Metadata - which is embedded "data about data" - may reveal information about an electronic document's creation and modification, including who authored or commented upon a draft, and what edits or other contributions were made to the final document. As guidelines continue to evolve for the discovery of increasingly complex electronically stored information (ESI), the issue of whether metadata must be included in production of ESI has been litigated with some frequency. Further, debate has raged over the ethics of searching through the metadata of an opposing party's electronic production, particularly where that metadata may reveal the work product of opposing counsel.
To Produce Or Not To Produce
Several courts have tackled the question of whether ESI must be produced with metadata intact. In In Re Payment Card Interchange Fee and Merchant Discount Antitrust Litig. , 2007 WL 121426 (E.D.N.Y. Jan. 12, 2007), plaintiffs stripped their text-searchable electronic documents of metadata. Defendants moved to compel plaintiffs to reproduce the documents with metadata. The court granted defendants' motion prospectively only. The court reasoned that in stripping the metadata, plaintiffs had run afoul of the Advisory Committee's note to Federal Rule 34(b) that data ordinarily kept in electronically searchable form "should not be produced in a form that removes or significantly degrades this feature." Id . at *4. The court held that requiring the plaintiffs to include metadata in future productions would not impose an undue burden. A retrospective ruling, however, would impose an undue burden on plaintiffs, who had produced documents without metadata for several months without receiving any objection from defendants.
Another court has articulated a stronger presumption regarding whether the producing party must include metadata in its production of ESI. In Williams v. Sprint/United Management Co. , 230 F.R.D. 640 (D. Kan. Sep. 29, 2005), the court held that the producing party should produce its ESI with metadata intact unless (i) the producing party timely objects to the production of metadata; (ii) the parties agree that metadata should not be produced; or (iii) the producing party requests a protective order. Id . at 652. The court reasoned that placing the burden on the producing party is reasonable because "metadata is an inherent part of an electronic document, and its removal ordinarily requires an affirmative act by the producing party that alters the electronic document." Id . While the defendant claimed that the metadata was irrelevant, the court disagreed and further observed that, in any event, defendant had unilaterally scrubbed the metadata and failed to assert a relevancy objection.
Rejecting Williams as "not persuasive," the court in Kentucky Speedway, LLC v. National Association of Stock Car Auto Racing, Inc. , 2006 WL 5097354 (E.D. Ky. Dec. 18, 2006), held that "'[e]merging standards of electronic discovery appear to articulate a general presumption against the production of metadata'" (citation omitted) Id . at *8. The court stated its presumption that "[i]n most cases and for most documents, metadata does not provide relevant information." Id . The court further held that parties should address questions regarding the relevance of metadata in their Rule 26(f) discovery conference. The court emphasized that the requesting party had not made any showing of a particularized need for the metadata.
Reviewing An Adversary's Metadata: The Ethics Debate
To the extent that some courts have indicated a presumption in favor of requiring parties to produce metadata, their holdings beg further discussion of how a requesting party may use the metadata it receives and, in particular, concerns about privileged communications that could be contained therein. Case law on whether and under what circumstances metadata may be examined by an adversary is sparse. Noting the need for clear ethical guidance about searching metadata, and responding to numerous questions from attorneys, a handful of state and ABA ethics committees have issued opinions on the propriety of reviewing an adversary's metadata.
To Continue Reading: Click Here
-----------------------------------------
Source: Metropolitan Corporate Counsel
By: Norman C. Simon
Wednesday, April 30, 2008
With "Pre-Trial Discovery" An Official High Priority Of The EU, Companies Need To Make EU Discovery And Data Protection A High Priority
Much has been written over the past year concerning the difficulties multinational corporations face in preparing for and responding to discovery requests that implicate personal data originating from the European Union. As commentators have pointed out, the requirements of the U.S. Federal Rules of Civil Procedure concerning preservation and production of documents and electronically stored information can conflict with privacy obligations under the EU Data Protection Directive. These concerns have not gone unnoticed by European data protection authorities (DPAs), who raised the issue with the Article 29 Working Party in April 2007. In January of 2008, the CNIL, the French DPA, released a statement announcing four areas where data processing and transfers could give rise to problems under "French or European Law," particularly privacy:
1. Litigation hold/litigation freeze;
2. Pre-trial discovery;
3. Information injunctions by public U.S. authorities; and
4. Creation of a new offense called "information destruction."
All of these issues spring from U.S. litigation, and more stringent regulation in Europe could squeeze multinational companies even more tightly in the United States.
Finally, on February 18, the Working Party, an advisory body established under the Directive and composed of DPAs from each member state, included pre-trial discovery on its agenda for 2008 as a high priority. The Working Party facilitates harmonized implementation of the Directive throughout the European Union.
While it is unlikely that the Working Party will issue an opinion on this issue before the second half of 2008, the general contours of the Working Party's ultimate thinking can already be predicted based on its prior body of decisions. We outline below how the Working Party might assess this issue and highlight those areas in which companies working on both sides of the Atlantic may wish to provide input. Any statement by the Working Party on pre-trial discovery will have a serious impact on international discovery in the United States and potentially could make it more difficult to extract potentially relevant personal data from the European Union. As litigants in U.S. courts with data in the European Union, multinational companies should enter into a respectful dialogue with the Working Party in order to explain their perspective and, hopefully, work toward a pre-trial discovery protocol that allows companies to efficiently litigate their matters in the United States and respect the rights of their employees and other data subjects in the European Union.
Background On EU Data Protection Directive
For readers who have not been following this issue, some background is in order. The Directive is an omnibus privacy law that restricts how businesses may use and disclose personal data. (As a technical matter, the Directive is not self-implementing but instead requires each EU member state to adopt its own implementing law, similar in function to a federal mandate. Each member state has done so.) "Personal data" includes not only information relating to an identified person, but also identifiable information. The Directive states that personal data may not be "processed" (i.e., collected, used, disclosed etc.) unless necessary for one of several enumerated purposes. These purposes include processing that is necessary to meet a legal obligation and processing that is necessary for an overriding interest of the "data controller" (i.e., the entity that determines the purposes and means of data processing) or a third party to whom the data is disclosed.
European DPAs have made clear in prior decisions that the Directive's reference to a "legal obligation" is not universally applicable but instead refers to an obligation imposed by community or member state law. Moreover, they have indicated that in determining whether a data controller or third-party recipient has an overriding interest in processing data, a balancing of interests test must be conducted that takes into account the rights and interests of the data subject. These rights and interests include, inter alia : the interest in transparency, including being provided with notice of the identity of the controller, the purposes of the processing, and recipients of the data; the right to access personal data about oneself and have inaccurate or incomplete data amended or deleted; and the interest in having personal data about oneself safeguarded from loss, misuse, unauthorized access, and other security risks.
To Continue Reading: Click Here
---------------------------------------
Source: Metropolitan Corporate Counsel
By: David Kessler
1. Litigation hold/litigation freeze;
2. Pre-trial discovery;
3. Information injunctions by public U.S. authorities; and
4. Creation of a new offense called "information destruction."
All of these issues spring from U.S. litigation, and more stringent regulation in Europe could squeeze multinational companies even more tightly in the United States.
Finally, on February 18, the Working Party, an advisory body established under the Directive and composed of DPAs from each member state, included pre-trial discovery on its agenda for 2008 as a high priority. The Working Party facilitates harmonized implementation of the Directive throughout the European Union.
While it is unlikely that the Working Party will issue an opinion on this issue before the second half of 2008, the general contours of the Working Party's ultimate thinking can already be predicted based on its prior body of decisions. We outline below how the Working Party might assess this issue and highlight those areas in which companies working on both sides of the Atlantic may wish to provide input. Any statement by the Working Party on pre-trial discovery will have a serious impact on international discovery in the United States and potentially could make it more difficult to extract potentially relevant personal data from the European Union. As litigants in U.S. courts with data in the European Union, multinational companies should enter into a respectful dialogue with the Working Party in order to explain their perspective and, hopefully, work toward a pre-trial discovery protocol that allows companies to efficiently litigate their matters in the United States and respect the rights of their employees and other data subjects in the European Union.
Background On EU Data Protection Directive
For readers who have not been following this issue, some background is in order. The Directive is an omnibus privacy law that restricts how businesses may use and disclose personal data. (As a technical matter, the Directive is not self-implementing but instead requires each EU member state to adopt its own implementing law, similar in function to a federal mandate. Each member state has done so.) "Personal data" includes not only information relating to an identified person, but also identifiable information. The Directive states that personal data may not be "processed" (i.e., collected, used, disclosed etc.) unless necessary for one of several enumerated purposes. These purposes include processing that is necessary to meet a legal obligation and processing that is necessary for an overriding interest of the "data controller" (i.e., the entity that determines the purposes and means of data processing) or a third party to whom the data is disclosed.
European DPAs have made clear in prior decisions that the Directive's reference to a "legal obligation" is not universally applicable but instead refers to an obligation imposed by community or member state law. Moreover, they have indicated that in determining whether a data controller or third-party recipient has an overriding interest in processing data, a balancing of interests test must be conducted that takes into account the rights and interests of the data subject. These rights and interests include, inter alia : the interest in transparency, including being provided with notice of the identity of the controller, the purposes of the processing, and recipients of the data; the right to access personal data about oneself and have inaccurate or incomplete data amended or deleted; and the interest in having personal data about oneself safeguarded from loss, misuse, unauthorized access, and other security risks.
To Continue Reading: Click Here
---------------------------------------
Source: Metropolitan Corporate Counsel
By: David Kessler
The E-Discovery Conundrum: Proving the Authenticity of your Electronic Evidence
An Authentic Challenge
In the last decade, electronic records have taken over the business world. Just as e-mail has become the preferred method of business communication for nearly everyone, financial records, legal documents and work assignments are now kept primarily—and sometimes solely—in electronic form. Electronic records and e-mails are widely accepted for many important business communications that previously required physical signatures or paper documentation and the proliferation of electronic records in the business world is reflected in recent statistics on e-mail usage. According to research from the University of California at Berkeley’s School of Information Management and Systems, more than 93 percent of all corporate data is created electronically and e-mail is accepted as written confirmation of approvals or orders in nearly 80 percent of organizations.
The proliferation of electronic records was one of the catalysts behind the December 2006 e-discovery amendments to the Federal Rules of Civil Procedure (FRCP) that require companies to know where electronically stored information (ESI) including e-mails, spreadsheets, Word documents, image files and more are kept and make that information available to the other party if reasonably accessible. In addition, the Rules set new requirements for the parties to meet and discuss what ESI will be considered during the trial.
The amendments seek to clarify the e-discovery process but these changes present one of the biggest challenges for companies looking to comply with the new rules because while the convenience and speed of electronic records are highly touted, the security and authenticity aspects are often overlooked. Whereas signatures and other paper documents can be examined in court for possible tampering, electronic records like e-mails, instant message logs and Excel spreadsheets can easily be altered without raising red flags. Anyone with minimal tech savvy and access to a company’s computer systems can significantly alter electronic records, potentially changing their meaning and altering the outcome of a critical business deal.
This frightening thought is compounded by research that has shown that more than 80 percent of all security breaches and electronic records tampering occur inside an organization’s perimeter. That means the vast majority of data tampering is done by employees, contractors and other partners who already have access to an organization’s computer network. Data alteration—whether intentional or not—could be happening in your organization everyday without your knowledge. Even though the issue may seem to be one for your legal team, many lawyers are looking to their IT departments to counsel them on best practices for e-discovery. Attorneys are expecting IT professionals to provide recommendations on the best ways in which to securely archive and authenticate records.
To Continue Reading: Click Here
--------------------------------------
Source: wwpi.com
By: Tom Klaff
In the last decade, electronic records have taken over the business world. Just as e-mail has become the preferred method of business communication for nearly everyone, financial records, legal documents and work assignments are now kept primarily—and sometimes solely—in electronic form. Electronic records and e-mails are widely accepted for many important business communications that previously required physical signatures or paper documentation and the proliferation of electronic records in the business world is reflected in recent statistics on e-mail usage. According to research from the University of California at Berkeley’s School of Information Management and Systems, more than 93 percent of all corporate data is created electronically and e-mail is accepted as written confirmation of approvals or orders in nearly 80 percent of organizations.
The proliferation of electronic records was one of the catalysts behind the December 2006 e-discovery amendments to the Federal Rules of Civil Procedure (FRCP) that require companies to know where electronically stored information (ESI) including e-mails, spreadsheets, Word documents, image files and more are kept and make that information available to the other party if reasonably accessible. In addition, the Rules set new requirements for the parties to meet and discuss what ESI will be considered during the trial.
The amendments seek to clarify the e-discovery process but these changes present one of the biggest challenges for companies looking to comply with the new rules because while the convenience and speed of electronic records are highly touted, the security and authenticity aspects are often overlooked. Whereas signatures and other paper documents can be examined in court for possible tampering, electronic records like e-mails, instant message logs and Excel spreadsheets can easily be altered without raising red flags. Anyone with minimal tech savvy and access to a company’s computer systems can significantly alter electronic records, potentially changing their meaning and altering the outcome of a critical business deal.
This frightening thought is compounded by research that has shown that more than 80 percent of all security breaches and electronic records tampering occur inside an organization’s perimeter. That means the vast majority of data tampering is done by employees, contractors and other partners who already have access to an organization’s computer network. Data alteration—whether intentional or not—could be happening in your organization everyday without your knowledge. Even though the issue may seem to be one for your legal team, many lawyers are looking to their IT departments to counsel them on best practices for e-discovery. Attorneys are expecting IT professionals to provide recommendations on the best ways in which to securely archive and authenticate records.
To Continue Reading: Click Here
--------------------------------------
Source: wwpi.com
By: Tom Klaff
Tuesday, April 29, 2008
Microsoft device helps police pluck evidence from cyberscene of crime
Microsoft has developed a small plug-in device that investigators can use to quickly extract forensic data from computers that may have been used in crimes.
The COFEE, which stands for Computer Online Forensic Evidence Extractor, is a USB "thumb drive" that was quietly distributed to a handful of law-enforcement agencies last June. Microsoft General Counsel Brad Smith described its use to the 350 law-enforcement experts attending a company conference Monday.
The device contains 150 commands that can dramatically cut the time it takes to gather digital evidence, which is becoming more important in real-world crime, as well as cybercrime. It can decrypt passwords and analyze a computer's Internet activity, as well as data stored in the computer.
It also eliminates the need to seize a computer itself, which typically involves disconnecting from a network, turning off the power and potentially losing data. Instead, the investigator can scan for evidence on site.
More than 2,000 officers in 15 countries, including Poland, the Philippines, Germany, New Zealand and the United States, are using the device, which Microsoft provides free.
"These are things that we invest substantial resources in, but not from the perspective of selling to make money," Smith said in an interview. "We're doing this to help ensure that the Internet stays safe."
Law-enforcement officials from agencies in 35 countries are in Redmond this week to talk about how technology can help fight crime. Microsoft held a similar event in 2006. Discussions there led to the creation of COFEE.
Smith compared the Internet of today to London and other Industrial Revolution cities in the early 1800s. As people flocked from small communities where everyone knew each other, an anonymity emerged in the cities and a rise in crime followed.
To Continue Reading: Click Here
--------------------------------------
Source: Seattle Times
By: Benjamin J. Romano
The COFEE, which stands for Computer Online Forensic Evidence Extractor, is a USB "thumb drive" that was quietly distributed to a handful of law-enforcement agencies last June. Microsoft General Counsel Brad Smith described its use to the 350 law-enforcement experts attending a company conference Monday.
The device contains 150 commands that can dramatically cut the time it takes to gather digital evidence, which is becoming more important in real-world crime, as well as cybercrime. It can decrypt passwords and analyze a computer's Internet activity, as well as data stored in the computer.
It also eliminates the need to seize a computer itself, which typically involves disconnecting from a network, turning off the power and potentially losing data. Instead, the investigator can scan for evidence on site.
More than 2,000 officers in 15 countries, including Poland, the Philippines, Germany, New Zealand and the United States, are using the device, which Microsoft provides free.
"These are things that we invest substantial resources in, but not from the perspective of selling to make money," Smith said in an interview. "We're doing this to help ensure that the Internet stays safe."
Law-enforcement officials from agencies in 35 countries are in Redmond this week to talk about how technology can help fight crime. Microsoft held a similar event in 2006. Discussions there led to the creation of COFEE.
Smith compared the Internet of today to London and other Industrial Revolution cities in the early 1800s. As people flocked from small communities where everyone knew each other, an anonymity emerged in the cities and a rise in crime followed.
To Continue Reading: Click Here
--------------------------------------
Source: Seattle Times
By: Benjamin J. Romano
Analysis of Electronic Data
The Tipping Point for Modern Litigation
Of the many steps involved in litigation one of the most important is the “discovery” phase. Discovery is part of the pre-trial litigation process during which each party requests relevant information and documents from the other side in an attempt to "discover" pertinent facts. As more and more content is created and stored in electronic format (emails, WORD documents etc.) legal discovery of electronic content (eDiscovery) has taken center stage as one of the most challenging and unavoidable tasks for organizations. U.S. corporations will spend more than $10 billion in 2008—largely to service providers and law firms—to assist them in their eDiscovery projects.
In its third annual survey of corporate litigation trends, Fulbright & Jaworski L.L.P found that U.S. companies face an average of 305 pending lawsuits at any one time. For large U.S. companies—those with $1 billion or more in annual gross revenue—the number of lawsuits soared to 556 cases, with an average of 50 new disputes emerging each year for close to half of the companies. Given the high stakes related to eDiscovery, it is not surprising that internal counsel and CIO teams are increasingly aware that they must make changes in order to address the growing demands. Traditional reactive processes and linear review of electronic documents are rapidly becoming impractical.
A relatively recent innovation that holds great promise to enable organizations to better control the cost and reduce risks in eDiscovery is automated analysis. Historically eDiscovery has been a largely manual process conducted by armies of lawyers plowing through mountains of electronic documents. With the continued explosion of electronic data the future of successful eDiscovery lies in applying sophisticated automation to the task. The possible cost savings from implementing such solutions are compelling.
According to a December 2005 Gartner, Inc. report, "The Costs and Risks of eDiscovery in Litigation," organizations that have not "adopted formal eDiscovery processes will spend nearly twice as much on gathering and producing documents as they will on legal services" through the year 2010. Adding to the urgency to find more accurate, efficient and cost effective ways to perform eDiscovery are the important 2006 amendments to the Federal Rules of Civil Procedure (FRCP), which address all aspects of discovery of Electronically Stored Information (ESI) evidence. Specifically the amendments say that:
* ESI is discoverable (Organizations must preserve and produce ESI)
* Lawyers must understand how to request, protect, review and produce ESI
* The courts have the right to act on abusive or obstructive electronic discovery
To Continue Reading: Click Here
--------------------------------------
Source: wwpi.com
By: Ramon Nunez
Of the many steps involved in litigation one of the most important is the “discovery” phase. Discovery is part of the pre-trial litigation process during which each party requests relevant information and documents from the other side in an attempt to "discover" pertinent facts. As more and more content is created and stored in electronic format (emails, WORD documents etc.) legal discovery of electronic content (eDiscovery) has taken center stage as one of the most challenging and unavoidable tasks for organizations. U.S. corporations will spend more than $10 billion in 2008—largely to service providers and law firms—to assist them in their eDiscovery projects.
In its third annual survey of corporate litigation trends, Fulbright & Jaworski L.L.P found that U.S. companies face an average of 305 pending lawsuits at any one time. For large U.S. companies—those with $1 billion or more in annual gross revenue—the number of lawsuits soared to 556 cases, with an average of 50 new disputes emerging each year for close to half of the companies. Given the high stakes related to eDiscovery, it is not surprising that internal counsel and CIO teams are increasingly aware that they must make changes in order to address the growing demands. Traditional reactive processes and linear review of electronic documents are rapidly becoming impractical.
A relatively recent innovation that holds great promise to enable organizations to better control the cost and reduce risks in eDiscovery is automated analysis. Historically eDiscovery has been a largely manual process conducted by armies of lawyers plowing through mountains of electronic documents. With the continued explosion of electronic data the future of successful eDiscovery lies in applying sophisticated automation to the task. The possible cost savings from implementing such solutions are compelling.
According to a December 2005 Gartner, Inc. report, "The Costs and Risks of eDiscovery in Litigation," organizations that have not "adopted formal eDiscovery processes will spend nearly twice as much on gathering and producing documents as they will on legal services" through the year 2010. Adding to the urgency to find more accurate, efficient and cost effective ways to perform eDiscovery are the important 2006 amendments to the Federal Rules of Civil Procedure (FRCP), which address all aspects of discovery of Electronically Stored Information (ESI) evidence. Specifically the amendments say that:
* ESI is discoverable (Organizations must preserve and produce ESI)
* Lawyers must understand how to request, protect, review and produce ESI
* The courts have the right to act on abusive or obstructive electronic discovery
To Continue Reading: Click Here
--------------------------------------
Source: wwpi.com
By: Ramon Nunez
E-Discovery: Texas Ahead of the Game
State and local governments are routinely confronted with new and complex challenges. Be it a technology change or a culture change, IT shops must be ready to adapt to the ever-evolving digital landscape. One issue warranting consideration and consternation is e-discovery.
For years, government agencies have dreamed of a paperless office. While no one is there yet, strides have been made toward that reality. But with a paperless existence comes a new problem - what to do with billions of bits' worth of digital documents. This is the challenge of e-discovery.
Though e-discovery could conceivably describe any effort to find electronic versions of documents, it's most often associated with legal proceedings, such as retrieving documents as part of litigation. Considering how quickly today's incident can escalate into tomorrow's court case, government agencies should be aware of what's out there to help tackle e-discovery requests.
What Is It?
On the surface, electronic discovery means exactly what it sounds like: discovering data electronically. It's what you used to do with paper, only electronically. But e-discovery is much more than that.
Having a good e-discovery strategy is an organization's first line of defense in a court proceeding. If an agency must deal with litigation, attorneys for all parties will likely request documents that may only exist in electronic form. In the past, if correspondence was requested, an organization would try to produce all the relevant memos and letters employees had written. Instead of instant messages, you rounded up all the sticky notes in your office. Now, many of those documents exist electronically.
On Dec. 1, 2006, amendments were made to the Federal Rules of Civil Procedure, including changes mandating that electronic documents in federal court are to be treated, legally speaking, the same as paper documents. The rules govern how federal courts deal with discovery requests in civil proceedings. It's important for state and local governments to be aware of them because state and local courts generally reflect federal court practices. That's where the amended rules come in - they're part of an effort to eliminate a lot of uncertainty surrounding e-discovery.
Texas, like some other states, proactively changed its procedures prior to the federal rule amendments. David Halpern, the assistant attorney general at the Texas Office of Attorney General (OAG), said that while the amendments raise awareness, Texas had already moved on e-discovery.
To Continue Reading: Click Here
--------------------------------------
Source: govtech.com
By: Chad Vander Veen
For years, government agencies have dreamed of a paperless office. While no one is there yet, strides have been made toward that reality. But with a paperless existence comes a new problem - what to do with billions of bits' worth of digital documents. This is the challenge of e-discovery.
Though e-discovery could conceivably describe any effort to find electronic versions of documents, it's most often associated with legal proceedings, such as retrieving documents as part of litigation. Considering how quickly today's incident can escalate into tomorrow's court case, government agencies should be aware of what's out there to help tackle e-discovery requests.
What Is It?
On the surface, electronic discovery means exactly what it sounds like: discovering data electronically. It's what you used to do with paper, only electronically. But e-discovery is much more than that.
Having a good e-discovery strategy is an organization's first line of defense in a court proceeding. If an agency must deal with litigation, attorneys for all parties will likely request documents that may only exist in electronic form. In the past, if correspondence was requested, an organization would try to produce all the relevant memos and letters employees had written. Instead of instant messages, you rounded up all the sticky notes in your office. Now, many of those documents exist electronically.
On Dec. 1, 2006, amendments were made to the Federal Rules of Civil Procedure, including changes mandating that electronic documents in federal court are to be treated, legally speaking, the same as paper documents. The rules govern how federal courts deal with discovery requests in civil proceedings. It's important for state and local governments to be aware of them because state and local courts generally reflect federal court practices. That's where the amended rules come in - they're part of an effort to eliminate a lot of uncertainty surrounding e-discovery.
Texas, like some other states, proactively changed its procedures prior to the federal rule amendments. David Halpern, the assistant attorney general at the Texas Office of Attorney General (OAG), said that while the amendments raise awareness, Texas had already moved on e-discovery.
To Continue Reading: Click Here
--------------------------------------
Source: govtech.com
By: Chad Vander Veen
Calif. Judicial Council to Weigh New E-Discovery Rules
The Judicial Council will consider new rules for electronic discovery in California, a long-awaited package that's been received warily by the high-tech industry.
The proposed state rules, in their latest form, largely mirror federal regulations enacted in December 2006 that spell out how and when records from fax machines, computer databases, e-mails and even cell phones can be exchanged in civil litigation. The rules define what constitutes electronic information, and they allow "inspecting, copying, testing or sampling" by parties.
The new state e-discovery rules spell out what format the information should be provided in and add new "safe harbor" provisions to protect parties who lose e-materials due to "routine, good-faith operation" of their electronic systems.
Courts and litigants are already dealing with many of these issues through provisions -- originally designed for paper-based documents -- in the existing state Civil Discovery Act, said Patrick O'Donnell, supervising attorney at the Office of the General Counsel of the Judicial Council.
"But the current provisions don't really address the processes or the subtler issues that sometimes come up with technology," O'Donnell said.
The state rules have been in the works for more than a year, with judges, defense attorneys, trial lawyers and general counsel meeting to hammer out new language. The first draft, circulated at the beginning of the year, generated immediate opposition from high-tech companies and corporate groups that thought they strayed too far from the preferred federal rules.
Under federal rules, defendants don't have to search so-called "inaccessible" or "not reasonably accessible" data to respond to early discovery requests. Critics say mining for such documents, sometimes only available on backup systems designed for access after natural disasters, is costly and a potentially unfair burden on defendants.
The first draft of the California rules, as TechNet, Genentech and other critics interpreted them, would have placed the onus on defendants to automatically seek a protective order from inaccessible data searches.
"It seemed to be fostering motion practice," said Jerone English, a partner with Pillsbury Winthrop Shaw Pittman who specializes in e-discovery litigation.
To Continue Reading: Click Here
--------------------------------------
Source: Law.com
By: Cheryl Miller
The proposed state rules, in their latest form, largely mirror federal regulations enacted in December 2006 that spell out how and when records from fax machines, computer databases, e-mails and even cell phones can be exchanged in civil litigation. The rules define what constitutes electronic information, and they allow "inspecting, copying, testing or sampling" by parties.
The new state e-discovery rules spell out what format the information should be provided in and add new "safe harbor" provisions to protect parties who lose e-materials due to "routine, good-faith operation" of their electronic systems.
Courts and litigants are already dealing with many of these issues through provisions -- originally designed for paper-based documents -- in the existing state Civil Discovery Act, said Patrick O'Donnell, supervising attorney at the Office of the General Counsel of the Judicial Council.
"But the current provisions don't really address the processes or the subtler issues that sometimes come up with technology," O'Donnell said.
The state rules have been in the works for more than a year, with judges, defense attorneys, trial lawyers and general counsel meeting to hammer out new language. The first draft, circulated at the beginning of the year, generated immediate opposition from high-tech companies and corporate groups that thought they strayed too far from the preferred federal rules.
Under federal rules, defendants don't have to search so-called "inaccessible" or "not reasonably accessible" data to respond to early discovery requests. Critics say mining for such documents, sometimes only available on backup systems designed for access after natural disasters, is costly and a potentially unfair burden on defendants.
The first draft of the California rules, as TechNet, Genentech and other critics interpreted them, would have placed the onus on defendants to automatically seek a protective order from inaccessible data searches.
"It seemed to be fostering motion practice," said Jerone English, a partner with Pillsbury Winthrop Shaw Pittman who specializes in e-discovery litigation.
To Continue Reading: Click Here
--------------------------------------
Source: Law.com
By: Cheryl Miller
Calif. Judicial Council to Weigh New E-Discovery Rules
The Judicial Council will consider new rules for electronic discovery in California, a long-awaited package that's been received warily by the high-tech industry.
The proposed state rules, in their latest form, largely mirror federal regulations enacted in December 2006 that spell out how and when records from fax machines, computer databases, e-mails and even cell phones can be exchanged in civil litigation. The rules define what constitutes electronic information, and they allow "inspecting, copying, testing or sampling" by parties.
The new state e-discovery rules spell out what format the information should be provided in and add new "safe harbor" provisions to protect parties who lose e-materials due to "routine, good-faith operation" of their electronic systems.
Courts and litigants are already dealing with many of these issues through provisions -- originally designed for paper-based documents -- in the existing state Civil Discovery Act, said Patrick O'Donnell, supervising attorney at the Office of the General Counsel of the Judicial Council.
"But the current provisions don't really address the processes or the subtler issues that sometimes come up with technology," O'Donnell said.
The state rules have been in the works for more than a year, with judges, defense attorneys, trial lawyers and general counsel meeting to hammer out new language. The first draft, circulated at the beginning of the year, generated immediate opposition from high-tech companies and corporate groups that thought they strayed too far from the preferred federal rules.
Under federal rules, defendants don't have to search so-called "inaccessible" or "not reasonably accessible" data to respond to early discovery requests. Critics say mining for such documents, sometimes only available on backup systems designed for access after natural disasters, is costly and a potentially unfair burden on defendants.
The first draft of the California rules, as TechNet, Genentech and other critics interpreted them, would have placed the onus on defendants to automatically seek a protective order from inaccessible data searches.
"It seemed to be fostering motion practice," said Jerone English, a partner with Pillsbury Winthrop Shaw Pittman who specializes in e-discovery litigation.
To Continue Reading: Click Here
--------------------------------------
Source: Law.com
By: Cheryl Miller
The proposed state rules, in their latest form, largely mirror federal regulations enacted in December 2006 that spell out how and when records from fax machines, computer databases, e-mails and even cell phones can be exchanged in civil litigation. The rules define what constitutes electronic information, and they allow "inspecting, copying, testing or sampling" by parties.
The new state e-discovery rules spell out what format the information should be provided in and add new "safe harbor" provisions to protect parties who lose e-materials due to "routine, good-faith operation" of their electronic systems.
Courts and litigants are already dealing with many of these issues through provisions -- originally designed for paper-based documents -- in the existing state Civil Discovery Act, said Patrick O'Donnell, supervising attorney at the Office of the General Counsel of the Judicial Council.
"But the current provisions don't really address the processes or the subtler issues that sometimes come up with technology," O'Donnell said.
The state rules have been in the works for more than a year, with judges, defense attorneys, trial lawyers and general counsel meeting to hammer out new language. The first draft, circulated at the beginning of the year, generated immediate opposition from high-tech companies and corporate groups that thought they strayed too far from the preferred federal rules.
Under federal rules, defendants don't have to search so-called "inaccessible" or "not reasonably accessible" data to respond to early discovery requests. Critics say mining for such documents, sometimes only available on backup systems designed for access after natural disasters, is costly and a potentially unfair burden on defendants.
The first draft of the California rules, as TechNet, Genentech and other critics interpreted them, would have placed the onus on defendants to automatically seek a protective order from inaccessible data searches.
"It seemed to be fostering motion practice," said Jerone English, a partner with Pillsbury Winthrop Shaw Pittman who specializes in e-discovery litigation.
To Continue Reading: Click Here
--------------------------------------
Source: Law.com
By: Cheryl Miller
Monday, April 28, 2008
Simplify Project Management With SharePoint
We're all project managers! Whether you are an attorney responsible for a matter, a secretary revising a Word template, an IT administrator installing new servers or a full-time project manager of a 10-person team, you must plan, execute and communicate project status to a variety of stakeholders, both inside and outside of the law firm.
But, we don't all come to the task of project management with the same training and tools at our disposal. Some, like the professional project manager, may be comfortable with Gantt charts, network diagrams, CPM, work breakdown structures and the like. For the majority of us, however, these concepts are foreign and confusing. And, because one key purpose of any project management tool is to communicate deliverables and status, it's not enough that we understand the reports output by our project management tool -- our stakeholders must understand them too.
This article shows you how to create a simple yet powerful tool for capturing, tracking and reporting on project deliverables and status using Microsoft SharePoint 2007 (MOSS 2007) –- no programming required. The SharePoint project management tool has proven effective on a wide range of projects at Fenwick & West, and it can be adapted to a wide range of project management approaches, from the traditional "waterfall" to the emerging agile methodologies.
LOGICAL DATA MODEL
Although SharePoint does not perform relational database operations on lists, it is useful to visualize the logical relationships between the three lists I create as part of the project management tool. Two of the lists, "Projects" and "Status," will provide data to populate drop-down fields in the "Project Tasks" list. Figure 1 depicts the relationships between these lists in an entity-relationship diagram.
The diagram indicates that each project may have zero or more associated tasks; and each status code may have zero or more associated projects or tasks.
CREATING THE REQUIRED LISTS
In the steps that follow I will walk you through creating the three required lists to communicate the status of a project. If you have not created a SharePoint list before, you will find this article comprehensive in providing all that you need. If you are already familiar with the process of creating lists in SharePoint, you can simply skim this section for the fields to add to each of the three lists.
To Continue Reading: Click Here
--------------------------------------
Source: Law.com
By: Mark Gerow
But, we don't all come to the task of project management with the same training and tools at our disposal. Some, like the professional project manager, may be comfortable with Gantt charts, network diagrams, CPM, work breakdown structures and the like. For the majority of us, however, these concepts are foreign and confusing. And, because one key purpose of any project management tool is to communicate deliverables and status, it's not enough that we understand the reports output by our project management tool -- our stakeholders must understand them too.
This article shows you how to create a simple yet powerful tool for capturing, tracking and reporting on project deliverables and status using Microsoft SharePoint 2007 (MOSS 2007) –- no programming required. The SharePoint project management tool has proven effective on a wide range of projects at Fenwick & West, and it can be adapted to a wide range of project management approaches, from the traditional "waterfall" to the emerging agile methodologies.
LOGICAL DATA MODEL
Although SharePoint does not perform relational database operations on lists, it is useful to visualize the logical relationships between the three lists I create as part of the project management tool. Two of the lists, "Projects" and "Status," will provide data to populate drop-down fields in the "Project Tasks" list. Figure 1 depicts the relationships between these lists in an entity-relationship diagram.
The diagram indicates that each project may have zero or more associated tasks; and each status code may have zero or more associated projects or tasks.
CREATING THE REQUIRED LISTS
In the steps that follow I will walk you through creating the three required lists to communicate the status of a project. If you have not created a SharePoint list before, you will find this article comprehensive in providing all that you need. If you are already familiar with the process of creating lists in SharePoint, you can simply skim this section for the fields to add to each of the three lists.
To Continue Reading: Click Here
--------------------------------------
Source: Law.com
By: Mark Gerow
A Case of ESI in Lost E-Mail Attachments
This column discusses three recent decisions issued by the U.S. District Court for the Northern District of New York: a decision by Magistrate Judge Randolph F. Treece evaluating who pays for the production of electronically stored information; a decision by District Judge Gary L. Sharpe addressing the procedures for considering alternate grounds for affirmance on a motion for reconsideration; and a decision by Senior District Judge Frederick J. Scullin Jr. analyzing when the amount of attorney fees can be counted toward jurisdictional thresholds.
ELECTRONICALLY STORED INFO
In PSEG Power New York Inc. v. Alberici Constructors Inc.,[FOOTNOTE 1] Magistrate Judge Randolph F. Treece detangled the thorny issue of who pays for electronic discovery when the production goes awry.
The case grew out of a fight over the construction of a power plant. PSEG sued to recover for allegedly shoddy work, and Alberici countersued to get paid.
During the course of discovery, PSEG produced scores of e-mails in two forms: printed out in "hard copy" and also in electronic form. In both cases, however, the e-mails were produced without their attachments. In the hard-copy form, some of the attachments were interspersed throughout the paper production; in the electronic form, due to a technical glitch occurring during PSEG's collection process, no attachments were produced at all. Although none of the original underlying data was lost or destroyed, the parties could not find an agreeable way to reconnect the e-mails with their attachments.
Alberici moved to compel the reproduction of the e-mails with their attachments. PSEG balked at bearing either the cost or the obligation to reproduce the e-mails, arguing that Alberici was seeking a "perfect" production, not just a reasonable one.
According to the court, although Rule 34 of the Federal Rules of Civil Procedure absolves a party from producing electronically stored information in more than one form, the party must still produce the information as it is kept in the usual course of business or organize it to correspond to the discovery requests. Neither before the 2006 amendments to the federal rules nor now could a party dump an unorganized mass of documents on another party. The court ruled that producing e-mail without identifying their corresponding attachments, whether in hard copy or electronic form, fails to meet Rule 34's requirements.
The court also rejected PSEG's arguments that Alberici should bear the cost of the reproduction.
First, the court found that the information was reasonably accessible, since the original data still existed.
Next, the court balanced the cost and the potential benefit of discovery, considering factors such as the specificity of discovery; the quantity of information available from other and more easily accessed sources; the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; predictions as to the importance and usefulness of the further information; the importance of the issues at stake in the litigation; and the parties' resources.
After considering those factors, the court concluded that it was PSEG that "chose" to turn over the e-mails and attachments in a "disassembled manner" and that Alberici need not "accept a flawed discovery process." The court ordered PSEG to reproduce the e-mails and attachments at its own expense.
To Continue Reading: Click Here
--------------------------------------
Source: Law.com
By: Adam R. Shaw
ELECTRONICALLY STORED INFO
In PSEG Power New York Inc. v. Alberici Constructors Inc.,[FOOTNOTE 1] Magistrate Judge Randolph F. Treece detangled the thorny issue of who pays for electronic discovery when the production goes awry.
The case grew out of a fight over the construction of a power plant. PSEG sued to recover for allegedly shoddy work, and Alberici countersued to get paid.
During the course of discovery, PSEG produced scores of e-mails in two forms: printed out in "hard copy" and also in electronic form. In both cases, however, the e-mails were produced without their attachments. In the hard-copy form, some of the attachments were interspersed throughout the paper production; in the electronic form, due to a technical glitch occurring during PSEG's collection process, no attachments were produced at all. Although none of the original underlying data was lost or destroyed, the parties could not find an agreeable way to reconnect the e-mails with their attachments.
Alberici moved to compel the reproduction of the e-mails with their attachments. PSEG balked at bearing either the cost or the obligation to reproduce the e-mails, arguing that Alberici was seeking a "perfect" production, not just a reasonable one.
According to the court, although Rule 34 of the Federal Rules of Civil Procedure absolves a party from producing electronically stored information in more than one form, the party must still produce the information as it is kept in the usual course of business or organize it to correspond to the discovery requests. Neither before the 2006 amendments to the federal rules nor now could a party dump an unorganized mass of documents on another party. The court ruled that producing e-mail without identifying their corresponding attachments, whether in hard copy or electronic form, fails to meet Rule 34's requirements.
The court also rejected PSEG's arguments that Alberici should bear the cost of the reproduction.
First, the court found that the information was reasonably accessible, since the original data still existed.
Next, the court balanced the cost and the potential benefit of discovery, considering factors such as the specificity of discovery; the quantity of information available from other and more easily accessed sources; the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; predictions as to the importance and usefulness of the further information; the importance of the issues at stake in the litigation; and the parties' resources.
After considering those factors, the court concluded that it was PSEG that "chose" to turn over the e-mails and attachments in a "disassembled manner" and that Alberici need not "accept a flawed discovery process." The court ordered PSEG to reproduce the e-mails and attachments at its own expense.
To Continue Reading: Click Here
--------------------------------------
Source: Law.com
By: Adam R. Shaw
Sunday, April 27, 2008
E-Discovery: How to Understand, and Meet, This Legal Challenge
Electronic discovery is no longer just a concept. E-discovery is fast becoming a critical, legal challenge.
The number of requests for production, or discovery, has been increasing for years. Electronic records have been getting more attention as all industries become more reliant on electronic records and electronic communication (which is now designated an electronic record).
Attention has been increasing also as the rules on these electronic communications expand. For example, rules on e-mails designated as public records specify a record is comprised of more than the text within the e-mail. The format, editing history, forwarding history and other metadata are all considered part of that electronic record and must be accounted for.
Indeed, electronic records alone are not the only fair game for legal e-discovery. Everything your company creates is, for legal purposes, “discoverable”. Photos, instant messages, voice-mail messages, documents (all versions, hard copy and electronic, no matter who edited them and when) and e-mail—regardless of how trivial—are considered “enterprise content” and must all be presentable in an e-discovery process.There is no getting around an e-discovery process. It is in your best interests to address e-discovery needs sooner rather than later. Compliance is now law. And the consequences for not complying—for not being prepared in an e-discovery situation—can be devastating.
Understanding e-Discovery: Defining Our Terms
The first step to understanding the e-Discovery process is to define our terms.E-discovery is the legal process in U.S. law through which attorneys obtain information in electronic form in response to litigation or regulatory action. The e-discovery process involves full disclosure of all electronic information that relates to the matter at hand. As mentioned above, that electronic information includes everything from ordinary office documents to e-mails to Web sites to voice-mail messages to employee cell-phone records and instant messages.That also means every mobile device—every notebook PC, BlackBerry, PDA, cell phone, thumb drive, and flash memory card—is considered a repository of discoverable data.
To Continue Reading: Click Here
--------------------------------------
Source: wwpi.com
By Matt Winstanley
The number of requests for production, or discovery, has been increasing for years. Electronic records have been getting more attention as all industries become more reliant on electronic records and electronic communication (which is now designated an electronic record).
Attention has been increasing also as the rules on these electronic communications expand. For example, rules on e-mails designated as public records specify a record is comprised of more than the text within the e-mail. The format, editing history, forwarding history and other metadata are all considered part of that electronic record and must be accounted for.
Indeed, electronic records alone are not the only fair game for legal e-discovery. Everything your company creates is, for legal purposes, “discoverable”. Photos, instant messages, voice-mail messages, documents (all versions, hard copy and electronic, no matter who edited them and when) and e-mail—regardless of how trivial—are considered “enterprise content” and must all be presentable in an e-discovery process.There is no getting around an e-discovery process. It is in your best interests to address e-discovery needs sooner rather than later. Compliance is now law. And the consequences for not complying—for not being prepared in an e-discovery situation—can be devastating.
Understanding e-Discovery: Defining Our Terms
The first step to understanding the e-Discovery process is to define our terms.E-discovery is the legal process in U.S. law through which attorneys obtain information in electronic form in response to litigation or regulatory action. The e-discovery process involves full disclosure of all electronic information that relates to the matter at hand. As mentioned above, that electronic information includes everything from ordinary office documents to e-mails to Web sites to voice-mail messages to employee cell-phone records and instant messages.That also means every mobile device—every notebook PC, BlackBerry, PDA, cell phone, thumb drive, and flash memory card—is considered a repository of discoverable data.
To Continue Reading: Click Here
--------------------------------------
Source: wwpi.com
By Matt Winstanley
Court Calls For Answers on White House E-mail
A U.S. District Court for Washington, D.C., today ordered the White House to provide by May 5 information on whether backup tapes created between March 2003 and October 2005 have been preserved, including any specific dates for which no backup tapes exist.
Judge John Facciola has also ordered the Executive Office of the President (EOP) to provide costs for using forensic technology to preserve e-mail, as well hand over data on how many of today's employees were onboard during the stipulated timeframe, and how many hard drives in use today were used in that period.
In its ruling the court also recommends that the EOP search current and older workstations and .PST files for e-mails tied to individuals employed in the given time frame and preserve any found e-mails.
It also recommends that EOP employees relinquish backup media that contain e-mails sent or received during the 19-month time frame. The media would include hard drives, CDs, DVDs, flash, zip, or floppy disks.
Today's court ruling is the latest action in a lawsuit filed a year ago by both the National Security Archive and Citizens For Responsibility And Ethics in Washington (CREW) against the Executive Office of The President (EOP) regarding e-mail preservation and backup tape procedures.
The Archive called today's court action "a major victory" and said it indicates that the court is reacting to inconsistencies in previous White House statements.
To Continue Reading: Click Here
--------------------------------------
Source: internetnews.com
Judge John Facciola has also ordered the Executive Office of the President (EOP) to provide costs for using forensic technology to preserve e-mail, as well hand over data on how many of today's employees were onboard during the stipulated timeframe, and how many hard drives in use today were used in that period.
In its ruling the court also recommends that the EOP search current and older workstations and .PST files for e-mails tied to individuals employed in the given time frame and preserve any found e-mails.
It also recommends that EOP employees relinquish backup media that contain e-mails sent or received during the 19-month time frame. The media would include hard drives, CDs, DVDs, flash, zip, or floppy disks.
Today's court ruling is the latest action in a lawsuit filed a year ago by both the National Security Archive and Citizens For Responsibility And Ethics in Washington (CREW) against the Executive Office of The President (EOP) regarding e-mail preservation and backup tape procedures.
The Archive called today's court action "a major victory" and said it indicates that the court is reacting to inconsistencies in previous White House statements.
To Continue Reading: Click Here
--------------------------------------
Source: internetnews.com
Friday, April 25, 2008
Substantially Reduce Electronic Discovery Costs
Why Electronic Discovery is Expensive
Actually, discovery using electronic tools is not expensive at all. The high cost of electronic discovery is instead caused by having to review a large volume of electronic records (largely email) that businesses are creating and keeping. The ever-declining cost of electronic storage is the culprit. Currently, a gigabyte of storage costs less than twenty cents. In 1990, the same storage cost at least 100,000 times more. Because current storage is almost free, many businesses make the mistake of keeping information far beyond what is needed or useful.
The false economy of storing additional information becomes apparent once litigation and its related discovery obligations occur. Then, the data kept on twenty cents of storage will cost upward of $50,000 for a junior lawyer to review.
At first, technology solutions that sped lawyer review warranted appropriate attention. One popular software solution gets its name from the claim that lawyers can review ten times the data in the same time. But faster review of enormous volumes really does not solve the problem. Reviewing thousands of gigabytes of data (a common volume in a moderate-sized company) at one-tenth the cost, or $5,000 per gigabyte, still costs way too much!
Solving the Electronic Discovery Cost Problem
To avoid excess discovery costs before a subpoena arrives, follow the proactive advice located at Electronic Storage Best Practices. Fulcrum’s personnel can assist with addressing these issues.
The second best way of reducing cost is to eliminate documents from consideration without any human review. This can be automated with keyword searches. As part of the normal discussions regarding the scope of discovery obligations, counsel should work together to create a list of key words that will be deemed to be potentially relevant. Both producing and receiving parties benefit by such arrangements since both parties incur costs reviewing whatever ends up getting produced. As with all discovery, the Court or a discovery referee can get involved to address instances where either party is being unreasonable.
The obvious problem with use of key word searches is the concern that a relevant document may be missed simply because it does not contain the words used in the search criteria. To address this issue, statistical sampling of the irrelevant documents should be used. Such sampling is used throughout the sciences and industrial applications to identify the rates of error that exist in large population. For example, in manufacturing quality control, statistical testing is routinely used to address whether a batch of manufactured product meets required specifications. If the sample shows an unacceptable deficiency, the entire lot is rejected.
To Continue Reading: Click Here
--------------------------------------
Source: expertclick.com
Actually, discovery using electronic tools is not expensive at all. The high cost of electronic discovery is instead caused by having to review a large volume of electronic records (largely email) that businesses are creating and keeping. The ever-declining cost of electronic storage is the culprit. Currently, a gigabyte of storage costs less than twenty cents. In 1990, the same storage cost at least 100,000 times more. Because current storage is almost free, many businesses make the mistake of keeping information far beyond what is needed or useful.
The false economy of storing additional information becomes apparent once litigation and its related discovery obligations occur. Then, the data kept on twenty cents of storage will cost upward of $50,000 for a junior lawyer to review.
At first, technology solutions that sped lawyer review warranted appropriate attention. One popular software solution gets its name from the claim that lawyers can review ten times the data in the same time. But faster review of enormous volumes really does not solve the problem. Reviewing thousands of gigabytes of data (a common volume in a moderate-sized company) at one-tenth the cost, or $5,000 per gigabyte, still costs way too much!
Solving the Electronic Discovery Cost Problem
To avoid excess discovery costs before a subpoena arrives, follow the proactive advice located at Electronic Storage Best Practices. Fulcrum’s personnel can assist with addressing these issues.
The second best way of reducing cost is to eliminate documents from consideration without any human review. This can be automated with keyword searches. As part of the normal discussions regarding the scope of discovery obligations, counsel should work together to create a list of key words that will be deemed to be potentially relevant. Both producing and receiving parties benefit by such arrangements since both parties incur costs reviewing whatever ends up getting produced. As with all discovery, the Court or a discovery referee can get involved to address instances where either party is being unreasonable.
The obvious problem with use of key word searches is the concern that a relevant document may be missed simply because it does not contain the words used in the search criteria. To address this issue, statistical sampling of the irrelevant documents should be used. Such sampling is used throughout the sciences and industrial applications to identify the rates of error that exist in large population. For example, in manufacturing quality control, statistical testing is routinely used to address whether a batch of manufactured product meets required specifications. If the sample shows an unacceptable deficiency, the entire lot is rejected.
To Continue Reading: Click Here
--------------------------------------
Source: expertclick.com
The electronic revolution comes to litigation
We all know that the information revolution has radically changed our lives and our businesses. Fifteen years ago, few businesses in New Hampshire even had e-mail, but today it is not an overstatement to say that virtually no business could operate without electronic documents and document management. Business organizations have thousands, if not tens of thousands, of times as much information within their boundaries as they did in years past. (For example, Exxon Mobil stated in a recent case that its employees generate 5.2 million e-mails daily.)
This has caused profound change in the way business cases are litigated.
Through much of history, information was physically stored. Lawyers involved in proving cases sought paper copies of documents. Now lawyers know that the most relevant information is frequently in the data. Litigation began to develop in the last 10 years about what data must be produced and how it must be produced.
Seeking to meet those societal changes, the Federal Rules of Civil Procedure were amended effective December 2006 to specifically provide rules relating to preservation of electronic information and provisions for discovery of it. Businesses involved in lawsuits now learn during their first conference with their lawyer that they must preserve documents and that they must undertake review of their systems to make sure that documents are not inadvertently destroyed.
A businessperson’s first reaction to all of this might be one of despair — more difficulty and more expense in litigation. But the opposite is true. The ability of technologically savvy firms to obtain information through electronic discovery have leveled the playing field for smaller businesses, which can use efficient, less expensive small firms to litigate cases it would have been too expensive to litigate in the past.
In fact, the American Bar Association recently noted in an online article that even larger corporate legal clients are developing an affinity for small law firms.
To Continue Reading: Click Here
--------------------------------------
Source: nhbr.com
This has caused profound change in the way business cases are litigated.
Through much of history, information was physically stored. Lawyers involved in proving cases sought paper copies of documents. Now lawyers know that the most relevant information is frequently in the data. Litigation began to develop in the last 10 years about what data must be produced and how it must be produced.
Seeking to meet those societal changes, the Federal Rules of Civil Procedure were amended effective December 2006 to specifically provide rules relating to preservation of electronic information and provisions for discovery of it. Businesses involved in lawsuits now learn during their first conference with their lawyer that they must preserve documents and that they must undertake review of their systems to make sure that documents are not inadvertently destroyed.
A businessperson’s first reaction to all of this might be one of despair — more difficulty and more expense in litigation. But the opposite is true. The ability of technologically savvy firms to obtain information through electronic discovery have leveled the playing field for smaller businesses, which can use efficient, less expensive small firms to litigate cases it would have been too expensive to litigate in the past.
In fact, the American Bar Association recently noted in an online article that even larger corporate legal clients are developing an affinity for small law firms.
To Continue Reading: Click Here
--------------------------------------
Source: nhbr.com
GAO Highlights Government Email Gaps
Washington watchdog finds holes in agencies' email strategies
There are glaring gaps in how key U.S. government agencies handle and store emails, according to a Government Accountability Office (GAO) report released yesterday.
”Preliminary results of GAO’s review of email records management at four agencies show that not all are meeting the challenges posed by email records,” said the report, which examined the Department of Homeland Security (DHS), the Environmental Protection Agency (EPA), the Federal Trade Commission , and the Department of Housing and Urban Development (HUD).
Lack of adequate email retention was one of the GAO’s key findings. “For about half of the senior officials, e-mail records were not being appropriately identified and preserved,” stated the report, highlighting the lack of effective “recordkeeping” systems capable of classifying emails for swift retrieval.
The government’s use of email has been in the spotlight since the controversial firing of eight U.S. attorneys in 2007, when White House officials came under fire for their handling and alleged deletion of emails. A judge ordered the White House last year to keep backup copies of millions of emails that were allegedly deleted, and Congress has also probed the executive branch’s email management.
This week’s GAO report, which is part of testimony to the House of Representatives’ Committee on Oversight and Government Reform, paints a worrying picture of email management elsewhere in Washington.
”Officials and their responsible staff had not always received training in the record-keeping requirements for email records,” wrote Linda Koontz, the GAO’s director of information management issues. “If recordkeeping requirements are not followed, agencies cannot be assured that records, including information that is essential to protecting the rights of individuals and the federal government, is [sic] being adequately identified and preserved.”
To Continue Reading: Click Here
--------------------------------------
Source: byteandswitch.com
By James Rogers
There are glaring gaps in how key U.S. government agencies handle and store emails, according to a Government Accountability Office (GAO) report released yesterday.
”Preliminary results of GAO’s review of email records management at four agencies show that not all are meeting the challenges posed by email records,” said the report, which examined the Department of Homeland Security (DHS), the Environmental Protection Agency (EPA), the Federal Trade Commission , and the Department of Housing and Urban Development (HUD).
Lack of adequate email retention was one of the GAO’s key findings. “For about half of the senior officials, e-mail records were not being appropriately identified and preserved,” stated the report, highlighting the lack of effective “recordkeeping” systems capable of classifying emails for swift retrieval.
The government’s use of email has been in the spotlight since the controversial firing of eight U.S. attorneys in 2007, when White House officials came under fire for their handling and alleged deletion of emails. A judge ordered the White House last year to keep backup copies of millions of emails that were allegedly deleted, and Congress has also probed the executive branch’s email management.
This week’s GAO report, which is part of testimony to the House of Representatives’ Committee on Oversight and Government Reform, paints a worrying picture of email management elsewhere in Washington.
”Officials and their responsible staff had not always received training in the record-keeping requirements for email records,” wrote Linda Koontz, the GAO’s director of information management issues. “If recordkeeping requirements are not followed, agencies cannot be assured that records, including information that is essential to protecting the rights of individuals and the federal government, is [sic] being adequately identified and preserved.”
To Continue Reading: Click Here
--------------------------------------
Source: byteandswitch.com
By James Rogers
Judge orders White House to clarify whether or not missing e-mails are recoverable
Today, Magistrate Judge John M. Facciola of the U.S. District Court ordered the White House to once and for all provide "precise information" about its e-mail system.
The order stems from a lawsuit by the
House Judiciary Committee chairman Sen. Patrick Leahy (D-VT), in a 2007 address, called such a breach of record-keeping requirements reminiscent of the "
The "missing" e-mails cover a 473-day period, which includes
"This ruling is a major victory for accountability at the White House," said Tom Blanton, National Security Archive director. "We have seen delay after delay, and constantly changing stories, none of which come up to the standards that are required by law."
--------------------------------------
Source: rawstory.com
Thursday, April 24, 2008
Court Rejects Cost Shifting Since Moving Party Failed to Meet and Confer in Good Faith; Cost Estimate and Conclusory Characterizations of ESI
Mikron Ind., Inc. v. Hurd Windows & Doors, Inc., 2008 WL 1805727 (W.D. Wash. Apr. 21, 2008)
In this decision, District Judge Robert S. Lasnik denied defendants’ motion for a protective order which asked the court to shift the costs of producing ESI to the plaintiff. Relying on Fed. R. Civ. P. 26(b)(2), defendants argued that searching through their ESI would generate substantial costs and yield cumulative results.
Finding that defendants failed to discharge their meet and confer obligation in good faith, as required by Fed. R. Civ. P. 26(c), the court denied the motion on that basis. The court then went on to consider the merits of the motion. It found that defendants had also failed to demonstrate that plaintiff's discovery requests were unduly burdensome and/or cumulative, or that the requested ESI was “not reasonably accessible because of undue burden or cost.” The court explained:
The rules of discovery presume that “the responding party must bear the expense of complying with discovery requests.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978). Congress added Fed. R. Civ. P. 26(b)(2)(B) in 2006 in response to concerns that the broad discovery principle announced in Fed. R. Civ. P. 26(b)(1) could cause responding parties to incur unreasonable costs in producing electronically stored information. See Advisory Committee's Notes on 2006 Amendment to Fed. R. Civ. P. 26(b)(2). The responding party bears the burden of showing that “identified sources are not reasonably accessible in light of the burdens and costs required to search for, retrieve, and produce whatever responsive information may be found.” Id. In meeting this burden, the responding party should present details sufficient to allow the requesting party to evaluate the costs and benefits of searching and producing the identified sources. Id. This requirement mirrors the “meet and confer” obligation established by Fed. R. Civ. P. 26(c). If the responding party meets its burden, the court may consider a range of options, including cost-shifting, to alleviate the responding party's hardship. Fed. R. Civ. P. 26(c) (1). See Oppenheimer Fund, 437 U.S. at 358.
ESI can be preserved in a wide range of diverse formats, some of which are more accessible than others. See Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 318-20 (S.D.N.Y.2003). Although defendants directed their employees to search their hard drives for responsive information, defendants have not demonstrated any search efforts beyond that limited inquiry. Responsive information may be discovered during a more thorough search of defendants' non-backup ESI, including employee hard drives and active e-mail servers. Cost-shifting would not be appropriate in the context of this kind of search, as this ESI is considered reasonably accessible within the meaning of Fed. R. Civ. P. 26(b) (2)(C). See id.
With regard to ESI located on defendants' backup tapes, those courts that considered shifting the costs of electronic discovery to the requesting party were presented with more detailed information than that provided by the defendants in this case. In alleging that continued discovery of their ESI would be unduly burdensome, defendants offer little evidence beyond a cost estimate and conclusory characterizations of their ESI as “inaccessible.” Defendants have not provided the Court with details regarding, for example: (1) the number of back-up tapes to be searched; (2) the different methods defendants use to store electronic information; (3) defendants' electronic document retention policies prior to retaining an outside consultant; (4) the extent to which the electronic information stored on back-up tapes overlaps with electronic information stored in more accessible formats; or (5) the extent to which the defendants have searched ESI that remains accessible. Beyond the estimated costs, defendants have not demonstrated an unusual hardship beyond that which ordinarily accompanies the discovery process. Therefore, the Court finds that defendants have not met their burden of demonstrating that the requested ESI is “not reasonably accessible because of undue burden or cost.” See Fed. R. Civ. P. 26(b)(2)(B).
(Footnotes and citation to the record omitted.)
The court directed the parties to meet and confer regarding the discovery of ESI before bringing any related motions.
To view a copy of the full order: Click Here
--------------------------------------
Source: ediscoverylaw.com
By K&L Gates
In this decision, District Judge Robert S. Lasnik denied defendants’ motion for a protective order which asked the court to shift the costs of producing ESI to the plaintiff. Relying on Fed. R. Civ. P. 26(b)(2), defendants argued that searching through their ESI would generate substantial costs and yield cumulative results.
Finding that defendants failed to discharge their meet and confer obligation in good faith, as required by Fed. R. Civ. P. 26(c), the court denied the motion on that basis. The court then went on to consider the merits of the motion. It found that defendants had also failed to demonstrate that plaintiff's discovery requests were unduly burdensome and/or cumulative, or that the requested ESI was “not reasonably accessible because of undue burden or cost.” The court explained:
The rules of discovery presume that “the responding party must bear the expense of complying with discovery requests.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978). Congress added Fed. R. Civ. P. 26(b)(2)(B) in 2006 in response to concerns that the broad discovery principle announced in Fed. R. Civ. P. 26(b)(1) could cause responding parties to incur unreasonable costs in producing electronically stored information. See Advisory Committee's Notes on 2006 Amendment to Fed. R. Civ. P. 26(b)(2). The responding party bears the burden of showing that “identified sources are not reasonably accessible in light of the burdens and costs required to search for, retrieve, and produce whatever responsive information may be found.” Id. In meeting this burden, the responding party should present details sufficient to allow the requesting party to evaluate the costs and benefits of searching and producing the identified sources. Id. This requirement mirrors the “meet and confer” obligation established by Fed. R. Civ. P. 26(c). If the responding party meets its burden, the court may consider a range of options, including cost-shifting, to alleviate the responding party's hardship. Fed. R. Civ. P. 26(c) (1). See Oppenheimer Fund, 437 U.S. at 358.
ESI can be preserved in a wide range of diverse formats, some of which are more accessible than others. See Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 318-20 (S.D.N.Y.2003). Although defendants directed their employees to search their hard drives for responsive information, defendants have not demonstrated any search efforts beyond that limited inquiry. Responsive information may be discovered during a more thorough search of defendants' non-backup ESI, including employee hard drives and active e-mail servers. Cost-shifting would not be appropriate in the context of this kind of search, as this ESI is considered reasonably accessible within the meaning of Fed. R. Civ. P. 26(b) (2)(C). See id.
With regard to ESI located on defendants' backup tapes, those courts that considered shifting the costs of electronic discovery to the requesting party were presented with more detailed information than that provided by the defendants in this case. In alleging that continued discovery of their ESI would be unduly burdensome, defendants offer little evidence beyond a cost estimate and conclusory characterizations of their ESI as “inaccessible.” Defendants have not provided the Court with details regarding, for example: (1) the number of back-up tapes to be searched; (2) the different methods defendants use to store electronic information; (3) defendants' electronic document retention policies prior to retaining an outside consultant; (4) the extent to which the electronic information stored on back-up tapes overlaps with electronic information stored in more accessible formats; or (5) the extent to which the defendants have searched ESI that remains accessible. Beyond the estimated costs, defendants have not demonstrated an unusual hardship beyond that which ordinarily accompanies the discovery process. Therefore, the Court finds that defendants have not met their burden of demonstrating that the requested ESI is “not reasonably accessible because of undue burden or cost.” See Fed. R. Civ. P. 26(b)(2)(B).
(Footnotes and citation to the record omitted.)
The court directed the parties to meet and confer regarding the discovery of ESI before bringing any related motions.
To view a copy of the full order: Click Here
--------------------------------------
Source: ediscoverylaw.com
By K&L Gates
Time to Catch the 'Science of Search'
Federal Magistrate Judge John Facciola is a remarkable fellow. He hails from Brooklyn, wears bow ties, knows the Bruce Springsteen songbook by heart and doesn't hesitate to bring the White House to heel when the administration gets sloppy in its electronic evidence preservation. But his most heretical act may be his observation in United States v. O'Keefe, No. 06-249 (D.D.C. Feb. 18, 2008), that keyword search of electronically stored information is a topic "clearly beyond the ken of a layman." By a layman, he means any lawyer or judge who isn't an expert in computer technology, statistics and linguistics.
Facciola adds that, given the complexity of the science of search, "[F]or lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than [other] terms ... is truly to go where angels fear to tread."
Heeding the call, the crack team of Forensically-trained Offerers of Legal Services (FOOLS) at Ball Labs have rushed in to formulate 36 search terms guaranteed to grab the smoking gun in any English-language ESI collection. The 36 terms are the letters of the alphabet and the numbers 0-9.
Ridiculous? Sure! But in a case where I serve as special master for ESI, a party proposed that the letter "S" be used as a search term. In another appointment, the plaintiff wanted to search for the number 64.
These earnest requests came from good lawyers offering credible rationale. They saw only that the term would be found within the evidence they sought, not appreciating that it would also appear in just about everything else, too. In the parlance of information retrieval, the terms scored high on recall but failed miserably in precision.
To Continue Reading: Click Here
--------------------------------------
Source: law.com
By Craig Ball
Death, taxes and building and IT infrastructure that can handle eDiscovery
Storage and IT managers quickly need to become experts in eDiscovery. That reality does not have to be viewed with dread; building a system that knocks down departmental data silos and allows every piece of structured and unstructured data to be discoverable for a variety of business purposes can be a huge boon to IT and storage management, as well as for security and compliance officers, legal and litigation departments, and human resources.
A well documented catalyst for the surge around eDiscovery is the amendments to the Federal Rules of Civil Procedure (FRCP) made in December of 2006. FRCP has forced the hand of IT staff to be able to prove that data that is germane to a court case is reasonably accessible and, in many cases, to produce that data in as little as 30-45 days. This includes any electronically stored information (ESI) within an enterprise, including data that resides on desktops and laptops, file servers, networked storage systems, email servers and email archives. Reasonably accessible can happen at any time and there are a number of recent cases showing that the courts have no patience for the traditional response of, “We’re not sure where it is, but eventually we will be able to find it.” The future is clear in that there is a need for consistent, repeatable and targeted eDiscovery processes that can also be deployed across a company, creating an “eDiscovery-ready,” proactive environment.
A problem that has arisen from the need to be eDiscovery-ready is that the FRCP amendments have imposed obligations on parties, but have not specifically stated how one should go about fulfilling these obligations. The bottom line is, litigation, storage management/data consolidation, records retention, regulatory responses, internal investigations, information security initiatives, personnel policy management, business intelligence, data mining, compliance and monitoring are all effectively subsets of what we call “eDiscovery.” This new paradigm of eDiscovery subsumes many previously compartmentalized departmental initiatives. It is predicated on the degree to which an organization has information access and the ability to perform effective data classification. In short, companies should be able to leverage enterprise data for multiple business needs from a common underlying information access and classification platform.
Building a Repeatable Process through Information Access Technologies:
First, there needs to be increased communication between the storage and IT staffs. IT staff needs to understand how (ESI) is created, used, managed and disposed of as these operational facts summarize both business value and risk of existing policies. Organizations that have implemented records retention programs without classification, are likely over-capturing information. This means that while they get what they should, they may also capture superfluous information that is of no business value that could well represent significant risk to the organization.
To Continue Reading: Click Here
--------------------------------------
Source: wwpi.com
By Sudhakar Muddu
A well documented catalyst for the surge around eDiscovery is the amendments to the Federal Rules of Civil Procedure (FRCP) made in December of 2006. FRCP has forced the hand of IT staff to be able to prove that data that is germane to a court case is reasonably accessible and, in many cases, to produce that data in as little as 30-45 days. This includes any electronically stored information (ESI) within an enterprise, including data that resides on desktops and laptops, file servers, networked storage systems, email servers and email archives. Reasonably accessible can happen at any time and there are a number of recent cases showing that the courts have no patience for the traditional response of, “We’re not sure where it is, but eventually we will be able to find it.” The future is clear in that there is a need for consistent, repeatable and targeted eDiscovery processes that can also be deployed across a company, creating an “eDiscovery-ready,” proactive environment.
A problem that has arisen from the need to be eDiscovery-ready is that the FRCP amendments have imposed obligations on parties, but have not specifically stated how one should go about fulfilling these obligations. The bottom line is, litigation, storage management/data consolidation, records retention, regulatory responses, internal investigations, information security initiatives, personnel policy management, business intelligence, data mining, compliance and monitoring are all effectively subsets of what we call “eDiscovery.” This new paradigm of eDiscovery subsumes many previously compartmentalized departmental initiatives. It is predicated on the degree to which an organization has information access and the ability to perform effective data classification. In short, companies should be able to leverage enterprise data for multiple business needs from a common underlying information access and classification platform.
Building a Repeatable Process through Information Access Technologies:
First, there needs to be increased communication between the storage and IT staffs. IT staff needs to understand how (ESI) is created, used, managed and disposed of as these operational facts summarize both business value and risk of existing policies. Organizations that have implemented records retention programs without classification, are likely over-capturing information. This means that while they get what they should, they may also capture superfluous information that is of no business value that could well represent significant risk to the organization.
To Continue Reading: Click Here
--------------------------------------
Source: wwpi.com
By Sudhakar Muddu
Will keeping old e-mail put you at risk?
Organizations' views on data retention are maturing
There is a mindset among many that retaining old e-mails will put a company at risk. Many reason that e-mails handed over to an adversary during e-discovery, for example, will contain a "smoking gun" that could result in embarrassment or the loss of a legal judgment.
In some cases, this mindset has been proven correct. We’ve seen examples in high profile cases over the years of CEOs and others who have said things in e-mail that they wish had not been available for presentation at trial or during pre-trial motions.
However, in most cases it’s better to keep old e-mails, instant messages and other content, even if they do contain information that might reflect poorly on your company. Since it’s virtually impossible to delete all copies of e-mail that are sent outside of your company, you might as well retain them – chances are, someone will have copies of them anyway and you don’t want to walk into court as the only party that is not privy to this information.
In a major study on the archiving market that we have just published, we found that organizations in North America are following this course of action. For example, while 32% of organizations believe that preserving all e-mail content for long periods is the least risky option, 10% believe that deleting all content poses the least risk.
To Continue Reading: Click Here
--------------------------------------
Source: Network World
By Michael Osteman
There is a mindset among many that retaining old e-mails will put a company at risk. Many reason that e-mails handed over to an adversary during e-discovery, for example, will contain a "smoking gun" that could result in embarrassment or the loss of a legal judgment.
In some cases, this mindset has been proven correct. We’ve seen examples in high profile cases over the years of CEOs and others who have said things in e-mail that they wish had not been available for presentation at trial or during pre-trial motions.
However, in most cases it’s better to keep old e-mails, instant messages and other content, even if they do contain information that might reflect poorly on your company. Since it’s virtually impossible to delete all copies of e-mail that are sent outside of your company, you might as well retain them – chances are, someone will have copies of them anyway and you don’t want to walk into court as the only party that is not privy to this information.
In a major study on the archiving market that we have just published, we found that organizations in North America are following this course of action. For example, while 32% of organizations believe that preserving all e-mail content for long periods is the least risky option, 10% believe that deleting all content poses the least risk.
To Continue Reading: Click Here
--------------------------------------
Source: Network World
By Michael Osteman
The Case for Online Backups
Traditional data backup and storage options for organizations have been confined to disk-to-tape, CDs, DVDs, external hard drives, flash memory and networks. While these options provide the initial benefit of data backup separate from the host machine(s), their shortcomings in reliability, security, cost-effectiveness, and convenience have been increasingly exposed. Consider just a few of the most recent failures of traditional backup options:
At the Louisiana Office of Financial Aid, social security numbers of almost every student applying to state universities for the past nine years were lost when a courier misplaced a backup tape. (Pope, John. “Student data lost in security breach.” The Times Picayune 17 October 2007.)
In Ohio, the names and social security numbers of all 64,000 state employees were stolen from an unencrypted backup storage drive left in an agency intern’s car. (Noyes, Katherine. “Thieves Boost Info on 64,000 Ohio State Workers.” TechNewsWorld 15 June 2007.)
In Florida, a disgruntled architectural firm employee deleted seven years' worth of drawings, a loss valued at $2.5 million in total by the firm.
It’s real life examples like these that drive home the need for a better backup solution - and organizations are looking to online backup providers to meet this need. Once considered a limited novelty, online backup’s growth as an industry and as a traditional backup alternative has been significant. In fact, a December 2007 report by Doug Chandler from the research firm IDC predicts that sales of hosted backup storage services will reach $715 million in 2011, up from $235 million in 2007.
But for those unconvinced of online backup’s advantages over traditional backup methods, you needn’t look any further than its capabilities across four distinct and crucial areas; disaster recovery, security, ease of use and cost.
To Continue Reading: Click Here
--------------------------------------
Source: wwpi.com
By Sam Gutmann
At the Louisiana Office of Financial Aid, social security numbers of almost every student applying to state universities for the past nine years were lost when a courier misplaced a backup tape. (Pope, John. “Student data lost in security breach.” The Times Picayune 17 October 2007.)
In Ohio, the names and social security numbers of all 64,000 state employees were stolen from an unencrypted backup storage drive left in an agency intern’s car. (Noyes, Katherine. “Thieves Boost Info on 64,000 Ohio State Workers.” TechNewsWorld 15 June 2007.)
In Florida, a disgruntled architectural firm employee deleted seven years' worth of drawings, a loss valued at $2.5 million in total by the firm.
It’s real life examples like these that drive home the need for a better backup solution - and organizations are looking to online backup providers to meet this need. Once considered a limited novelty, online backup’s growth as an industry and as a traditional backup alternative has been significant. In fact, a December 2007 report by Doug Chandler from the research firm IDC predicts that sales of hosted backup storage services will reach $715 million in 2011, up from $235 million in 2007.
But for those unconvinced of online backup’s advantages over traditional backup methods, you needn’t look any further than its capabilities across four distinct and crucial areas; disaster recovery, security, ease of use and cost.
To Continue Reading: Click Here
--------------------------------------
Source: wwpi.com
By Sam Gutmann
Wednesday, April 23, 2008
In Search of Better E-Discovery Methods
As the burdens of e-discovery continue to mount, the search for a technological solution has only intensified. The holy grail here is a search methodology that will enable litigants to identify potentially relevant electronic documents reliably and efficiently.
In an effort to achieve these often competing objectives, litigants most commonly search repositories of electronic data for documents containing any number of defined search terms (keyword searches) or search terms appearing in a specified relation to one another (Boolean searches). These search technologies have been in use for years, both in litigation and elsewhere, and accordingly are well understood and widely accepted by courts and practitioners.[FOOTNOTE 1]
But keyword and Boolean searches are far from perfect solutions; they are blunt instruments. Such searches will identify only those electronic documents containing the precise terms specified. These methodologies therefore will not catch documents using words that are close, but not identical, to the specified search terms, such as abbreviations, synonyms, nicknames, initials and misspelled words.
On the other hand, using more search terms may reduce the risk that an electronic search will miss a relevant document, but only at the price of increasing -- often quite dramatically -- the number of irrelevant documents found in the search. This is a serious problem because counsel must manually review whatever documents the searches yield in order to sift out nonresponsive materials, make privilege determinations and designate confidential documents. Keyword and Boolean searches thus require a careful balance to be struck: Unduly restrictive searches may miss too many responsive documents while overbroad searches threaten stratospheric discovery costs.
Against this backdrop, courts and litigants understandably have been intrigued by the claims of those promoting alternative search technologies, such as "concept searching." The vendors of such technologies suggest their search strategies are able to identify the overwhelming majority of responsive documents while virtually eliminating the need for lawyer involvement in the review process.
Such claims strike many in the legal community as too good to be true. And their skepticism is appropriately heightened because the precise methodologies that such vendors use often are shrouded in mystery, owing to their stated desire to safeguard their proprietary processes and techniques. But this also means their tantalizing claims cannot readily be subjected to independent scrutiny. The question thus posed -- and still largely unexplored -- is whether these alternative search technologies have anything to offer and, if so, how best to evaluate the competing technologies and the often sensational claims of their promoters.
To Continue Reading: Click Here
--------------------------------------
Source: Law.com
By H. Christopher Boehning and Daniel J. Toal
In an effort to achieve these often competing objectives, litigants most commonly search repositories of electronic data for documents containing any number of defined search terms (keyword searches) or search terms appearing in a specified relation to one another (Boolean searches). These search technologies have been in use for years, both in litigation and elsewhere, and accordingly are well understood and widely accepted by courts and practitioners.[FOOTNOTE 1]
But keyword and Boolean searches are far from perfect solutions; they are blunt instruments. Such searches will identify only those electronic documents containing the precise terms specified. These methodologies therefore will not catch documents using words that are close, but not identical, to the specified search terms, such as abbreviations, synonyms, nicknames, initials and misspelled words.
On the other hand, using more search terms may reduce the risk that an electronic search will miss a relevant document, but only at the price of increasing -- often quite dramatically -- the number of irrelevant documents found in the search. This is a serious problem because counsel must manually review whatever documents the searches yield in order to sift out nonresponsive materials, make privilege determinations and designate confidential documents. Keyword and Boolean searches thus require a careful balance to be struck: Unduly restrictive searches may miss too many responsive documents while overbroad searches threaten stratospheric discovery costs.
Against this backdrop, courts and litigants understandably have been intrigued by the claims of those promoting alternative search technologies, such as "concept searching." The vendors of such technologies suggest their search strategies are able to identify the overwhelming majority of responsive documents while virtually eliminating the need for lawyer involvement in the review process.
Such claims strike many in the legal community as too good to be true. And their skepticism is appropriately heightened because the precise methodologies that such vendors use often are shrouded in mystery, owing to their stated desire to safeguard their proprietary processes and techniques. But this also means their tantalizing claims cannot readily be subjected to independent scrutiny. The question thus posed -- and still largely unexplored -- is whether these alternative search technologies have anything to offer and, if so, how best to evaluate the competing technologies and the often sensational claims of their promoters.
To Continue Reading: Click Here
--------------------------------------
Source: Law.com
By H. Christopher Boehning and Daniel J. Toal
Do you know where your data is?
It is often said that technology is the problem and the solution. This is surely appropriate for data security. After all, more than 95 per cent of corporate data is held electronically.
Perhaps the best approach is to distinguish between data security – preventing unauthorised disclosure – and litigation/regulatory readiness – managing authorised disclosure effectively.
The legal rules of data protection and the civil courts require those responsible for the relevant data to consider what technology is available to better avoid unauthorised and manage authorised disclosure. This fact alone dictates that IT and legal experts should communicate and collaborate.
The Data Protection Act imposes a duty to ensure an appropriate level of security. This involves a consideration of the nature of the data, and the likelihood of loss, cost and developments in technology. It is not sufficient for the risks around storing and using high volumes of electronic data to appeal to the legal framework alone.
The potential damage to brand and reputation is too often underestimated.
When 1,500 Standard Life savers’ personal details were lost en route between HM Revenue and Customs (HMRC) offices in Newcastle and Edinburgh, the data was encrypted to the highest degree. But two lost HMRC CDs containing Child Benefit Agency information were protected by only one password.
Subcontracting is another example of risk – one that led to Marks & Spencer (M&S) losing an unencrypted laptop and being found by the Information Commissioner to have violated the law.
What about the litigation/regulatory risk? Few organisations appreciate the burden, time and cost of a request from an opponent in litigation or from a regulator to produce documents. Most are blissfully unaware of what is involved.
What are you going to do when asked to produce substantial volumes of data against a tight deadline? Where is the data? How are you going to search for it? What happens if you do not produce files when requested but they subsequently come to light? The low priority accorded to this risk could prove disastrous.
What should companies be doing?
First, the risks must be appreciated and managed. Make data management an organisational priority. Instigate ongoing communication and collaboration between the IT function and the legal team. For example, is there a policy about the removal of mobile devices from company premises? What about the use of removable media such as memory sticks? Who is controlling that data?
Second, draw up and enforce appropriate policies that should be kept under constant review. Keep audit trails so that a course of action can be justified later if necessary.
To Continue Reading: Click Here
------------------------------------------
Source: WhatPC
By: Mark Surguy
Perhaps the best approach is to distinguish between data security – preventing unauthorised disclosure – and litigation/regulatory readiness – managing authorised disclosure effectively.
The legal rules of data protection and the civil courts require those responsible for the relevant data to consider what technology is available to better avoid unauthorised and manage authorised disclosure. This fact alone dictates that IT and legal experts should communicate and collaborate.
The Data Protection Act imposes a duty to ensure an appropriate level of security. This involves a consideration of the nature of the data, and the likelihood of loss, cost and developments in technology. It is not sufficient for the risks around storing and using high volumes of electronic data to appeal to the legal framework alone.
The potential damage to brand and reputation is too often underestimated.
When 1,500 Standard Life savers’ personal details were lost en route between HM Revenue and Customs (HMRC) offices in Newcastle and Edinburgh, the data was encrypted to the highest degree. But two lost HMRC CDs containing Child Benefit Agency information were protected by only one password.
Subcontracting is another example of risk – one that led to Marks & Spencer (M&S) losing an unencrypted laptop and being found by the Information Commissioner to have violated the law.
What about the litigation/regulatory risk? Few organisations appreciate the burden, time and cost of a request from an opponent in litigation or from a regulator to produce documents. Most are blissfully unaware of what is involved.
What are you going to do when asked to produce substantial volumes of data against a tight deadline? Where is the data? How are you going to search for it? What happens if you do not produce files when requested but they subsequently come to light? The low priority accorded to this risk could prove disastrous.
What should companies be doing?
First, the risks must be appreciated and managed. Make data management an organisational priority. Instigate ongoing communication and collaboration between the IT function and the legal team. For example, is there a policy about the removal of mobile devices from company premises? What about the use of removable media such as memory sticks? Who is controlling that data?
Second, draw up and enforce appropriate policies that should be kept under constant review. Keep audit trails so that a course of action can be justified later if necessary.
To Continue Reading: Click Here
------------------------------------------
Source: WhatPC
By: Mark Surguy
Tuesday, April 22, 2008
Status Conference Today in Qualcomm, Inc. v. Broadcom Corp. Regarding Discovery Plan and Further Proceedings
On March 20, 2008, the court convened a status hearing and counsel reported their progress toward developing the CREDO protocol ordered by the court. The court also conferred with the parties regarding the status of the case in light of Judge Brewster’s March 5, 2008 Order Remanding in Part Order of Magistrate Court re Motion for Sanctions Dated 1/07/08. Because Judge Brewster vacated the 1/07/08 Sanctions Order to the extent it required the named Responding Attorneys to participate in the CREDO project, the Magistrate Judge observed that only Qualcomm remained responsible for completing the protocol. Thus, the court ordered Qualcomm to submit a final version of the CREDO protocol by Thursday, April 10, 2008. (If it was filed by the court's deadline, the protocol does yet not appear to be publicly available.)
On April 2, 2008, counsel for the Responding Attorneys and Broadcom submitted their Proposed Discovery Plan in preparation for the evidentiary hearing on attorney sanctions ordered by the District Judge.
Also on April 2, 2008, the court held a telephonic status conference in which counsel for the Responding Attorneys, Qualcomm and Broadcom participated. During the conference, the court discussed with counsel the “Discovery Plan Jointly Proposed by the Responding Attorneys and Broadcom.” The court ordered the parties to present their requests for documents to each other, and serve subpoenas duces tecum upon third parties for the production of documents, on or before April 11, 2008.
The court is holding a status hearing today, April 22, 2008 at 10:30 a.m. to address the status of this document production and further scheduling in light of this production. Other developments in the case include Qualcomm’s motion for clarification of the District Judge’s March 5, 2008 ruling remanding the attorney sanctions issue to the Magistrate Judge. Qualcomm asks that the court clarify the scope of attorney-client privileged material that will be permitted in further proceedings, and the manner in which discovery proceedings will be conducted.
To Continue Reading: Click Here
-------------------------------------------
Source: ediscoverylaw.com
By K&L Gates
On April 2, 2008, counsel for the Responding Attorneys and Broadcom submitted their Proposed Discovery Plan in preparation for the evidentiary hearing on attorney sanctions ordered by the District Judge.
Also on April 2, 2008, the court held a telephonic status conference in which counsel for the Responding Attorneys, Qualcomm and Broadcom participated. During the conference, the court discussed with counsel the “Discovery Plan Jointly Proposed by the Responding Attorneys and Broadcom.” The court ordered the parties to present their requests for documents to each other, and serve subpoenas duces tecum upon third parties for the production of documents, on or before April 11, 2008.
The court is holding a status hearing today, April 22, 2008 at 10:30 a.m. to address the status of this document production and further scheduling in light of this production. Other developments in the case include Qualcomm’s motion for clarification of the District Judge’s March 5, 2008 ruling remanding the attorney sanctions issue to the Magistrate Judge. Qualcomm asks that the court clarify the scope of attorney-client privileged material that will be permitted in further proceedings, and the manner in which discovery proceedings will be conducted.
To Continue Reading: Click Here
-------------------------------------------
Source: ediscoverylaw.com
By K&L Gates
Email Archiving: No Room for Excuses
A recent survey by the Storage Networking Industry Association (SNIA) on email archiving at first glance seems to contradict itself. The survey of IT professionals found that while most companies realize they have to retain emails and other electronic records for at least 50 years, most admit they are “highly dissatisfied” with their archiving policies. The consequences for not properly retaining e-records are severe, and can be avoided by implementing a software-based email archiving system. So why aren’t more companies doing so? Working with customers across all industries, Symantec has identified a handful of excuses companies most often use when explaining why they have not established an archiving policy. The common thread running through all of these excuses is that none of them are valid, and can place a company at enormous risk of litigation, fines and damage to their reputations and customer relationships.
An email archiving system is more than a collection of backup tapes. Email archiving software automatically moves email messages and attachments from email servers such as Microsoft Exchange and Lotus Notes based on corporate policies or rules to a central repository. Records are indexed so they are easy to find and recover. Records are retained for the appropriate period of time according to internal policies, external regulatory requirements, or both, and provides an audit trail that shows who accessed any email and when.
Federal Rules of Civil Procedure
Being sued is part of doing business, and being able to find subpoenaed email records is critical to defending your organization. In December 2006, the Federal Rules of Civil Procedure (FRCP) were amended to refine and clarify the e-discovery requirements for electronically stored information, placing the responsibility of producing subpoenaed email records on the defendant, not regulators or the plaintiff. The FRCP defines a uniform set of requirements and more predictable court procedures for trying civil suits in a consistent manner and reducing the costs, delays and risks. It is important to note that in addition to the U.S. federal courts, many states also base their rules for civil trials on the FRCP. The December 2006 amendments attempt to address the current business environment in which the vast majority of information, including email, is created and stored in electronic format. The new rules for discovery and disclosure of electronically stored information in court procedures require data to be produced in a timely and complete manner.
To Continue Reading: Click Here
-------------------------------------------
Source: wwpi.com
By Sean Regan
An email archiving system is more than a collection of backup tapes. Email archiving software automatically moves email messages and attachments from email servers such as Microsoft Exchange and Lotus Notes based on corporate policies or rules to a central repository. Records are indexed so they are easy to find and recover. Records are retained for the appropriate period of time according to internal policies, external regulatory requirements, or both, and provides an audit trail that shows who accessed any email and when.
Federal Rules of Civil Procedure
Being sued is part of doing business, and being able to find subpoenaed email records is critical to defending your organization. In December 2006, the Federal Rules of Civil Procedure (FRCP) were amended to refine and clarify the e-discovery requirements for electronically stored information, placing the responsibility of producing subpoenaed email records on the defendant, not regulators or the plaintiff. The FRCP defines a uniform set of requirements and more predictable court procedures for trying civil suits in a consistent manner and reducing the costs, delays and risks. It is important to note that in addition to the U.S. federal courts, many states also base their rules for civil trials on the FRCP. The December 2006 amendments attempt to address the current business environment in which the vast majority of information, including email, is created and stored in electronic format. The new rules for discovery and disclosure of electronically stored information in court procedures require data to be produced in a timely and complete manner.
To Continue Reading: Click Here
-------------------------------------------
Source: wwpi.com
By Sean Regan
Discover New E-Worlds
International arbitration can thrive despite e-discovery's challenges
Christopher Columbus discovered America in 1492. Since then, it seems, Americans have been crazy about discovery. Some foreign lawyers, on the other hand, have posited that American discovery was simply crazy.
Discovery costs have long been a bane of U.S. litigation. More recently, courts and counsel have struggled with discovery of electronically stored information. With the 2006 amendments to the Federal Rules of Civil Procedure in place and a majority of states enacting or considering new rules, e-discovery is now firmly established in litigation.
What has begun to send shock waves through legal communities is how electronic information will be treated in domestic and international arbitration.
Originally, arbitration was thought to provide a streamlined alternative to court. In recent years, however, arbitration has received criticism for being as costly and time-consuming as litigation. This bloating of the arbitration process, where it occurs, is usually the result of counsel and litigants importing court-style discovery into arbitration.
Fortunately, some emerging solutions for e-discovery can help preserve arbitration's benefits.
BILLIONS OF GIGABYTES
Since the mid-1990s, computers have emerged as the primary devices for information creation, storage and communication. E-mail became ubiquitous in the late 1990s, but that is only the tip of the e-discovery iceberg. A dizzying array of technologies now create huge volumes of information. A recent study estimated that 161 billion gigabytes of digital information -- said to be like 12 stacks of books that each reach from the earth to the sun -- were generated in 2006 alone.
The enormous volume is not the only problem. Because this information can be copied and transferred across networks with the stroke of a key, it is now more difficult than ever to track document sources and repositories. Electronic information is smeared across a vast network of central servers, laptop computers, temporary storage devices (such as thumbdrives and removable hard drives), iPods, voice mail systems, and even cell phones. Any of these sources may contain relevant information for discovery.
To Continue Reading: Click Here
-------------------------------------------
Source: Law.com
By C.R. Ragan and Robert F. Copple
Christopher Columbus discovered America in 1492. Since then, it seems, Americans have been crazy about discovery. Some foreign lawyers, on the other hand, have posited that American discovery was simply crazy.
Discovery costs have long been a bane of U.S. litigation. More recently, courts and counsel have struggled with discovery of electronically stored information. With the 2006 amendments to the Federal Rules of Civil Procedure in place and a majority of states enacting or considering new rules, e-discovery is now firmly established in litigation.
What has begun to send shock waves through legal communities is how electronic information will be treated in domestic and international arbitration.
Originally, arbitration was thought to provide a streamlined alternative to court. In recent years, however, arbitration has received criticism for being as costly and time-consuming as litigation. This bloating of the arbitration process, where it occurs, is usually the result of counsel and litigants importing court-style discovery into arbitration.
Fortunately, some emerging solutions for e-discovery can help preserve arbitration's benefits.
BILLIONS OF GIGABYTES
Since the mid-1990s, computers have emerged as the primary devices for information creation, storage and communication. E-mail became ubiquitous in the late 1990s, but that is only the tip of the e-discovery iceberg. A dizzying array of technologies now create huge volumes of information. A recent study estimated that 161 billion gigabytes of digital information -- said to be like 12 stacks of books that each reach from the earth to the sun -- were generated in 2006 alone.
The enormous volume is not the only problem. Because this information can be copied and transferred across networks with the stroke of a key, it is now more difficult than ever to track document sources and repositories. Electronic information is smeared across a vast network of central servers, laptop computers, temporary storage devices (such as thumbdrives and removable hard drives), iPods, voice mail systems, and even cell phones. Any of these sources may contain relevant information for discovery.
To Continue Reading: Click Here
-------------------------------------------
Source: Law.com
By C.R. Ragan and Robert F. Copple
Monday, April 21, 2008
Unmasking the Anonymous Internet User
Companies and their employees at times face the difficult issue of protecting themselves from cybersmears by anonymous Internet users. One of the most problematic issues is the tension between identifying what is protected speech under the First Amendment and the standard that must be met in order to obtain the identity of an anonymous poster who has used the Internet to spread damaging statements.
While this tension has been discussed by a number of courts throughout the country, the Sixth District Court of Appeal in California recently added to the complexity of the issue when it weighed in on the different standards used to determine when the identity of anonymous Internet posters can be compelled. In Krinsky v. Doe 6, 08 C.D.O.S. 1658, the court of appeal recognized the First Amendment protections afforded to Internet users as well as the "harsh and unbridled invective" that often characterizes cyberdiscussion.
In Krinsky, the defendant had allegedly posted a number of rather crude and derogatory statements about a company and its executives. One of the executives sought to compel Yahoo -- via subpoena -- to disclose the identity of the poster. The defendant (in his "Doe" status) brought a motion to quash the subpoena, which was denied by the trial court.
The court of appeal took pains to note that, in order to broaden the marketplace of ideas, there is a long-standing judicial tradition recognizing the constitutional right to publish anonymously. More recently, this same rationale has supported the judicial recognition that speech on the Internet is also accorded First Amendment protection. However, such protections are not without limitation as there is an equally long judicial history of categorizing certain areas of speech that are not protected -- such as profane or libelous speech and "fighting words," which by their mere utterance either inflict injury or incite immediate chaos. Thus, the task before the Sixth District was to determine the correct balancing test between protecting speech and the ability to identify the poster in order to pursue a claim based upon the statements made on the Internet.
The court of appeal examined the different standards imposed by other state and federal courts, and created its own standard. While it adopted at some level the concept that the poster must receive notice of the subpoena (as required by the Dendrite line of cases -- Dendrite International, Inc. v. Doe, 775 A.2d 756,761 (2001)), the court seemed to indicate that a statement in a Web site's terms of service that disclosure will be made in response to a subpoena would constitute sufficient notice. The court of appeal also held that a party seeking to pursue a claim against an unidentified author need only show prima facie evidence of a claim to support disclosure of an anonymous poster's identity, in contrast to other states that require higher, summary judgment level standards, to be met before disclosure is made. See, e.g., Doe v. Cahill, 884 A.2d 451 (Del. 2005).
To Continue Reading: Click Here
-------------------------------------------
Source: Law.com
By Andrew Serwin and Eileen R. Ridley
While this tension has been discussed by a number of courts throughout the country, the Sixth District Court of Appeal in California recently added to the complexity of the issue when it weighed in on the different standards used to determine when the identity of anonymous Internet posters can be compelled. In Krinsky v. Doe 6, 08 C.D.O.S. 1658, the court of appeal recognized the First Amendment protections afforded to Internet users as well as the "harsh and unbridled invective" that often characterizes cyberdiscussion.
In Krinsky, the defendant had allegedly posted a number of rather crude and derogatory statements about a company and its executives. One of the executives sought to compel Yahoo -- via subpoena -- to disclose the identity of the poster. The defendant (in his "Doe" status) brought a motion to quash the subpoena, which was denied by the trial court.
The court of appeal took pains to note that, in order to broaden the marketplace of ideas, there is a long-standing judicial tradition recognizing the constitutional right to publish anonymously. More recently, this same rationale has supported the judicial recognition that speech on the Internet is also accorded First Amendment protection. However, such protections are not without limitation as there is an equally long judicial history of categorizing certain areas of speech that are not protected -- such as profane or libelous speech and "fighting words," which by their mere utterance either inflict injury or incite immediate chaos. Thus, the task before the Sixth District was to determine the correct balancing test between protecting speech and the ability to identify the poster in order to pursue a claim based upon the statements made on the Internet.
The court of appeal examined the different standards imposed by other state and federal courts, and created its own standard. While it adopted at some level the concept that the poster must receive notice of the subpoena (as required by the Dendrite line of cases -- Dendrite International, Inc. v. Doe, 775 A.2d 756,761 (2001)), the court seemed to indicate that a statement in a Web site's terms of service that disclosure will be made in response to a subpoena would constitute sufficient notice. The court of appeal also held that a party seeking to pursue a claim against an unidentified author need only show prima facie evidence of a claim to support disclosure of an anonymous poster's identity, in contrast to other states that require higher, summary judgment level standards, to be met before disclosure is made. See, e.g., Doe v. Cahill, 884 A.2d 451 (Del. 2005).
To Continue Reading: Click Here
-------------------------------------------
Source: Law.com
By Andrew Serwin and Eileen R. Ridley
Subscribe to:
Posts (Atom)
