behold, almost everybody is using this particular technology," said Nathan Brookwood, principal at Insight 64.
Patriot is what is known in the industry as a patent troll, added Brookwood, mainly because it did not create the patent but rather bought the patent and then went out, trolling, to discover who might be in violation of it.
Previously, Patriot and TLP settled with AMD, Intel, and Fujitsu among others.
Few companies, if any, remain to settle with Patriot and TPL.
In a far more significant suit among microprocessor giants, plaintiff AMD's suit for anti-competitive business practices against Intel is currently in the discovery stage with an agreed-upon trial date set for April, 2009.
In discovery, the defendant must produce any and all information, including electronically created documents, such as emails, that the court considers relevant to the case.
To Continue Reading: Click Here
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Source: pcworld.com
The suit revolved around clocking technology used in most microprocessors since 1994 and attributed to Chuck Moore.
The details of the settlement were not revealed, but the patent holders said the settlement includes the licensing of the technology to the defendants [above].
After some initial wrangling between Patriot Scientific and TPL back in 2005, both companies joined forces to file suit against microprocessor companies using the technology. The list of companies using MMPP includes every major chip manufacturer in high tech and in consumer electronics.
"Patriot bought the IP and started looking at everybody's chips and discovered, lo and behold, almost everybody is using this particular technology," said Nathan Brookwood, principal at Insight 64.
Patriot is what is known in the industry as a patent troll, added Brookwood, mainly because it did not create the patent but rather bought the patent and then went out, trolling, to discover who might be in violation of it.
Previously, Patriot and TLP settled with AMD, Intel, and Fujitsu among others.
Few companies, if any, remain to settle with Patriot and TPL.
In a far more significant suit among microprocessor giants, plaintiff AMD's suit for anti-competitive business practices against Intel is currently in the discovery stage with an agreed-upon trial date set for April, 2009.
In discovery, the defendant must produce any and all information, including electronically created documents, such as emails, that the court considers relevant to the case.
To Continue Reading: Click Here
-----------------------------------------
Source: pcworld.com
Just how far are you going with FRCP compliance?
Eweek just featured an article on compliance with new e-discovery requirements in the Federal Rules of Civil Procedure. I use the term “new” very loosely, as these rules have been in effect for over a year. The take-home message of the article, though, was that a majority of businesses are either unaware of, or are ignoring the rules. For those of you in the former category,
The new regulations, ordered by the U.S. Supreme Court in April 2006, mandate that businesses must be able to quickly produce such data—including e-mail, digital word documents, images and digital audio and video—when required by litigation in a federal court.
While the Eweek article is focused on American business, the rules apply to educational institutions as well. The rules are quite sweeping and have even been interpreted by some as applying to anything that sits, however briefly, in a server’s or computer’s RAM on your network. This would include instant messages in addition to the data noted above. While this appears to be an extreme interpretation, there remains some wiggle room in terms of what we actually need to archive. Unfortunately, this wiggle room exists because no legal precedents have been set testing these rules as applied to educational institutions.
Wiggle room aside, the article quotes IT researcher, Michael Osterman:
To Continue Reading: Click Here
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Source: education.zdnet.com
The new regulations, ordered by the U.S. Supreme Court in April 2006, mandate that businesses must be able to quickly produce such data—including e-mail, digital word documents, images and digital audio and video—when required by litigation in a federal court.
While the Eweek article is focused on American business, the rules apply to educational institutions as well. The rules are quite sweeping and have even been interpreted by some as applying to anything that sits, however briefly, in a server’s or computer’s RAM on your network. This would include instant messages in addition to the data noted above. While this appears to be an extreme interpretation, there remains some wiggle room in terms of what we actually need to archive. Unfortunately, this wiggle room exists because no legal precedents have been set testing these rules as applied to educational institutions.
Wiggle room aside, the article quotes IT researcher, Michael Osterman:
To Continue Reading: Click Here
-----------------------------------------
Source: education.zdnet.com
E-discovery case law trends beginning to emerge
Erik Phelps doesn't particularly like being the bearer of bad news, but as a business attorney for Michael Best & Friedrich, he often sounds like the old commercial slogan: “You can pay me now or pay me later.”
And with the number of e-discovery cases picking up dramatically - a recent monthly Lexis Nexis report included nearly 25 e-discovery cases - the longer you wait to craft sound policies and processes, and effectively communicate them, the more you will eventually pay.
Several major companies already have e-discovered this the hard way. Medtronics, having already invested millions just to retrieve and review documents, including vast amounts stored on backup tape, was stunned by a jury verdict of $570 million and learned a hard lesson about retaining too much electronic information. Morgan Stanley was ordered to pay $604 million in damages to an investor after it failed to produce e-mails in a fraud case, and Phillip Morris was ordered to pay court-imposed sanctions of $2.9 million for failing to comply with its own document retention policy.
“The sanctions that are coming down are very, very real,” Phelps noted.
Unfortunately, about two thirds of U.S. businesses are still unprepared to meet e-discovery requirements that were instituted under revised Federal Rules of Civil Procedure on Dec. 1, 2006, data storage researcher Michael Osterman said in the Dec. 17 edition of eWeek.
Hold that document
Even for complacent companies, Phelps said e-discovery case law is providing more answers in three specific areas: litigation holds, obligations to preserve data, and the determination of what information is reasonably accessible.
To Continue Reading: Click Here
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Source: wisetechnology.com
And with the number of e-discovery cases picking up dramatically - a recent monthly Lexis Nexis report included nearly 25 e-discovery cases - the longer you wait to craft sound policies and processes, and effectively communicate them, the more you will eventually pay.
Several major companies already have e-discovered this the hard way. Medtronics, having already invested millions just to retrieve and review documents, including vast amounts stored on backup tape, was stunned by a jury verdict of $570 million and learned a hard lesson about retaining too much electronic information. Morgan Stanley was ordered to pay $604 million in damages to an investor after it failed to produce e-mails in a fraud case, and Phillip Morris was ordered to pay court-imposed sanctions of $2.9 million for failing to comply with its own document retention policy.
“The sanctions that are coming down are very, very real,” Phelps noted.
Unfortunately, about two thirds of U.S. businesses are still unprepared to meet e-discovery requirements that were instituted under revised Federal Rules of Civil Procedure on Dec. 1, 2006, data storage researcher Michael Osterman said in the Dec. 17 edition of eWeek.
Hold that document
Even for complacent companies, Phelps said e-discovery case law is providing more answers in three specific areas: litigation holds, obligations to preserve data, and the determination of what information is reasonably accessible.
To Continue Reading: Click Here
-----------------------------------------
Source: wisetechnology.com
One year after FRCP, struggles continue with e-discovery
A year ago, changes to the rules which federal courts use to prosecute civil cases went into effect. Those changes have since resulted in a wave of marketing hype from technology vendors, but only dim awareness among data managers about how the amendments to the Federal Rules of Civil Procedures (FRCP) affect them.
In a recent survey of 500 IT managers and a dozen in-house legal managers, conducted by backup and archiving vendor CommVault Systems Inc., half the respondents said they had been tasked with at least one e-discovery request in the last year. But only 20% were aware of the changes to the FRCP, and 82% responded that their organization had not yet started to address the challenges introduced by the amendments to the rules.
Furthermore, fewer than half of the legal managers contacted for the survey said they had been in discussions with IT managers about legal holds, retention policies or e-discovery.
"Setting retention policies has been the struggle for most organizations," said Paul D'Arcy, vice president of marketing for email managed service provider MessageOne Inc. "No one wants to put a stake in the ground."
David Dulek, storage administration lead for Fastenal Company Purchasing, a subsidiary of industrial and construction supplies maker Fastenal Co., said his company is dealing with the rule changes slowly. "It's on the radar," he said of the FRCP. But, he added, inside counsel and officers have a better understanding of the requirements than he does. "As far as I know, they're still trying to come up with policies for what we need to keep, how long and who's responsible," he said.
Once the policies have been defined, Dulek said, he expects his department to begin working with business units on putting a plan in place -- but not before mid-2008. "I'm hoping we'll start evaluating vendors [for new archiving and data management products] by the end of next year, but realistically, it may be 2009," he said.
"As e-discovery has continued to grow as an issue, more and more magistrate judges have shown that they will come down hard on companies over a failure to comply with hold processes for e-discovery," said Jon Neiditz, practice leader for information management at Locke, Lord, Bissell & Liddell LLP. Attorneys can be held in contempt of court and face other sanctions as a result of a failure to hold relevant data when there is a lawsuit pending or reasonably expected. Companies that can't show they have an enforced data management policy in place may also stand to lose judgments and incur fines.
If legal counsel and compliance officers are supposed to keep track of policies, IT managers in the trenches may think they don't have to worry about the FRCP. But the year-old changes to the rules make it IT's issue as well, whether or not data managers know it.
To Continue Reading: Click Here
-----------------------------------------
Source: searchstorage.techtarget.com
In a recent survey of 500 IT managers and a dozen in-house legal managers, conducted by backup and archiving vendor CommVault Systems Inc., half the respondents said they had been tasked with at least one e-discovery request in the last year. But only 20% were aware of the changes to the FRCP, and 82% responded that their organization had not yet started to address the challenges introduced by the amendments to the rules.
Furthermore, fewer than half of the legal managers contacted for the survey said they had been in discussions with IT managers about legal holds, retention policies or e-discovery.
"Setting retention policies has been the struggle for most organizations," said Paul D'Arcy, vice president of marketing for email managed service provider MessageOne Inc. "No one wants to put a stake in the ground."
David Dulek, storage administration lead for Fastenal Company Purchasing, a subsidiary of industrial and construction supplies maker Fastenal Co., said his company is dealing with the rule changes slowly. "It's on the radar," he said of the FRCP. But, he added, inside counsel and officers have a better understanding of the requirements than he does. "As far as I know, they're still trying to come up with policies for what we need to keep, how long and who's responsible," he said.
Once the policies have been defined, Dulek said, he expects his department to begin working with business units on putting a plan in place -- but not before mid-2008. "I'm hoping we'll start evaluating vendors [for new archiving and data management products] by the end of next year, but realistically, it may be 2009," he said.
"As e-discovery has continued to grow as an issue, more and more magistrate judges have shown that they will come down hard on companies over a failure to comply with hold processes for e-discovery," said Jon Neiditz, practice leader for information management at Locke, Lord, Bissell & Liddell LLP. Attorneys can be held in contempt of court and face other sanctions as a result of a failure to hold relevant data when there is a lawsuit pending or reasonably expected. Companies that can't show they have an enforced data management policy in place may also stand to lose judgments and incur fines.
If legal counsel and compliance officers are supposed to keep track of policies, IT managers in the trenches may think they don't have to worry about the FRCP. But the year-old changes to the rules make it IT's issue as well, whether or not data managers know it.
To Continue Reading: Click Here
-----------------------------------------
Source: searchstorage.techtarget.com
Wednesday, December 19, 2007
Data mining SW to unearth fraud
As no company wants to attract punishment for corporate malpractices, good business has now become equated with good compliance.
The world of corporate US changed forever after fraud was detected in corporate practices early this decade. Enron and Andersen auditors were involved in corporate fraud and employees of the companies held their breath and peace. They didn’t blow any whistles!
Investigating agencies noted that the presence of e-mails at Andersen and other companies involved that asked the email recipient to destroy documents, was unwarranted. A clear intent of hiding crime based on circumstantial evidence was present.
Following the detection of fraud, US Congress made it obligatory for companies to put in place internal compliance measures. It set standards on when and what documents must be retained by companies. In an atmosphere that encouraged corporate whistle blowing, the Securities and Exchange Commission and U.S. Sentencing Commission made it attractive to take compliance seriously. The federal bodies evolved policies that, in case a dispute arises between companies or a company and the state, give credit to companies that implement reasonably effective internal controls.
Companies have devoted millions of dollars on creating and enforcing document policies that properly “hold” documents in anticipation of litigation.
As no company wants to attract punishment for corporate malpractices, good business has now become equated with good compliance.
The measures therefore comprise credits for compliance and punishment, both statutory and by market forces. But crimes can and are likely to be committed for various reasons.How does one find them as there are millions of documents on a corporate network?
With corporate scandals hitting the headlines almost daily, responding to the constant threat of litigation is a prime concern for corporate counsel and law firms alike. This is why discovery and risk assessment are playing an important in large-scale litigation.
This has made data mining a critical application. S search and detect software engines such as Stratify Legal Discovery help in doing this.
To Continue Reading: Click Here
-----------------------------------------
Source: deccanherald.com
The world of corporate US changed forever after fraud was detected in corporate practices early this decade. Enron and Andersen auditors were involved in corporate fraud and employees of the companies held their breath and peace. They didn’t blow any whistles!
Investigating agencies noted that the presence of e-mails at Andersen and other companies involved that asked the email recipient to destroy documents, was unwarranted. A clear intent of hiding crime based on circumstantial evidence was present.
Following the detection of fraud, US Congress made it obligatory for companies to put in place internal compliance measures. It set standards on when and what documents must be retained by companies. In an atmosphere that encouraged corporate whistle blowing, the Securities and Exchange Commission and U.S. Sentencing Commission made it attractive to take compliance seriously. The federal bodies evolved policies that, in case a dispute arises between companies or a company and the state, give credit to companies that implement reasonably effective internal controls.
Companies have devoted millions of dollars on creating and enforcing document policies that properly “hold” documents in anticipation of litigation.
As no company wants to attract punishment for corporate malpractices, good business has now become equated with good compliance.
The measures therefore comprise credits for compliance and punishment, both statutory and by market forces. But crimes can and are likely to be committed for various reasons.How does one find them as there are millions of documents on a corporate network?
With corporate scandals hitting the headlines almost daily, responding to the constant threat of litigation is a prime concern for corporate counsel and law firms alike. This is why discovery and risk assessment are playing an important in large-scale litigation.
This has made data mining a critical application. S search and detect software engines such as Stratify Legal Discovery help in doing this.
To Continue Reading: Click Here
-----------------------------------------
Source: deccanherald.com
TorrentSpy Loses Case Due to Destruction of Evidence
Electronic Discovery or eDiscovery in just a few short years has become a most powerful weapon for all sides in a court case. It is so important that ever updated guidelines are pouring out of court precedent as to what files you can or cannot purge as well as to how long is reasonable before files, emails or any other type of data can be destroyed. If you erase the wrong file or backup tape too soon a court may penalize you. Such penalties can and have included forfeiture of the case itself.
That is just what happened to TorrentSpy in its case against the major film studios. Stating that TorrentSpy hid and destroyed evidence that made a fair trial impossible a federal judge ruled against the indexing service in court. "Although termination of a case is a harsh sanction appropriate only in 'extraordinary circumstances' ... the circumstances in this case are sufficiently extraordinary to merit such a sanction" wrote U.S. District Court judge Florence-Marie Cooper. "Defendants' conduct during discovery in this case has been obstreperous", the court continued. "They have engaged in widespread and systematic efforts to destroy evidence and have provided false testimony under oath in an effort to hide evidence of such destruction."
The end result is that TorrentSpy is now fully liable for copyright infringement. Copyright infringement didn't have to even be proven at trial, because the court ruled the actions of TorrentSpy made a fair trial impossible. Torrentspy, therefore, must bear the full burden of guilt. Ira Rothkin, the attorney for TorrentSpy told CNET "Now all TorrentSpy can do is argue over the amount of damages". Rothkin said they will appeal the decision.
To Continue Reading: Click Here
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Source: mp3newswire.net
That is just what happened to TorrentSpy in its case against the major film studios. Stating that TorrentSpy hid and destroyed evidence that made a fair trial impossible a federal judge ruled against the indexing service in court. "Although termination of a case is a harsh sanction appropriate only in 'extraordinary circumstances' ... the circumstances in this case are sufficiently extraordinary to merit such a sanction" wrote U.S. District Court judge Florence-Marie Cooper. "Defendants' conduct during discovery in this case has been obstreperous", the court continued. "They have engaged in widespread and systematic efforts to destroy evidence and have provided false testimony under oath in an effort to hide evidence of such destruction."
The end result is that TorrentSpy is now fully liable for copyright infringement. Copyright infringement didn't have to even be proven at trial, because the court ruled the actions of TorrentSpy made a fair trial impossible. Torrentspy, therefore, must bear the full burden of guilt. Ira Rothkin, the attorney for TorrentSpy told CNET "Now all TorrentSpy can do is argue over the amount of damages". Rothkin said they will appeal the decision.
To Continue Reading: Click Here
-----------------------------------------
Source: mp3newswire.net
Businesses Generally Ignoring E-Discovery Rules
A full year after the institution of federal e-discovery court rules, it appears few potential storage customers are paying attention.
A year and 16 days after the institution of the revised Federal Rules of Civil Procedure on Dec. 1, 2006, about two-thirds of U.S. businesses remain unprepared to meet strict court requirements for the discovery and handling of electronic evidence, according to a data storage researcher.
The new regulations, ordered by the U.S. Supreme Court in April 2006, mandate that businesses must be able to quickly produce such data—including e-mail, digital word documents, images and digital audio and video—when required by litigation in a federal court.
To this end, a relatively new IT sector built around efficient storage and access to legacy business data has been developing, but apparently the genre still has plenty of space to grow. At the one-year milestone, it doesn't appear as if many potential customers are paying attention—or, if they are aware of the rules, are simply ignoring them.
"The survey reveals serious legal issues for organizations that are either ignoring the new federal mandates for compliance and e-discovery or are clearly not well educated on how to meet the technical requirements," said IT researcher Michael Osterman of Osterman Research, in Black Diamond, Wash.
Many recent court cases have shown that companies are expected to show a clear retention policy, Osterman said.
"I don't think it's difficult to understand the [FRCP] rules," Osterman told eWEEK. "Or that business owners don't know about them. I just think that it sometimes takes 'headline shock' to make people move on some things—especially when we're talking about 'potential' liabilities.
"In other words, if it hasn't happened to them yet, it hasn't happened."
Osterman, a veteran, well-respected storage and data center researcher, said that it often takes bad news to happen to another company before a business owner gets serious about the potential problems he or she could face in litigation.
"Let's face it: Unless some company gets hit by a $15 million judgment, it is difficult for an IT manager or a CIO to go to his board and say, 'We might be liable under the new laws for not keeping all our e-mails and word docs. The 'potential' problems often don't get addressed," Osterman said.
Read here about an online resource center that is aiding e-discovery.
Osterman told of a company he knows in the United Kingdom—one of the larger employers in that nation—that had a sudden change of mind on this issue.
"The CIO had gone to his board in April 2005 with a 265-thousand-pound purchase order request for e-discovery and archiving software and services. He was turned down. In September of that same year, one of the company's competitors was hit by a large court judgment.
To Continue Reading: Click Here
-----------------------------------------
Source: eWeek
By: Chris Preimesberger
A year and 16 days after the institution of the revised Federal Rules of Civil Procedure on Dec. 1, 2006, about two-thirds of U.S. businesses remain unprepared to meet strict court requirements for the discovery and handling of electronic evidence, according to a data storage researcher.
The new regulations, ordered by the U.S. Supreme Court in April 2006, mandate that businesses must be able to quickly produce such data—including e-mail, digital word documents, images and digital audio and video—when required by litigation in a federal court.
To this end, a relatively new IT sector built around efficient storage and access to legacy business data has been developing, but apparently the genre still has plenty of space to grow. At the one-year milestone, it doesn't appear as if many potential customers are paying attention—or, if they are aware of the rules, are simply ignoring them.
"The survey reveals serious legal issues for organizations that are either ignoring the new federal mandates for compliance and e-discovery or are clearly not well educated on how to meet the technical requirements," said IT researcher Michael Osterman of Osterman Research, in Black Diamond, Wash.
Many recent court cases have shown that companies are expected to show a clear retention policy, Osterman said.
"I don't think it's difficult to understand the [FRCP] rules," Osterman told eWEEK. "Or that business owners don't know about them. I just think that it sometimes takes 'headline shock' to make people move on some things—especially when we're talking about 'potential' liabilities.
"In other words, if it hasn't happened to them yet, it hasn't happened."
Osterman, a veteran, well-respected storage and data center researcher, said that it often takes bad news to happen to another company before a business owner gets serious about the potential problems he or she could face in litigation.
"Let's face it: Unless some company gets hit by a $15 million judgment, it is difficult for an IT manager or a CIO to go to his board and say, 'We might be liable under the new laws for not keeping all our e-mails and word docs. The 'potential' problems often don't get addressed," Osterman said.
Read here about an online resource center that is aiding e-discovery.
Osterman told of a company he knows in the United Kingdom—one of the larger employers in that nation—that had a sudden change of mind on this issue.
"The CIO had gone to his board in April 2005 with a 265-thousand-pound purchase order request for e-discovery and archiving software and services. He was turned down. In September of that same year, one of the company's competitors was hit by a large court judgment.
To Continue Reading: Click Here
-----------------------------------------
Source: eWeek
By: Chris Preimesberger
Tuesday, December 18, 2007
Archiving Tool Saves BlackBerry Text Messages And Phone Logs
Retain collects the information from various SMS, PIN, and phone log files and imports them into a SQL database.
GWAVA, a provider of enterprise security and policy compliance products, this week rolled out a tool that allows businesses to archive text messages and phone logs on BlackBerry smartphones.
The auditing and archiving tool called Retain is installed directly on Research In Motion (NSDQ: RIMM)'s BlackBerry Enterprise Server, which enables device management and "push" wireless e-mail. But Retain doesn't require client software to be installed on BlackBerry devices. It doesn't use client software because otherwise it would use up additional memory power and processing resources on BlackBerrys, slowing down the devices' performance, said GWAVA.
Since Retain resides on the Enterprise Server, IT departments can administer changes and updates on BlackBerrys over-the-air without requiring each individual user to hand in their smartphone.
Instead of disabling text messages on BlackBerrys, businesses can use GWAVA's Retain to archive and audit the messages. The software works with short message service (SMS) text messages, which can be sent from and received by any mobile device, and BlackBerry-specific personal identification number (PIN) text messages, which are sent from one BlackBerry device to another.
Here's how Retain works: It collects the information from various SMS, PIN, and phone log files and imports them into a SQL database. This allows businesses to create audit trails and access the records any time, according to GWAVA.
System administrators can view the database by installing the Retain Archive Viewer on their workstations. They can obtain specific records using search criteria or choose to be alerted when certain keywords appear in text messages.
To Continue Reading: Click Here
-----------------------------------------
Source: Informationweek
By: Elena Malykhina
GWAVA, a provider of enterprise security and policy compliance products, this week rolled out a tool that allows businesses to archive text messages and phone logs on BlackBerry smartphones.
The auditing and archiving tool called Retain is installed directly on Research In Motion (NSDQ: RIMM)'s BlackBerry Enterprise Server, which enables device management and "push" wireless e-mail. But Retain doesn't require client software to be installed on BlackBerry devices. It doesn't use client software because otherwise it would use up additional memory power and processing resources on BlackBerrys, slowing down the devices' performance, said GWAVA.
Since Retain resides on the Enterprise Server, IT departments can administer changes and updates on BlackBerrys over-the-air without requiring each individual user to hand in their smartphone.
Instead of disabling text messages on BlackBerrys, businesses can use GWAVA's Retain to archive and audit the messages. The software works with short message service (SMS) text messages, which can be sent from and received by any mobile device, and BlackBerry-specific personal identification number (PIN) text messages, which are sent from one BlackBerry device to another.
Here's how Retain works: It collects the information from various SMS, PIN, and phone log files and imports them into a SQL database. This allows businesses to create audit trails and access the records any time, according to GWAVA.
System administrators can view the database by installing the Retain Archive Viewer on their workstations. They can obtain specific records using search criteria or choose to be alerted when certain keywords appear in text messages.
To Continue Reading: Click Here
-----------------------------------------
Source: Informationweek
By: Elena Malykhina
Britain in New Data Debacle
LONDON (AP) — Britain's top transport official said Monday that a disk drive containing personal information on three million driving test candidates has been lost in the United States — the latest in a series of government blunders over data.
Details on the candidates — including names, addresses and e-mail addresses — held on a hard drive were lost at an Iowa storage facility, British Transport Secretary Ruth Kelly told lawmakers in the House of Commons.
Kelly's report follows the loss by tax officials of sensitive data — including banking records — on nearly half the population.
Two computer disks from a tax and welfare department containing names, addresses, national insurance numbers and, in some cases, banking details, for 25 million adults and children disappeared while being sent by internal mail, ministers said last month.
A series of reviews launched because of the errors has found that other government departments have concerns about data handling, but uncovered no new mishaps, Treasury chief Alistair Darling said in a statement to legislators.
The blunders have dented Prime Minister Gordon Brown's hopes of introducing a national identity card system, which the government says is vital to enhance security and control immigration.
"We've seen that trust in the government to handle data has been shattered," said Phil Booth, of the No2ID campaign group, which opposes identity cards. "People do not trust the government to look after their sensitive details."
Brown hopes the cards, which will hold biographical and biometric data, will be introduced in 2009. The estimated cost of the program is $11.3 billion.
Kelly said details on driving test candidates were stored on a hard disk drive and lost in May from a storage facility in Iowa City.
Britain's Driving Standards Agency had hired Pearson Driving Assessments Ltd. to process the results of written tests candidates take before a practical examination. The company is part of the London-based Pearson Group PLC, the international media and education company that also owns the Financial Times newspaper and Penguin Books.
Charles Goldsmith, a spokesman for Pearson Driving Assessments in London, said the information was sent electronically to a Pearson data center in Iowa City, then downloaded to a hard disk drive, which subsequently went missing. He said the company believes it was misplaced somewhere in the office.
"Pearson considers all data security very important and we deeply regret this incident," he said. "We don't believe it was stolen ... We have no evidence that the information has been accessed or misused in anyway."
He said the Iowa City police had been notified at the request of the British government.
"The hard disk drive contained the records of just over 3 million candidates for the driving theory test," Kelly said. "I apologize for any uncertainty or concern."
To Continue Reading: Click Here
----------------------------------------
Source: Associated Press
By: David Stringer
Details on the candidates — including names, addresses and e-mail addresses — held on a hard drive were lost at an Iowa storage facility, British Transport Secretary Ruth Kelly told lawmakers in the House of Commons.
Kelly's report follows the loss by tax officials of sensitive data — including banking records — on nearly half the population.
Two computer disks from a tax and welfare department containing names, addresses, national insurance numbers and, in some cases, banking details, for 25 million adults and children disappeared while being sent by internal mail, ministers said last month.
A series of reviews launched because of the errors has found that other government departments have concerns about data handling, but uncovered no new mishaps, Treasury chief Alistair Darling said in a statement to legislators.
The blunders have dented Prime Minister Gordon Brown's hopes of introducing a national identity card system, which the government says is vital to enhance security and control immigration.
"We've seen that trust in the government to handle data has been shattered," said Phil Booth, of the No2ID campaign group, which opposes identity cards. "People do not trust the government to look after their sensitive details."
Brown hopes the cards, which will hold biographical and biometric data, will be introduced in 2009. The estimated cost of the program is $11.3 billion.
Kelly said details on driving test candidates were stored on a hard disk drive and lost in May from a storage facility in Iowa City.
Britain's Driving Standards Agency had hired Pearson Driving Assessments Ltd. to process the results of written tests candidates take before a practical examination. The company is part of the London-based Pearson Group PLC, the international media and education company that also owns the Financial Times newspaper and Penguin Books.
Charles Goldsmith, a spokesman for Pearson Driving Assessments in London, said the information was sent electronically to a Pearson data center in Iowa City, then downloaded to a hard disk drive, which subsequently went missing. He said the company believes it was misplaced somewhere in the office.
"Pearson considers all data security very important and we deeply regret this incident," he said. "We don't believe it was stolen ... We have no evidence that the information has been accessed or misused in anyway."
He said the Iowa City police had been notified at the request of the British government.
"The hard disk drive contained the records of just over 3 million candidates for the driving theory test," Kelly said. "I apologize for any uncertainty or concern."
To Continue Reading: Click Here
----------------------------------------
Source: Associated Press
By: David Stringer
EDD and Globalization to Impact Lawyers
Lawyers expect electronic discovery and globalization to have the most effect on the practice of law over the next five years, according to a new survey from the Robert Half Legal staffing agency.
Twenty-five percent of survey respondents named electronic discovery as the top catalyst for change, while 23 percent cited globalization.
Respondents also rated three other trends most likely to affect the practice of law over the next five years: 17 percent each voted for demographic shifts and corporate and regulatory issues and 8 percent chose privacy and security issues.
E-discovery and document retention rule changes have placed more demands on companies, said Robert Half Legal's Executive Director Charles Volkert.
"To prepare for litigation, legal teams must review massive amounts of material in short periods of time and determine relevancy to the case," Volkert said.
Globalization is also a major factor affecting law because international corporate expansions have also prompted an increasing number of lawyers to work in multiple jurisdictions, Volkert said.
To Continue Reading: Click Here
---------------------------------------
Source: Law.com
By: Sheri Qualters
Twenty-five percent of survey respondents named electronic discovery as the top catalyst for change, while 23 percent cited globalization.
Respondents also rated three other trends most likely to affect the practice of law over the next five years: 17 percent each voted for demographic shifts and corporate and regulatory issues and 8 percent chose privacy and security issues.
E-discovery and document retention rule changes have placed more demands on companies, said Robert Half Legal's Executive Director Charles Volkert.
"To prepare for litigation, legal teams must review massive amounts of material in short periods of time and determine relevancy to the case," Volkert said.
Globalization is also a major factor affecting law because international corporate expansions have also prompted an increasing number of lawyers to work in multiple jurisdictions, Volkert said.
To Continue Reading: Click Here
---------------------------------------
Source: Law.com
By: Sheri Qualters
Opening Doors to EU Data
This column has previously featured two areas where EU data protection law has come into conflict with U.S. law.[FOOTNOTE 1] In each case the conflict was resolved, more or less, by government-to-government negotiation. Another such conflict arises where the discovery requirements[FOOTNOTE 2] of U.S. litigation (or agency investigations or audits required by U.S. law) challenge the EU data protection laws.
The scope of discovery in U.S. litigation is quite extensive. But if U.S. discovery law is the irresistible force, then EU data protection law, which imposes strict limitations on the processing of personal data, is the immovable object. And this genre of conflict is now arising with increasing frequency.
Rule 26(1) of the Federal Rules of Civil Procedure permits a litigant to request any nonprivileged information relevant to the claim or defense of any party. Relevant evidence includes evidence that is admissible, or is reasonably calculated to lead to the discovery of admissible evidence. The federal rules, and state counterparts, impose on litigants and third parties broad obligations to produce evidence in the form of documents (a term specifically including electronic data), testimony and written answers to questions. Failure to adhere to these production obligations can lead to sanctions, including adverse jury instructions, preclusion of issues from trial, dismissal of claims, tort claims, contempt citations, fines and imprisonment.
The obligation to produce applies to documents within the "possession, custody or control" of the party from whom the documents are sought, wherever located. With multinationals increasingly linking their offices through computer networks, documents controlled by one office are often located on a server resident in another country. Discovery may be sought from any person subject to the jurisdiction of the court where the action is pending or from which the subpoena issued. It is useful to contemplate a seven-step process: (1) collection; (2) disclosure and (3) analysis in the EU; (4) transfer; and (5) the analysis; (6) disclosure; and (7) use in the United States.
On the other hand, the EU data protection laws[FOOTNOTE 3] substantially restrict the "processing" of personal data, a term those laws define quite broadly.[FOOTNOTE 4] Each of the seven steps described above constitutes "processing," and each requires a basis under EU law. Discovering documents located in the European Union is by no means just a transfer problem. Indeed, legitimizing the transfer may be less difficult than legitimizing any of the other six steps.
The first step in need of a basis under EU law is collection. Directive Article 7 states that processing is proper where unambiguous consent[FOOTNOTE 5] has been obtained, or one of several "necessities" applies: where "(b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; or (c) processing is necessary for compliance with a legal obligation to which the controller is subject; or (d) processing is necessary in order to protect the vital interests of the data subject; or (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed; or (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under Article 1(1)."
But the European Union takes a narrow view of necessity. In the instant situation, "necessity" (b) is unlikely to apply. Necessity (c) is also unlikely to apply unless the documents have been requested through a procedure established under a treaty, for the European Union views "legal obligation" as limited to obligations imposed by EU, member state, or international law. An obligation under U.S. law does not qualify.[FOOTNOTE 6]
Necessity (d) is unlikely to apply; discovery often would be antithetical to those interests. Necessity (e) runs afoul of the interpretation problem that "official authority" does not include U.S. official authority. And while discovery may qualify under the first segment of necessity (f), the EU view of "fundamental rights and freedoms" is so broad as to render this basis also inapplicable.
Thus, it may be quite difficult to comply with both U.S. and EU law in collecting documents situated in the European Union that are subject to a valid U.S. litigation or investigative request.
Except for transfer, a similar analysis may be directed to the other steps, with similar results.
Transfer of personal data is subject to its own set of controls, espoused in Directive Articles 25 (permitting transfer to a nation offering "adequate" protection) and Article 26. The "necessities" of Article 26(1) are generally similar to those of Article 7, and equally unhelpful to those seeking to transfer. However, under 26(2), a member state may authorize transfer to an inadequate nation where "the controller adduces adequate safeguards with respect to the protection of the privacy."
Under this provision, the European Union and the United States agreed to the Safe Harbor Principles, under which many U.S. companies today, in accordance with EU law, receive personal data from the EU. Article 26(4) provides that the European Union may approve "certain standard contractual clauses" offering sufficient safeguards; upon approval by the European Union, the member states must recognize these as adequate. And the European Union has approved sets of standard contractual clauses.
To Continue Reading: Click Here
---------------------------------------
Source: Law.com
By: David Bender
The scope of discovery in U.S. litigation is quite extensive. But if U.S. discovery law is the irresistible force, then EU data protection law, which imposes strict limitations on the processing of personal data, is the immovable object. And this genre of conflict is now arising with increasing frequency.
Rule 26(1) of the Federal Rules of Civil Procedure permits a litigant to request any nonprivileged information relevant to the claim or defense of any party. Relevant evidence includes evidence that is admissible, or is reasonably calculated to lead to the discovery of admissible evidence. The federal rules, and state counterparts, impose on litigants and third parties broad obligations to produce evidence in the form of documents (a term specifically including electronic data), testimony and written answers to questions. Failure to adhere to these production obligations can lead to sanctions, including adverse jury instructions, preclusion of issues from trial, dismissal of claims, tort claims, contempt citations, fines and imprisonment.
The obligation to produce applies to documents within the "possession, custody or control" of the party from whom the documents are sought, wherever located. With multinationals increasingly linking their offices through computer networks, documents controlled by one office are often located on a server resident in another country. Discovery may be sought from any person subject to the jurisdiction of the court where the action is pending or from which the subpoena issued. It is useful to contemplate a seven-step process: (1) collection; (2) disclosure and (3) analysis in the EU; (4) transfer; and (5) the analysis; (6) disclosure; and (7) use in the United States.
On the other hand, the EU data protection laws[FOOTNOTE 3] substantially restrict the "processing" of personal data, a term those laws define quite broadly.[FOOTNOTE 4] Each of the seven steps described above constitutes "processing," and each requires a basis under EU law. Discovering documents located in the European Union is by no means just a transfer problem. Indeed, legitimizing the transfer may be less difficult than legitimizing any of the other six steps.
The first step in need of a basis under EU law is collection. Directive Article 7 states that processing is proper where unambiguous consent[FOOTNOTE 5] has been obtained, or one of several "necessities" applies: where "(b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; or (c) processing is necessary for compliance with a legal obligation to which the controller is subject; or (d) processing is necessary in order to protect the vital interests of the data subject; or (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed; or (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under Article 1(1)."
But the European Union takes a narrow view of necessity. In the instant situation, "necessity" (b) is unlikely to apply. Necessity (c) is also unlikely to apply unless the documents have been requested through a procedure established under a treaty, for the European Union views "legal obligation" as limited to obligations imposed by EU, member state, or international law. An obligation under U.S. law does not qualify.[FOOTNOTE 6]
Necessity (d) is unlikely to apply; discovery often would be antithetical to those interests. Necessity (e) runs afoul of the interpretation problem that "official authority" does not include U.S. official authority. And while discovery may qualify under the first segment of necessity (f), the EU view of "fundamental rights and freedoms" is so broad as to render this basis also inapplicable.
Thus, it may be quite difficult to comply with both U.S. and EU law in collecting documents situated in the European Union that are subject to a valid U.S. litigation or investigative request.
Except for transfer, a similar analysis may be directed to the other steps, with similar results.
Transfer of personal data is subject to its own set of controls, espoused in Directive Articles 25 (permitting transfer to a nation offering "adequate" protection) and Article 26. The "necessities" of Article 26(1) are generally similar to those of Article 7, and equally unhelpful to those seeking to transfer. However, under 26(2), a member state may authorize transfer to an inadequate nation where "the controller adduces adequate safeguards with respect to the protection of the privacy."
Under this provision, the European Union and the United States agreed to the Safe Harbor Principles, under which many U.S. companies today, in accordance with EU law, receive personal data from the EU. Article 26(4) provides that the European Union may approve "certain standard contractual clauses" offering sufficient safeguards; upon approval by the European Union, the member states must recognize these as adequate. And the European Union has approved sets of standard contractual clauses.
To Continue Reading: Click Here
---------------------------------------
Source: Law.com
By: David Bender
US firms in the dark over data retention
A year after the launch of the revised Federal Rules of Civil Procedure (FRCP), more than 65 per cent of US businesses remain unprepared to meet strict court requirements for the discovery and handling of electronic evidence, new research claimed today.
The revised rules set "aggressive timelines" for the discovery of electronic information such as email, and strict penalties for the destruction of evidence.
They also include 'safe harbour' provisions to protect organisations that implement standard retention policies for electronically stored information.
The rules were drafted by the Supreme Court and approved by Congress and the US Judicial Conference, and have already had a profound effect on how the US legal system handles electronic evidence including emails and digital files.
However, the MessageOne Email Archiving Practices Survey of IT professionals, conducted by Osterman Research, revealed over half of US companies lack a policy to govern email retention and deletion.
The study also showed that 67 per cent of companies allow individual end users to determine how long messages are kept by the company.
Additionally it was discovered that two-thirds of companies do not have the email archiving technology required to manage retention, litigation holds and electronic discovery.
In the event of litigation, these companies would probably be required to search back-up tapes, desktop files and legacy systems to find information that had been deleted in the absence of a good-faith retention policy.
Manual electronic discovery searches can cost hundreds of thousands or even millions of dollars, the MessageOne report warned.
These companies also risk being sanctioned for the illegal destruction of evi dence, including courtroom penalties that can cost a company an important legal case on process grounds.
"The survey reveals serious legal issues for organisations that either ignore the new federal mandates for compliance and e-discovery, or are clearly not well educated on how to meet the technical requirements," said Michael Osterman, chief executive at Osterman Research.
"Many recent court cases have shown that companies are expected to show a clear retention policy. The time is now for all companies to set and manage retention policies for their entire organisation."
Osterman added that, while the revised FRCP provides a strong incentive for potential litigants to put email retention policies in place, they do not provide any guidance on the contents of the actual policies.
As a result, companies have taken very different approaches to email retention. Almost half have implemented email retention policies, while 36 per cent keep all messages for the duration of their policy.
Some 64 per cent vary retention policies based on a pre-defined criteria. Retention strategies typically reflect an individual corporation's philosophy around email and litigation, according to
the report.
To Continue Reading: Click Here
---------------------------------------
Source: VUNet
By: Robert Jaques
The revised rules set "aggressive timelines" for the discovery of electronic information such as email, and strict penalties for the destruction of evidence.
They also include 'safe harbour' provisions to protect organisations that implement standard retention policies for electronically stored information.
The rules were drafted by the Supreme Court and approved by Congress and the US Judicial Conference, and have already had a profound effect on how the US legal system handles electronic evidence including emails and digital files.
However, the MessageOne Email Archiving Practices Survey of IT professionals, conducted by Osterman Research, revealed over half of US companies lack a policy to govern email retention and deletion.
The study also showed that 67 per cent of companies allow individual end users to determine how long messages are kept by the company.
Additionally it was discovered that two-thirds of companies do not have the email archiving technology required to manage retention, litigation holds and electronic discovery.
In the event of litigation, these companies would probably be required to search back-up tapes, desktop files and legacy systems to find information that had been deleted in the absence of a good-faith retention policy.
Manual electronic discovery searches can cost hundreds of thousands or even millions of dollars, the MessageOne report warned.
These companies also risk being sanctioned for the illegal destruction of evi dence, including courtroom penalties that can cost a company an important legal case on process grounds.
"The survey reveals serious legal issues for organisations that either ignore the new federal mandates for compliance and e-discovery, or are clearly not well educated on how to meet the technical requirements," said Michael Osterman, chief executive at Osterman Research.
"Many recent court cases have shown that companies are expected to show a clear retention policy. The time is now for all companies to set and manage retention policies for their entire organisation."
Osterman added that, while the revised FRCP provides a strong incentive for potential litigants to put email retention policies in place, they do not provide any guidance on the contents of the actual policies.
As a result, companies have taken very different approaches to email retention. Almost half have implemented email retention policies, while 36 per cent keep all messages for the duration of their policy.
Some 64 per cent vary retention policies based on a pre-defined criteria. Retention strategies typically reflect an individual corporation's philosophy around email and litigation, according to
the report.
To Continue Reading: Click Here
---------------------------------------
Source: VUNet
By: Robert Jaques
Monday, December 17, 2007
Where's a CIO when you need one?
We've all heard about the headaches IT executives endure when faced with data retention requirements: what to archive, what not to archive, how long to archive. But the CIA's destruction of videotapes of its interrogation of suspected terrorists is just taking it too far.
Granted, the interrogation videos were taken in 2002 and it may not have been in digital format, but any responsible CIO would have thought long and hard, and would probably decide against such destructive method of data management.
Actually, my question is: Was the CIA's CIO in the loop when agency officials decided to destroy critical information? Or have they decided at the time that it was really outside the CIO's scope of work and that data retention policies only apply to non-incriminating information. After all, e-discovery rules in the U.S. apparently don't apply to the CIA.
The CIA's evidence destruction fiasco really brings forth two issues for IT managers, particularly in government agencies where IT resources are typically wanting. One is that the amount of data within the organization has grown exponentially and it will only continue to grow. The result of that brings me to the second issue: how to effectively manage this growing digital data in light of privacy, security and regulatory compliance considerations.
Surely, deleting these volumes of data does not make the problem go away. Just look at the flak the CIA is now enduring from the public and U.S. legislators. For the CIA, perhaps, the harm to the agency is merely reputational (nothing new there).
To Continue Reading: Click Here
---------------------------------------
Source: intergovworld.com
Granted, the interrogation videos were taken in 2002 and it may not have been in digital format, but any responsible CIO would have thought long and hard, and would probably decide against such destructive method of data management.
Actually, my question is: Was the CIA's CIO in the loop when agency officials decided to destroy critical information? Or have they decided at the time that it was really outside the CIO's scope of work and that data retention policies only apply to non-incriminating information. After all, e-discovery rules in the U.S. apparently don't apply to the CIA.
The CIA's evidence destruction fiasco really brings forth two issues for IT managers, particularly in government agencies where IT resources are typically wanting. One is that the amount of data within the organization has grown exponentially and it will only continue to grow. The result of that brings me to the second issue: how to effectively manage this growing digital data in light of privacy, security and regulatory compliance considerations.
Surely, deleting these volumes of data does not make the problem go away. Just look at the flak the CIA is now enduring from the public and U.S. legislators. For the CIA, perhaps, the harm to the agency is merely reputational (nothing new there).
To Continue Reading: Click Here
---------------------------------------
Source: intergovworld.com
CIA: Not a Role Model for Corporate CIOs
The recent news that the Central Intelligence Agency destroyed videotapes of interrogations of two terrorist suspects may offer a timely reminder for CIOs at private companies in the U.S., tasked with electronic evidence preservation rules since last December.
The e-discovery rules, amendments to U.S. courts' Federal Rules of Civil Procedure, don't apply to the CIA, but the agency's decision to destroy videotapes showing harsh interrogation techniques may show private companies how not to handle evidence, some e-discovery experts said.
The e-discovery rules require U.S. companies to keep electronic records when they're faced with a civil lawsuit or the likelihood of a lawsuit. In effect, what this means is that companies should archive e-mail and other electronic records, said Ralph Harvey, CEO of Forensic & Compliance Systems, an e-mail archiving vendor based in Dublin, Ireland. "The lesson learned is you keep everything for a finite period," he said.
In the CIA case, several lawmakers have called for an investigation into the destruction of the videotapes. The tapes, recorded in 2002, were destroyed in November 2005, when there was a heated debate about the use of harsh interrogation techniques on terrorism suspects. Some former staff members at the government-created 9/11 Commission have also questioned whether the tapes were evidence that the CIA withheld from the group, which was investigating the Sept. 11 terrorist attacks on the U.S.
In the e-discovery rules, companies can be subject to significant fines for not producing electronic evidence they're required to keep. In May 2006, even before the new e-discovery rules went into effect, Morgan Stanley agreed to pay a US$15 million fine for failing to produce e-mail linked to several legal investigations.
"Ultimately, the issue is you don't know how important that e-mail is to someone else," Harvey said.
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Source: pcworld.com
The e-discovery rules, amendments to U.S. courts' Federal Rules of Civil Procedure, don't apply to the CIA, but the agency's decision to destroy videotapes showing harsh interrogation techniques may show private companies how not to handle evidence, some e-discovery experts said.
The e-discovery rules require U.S. companies to keep electronic records when they're faced with a civil lawsuit or the likelihood of a lawsuit. In effect, what this means is that companies should archive e-mail and other electronic records, said Ralph Harvey, CEO of Forensic & Compliance Systems, an e-mail archiving vendor based in Dublin, Ireland. "The lesson learned is you keep everything for a finite period," he said.
In the CIA case, several lawmakers have called for an investigation into the destruction of the videotapes. The tapes, recorded in 2002, were destroyed in November 2005, when there was a heated debate about the use of harsh interrogation techniques on terrorism suspects. Some former staff members at the government-created 9/11 Commission have also questioned whether the tapes were evidence that the CIA withheld from the group, which was investigating the Sept. 11 terrorist attacks on the U.S.
In the e-discovery rules, companies can be subject to significant fines for not producing electronic evidence they're required to keep. In May 2006, even before the new e-discovery rules went into effect, Morgan Stanley agreed to pay a US$15 million fine for failing to produce e-mail linked to several legal investigations.
"Ultimately, the issue is you don't know how important that e-mail is to someone else," Harvey said.
To Continue Reading: Click Here
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Source: pcworld.com
NEW MOBILE ‘PHONE-SHIELD’ SET TO IMPROVE POLICE PROSECUTION RATES
A new mobile phone faraday bag called the ‘Phone-Shield’, launched today by Tamworth-based Disklabs, is set to increase the ability of the police to successfully and cost-effectively prosecute in cases where mobile phone data comprises an essential element of evidence.
The new Phone-Shield has been designed by Disklabs to ensure that data on a suspect’s mobile phone can be investigated without that data being compromised when the phone connects to its relevant network. Disklabs used ACPO’s guidance on mobile phone seizure and examination as the blueprint for their design, and extensive subsequent testing has been successful in proving that the Phone-Shield successfully keeps suspects’ mobile phones secure from any incoming communications from the networks at the point of police capture, irrespective of the type of phone, frequency or network.
Not having the mobile phone switched on safeguards against network interference and ‘tainting’ but it also means that critical time and date stamps cannot be verified, leading to evidence captured being questioned in court. However, the ‘Faraday’ window on the Phone-Shield allows the police examiner to view the phone in a ‘Faraday’ condition, thus enabling an ‘immediate preview of evidence’.
Simon Steggles, MD of Disklabs, believes Phone-Shield will save police forces several hundred thousand pounds by transforming both the initial arrest process and subsequent prosecution approach. Simon explained: “Mobile phones are becoming increasingly associated with a number of street crimes, particularly violent crime involving several people or gangs where at least one person is tempted to video the crime on their mobile phone. In this scenario the traditional police approach would involve the entire group being taken to the police station and bailed whilst mobile phone evidence was examined. Using the new Phone-Shield, a police officer can place each suspect’s phone in a Faraday bag and search for any incriminating evidence without fear of it being compromised by connection to any network. Using the new Phone Shield however the process is transformed and the number of phones requiring expensive examination is drastically reduced, thus saving potentially hundreds of thousands of pounds per police force across a year. Furthermore, the reduction in unnecessary mobile phone investigations ensures that crimes are investigated considerably faster. In addition, the prospects for successful prosecution are increased because defending counsel will be less able to argue that mobile phone evidence has been tainted during examination through connection to a network.”
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Source: ukprwire.com
The new Phone-Shield has been designed by Disklabs to ensure that data on a suspect’s mobile phone can be investigated without that data being compromised when the phone connects to its relevant network. Disklabs used ACPO’s guidance on mobile phone seizure and examination as the blueprint for their design, and extensive subsequent testing has been successful in proving that the Phone-Shield successfully keeps suspects’ mobile phones secure from any incoming communications from the networks at the point of police capture, irrespective of the type of phone, frequency or network.
Not having the mobile phone switched on safeguards against network interference and ‘tainting’ but it also means that critical time and date stamps cannot be verified, leading to evidence captured being questioned in court. However, the ‘Faraday’ window on the Phone-Shield allows the police examiner to view the phone in a ‘Faraday’ condition, thus enabling an ‘immediate preview of evidence’.
Simon Steggles, MD of Disklabs, believes Phone-Shield will save police forces several hundred thousand pounds by transforming both the initial arrest process and subsequent prosecution approach. Simon explained: “Mobile phones are becoming increasingly associated with a number of street crimes, particularly violent crime involving several people or gangs where at least one person is tempted to video the crime on their mobile phone. In this scenario the traditional police approach would involve the entire group being taken to the police station and bailed whilst mobile phone evidence was examined. Using the new Phone-Shield, a police officer can place each suspect’s phone in a Faraday bag and search for any incriminating evidence without fear of it being compromised by connection to any network. Using the new Phone Shield however the process is transformed and the number of phones requiring expensive examination is drastically reduced, thus saving potentially hundreds of thousands of pounds per police force across a year. Furthermore, the reduction in unnecessary mobile phone investigations ensures that crimes are investigated considerably faster. In addition, the prospects for successful prosecution are increased because defending counsel will be less able to argue that mobile phone evidence has been tainted during examination through connection to a network.”
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Source: ukprwire.com
Technology and The Failure To Stop Financial Data Loss
The media have been preoccupied with the loss of data belonging to 25 million British citizens (41% of the total population of 60.77 million according to the US official World Fact Book). The data was stored on compact disks and the loss took place during transport by courier between one tax authority and another. Prime Minister's Gordon Brown's ratings took a hit by several points as a result of this error according to polls by British newspapers.
Such incidents have not been uncommon in several developed countries over the past few years. Bank of America, for example, announced that it lost a limited number of backup tapes that contained data on charge card accounts, national security numbers, and the addresses and account numbers of 1.2 million government employees, including one third of Pentagon employees as well as Congress members. The tapes were lost while being shipped to a backup center at the bank by plane in December 2004. An expert involved in the issue pointed out back then that the tapes were not labeled and considered it unlikely that anyone could use them since that would require advanced technological knowledge.
Ironically, third world countries, including most Arab countries, have not transformed their public records (social security for example) to electronic formats despite the repeated calls from international organizations such as the International Monetary Fund since storing huge amounts of data on paper is unpractical and makes file retrieval a tedious task.
The risks of losing sensitive data are not limited to financial and monetary issues. Official government information, commercial chemical formulas, and vital medical data may also be stole, posing a danger to its owner. For example, unauthorized possession of medical data can allow entry to a hospital database, allowing access to the genetic map and medical history of an individual that can be used in search for body organs to implant in the body of a needy patient.
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Source: english.daralhayat.com
Such incidents have not been uncommon in several developed countries over the past few years. Bank of America, for example, announced that it lost a limited number of backup tapes that contained data on charge card accounts, national security numbers, and the addresses and account numbers of 1.2 million government employees, including one third of Pentagon employees as well as Congress members. The tapes were lost while being shipped to a backup center at the bank by plane in December 2004. An expert involved in the issue pointed out back then that the tapes were not labeled and considered it unlikely that anyone could use them since that would require advanced technological knowledge.
Ironically, third world countries, including most Arab countries, have not transformed their public records (social security for example) to electronic formats despite the repeated calls from international organizations such as the International Monetary Fund since storing huge amounts of data on paper is unpractical and makes file retrieval a tedious task.
The risks of losing sensitive data are not limited to financial and monetary issues. Official government information, commercial chemical formulas, and vital medical data may also be stole, posing a danger to its owner. For example, unauthorized possession of medical data can allow entry to a hospital database, allowing access to the genetic map and medical history of an individual that can be used in search for body organs to implant in the body of a needy patient.
To Continue Reading: Click Here
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Source: english.daralhayat.com
Friday, December 14, 2007
Amazon Launches New Database Service
While the S3 Web service is designed to store large objects or files, Amazon's new SimpleDB is optimized for storing smaller bits of data and accessing that data swiftly.
Amazon on Thursday plans to announce Amazon SimpleDB, a new Web service for querying structured data.
Adam Selipsky, VP of Product Management and Developer Relations, said that Amazon plans post details on the about SimpleDB on its Web site in advance of a limited beta release. The database service will be made available to a limited number of beta testers in the next few weeks. Those wishing to try it will be able to provide an e-mail address to Amazon, which will select and notify beta testers on a first-come, first-serve basis.
Launched in 2002, Amazon Web Services represents a major bet that Amazon can sell access to its IT infrastructure as a utility. In an InformationWeek interview last year, Amazon CEO Jeff Bezos described AWS thus: "What we're doing is leveling the playing field so that small companies can have access to the same low-cost structure as big companies for very reliable backend infrastructure, and to do that in a pay-by-the-drink way -- so that you don't have these big fixed-cost steps that you have to subject yourself to."
There are currently more than 290,000 AWS developers, according to an Amazon spokesperson. At the Web 2.0 Expo 2007 in April, Bezos said that while Amazon intended to make money selling on-demand computing services, AWS was not yet profitable.
SimpleDB is designed to complement two other offerings from Amazon Web Services, Amazon Simple Storage Service (S3), and Amazon Elastic Compute Cloud (EC2).
While S3 is designed to store large objects or files, SimpleDB is optimized for storing smaller bits of data and accessing that data swiftly. "SimpleDB is great for indexing data, for being able to query that data very quickly and efficiently and to be able to return the result," said Selipsky.
Thus specialized search companies are using the service for their document indices.
"It's basically a great place to store metadata and information about objects," said Selipsky.
"And often those objects are going to be stored in S3. In addition to being a standalone service, it's really designed to be tightly integrated with our other services."
Selipsky said that SimpleDB was designed to provide an online alternative to traditional relational databases. While the service is not intended for sophisticated database operations like complex joins or advanced mathematical operations, it will be broadly useful for many applications, he said. "Any kind of product catalog will be a popular use case," he said.
Amazon's own Alexa Web information service relies on SimpleDB. Some of the companies using Amazon Web Services include G.ho.st, ElephantDrive, Powerset, and SmugMug.
The SimpleDB documentation notes that traditional relational databases tend to be more complex and costly than necessary.
"Many developers simply want to store, process, and query their data without worrying about managing schemas, maintaining indexes, tuning performance or scaling access to their data," the documentation explains. "Amazon SimpleDB removes the need to maintain a schema, while your attributes are automatically indexed to provide fast real-time lookup and querying capabilities."
To Continue Reading: Click Here
---------------------------------------
Source: Informationweek
By: Thomas Claburn
Amazon on Thursday plans to announce Amazon SimpleDB, a new Web service for querying structured data.
Adam Selipsky, VP of Product Management and Developer Relations, said that Amazon plans post details on the about SimpleDB on its Web site in advance of a limited beta release. The database service will be made available to a limited number of beta testers in the next few weeks. Those wishing to try it will be able to provide an e-mail address to Amazon, which will select and notify beta testers on a first-come, first-serve basis.
Launched in 2002, Amazon Web Services represents a major bet that Amazon can sell access to its IT infrastructure as a utility. In an InformationWeek interview last year, Amazon CEO Jeff Bezos described AWS thus: "What we're doing is leveling the playing field so that small companies can have access to the same low-cost structure as big companies for very reliable backend infrastructure, and to do that in a pay-by-the-drink way -- so that you don't have these big fixed-cost steps that you have to subject yourself to."
There are currently more than 290,000 AWS developers, according to an Amazon spokesperson. At the Web 2.0 Expo 2007 in April, Bezos said that while Amazon intended to make money selling on-demand computing services, AWS was not yet profitable.
SimpleDB is designed to complement two other offerings from Amazon Web Services, Amazon Simple Storage Service (S3), and Amazon Elastic Compute Cloud (EC2).
While S3 is designed to store large objects or files, SimpleDB is optimized for storing smaller bits of data and accessing that data swiftly. "SimpleDB is great for indexing data, for being able to query that data very quickly and efficiently and to be able to return the result," said Selipsky.
Thus specialized search companies are using the service for their document indices.
"It's basically a great place to store metadata and information about objects," said Selipsky.
"And often those objects are going to be stored in S3. In addition to being a standalone service, it's really designed to be tightly integrated with our other services."
Selipsky said that SimpleDB was designed to provide an online alternative to traditional relational databases. While the service is not intended for sophisticated database operations like complex joins or advanced mathematical operations, it will be broadly useful for many applications, he said. "Any kind of product catalog will be a popular use case," he said.
Amazon's own Alexa Web information service relies on SimpleDB. Some of the companies using Amazon Web Services include G.ho.st, ElephantDrive, Powerset, and SmugMug.
The SimpleDB documentation notes that traditional relational databases tend to be more complex and costly than necessary.
"Many developers simply want to store, process, and query their data without worrying about managing schemas, maintaining indexes, tuning performance or scaling access to their data," the documentation explains. "Amazon SimpleDB removes the need to maintain a schema, while your attributes are automatically indexed to provide fast real-time lookup and querying capabilities."
To Continue Reading: Click Here
---------------------------------------
Source: Informationweek
By: Thomas Claburn
Virtualization: More Than Consolidation
In today’s high-tech world, users sometimes lose sight of the origins of the complex technology employed on a daily basis. Take scanners, for example: As recently as ten years ago, scanning technology was still in its relative infancy. Scanners were bulky, expensive, and could only slowly scan and reproduce black and white images. Today, scanners are cheap, plentiful and fast, helping organizations archive and reproduce hard copy documents in seconds, and have even advanced to the point where they can scan and reproduce 3D models.
Virtualization has much in common with scanning, at least from an organizational use and adoption standpoint. The technology allows users to get the most out of existing resources by creating “virtual” images of operating systems, network devices, servers and even storage resources, squeezing the most out of existing infrastructure. Like scanners, virtualization helps organizations quickly create and distribute copies of business resources, only instead of paper documents it is with networks and data storage.
Also, like scanners, the business community is quickly adopting virtualization in its current form. The ability to run multiple operating systems on a single server, helping businesses get the most out of existing resources and cut back on costs associated with server farms, is a benefit that is hard to ignore and can be embraced by almost every IT department around the world.
This initial benefit of consolidation has had a ripple effect across the enterprise, just as the digitizing of documents via scanners did. Scanning documents and distributing digitally meant that less paper had to be used, helping organizations take an environmentally friendly approach to business. Virtualization does this as well, but in terms of fewer servers: One server can do the job of several and therefore other network resources can be downsized, reducing the power consumption footprint of the organization.
This ripple effect expands to business flexibility, just like the digitization of documents frees organizations from having to rely solely on paper documentation. The ability to use any given server for more than just a mail server or for a single operating environment is a boon to the enterprise, stretching resources far beyond their intended uses. Reliability and disaster recovery are also side benefits of this consolidation, as it makes moving network operations from one environment or server to another far easier.
Driving the adoption and innovation of virtualization, much like scanning technology before it, is the underlying business need for better and faster productivity while keeping costs low.
Scanning helped businesses streamline workflow by eliminating the need for snail mail and faxes. Virtualization adoption goes much, much further in this, helping IT align with the business need for “always on” technology and high service levels while, again, keeping costs low.
While companies like VMWare, Xen, Microsoft and a host of others are hopping on the virtualization bandwagon and pushing adoption along in the mainstream, there are new innovators popping up everyday, seeking other uses for the technology above and beyond its original intent. It was this same second generation of users that pushed scanning technology from its early days of scanning black and white documents to an ever-present and constantly evolving business solution, one that is inherent in nearly every printer, copier and fax machine in today’s office.
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----------------------------------------
Source: Computer Technology Review
By: Andrew Gross
Virtualization has much in common with scanning, at least from an organizational use and adoption standpoint. The technology allows users to get the most out of existing resources by creating “virtual” images of operating systems, network devices, servers and even storage resources, squeezing the most out of existing infrastructure. Like scanners, virtualization helps organizations quickly create and distribute copies of business resources, only instead of paper documents it is with networks and data storage.
Also, like scanners, the business community is quickly adopting virtualization in its current form. The ability to run multiple operating systems on a single server, helping businesses get the most out of existing resources and cut back on costs associated with server farms, is a benefit that is hard to ignore and can be embraced by almost every IT department around the world.
This initial benefit of consolidation has had a ripple effect across the enterprise, just as the digitizing of documents via scanners did. Scanning documents and distributing digitally meant that less paper had to be used, helping organizations take an environmentally friendly approach to business. Virtualization does this as well, but in terms of fewer servers: One server can do the job of several and therefore other network resources can be downsized, reducing the power consumption footprint of the organization.
This ripple effect expands to business flexibility, just like the digitization of documents frees organizations from having to rely solely on paper documentation. The ability to use any given server for more than just a mail server or for a single operating environment is a boon to the enterprise, stretching resources far beyond their intended uses. Reliability and disaster recovery are also side benefits of this consolidation, as it makes moving network operations from one environment or server to another far easier.
Driving the adoption and innovation of virtualization, much like scanning technology before it, is the underlying business need for better and faster productivity while keeping costs low.
Scanning helped businesses streamline workflow by eliminating the need for snail mail and faxes. Virtualization adoption goes much, much further in this, helping IT align with the business need for “always on” technology and high service levels while, again, keeping costs low.
While companies like VMWare, Xen, Microsoft and a host of others are hopping on the virtualization bandwagon and pushing adoption along in the mainstream, there are new innovators popping up everyday, seeking other uses for the technology above and beyond its original intent. It was this same second generation of users that pushed scanning technology from its early days of scanning black and white documents to an ever-present and constantly evolving business solution, one that is inherent in nearly every printer, copier and fax machine in today’s office.
To Continue Reading: Click Here
----------------------------------------
Source: Computer Technology Review
By: Andrew Gross
Computer Disaster Recovery Guide
Most employees of small to large corporations use company computers every day. When there are system failures on one or multiple computers, the results can be disastrous for the business.
Business files, accounting information, and client details often are stored on computers used by employees with limited technical skills. Data is constantly being accessed and always changing, which makes keeping pace with the changing data a major challenge for the IT department.
With laptops and desktops playing such a key role in life, it is essential for every business to have a computer disaster recovery plan, which could save time and money in unnecessary attempts to recover the data by the system administrator.
This article will show what companies can do to protect employee desktops and laptops if a disaster strikes. It will explain how the right backup software solution can save time for the IT department and money for the company, while keeping the employees’ data safely and offering a simple recovery solution in case of logical system failures.
For any IT manager, it is essential to be overly prepared rather than not prepared. Backing up only once a month or several times each year is not enough. If a recovery solution fails to work, users want to have access to as much current data as possible.
There are various data backup and recovery solutions on the market. Businesses and individuals can use software and data backup methods in an attempt to create their own computer disaster recovery options. While researching different solutions, because time is such an important element when a disaster strikes, looking for a solution that could restore a crashed system to any previous snapshot in seconds is essential. Also, for companies with limited IT resources, it is ideal to implement a backup and recovery solution that backs up the data without disrupting the user, but, in case of a disaster, employees with no specialized storage skills can use it to recover their data.
Although today's world offers excellent technology, along with the many advantages also come some challenges. Historically, our defense against a hard drive crash has been a complete disk image kept at a physically separate location - this image is copied back on to a replacement hard drive. But image-based backups have two major problems: they are very resource-hungry and they require a lot of manual intervention. When the time comes to restore – the older the backup, the more work is lost. There is some “logging” software that tries to maintain continuous change tracking, but again, it is very demanding on resources.
As disk hardware is very stable, the impulse to defer a backup is high. Content corruption has become a major issue. Spyware, Adware, faulty upgrades, incomplete uninstalls, key loggers, root kits, and viruses hit us almost daily.
Firewalls, anti-viruses and intrusion detectors minimize the risks, but it is a question of when security will be breached and not if. The need for a frequent, fast, and efficient backup and restore has never been greater.
It is terrifying to lose hours or days of work just because some software malfunctioned on your PC. While system restore is built into your operating system, Windows System Restore only protects system files. It does not recover data, user settings or programs if Windows does not start up. Even if your Windows is corrupted and you are facing the dreaded blue screen of death (BSOD), there are “rollback” software solutions out there that can help you restore your computer settings.
To Continue Reading: Click Here
--------------------------------------
Source: Computer Technology Review
By: Lyle Patel
Business files, accounting information, and client details often are stored on computers used by employees with limited technical skills. Data is constantly being accessed and always changing, which makes keeping pace with the changing data a major challenge for the IT department.
With laptops and desktops playing such a key role in life, it is essential for every business to have a computer disaster recovery plan, which could save time and money in unnecessary attempts to recover the data by the system administrator.
This article will show what companies can do to protect employee desktops and laptops if a disaster strikes. It will explain how the right backup software solution can save time for the IT department and money for the company, while keeping the employees’ data safely and offering a simple recovery solution in case of logical system failures.
For any IT manager, it is essential to be overly prepared rather than not prepared. Backing up only once a month or several times each year is not enough. If a recovery solution fails to work, users want to have access to as much current data as possible.
There are various data backup and recovery solutions on the market. Businesses and individuals can use software and data backup methods in an attempt to create their own computer disaster recovery options. While researching different solutions, because time is such an important element when a disaster strikes, looking for a solution that could restore a crashed system to any previous snapshot in seconds is essential. Also, for companies with limited IT resources, it is ideal to implement a backup and recovery solution that backs up the data without disrupting the user, but, in case of a disaster, employees with no specialized storage skills can use it to recover their data.
Although today's world offers excellent technology, along with the many advantages also come some challenges. Historically, our defense against a hard drive crash has been a complete disk image kept at a physically separate location - this image is copied back on to a replacement hard drive. But image-based backups have two major problems: they are very resource-hungry and they require a lot of manual intervention. When the time comes to restore – the older the backup, the more work is lost. There is some “logging” software that tries to maintain continuous change tracking, but again, it is very demanding on resources.
As disk hardware is very stable, the impulse to defer a backup is high. Content corruption has become a major issue. Spyware, Adware, faulty upgrades, incomplete uninstalls, key loggers, root kits, and viruses hit us almost daily.
Firewalls, anti-viruses and intrusion detectors minimize the risks, but it is a question of when security will be breached and not if. The need for a frequent, fast, and efficient backup and restore has never been greater.
It is terrifying to lose hours or days of work just because some software malfunctioned on your PC. While system restore is built into your operating system, Windows System Restore only protects system files. It does not recover data, user settings or programs if Windows does not start up. Even if your Windows is corrupted and you are facing the dreaded blue screen of death (BSOD), there are “rollback” software solutions out there that can help you restore your computer settings.
To Continue Reading: Click Here
--------------------------------------
Source: Computer Technology Review
By: Lyle Patel
High Stakes for Missteps in EDD
Much ink has been spilled about the demands of discovery in the current technological age. The storage of electronic data, the existence of metadata and the wholesale migration from printed hard copy documents to electronic documents have challenged all practitioners, particularly those trained in discovery during the era of banker's boxes and hard copy documents. The 2006 e-discovery amendments to the Federal Rules of Civil Procedure, along with other standard-setting rules, have raised the stakes. In fact, in the current climate, given the interplay between ethical obligations and standards for professional conduct and these e-discovery requirements, attorneys may be surprised to learn that inattention to e-discovery may not only work to the detriment of clients -- it may lead to professional malpractice or the imposition of sanctions on counsel. If any doubt remained, the ongoing discovery dispute in the Qualcomm v. Broadcom case, discussed below, should eliminate it.
Although there are numerous sources for lawyers' legal duties, as a base line, Rule 1.1 of the Model Rules of Professional Conduct imposes a duty of competency on attorneys. Competent representation uses such "legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." A vital component of competency is reasonable diligence in fulfilling an attorney's duties in a case, whatever they may be. Model Rules of Prof'l Responsibility, Rule 1.3 (1996). On the flip side of Rule 1.1, the Model Code of Professional Responsibility also prohibits lawyers from handling any matters "which he knows or should know that he is not competent to handle," and from acting without "preparation adequate in the circumstances." Model Code of Prof'l Responsibility DR 6-101(A)(1), (2); see also Restatement (Third) of the Law Governing Lawyers § 16(2) (2000); Calif. Rules of Prof'l Conduct R. 3-110(B); N.Y. Lawyers' Code of Prof'l Responsibility Canon 6, EC 6-1. The requirement of competency has generally been held to be a relatively low standard of ordinary or "reasonable care," with disciplinary action limited to situations in which there is a pattern of neglect and consistent failure to carry out an attorney's obligations. See Restatement, supra § 52, § 16 cmt d (2000); American Bar Association (ABA), Annotated Model Rules of Professional Conduct 2-3 (3d ed. 1996).
Despite the low standard, failure to provide competent representation nevertheless creates the potential for malpractice actions. Restatement, supra § 48 (2000). In legal malpractice actions, the client must establish that, but for the attorney's neglect, the litigation would have ended in a result more favorable for the client. That is, the client must prove the existence of a duty, a breach of that duty, proximate cause and damage. 4 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 30:5 (2007 ed.).
Thus, in general, an attorney owes a duty of care to clients to "exercise the competence and diligence normally exercised by lawyers in similar circumstances." Restatement, supra § 16 (2000).
NEEDED KNOWLEDGE CHANGES FAST
In the context of electronically stored discovery, the skills and legal knowledge that might be deemed an essential part of "competency" are rapidly changing with technological advances.
Challenges do arise repeatedly, largely due to the volume and complexity of electronic data. In addition to the dramatic increase in e-mail usage and electronic file generation, electronically stored information is more difficult to identify, manage and dispose of, and includes content that is designed to automatically change over time. See The Sedona Principles Addressing Electronic Document Production (June 2007), at 2-3.
For example, a "deleted" document is still recoverable until written over, and many work flow systems automatically update, copy and transfer files, all of which alters the content of the electronic information. Id. at 3. Another concern may be the fact that devices beyond the computer are potentially affected, including handheld wireless devices, mobile telephones and audio systems such as voice mail. See Trope, infra, at 10; see also Calyon v. Mizuho Secs. USA Inc., No. 07CIV02241RODF, 2007 WL 1468889 (S.D.N.Y. May 18, 2007).
In addition, a large amount of e-data contain "metadata," information about a particular data set or document that describes how, when and by whom it was collected, created, accessed, modified and formatted. In certain situations, the metadata may be more relevant to the issues than the document or data themselves. In a patent infringement case, for example, the court rejected a defendant's attempt to produce printouts of electronic content and found that the original electronic media containing metadata would be relevant to the plaintiff's infringement claims, as they would allow him to "piece together the chronology of events and figure out, among other things, who received what information and when." Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L., No. 04 C 3109, 2006 WL 665005, at *3 (N.D. Ill. March 8, 2006).
The 2006 e-discovery amendments have further raised the stakes for litigants by formally recognizing that discovery materials are created, transported and stored in a variety of electronic platforms and therefore are specifically subject to the protocols and scheduling by which the parties conduct discovery and/or make mandatory disclosures. See Konrad L. Trope, "Privacy and Security Issues in Discovery and Litigation," State Bar of California, Business Law Section, Cyberspace Committee 5 (2007). Sanctions hearings and decisions are on the uptick as well. See Mia Mazza, et al., "In Pursuit of FRCP 1: Creative Approaches to Cutting and Shifting the Costs of Discovery of Electronically Stored Information," 13 Rich. J. L. & Tech. 11, 37 (2007).
In this dynamic area of law, case law continues to drive the applicable standards and outpaces rules and ethics committees in setting guidelines. Courts are largely recognizing that it is the responsibility of counsel to ensure rules-compliant document production. See, e.g., Rafael Town Center Investors LLC v. The Weitz Co. LLC, No. C 06-6633, 2007 WL 2261376 (N.D. Calif. Aug. 6, 2007); see also Navigating the New E-Discovery Rules, ABA Litigation Section Quarterly, Winter 2007, at 2 ("[T]he obligation to preserve evidence runs first to counsel, who then has a duty to advise and explain to the client its obligation to retain documents and data that may be relevant to the litigation. ... [I]t is not acceptable to rely upon the client."). This obligation, along with the competency requirements of Model Rule 1.1, makes it highly probable that malpractice claims will largely center on counsel's competency in advising clients as to preservation and production of e-discovery as well as compliance with the federal e-discovery amendments.
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Source: Law.com
By: By Janet H. Kwuon and Karen Wan
Although there are numerous sources for lawyers' legal duties, as a base line, Rule 1.1 of the Model Rules of Professional Conduct imposes a duty of competency on attorneys. Competent representation uses such "legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." A vital component of competency is reasonable diligence in fulfilling an attorney's duties in a case, whatever they may be. Model Rules of Prof'l Responsibility, Rule 1.3 (1996). On the flip side of Rule 1.1, the Model Code of Professional Responsibility also prohibits lawyers from handling any matters "which he knows or should know that he is not competent to handle," and from acting without "preparation adequate in the circumstances." Model Code of Prof'l Responsibility DR 6-101(A)(1), (2); see also Restatement (Third) of the Law Governing Lawyers § 16(2) (2000); Calif. Rules of Prof'l Conduct R. 3-110(B); N.Y. Lawyers' Code of Prof'l Responsibility Canon 6, EC 6-1. The requirement of competency has generally been held to be a relatively low standard of ordinary or "reasonable care," with disciplinary action limited to situations in which there is a pattern of neglect and consistent failure to carry out an attorney's obligations. See Restatement, supra § 52, § 16 cmt d (2000); American Bar Association (ABA), Annotated Model Rules of Professional Conduct 2-3 (3d ed. 1996).
Despite the low standard, failure to provide competent representation nevertheless creates the potential for malpractice actions. Restatement, supra § 48 (2000). In legal malpractice actions, the client must establish that, but for the attorney's neglect, the litigation would have ended in a result more favorable for the client. That is, the client must prove the existence of a duty, a breach of that duty, proximate cause and damage. 4 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 30:5 (2007 ed.).
Thus, in general, an attorney owes a duty of care to clients to "exercise the competence and diligence normally exercised by lawyers in similar circumstances." Restatement, supra § 16 (2000).
NEEDED KNOWLEDGE CHANGES FAST
In the context of electronically stored discovery, the skills and legal knowledge that might be deemed an essential part of "competency" are rapidly changing with technological advances.
Challenges do arise repeatedly, largely due to the volume and complexity of electronic data. In addition to the dramatic increase in e-mail usage and electronic file generation, electronically stored information is more difficult to identify, manage and dispose of, and includes content that is designed to automatically change over time. See The Sedona Principles Addressing Electronic Document Production (June 2007), at 2-3.
For example, a "deleted" document is still recoverable until written over, and many work flow systems automatically update, copy and transfer files, all of which alters the content of the electronic information. Id. at 3. Another concern may be the fact that devices beyond the computer are potentially affected, including handheld wireless devices, mobile telephones and audio systems such as voice mail. See Trope, infra, at 10; see also Calyon v. Mizuho Secs. USA Inc., No. 07CIV02241RODF, 2007 WL 1468889 (S.D.N.Y. May 18, 2007).
In addition, a large amount of e-data contain "metadata," information about a particular data set or document that describes how, when and by whom it was collected, created, accessed, modified and formatted. In certain situations, the metadata may be more relevant to the issues than the document or data themselves. In a patent infringement case, for example, the court rejected a defendant's attempt to produce printouts of electronic content and found that the original electronic media containing metadata would be relevant to the plaintiff's infringement claims, as they would allow him to "piece together the chronology of events and figure out, among other things, who received what information and when." Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L., No. 04 C 3109, 2006 WL 665005, at *3 (N.D. Ill. March 8, 2006).
The 2006 e-discovery amendments have further raised the stakes for litigants by formally recognizing that discovery materials are created, transported and stored in a variety of electronic platforms and therefore are specifically subject to the protocols and scheduling by which the parties conduct discovery and/or make mandatory disclosures. See Konrad L. Trope, "Privacy and Security Issues in Discovery and Litigation," State Bar of California, Business Law Section, Cyberspace Committee 5 (2007). Sanctions hearings and decisions are on the uptick as well. See Mia Mazza, et al., "In Pursuit of FRCP 1: Creative Approaches to Cutting and Shifting the Costs of Discovery of Electronically Stored Information," 13 Rich. J. L. & Tech. 11, 37 (2007).
In this dynamic area of law, case law continues to drive the applicable standards and outpaces rules and ethics committees in setting guidelines. Courts are largely recognizing that it is the responsibility of counsel to ensure rules-compliant document production. See, e.g., Rafael Town Center Investors LLC v. The Weitz Co. LLC, No. C 06-6633, 2007 WL 2261376 (N.D. Calif. Aug. 6, 2007); see also Navigating the New E-Discovery Rules, ABA Litigation Section Quarterly, Winter 2007, at 2 ("[T]he obligation to preserve evidence runs first to counsel, who then has a duty to advise and explain to the client its obligation to retain documents and data that may be relevant to the litigation. ... [I]t is not acceptable to rely upon the client."). This obligation, along with the competency requirements of Model Rule 1.1, makes it highly probable that malpractice claims will largely center on counsel's competency in advising clients as to preservation and production of e-discovery as well as compliance with the federal e-discovery amendments.
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Source: Law.com
By: By Janet H. Kwuon and Karen Wan
Thursday, December 13, 2007
Perelman Loses Appeal of Morgan Stanley Jury Award (Update3)
Financier Ronald Perelman lost his bid to restore a $1.57 billion jury award against Morgan Stanley over money he lost on the 1998 sale of Coleman Co. to the firm's client, Sunbeam Corp.
The Florida Supreme Court today declined to hear Perelman's appeal of a lower court ruling throwing out the award. Perelman claimed Morgan Stanley, the second-largest U.S. securities firm by market value, duped him into selling Coleman, a camping- equipment maker, for cash and millions of Sunbeam shares. The stock became worthless after Sunbeam's subsequent bankruptcy.
Morgan Stanley had put aside $360 million in reserves to deal with a possible loss in the case, according to a company filing. Morgan Stanley, said last month that it lost $3.7 billion on subprime mortgage-related bets in September and October and may lose more in November.
``This is incrementally positive but unlikely to alter the near-term perception or economics of their business,'' said Douglas Ciocca, who helps manage $1.6 billion, including Morgan Stanley shares, at Renaissance Financial Corp. in Leawood, Kansas. ``The market is in a fit of myopia as it relates to the latest regurgitation of credit-driven calamities.''
Morgan Stanley is expected to report its first-ever quarterly loss next week when it provides results for the fiscal fourth quarter that ended Nov. 30. The average estimate of eight analysts surveyed by Bloomberg is for a net loss of $454.5 million, or 39 cents a share.
Morgan Stanley Reaction
``We are pleased that the Florida Supreme Court has decided not to review the Court of Appeals' decision dismissing Coleman's claims with no opportunity for retrial,'' New York- based Morgan Stanley said in a statement e-mailed by spokesman Mark Lake.
``We believe this brings Coleman's claims against Morgan Stanley to an end, and we are happy to be putting this matter behind the firm,'' the company said in the statement.
Morgan Stanley, now led by Chief Executive Officer John Mack, hired new lawyers to overturn the verdict in favor of Perelman, who controls makeup company Revlon Inc. A jury in West Palm Beach, Florida awarded Perelman $1.45 billion on his fraud claims against Morgan Stanley in May 2005. Judge Elizabeth Maass increased the award to $1.57 billion after adding interest.
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Source: bloomberg.com
The Florida Supreme Court today declined to hear Perelman's appeal of a lower court ruling throwing out the award. Perelman claimed Morgan Stanley, the second-largest U.S. securities firm by market value, duped him into selling Coleman, a camping- equipment maker, for cash and millions of Sunbeam shares. The stock became worthless after Sunbeam's subsequent bankruptcy.
Morgan Stanley had put aside $360 million in reserves to deal with a possible loss in the case, according to a company filing. Morgan Stanley, said last month that it lost $3.7 billion on subprime mortgage-related bets in September and October and may lose more in November.
``This is incrementally positive but unlikely to alter the near-term perception or economics of their business,'' said Douglas Ciocca, who helps manage $1.6 billion, including Morgan Stanley shares, at Renaissance Financial Corp. in Leawood, Kansas. ``The market is in a fit of myopia as it relates to the latest regurgitation of credit-driven calamities.''
Morgan Stanley is expected to report its first-ever quarterly loss next week when it provides results for the fiscal fourth quarter that ended Nov. 30. The average estimate of eight analysts surveyed by Bloomberg is for a net loss of $454.5 million, or 39 cents a share.
Morgan Stanley Reaction
``We are pleased that the Florida Supreme Court has decided not to review the Court of Appeals' decision dismissing Coleman's claims with no opportunity for retrial,'' New York- based Morgan Stanley said in a statement e-mailed by spokesman Mark Lake.
``We believe this brings Coleman's claims against Morgan Stanley to an end, and we are happy to be putting this matter behind the firm,'' the company said in the statement.
Morgan Stanley, now led by Chief Executive Officer John Mack, hired new lawyers to overturn the verdict in favor of Perelman, who controls makeup company Revlon Inc. A jury in West Palm Beach, Florida awarded Perelman $1.45 billion on his fraud claims against Morgan Stanley in May 2005. Judge Elizabeth Maass increased the award to $1.57 billion after adding interest.
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Source: bloomberg.com
Learning EDD From the Mistakes of Others
Keeping up with the subject of electronic discovery is a lot like following the latest developments in the lives of Britney Spears or Lindsay Lohan: every week a new story and never good news. But just as we can live and learn vicariously through the missteps of the rich and famous, so can we learn from the facts through which the early years of electronic discovery jurisprudence is evolving. There have been hundreds of cases officially reported and/or discussed in the mainstream media since last December, when the amended Federal Rules of Civil Procedure became effective, but the decisions discussed below are particularly illustrative of the most prevalent issues confronting the management, collection and production of electronically stored information (ESI).
The most overarching concern has to do with compliance with the general duty under Rule 26. The duty of a party to locate and produce all materials responsive to discovery and counsel's oversight obligations are nothing new to the discovery process. What is new, brought on by the staggering volume of data and the complexities associated with their management, is the broad array of possible pitfalls and the ability to reveal mistakes and outright gamesmanship through the often inerasable trail of electronic evidence.
The most prominent cases are Zubulake v. UBS Warburg, 229 F.R.D. 422 (S.D.N.Y. 2004); Broadcom v. Qualcomm, No. 05cv1958, 2007 WL 1031373 (S.D. Calif. March 21, 2007 ); and the well-publicized Coleman Holdings v. Morgan Stanley, No. CA 03-5045, 2005 WL 679071 (Fla. Cir. Ct. March 1, 2005). Zubulake and Coleman involved spoliation-of-evidence sanctions for failure to preserve relevant e-mails when the parties knew that claims were or would be asserted. Qualcomm dealt with post-trial findings that relevant e-mails were not produced during discovery despite many discovery requests. In Zubulake, Judge Shira Sheindlin quoted the legendary speech from the Paul Newman movie Cool Hand Luke: "What we've got here is failure to communicate." In most instances, e-discovery problems result from a breakdown in communication among lawyers, clients and information technology experts. It is stating the obvious to say that the solution is to improve communication. How to accomplish this goal, however, is far from obvious, and the challenge has befuddled some of the largest and most highly regarded companies and law firms.
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Source: law.com
The most overarching concern has to do with compliance with the general duty under Rule 26. The duty of a party to locate and produce all materials responsive to discovery and counsel's oversight obligations are nothing new to the discovery process. What is new, brought on by the staggering volume of data and the complexities associated with their management, is the broad array of possible pitfalls and the ability to reveal mistakes and outright gamesmanship through the often inerasable trail of electronic evidence.
The most prominent cases are Zubulake v. UBS Warburg, 229 F.R.D. 422 (S.D.N.Y. 2004); Broadcom v. Qualcomm, No. 05cv1958, 2007 WL 1031373 (S.D. Calif. March 21, 2007 ); and the well-publicized Coleman Holdings v. Morgan Stanley, No. CA 03-5045, 2005 WL 679071 (Fla. Cir. Ct. March 1, 2005). Zubulake and Coleman involved spoliation-of-evidence sanctions for failure to preserve relevant e-mails when the parties knew that claims were or would be asserted. Qualcomm dealt with post-trial findings that relevant e-mails were not produced during discovery despite many discovery requests. In Zubulake, Judge Shira Sheindlin quoted the legendary speech from the Paul Newman movie Cool Hand Luke: "What we've got here is failure to communicate." In most instances, e-discovery problems result from a breakdown in communication among lawyers, clients and information technology experts. It is stating the obvious to say that the solution is to improve communication. How to accomplish this goal, however, is far from obvious, and the challenge has befuddled some of the largest and most highly regarded companies and law firms.
To Continue Reading: Click Here
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Source: law.com
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