The False Economy Of In-House ESI Processing

I like steak. I've become pretty good at grilling my own. Of course, I have to buy the steak and prepare the grill and season the meat and light the charcoal and build the fire and clean up the mess and make the side dishes, but the results can be quite tasty (if time-consuming). Of course, being an amateur, I also run a high risk of ruining the steak.

So, when I want a perfect steak, I go to Morton's. It may seem a more pricey option at first glance, but their professional grillmasters cook the steak, make the sides, serve it up, and clean up the mess. And if there is a problem with the steak, they fix it.

Could I make a steak like Morton's? Probably if I invest in a broiler like theirs, find a reliable source of prime beef, experiment until I discover their seasoning mix and spend countless hours (and piles of red meat) practicing before I'd be able to prepare steaks as well as they do. Is it worth that much trouble and expense (especially given the limited amount of steak I'll be eating)? Probably not.

My point? There is a current push among some commentators for companies to bring electronically stored information (ESI) processing in-house, claiming that the cost savings will justify the expense. Certainly, there are aspects of managing ESI that can - that should - be handled in-house. But when it comes to processing and hosting, do any companies other than the largest need that kind of steak-grilling capacity and what is the true expense?

Bringing It In Is Rarely Practical

A couple of recent white papers by ESI consultants George Socha1 and Brian Babineau2 appear from their titles to suggest that companies should try to bring their ESI processing in-house. A closer examination of both papers, however, makes the costs and hazards of doing so rather obvious, and even Socha and Babineau concede these pitfalls.

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Source: Metropolitan Corporate Counsel
By: Gary Wiener

How To Reduce e-Discovery Costs In A Down Economy

The Editor interviews Mary Mack , Corporate Technology Counsel, Fios, Inc.

Editor: What are the biggest cost drivers today when it comes to litigation and e-discovery?

Mack: e-Discovery is by far the most significant cost driver where a case involves a large volume of electronically stored information (ESI). The e-discovery process includes going out and finding the data, collecting it, getting it ready for review, and then having attorneys review and produce it. The most expensive part of that process is the cost of human review. The cost is driven by the number of documents requiring human review, the hourly rate and the efficiency of the reviewers. Newer search and review technologies can reduce the number of documents requiring human review and reduce costs; there are also significant cost-saving processes that can be put in place in advance of the review.
For instance, costs can be greatly reduced by identifying at the outset the types of documents that need to be collected, so that only relevant documents are collected and processed for review. Although the identification process involves the upfront time of lawyers or consultants, significant cost savings can be achieved because it can reduce the number of documents subject to human review.

Editor: So, it is important to have a big-picture person make the initial determination with respect to documents to be reviewed?

Mack : Yes, exactly. A big-picture person, with knowledge of the issues and exposure in the current case as well as the total litigation portfolio, supported by others seasoned in the particulars of e-discovery, should make the preliminary decisions that define the document universe. This will help prepare the team for an efficient review downstream, as well as set the stage to narrow scope and reduce costs via the "meet and confer" negotiations.

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Source: Metropolitan Corporate Counsel

Once-secret 'cloud manifesto' sees light of day

The much-discussed "Open Cloud Manifesto," signed by dozens of vendors in support of cloud-computing interoperability, was officially released on Monday following several days of discussion in the tech media and the blogosphere last week.

The six-page document -- the existence of which was leaked early by a Microsoft blog post on Thursday -- includes six principles. The first asks that cloud vendors "ensure that the challenges to cloud adoption (security, integration, portability, interoperability, governance/management, metering/monitoring) are addressed through open standards."

Other principles say that vendors "must not use their market position to lock customers into their particular platforms"; should use existing standards whenever possible; be careful about creating new standards or modifying existing ones; focus on customer needs versus "the technical needs of cloud vendors"; and that various cloud-computing groups, communities and projects should try to work in harmony.

Participating vendors include IBM, Sun Microsystems, VMware, Cisco, EMC, SAP, Advanced Micro Devices, Elastra, Akamai, Novell, Rackspace, RightScale, GoGrid and a number of others.
But key omissions from the participant list include Amazon -- known for its Elastic Compute Cloud (EC2) service -- and Microsoft, which recently launched the Azure cloud platform.

An Amazon spokeswoman issued a statement saying the vendor only recently learned of the manifesto and "like other ideas on standards and practices, we'll review this one, too."

Last Thursday, Microsoft official Steven Martin trashed the manifesto on his official blog, saying it is flawed and was developed in secret.

Microsoft believes such a document should be developed through a process such as a wiki, allowing for public input and debate, Martin said. His post also spilled the beans on the manifesto's imminent release Monday.

And a group that had originally signed onto the manifesto, the Cloud Computing Interoperability Forum, has decided to remove its name from it, according to a forum postSunday.

"This decision comes with great pain as we fully endorse the document's contents and its principles of a truly open cloud. However, this community has issued a mandate of openness and fair process, loudly and clearly, and so the CCIF can not in good faith endorse this document," group organizers wrote.

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Source: Computerworld
By: Chris Kanaracus

Data Mining Case Heads to the Supreme Court

Two major publishers of health care data filed a petition Friday at the Supreme Court, raising cutting-edge questions about whether increasingly widespread data mining that is used for commercial purposes is protected by the First Amendment.

The petition, titled IMS Health, Inc. and Verispan LLC v. Ayotte, is an appeal of a controversial ruling last November by the 1st U.S. Circuit Court of Appeals. The appeals panel ruled that the data about drug prescriptions gathered by the companies is outside the protection of the First Amendment, in part because it has "scant societal value," in the same way that obscenity is not protected speech. The ruling written by Judge Bruce Selya said the pharmaceutical data at issue in the case was to be viewed, not as speech, but as a commodity like "beef jerky" that can be regulated without running afoul of the First Amendment.

The appeals court upheld a 2006 New Hampshire law that banned using information about a doctor's prescribing history for the purpose of increasing drug sales. The target of the law was the business in which publishers obtain data from pharmacies about a doctor's prescription preferences and illnesses the doctor has treated (without patients' names) and then sell the data to pharmaceutical companies. Those companies, in turn, use the information for what is known as "detailing" -- sales meetings with physicians to tell them about their own drugs or treatments.
The data helps the companies tailor their sales pitches.

The New Hampshire legislature passed the law on the theory that the process encourages the sales of more costly drugs, to the detriment of consumers. Maine and Vermont have passed similar laws, and other states are considering it.

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Source: Law.com
By: Tony Mauro

Busting the Multipass Erasure Myth

Ambling along the back roads of listservs and blogs, I often come upon a flea-bitten claim that, "Top notch computer forensic examiners have special tools and techniques enabling them to recover overwritten data from a wiped hard drive so long as the drive was wiped less than 3 or 7 or 35 times."

Nonsense!

I think I know where this persistent fairy tale started. In 1996, a smart New Zealander, Peter Gutmann, published a paper, "Secure Deletion of Data from Magnetic and Solid-State Memory."
Gutmann explained how cool toys such as magnetic force scanning tunneling microscopes and ferromagnetic fluids could serve as a Ouija to dear departed data. "Even for a relatively inexperienced user, the time to start getting images of the data on a drive platter is about five minutes."

The good doctor went on to prescribe a regimen of 35 varied overwriting passes to thoroughly erase data -- a so-called Gutmann Method erasure.

It's all a lot of hogwash, at least with respect to any drive made this century.

To his credit, Gutmann awoke to his folly of '96. In an epilogue added years later, he marveled that so many came to regard his erasure scheme as "a kind of voodoo incantation to banish evil spirits" from hard drives, conceding that "performing the full 35-pass overwrite is pointless for any drive."

Yet, like a horror film zombie, the Gutmann Wipe lives on as a feature of modern drive erasure tools. Because it takes days to Gutmann erase them, big drives that should be wiped aren't and find their way onto eBay.

So what's the truth about multipass erasure?

In the years since Gutmann's article, the amount of data that can be packed onto a hard drive (its "areal density") has increased 10,000 fold.

So, hoary notions of data remanence like "offtrack persistence" and "additive and subtractive voltage thresholds" hold no hope of resurrecting overwritten data.

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Source: Law.com
By: Craig Ball

California Rules to Amend Inaccessible ESI

In 2003, in an attempt to address the growing concerns regarding electronic discovery, the U.S. District Court for the Southern District of New York, in Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, set forth what was, at the time, a ground-breaking rule regarding electronically stored information. The first in the series of cases on the issue, Zubulake I, assessed whether costs of production should be shifted to the requesting party. The Zubulake court found that there were certain types of information that were inaccessible, such as backup tapes and erased or fragmented data. The court in Zubulake I reasoned that the restoration process for backup tapes was lengthy, with each tape taking approximately five days to restore. The cost and time to the responding party therefore, would appear to be extreme. Zubulake IV, 220 F.R.D. 212, expanded on this idea of accessibility, seemingly finding that disaster recovery tapes are per se inaccessible.

Today, nearly six years after Zubulake, these concerns are not nearly as prevalent. It no longer takes days to restore a single backup tape. Rather, given the vast advances in technology since the days of Zubulake, or even the 2006 amendments to the Federal Rules of Civil Procedure, many companies now have disaster recovery systems from which data can be completely restored within a matter of hours. As such, data that was once deemed per se inaccessible, is now, in fact, readily accessible.

The Dec. 1, 2006 amendments to the federal rules regarding e-discovery were written in broad enough terms to encompass these advances in technology -- potentially opening the door for production of documents from disaster recovery systems, despite Zubulake's holding otherwise.
California has now followed suit with its own proposed rule changes. These rule changes make it even more likely that a court will find that backup data is accessible.

On Sept. 27, 2008, Gov. Arnold Schwarzenegger vetoed Assembly Bill 926 that would have amended California's Civil Discovery Act to address e-discovery issues. The amendments have been reintroduced to the Assembly as Assembly Bill 5, unchanged except for the addition of a statement regarding the urgency of its passage, which would make the bill effective immediately once signed. On March 3, 2009, the bill passed the Assembly Judiciary Committee and has since been read in the Senate and referred to the Committee on Rules.

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Source: Law.com
By David M. Hickey and Veronica Harris

E-Mail Theft Case Sparks First-of-a-Kind Ruling

Actual damages must be proven for award under Stored Communications Act

In a case stemming from an employer's theft of e-mails from the personal account of an employee who had sued him for sexual harassment, a panel of the 4th U.S. Circuit Court of Appeals recently became the first circuit to hold that plaintiffs must prove actual damages in order to be eligible for an award of statutory damages under the federal Stored Communications Act.

But the unanimous panel, led by Chief Judge Karen Williams, also ruled that a showing of actual damages is not required for awards of punitive damages or attorney fees. Van Alstyne v. Electronic Scriptorium Ltd., No. 07-1892.
The panel decision reversed a jury award of $150,000 against Bonnie Van Alstyne's employer, Edward Leonard, and $25,000 against Electronic Scriptorium Ltd., of which Leonard was president. The decision leaves intact a $75,000 punitive damages award against Leonard; a $25,000 punitive damages award against ESL; and an award of $135,723.56 in attorney fees and costs to Van Alstyne.

ESL is a small data conversion company owned and operated by Leonard and his wife in Leesburg, Va. ESL hired Van Alstyne, a friend of the Leonards, in January 2001 to serve as vice president of marketing. ESL assigned Van Alstyne a company e-mail account, but she also used her private password-protected e-mail account with America Online to conduct business from time to time.

According to Van Alstyne, in October 2001, Leonard sexually propositioned her, but she declined his advances. Shortly thereafter, in December, Van Alstyne and ESL agreed that Van Alstyne would be recategorized as an independent contractor with the company. In March 2002, ESL unilaterally terminated Van Alstyne.

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Source: law.com
By: Marcia Coyle

Making the Most of SaaS ECM Solutions to Cope with Economic Downturn

What if you could recognize 813 percent return on investment (ROI) from a technology implementation? How about 498 percent ROI? Would you like to save 3,000 hours of productivity this year? Would savings like these improve your profits? Would you be better able to compete in today’s tough economy? Now, what if you could do this and have the IRS cover up to 40 percent of the cost…every year? Would that be of interest to you?

Companies in all industries are reaping similar benefits from Software-as-a-Service enterprise content management (ECM) technology. Software-as-a-Service (SaaS) is a smart choice for businesses in today’s economic climate because it helps in the struggle to do more with fewer resources. SaaS ECM can offer significant ROI and choosing a vendor does not have to be complicated.

What is SaaS? Rather than deploying software on an in-house network, users access the application and their data online -- trading capital costs and complex implementation for rapid deployment and a monthly operating expense. For example, Frisbie Memorial Hospital, located in Rochester, NH is using ImageSilo, a SaaS ECM service, to manage their Emergency Department records. When patients arrive, emergency room personnel securely access patients’ medical histories using a PC with an internet connection located in the department. Doctors can begin providing emergency treatment immediately -- without the 15 to 30-minute wait they previously experienced while waiting for the patient’s paper medical record to arrive. Al Felgar, President and CEO of Frisbie Memorial, says they’ve saved 3,000 hours of employee productivity while also improving patient care. “SaaS ECM provides us with a measurable and impressive reduction in records management costs and helps us to ensure patients’ privacy and confidentiality. Everyone in our organization benefits from our efficient records system.”

No Longer a Luxury

When economic times get tough, businesses look to improve processes and productivity. In 2009, we are all doing more with fewer resources, but the amount of data every business needs to manage continues to grow. IDC indicates that the digital universe will increase more than six-fold from 161 exabytes to 988 exabytes between 2006 and 2010.* Various industry and government regulations, like HIPAA for healthcare and the Federal Rules of Civil Procedure (FRCP), which require email archival, are driving companies to store, manage, and secure digital information. Electronic document management helps businesses reduce records management costs, enhance security and compliance, and even simplify disaster recovery.

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Source: wwpi.com
By: HK Bain

Half of IT Directors plan to dump their backup tapes within three years says new research from Connect

Half of IT Directors plan to switch from backup tapes to online back up within the next three years, according to new research published today by Connect Support Services. The research, conducted for Connect, found that 22% of companies were already using some kind of remote backup service, with a further 28% predicting they will change from traditional tapes over the next three years. The two biggest reservations about using an online back up solution were increased costs 19% and security concerns 14%.

The survey was conducted by an independent research company on behalf of Connect and consisted of in-depth interviews with IT Managers and Directors at 151 UK companies in a range of industries.

Key findings from the research include:
- The three sectors where the high proportion of IT Directors were anticipating using an Online Backup service were the public sector (69% within three years), business and professional services (52%) and IT/telecoms. In contrast, only a quarter of IT Directors in property and construction were expecting to ditch their backup tapes for a remote backup solution.

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Source: edubourse.com

KNOW Announces the Paralegal Technology Institute at LegalTech West Coast

KNOW, a magazine for paralegals, announced today that it will co-sponsor the Paralegal Technology Institute at LegalTech West Coast June 24-25, 2009. The first annual Paralegal Technology Institute at LegalTech was held in February 2009 in New York City. The event was co-hosted by Law Technology News (LTN) and attracted paralegals from around the country. Chairpersons for the event included Gary Melhuish, Director of Litigation Services of Ballard Spahr LLC, and Christy Stouffer, Practice Support Director, Patton Boggs. "It was well organized, the workshops were pertinent to the assignments of today's paralegals and the overall educational value was tremendous," says Melhuish. "I was honored to be chosen as a co-chair." The event was the brainchild of Chere Estrin, Editor-in-Chief of KNOW, and Henry Dicker, Executive Director of LegalTech. The two-day event included an additional free day of educational sessions at LegalTech for all registered participants. "Paralegals today are required to be technologically astute, have knowledge of cutting-edge technology and be able to perform assignments that as little as five years ago were considered associate level work," said Estrin. "We will provide workshops that are designed around the assignment, such as trial technology, How to Handle 140 Billion e-Mails, e-Discovery questionnaire and more.

For more information about The Paralegal Technology Institute at LegalTech West Coast, go to www.lawtechnews.com/paralegalwest.

Resources for Better E-mail Management

Managing email and electronic messages is critical for business success

ARMA International is pleased to announce a new portion of our web site, dedicated to presenting best practices and resources for managing e-mail and other electronically stored information: www.arma.org/email.

Traditionally, e-mail has been the kryptonite of organizations. How much should they keep? Where and how should it be stored? Can organizations find the relevant electronically stored information (ESI) when presented with a legal discovery request? With the launch of this new site, the answers are available to organizations everywhere.

Now is the time for information management, IT, and legal professionals, along with employees from all areas of an organization, to get on board and work collaboratively to manage ESI correctly. Failure to recognize the critical need to manage electronic data is no longer an option for organizations. Professionals are looking for the resources to lead them in the right direction.

In response, ARMA International, the professional association dedicated to providing education and resources for records and information management, has launched a new information campaign and web site devoted to bringing awareness to the importance of records and information management while also providing the solutions for today's information management challenges.

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Source: emediawire.com

E-Discovery Initiatives at the Antitrust Division

Like the rest of the bar, the Antitrust Division experienced exponential growth in the amount of documents and information responsive to its Second Requests and CIDs. Recently, the Antitrust Division has completed several investigations with productions just under or slightly above one million records. As a result, Antitrust Division spending on its electronic storage capacity has increased substantially. In 2003, the Antitrust Division had a 12 terabyte electronic storage capacity. In FY2008, the Antitrust Division increased its electronic storage capacity to 70 terabytes.

In 2006, the Antitrust Division established an internal working group to address E-discovery issues in civil matters. Matthew Hammond of the Division’s Telecommunications and Media Enforcement Group led this effort. Every civil section and the Division’s Litigation Support staff has a representative on the working group. The working group met, compared electronic discovery practices across sections, discussed innovations as well as problems that had occurred in past investigations, and discussed possible best practices. The working group’s goal was to create straightforward and practical guidance for staff attorneys responsible for negotiating Second Requests and CIDs. We also wanted to provide detailed guidance to law firms and their electronic production vendors about the optimal way to produce electronic data and documents to the Division. This guidance was designed to ensure that parties could avoid producing data multiple times and that the production is in a format that could be reviewed promptly.

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Source: docuticker.com

The Sedona Conference® International Programme on Cross-Border eDiscovery & Data Privacy

THE SEDONA CONFERENCE® INTERNATIONAL PROGRAMME ON CROSS-BORDER EDISCOVERY & DATA PRIVACY- 10 & 11 JUNE, 2009- HOTEL ARTS, BARCELONA, SPAIN - PLEASE SEND APPLICATIONS BY 1 APRIL

Howdy!! We are pleased to announce that we are currently accepting applications for The Sedona Conference® International Programme on Cross-Border eDiscovery, eDisclosure and Data Privacy Conflicts, to be held 10 & 11 June at the Hotel Arts in Barcelona, Spain. The Programme will provide a rare opportunity for participants to engage in dialogue with an experienced international faculty of experts and authorities on data privacy and eDiscovery issues, including:

(1) The current landscape of cross-border discovery and data privacy conflicts
(2) Efforts to reconcile competing notions of privacy and eDiscovery
(3) Cross-Border eDiscovery and data privacy in alternate contexts
(4) Potential solutions to cross-border discovery & data privacy conflicts

To ensure an intimate environment for meaningful dialogue, registration for the conference is strictly limited to 75 participants. Because of the space limitation, registration is by invitation only. If you would like to apply for an invitation, please visit the program page at http://www.thesedonaconference.org/conferences/intl/20090610. A downloadable brochure, complete agenda, faculty list, and the faculty bios can also be found on the website. The registration fee for this Programme is $1700 (US). The Planning Committee will send invitations to those whose applications are accepted during the first part of April, so we ask that you fax in your application by 1 April.

Click here to download a copy of the programme brochure: http://www.magnetmail.net/images/clients/sedona/attach/609Brochure.pdf.

If you have any questions about this important and timely programme, please feel free to contact me at tsc@sedona.net. Take care, all best, richard braman, executive director, the sedona conference.

A Cloud Can Save You Money...But What If the Cloud Goes Broke?

I've been talking quite a bit about whether or not (not) users of cloud services can prove compliance with security, privacy and e-discovery laws. (Blog piece here. Alert issue here.)

Now a story at The Register has me thinking about yet another issue--the inescapable question of financial stability.

From the story:

Finally there is the question of the financial stability of the service provider. And more importantly what happens if they go out of business suddenly or simply choose not to carry on providing the Cloud / SaaS service? Essentially this comes down to questions of how can any data and other valuable information be retrieved at a forced end of service or when the customer simply decides to terminate the arrangement? Can data be retrieved simply and easily? How will the service provider ensure that it removes such data, and any backup / replica copies from systems and ensures that these are either destroyed or placed securely in storage where they cannot be accessed?

Although the security industry is overperforming, as compared to the rest of the IT market, the flagging global economy has spurred several high-profile mergers of security companies, and resulted in the abandonment of some security products/services. (There will be a session about the costs/benefits of vendor consolidation at CSI SX.) The big cloud providers, like Amazon (NSDQ: AMZN) and IBM (NYSE: IBM), are probably safe, but cloud computing is still a new technology and the possibility of a budding cloud provider going under before it blooms is quite real.

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Source: informationweek.com
By: Sara Peters

Arkfeld’s eDiscovery and Evidence Review

Law Partner Publishing announces the release of the new Arkfeld’s eDiscovery and Evidence Review by the well-known author, speaker and attorney, Michael R. Arkfeld. The monthly journal provides monographs as well as unbiased analysis and interpretation of recent case law and rules. The Review is a legal journal distributed online in a PDF format with links to most of the full text of the cases covered, as well as electronic files of select court pleadings and other documents.

The Review:

- Provides exclusive practice monographs on key ediscovery and evidence issues

- Serves as a key litigation aid and reference source for practitioners during all litigation stages- Provides practice pointers based on recent decisions

- Promotes ideas and stimulates discussion of key eDiscovery issues- Summarizes and analyzes current precedent-setting cases in federal and state ediscovery cases.

- Provides case summaries written in capsule and extended format- Provides full text copy of opinions in most cases- Provides critical pleadings in noteworthy cases (motions, orders, etc.)

- Cross-referenced to the acclaimed Arkfeld on Electronic Discovery and Evidence treatise

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Source: pr.com

What to Do When Vendors Start Falling

Companies, firms need to ask the right questions up front and use appropriate contract language

How likely is this scenario?

A client company is involved in a bet-the-company litigation. The partner in charge knows that cases have been lost because of mishandled e-mail, and he has made sure to entrust the hosting of electronic discovery to a vendor that he believes is reliable and that has given the firm great references. The partner thinks all is covered -- but is it? When the partner reads in the morning paper about a major financial institution betting so heavily on subprime mortgages that it is now insolvent, he hardly expects that it could affect the firm's biggest case. Then the vendor stops returning the partner's calls. The partner learns that the insolvent institution was the vendor's biggest customer, and that the vendor is now shedding personnel and is on the market for sale to stave off its own bankruptcy. With court deadlines for production fast approaching and no progress on the data, what are the partner's options?

Is this really a potential problem? Yes. Can this situation be avoided? Yes.

The root of the problem is the explosion of the size and scope of the electronic discovery business during the past decade. (E-discovery vendors sell computer, consulting and other services to customers seeking to cope with the ever-increasing volumes of electronically stored information, often in the context of litigation or regulatory inquiry.) The e-discovery market, even in this struggling economy, is expected to grow by approximately 15 percent from 2009 to 2010, at which point it will exceed $4.6 billion in sales.

This boom has encouraged and supported the entry into the market of myriad large and smaller participants, many of which are dependent on one or two large customers for 50 percent or more of revenues. It is no secret that present economic conditions have placed considerable stress on the financial services industry and law firms, two of the largest consumers of e-discovery services. If just one of a smaller vendor's large customers becomes insolvent or withholds payment for services, the vendor may be destabilized and unable to fulfill commitments to other customers. In the worst case, such a vendor may become bankrupt, leaving an ongoing matter in the hands of the bankruptcy court and potentially facing liquidation.

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Source: law.com
By: Wayne C. Matus, Joshua B. Konvisser, John E. Davis and Kristie Chon

Court's Opinion a "Wake-Up Call" About the Need for Careful Deliberation and Cooperation in Crafting Search Terms

William A. Gross. Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 2009 WL 724954 (S.D.N.Y. Mar. 19, 2009)

This case arose from disputes over alleged defects and delay in the construction of the Bronx County Hall of Justice. In the course of litigation, The Dormitory Authority of New York (“DASNY”) agreed to produce the relevant documents of the non-party construction manager, Hill International (“Hill”). Disagreement arose amongst the parties, however, regarding appropriate search terms to segregate project related emails from Hill’s unrelated emails. Hill, despite being in the best position to contribute, suggested no potential search terms and the court was forced into the “uncomfortable position” of crafting a search without adequate information.

Having been put in such a position, the court took its opportunity to write a brief opinion addressing the need for care and collaboration in crafting search terms in light of its assessment that “the message has not gotten through.” First, the court presented an excerpt from an opinion of Magistrate Judge Paul Grimm, regarding the proper selection and implementation of terms:

While keyword searches have long been recognized as appropriate and helpful for ESI search and retrieval, there are well-know limitations and risks associated with them, and proper selection and implementation obviously involves technical, if not scientific knowledge.

* * *

Selection of the appropriate search and information retrieval technique requires careful advance planning by persons qualified to design effective search methodology. The implementation of the methodology selected should be tested for quality assurance; and the party selecting the methodology must be prepared to explain the rationale for the method chosen to the court, demonstrate that it is appropriate for the task, and show that it was properly implemented.

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Source: ediscoverylaw.com

E-discovery gets an F

When it comes to mixing Web 2.0 and e-discovery, a lot of things can go wrong. A good rule of thumb: Start treating each employee like a record manager

E-discovery in the age of Web 2.0 has a long way to go, according to industry experts, who recently convened at a Symantec Inc.-hosted Webinar to bemoan the state of record compliance in enterprises today.

“E-discovery has always been an issue for lawyers to handle, but now there’s that added complexity with wikis, Facebook, Twitter, and other new technologies,” said George Socha, a litigation attorney who works with the Electronic Discovery Reference Model (EDRM) Project. “A lot of lawyers’ eyes roll back into their head and they curl up like possums because they just don’t want to deal with it.”

“Now that people are more dispersed across time zones, people are revising and sharing everything on a constant basis. These (Web 2.0 applications) have a lot of utility but they are essentially creating new sources of information that people haven’t had to deal with before," said Annie Goranson, discovery counsel for Symantec. "And the legal department is often the last to adopt these technologies since keeping up can be a real challenge.”

This is creating a real “toxic landfill” of conditions in the legal system, according to research vice-president John Bace of research firm Gartner Inc. He said that IT managers are often leading the pack when it comes to considering the e-discovery implications of Web 2.0 applications, but there is still a lot of work to be done, especially when it comes to working in closer conjunction with the legal teams.

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Source: itworldcanada.com
By: Briony Smith

Paralegals Investigate Social Networks

The core of a successful paralegal is the ability to review a file and identify what documents or witnesses will strengthen a case with respect to settlement negotiations or trial. In years past, paralegals gathered this information and documentation via written discovery from various medical providers, academic institutions and employers. However, these avenues are no longer the only methods utilized by paralegals.

Instead, the ever-changing world of technology continues to directly impact the legal profession. Paralegals now also turn their attention to the cyberworld, including social and professional networking sites, to investigate personal injury claims. Oftentimes, these sites can provide a deluge of data, including specific communications and entries concerning parties to the action.

So how do paralegals obtain this information and who or what is discoverable? The answers to these questions seem to vary on a state-by-state and case-by-case basis.

The growth in popularity in recent years of social and professional networking sites such as MySpace and Facebook is staggering. Generally, these sites are free. Thus, it is rare to find an individual who does not have some type of personal Web page. These social networking services provide members with the opportunity to create unique personal profiles online in order to communicate and network with friends, former classmates or colleagues. The sites link members both nationally and internationally. Members post facts and anecdotes to chronicle their daily lives. Generally, an individual can set up a personal Web page and allow members to review specific postings.

Some individuals, in an effort to protect content, restrict access to Web pages by marking pages as private, allowing only approved friends to view entries. Other individuals, however, do not mark profiles as private, thus allowing the general public access to view postings. This information trail of sorts has raised an interest in the legal community with respect to publicly accessible information stored on profile pages.

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Source: Law.com
By: Christine Flynn

EnCase(R) Search Technology Validated by Federal Court in Contested Electronic Discovery Ruling

U.S. District Court Upholds Critical Findings Obtained Through EnCase(R) Software

Guidance Software Inc. the World Leader in Digital Investigations(TM), today issued a legal alert addressing a recently published court ruling furthering the already strong legal standing of its EnCase(R) software. In this instance, the case addressed EnCase's native search engine used to identify, search and collect electronically stored information (ESI). The court, after considering extensive evidence from both sides of the dispute, accepted key findings based upon the detailed search analysis performed with EnCase.

In Smith v. Slifer Smith & Frampton/Vail Associates Real Estate[1], a United States District Court issued a definitive ruling finding that a party to a civil litigation matter improperly wiped his hard drives in the face of an impending electronic discovery production request. According to the court, EnCase was used by the plaintiff to search the defendant's laptops for relevant ESI. The EnCase search protocol cited by the court can employ complex keywords as well as other search expressions to identify data patterns such as social security numbers, credit card numbers, intellectual property, or -- as in this case -- evidence of data wiping activity.

The court expressly found that the evidence supported the validity of the results obtained by EnCase. While many prior courts have validated the collection, preservation and authentication capabilities of EnCase, this decision validates the EnCase search engine employed for analysis in a civil court eDiscovery matter.

"The ruling by the Smith court is further validation of EnCase as the leading software for eDiscovery," said Victor Limongelli, President and CEO of Guidance Software. "eDiscovery best practices are defined by the courts, and published case law such as this decision is important legal authority that guides corporate counsel, law firms and eDiscovery practitioners as they seek to employ proven and defensible processes."

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Source: marketwatch.com

Experts: Nagin’s e-mails might be easily retrieved

It remains unclear how Mayor C. Ray Nagin will attempt to retrieve his 2008 e-mails which his administration said were inadvertently erased to conserve city server space, but a leading national data retrieval firm says the e-mails may be able to be retrieved fairly easily.

Jim Reinert, director of Business Development for Kroll Ontrack Inc., an Eden Prairie, Minn.-based data recovery firm, said e-mail is one of the most retrievable forms of digital data because there is rarely one e-mail copy.

The sender and receiver each have a copy, and there is each computer’s hard drive to sift through, even if it has been deleted from the server.

“A trained computer recovery expert can approach it from many different angles,” said Regina Jytyla, Kroll’s managing staff attorney.

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Source: neworleanscitybusiness.com

How to destroy data for good!

Uncontrolled data growth has resulted in policies regarding data storage and retention. But when data backups are deleted in your business, are they really gone? In this FAQ, Executive Editor and Independent Backup Expert W. Curtis Preston discusses data destruction in backup environments. Curtis takes a closer look at the approaches to destruction, regulations and policies regarding destruction and options for outsourcing this policy. His answers are also available to download below.

Can you explain the difference between data destruction and data deletion?

Data deletion is simply making the data no longer visible to the application or end user. Depending on the technology in question, the data can be really easy to get back, sometimes even from the end user. Or, it can still be possible, but it requires an expert to get the data back. Data destruction is basically making the data completely unreadable, even if you were to hand that disk over to a professional that does it for a living.

Can you outline some of the ways that data destruction is accomplished?

There are a number of ways, but it depends on the degree to which that you're trying to destroy it. From a software basis, there are programs that will overwrite deleted data. They'll actually go and find the bits that have been deleted and then continuously overwrite that data with repeated ones and 0s.

Then there's the concept of degaussing, which only works if you have a tape or a disk drive that you want to make every bit of information unreadable. Degaussing just bombards this unit with a significantly strong magnetic field causing all of the bits on the disk or the tape to be aligned a certain way, causing the data to all be wiped out.

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Source: searchstorage.techtarget.com
By: W. Curtis Preston

Text-Mining Case Law

One of the key skills for legal professionals in common law legal systems, such as in the U.K. and U.S., is the identification, analysis and use of previously decided cases to advocate a client's cause. To identify the appropriate cases, one must search the body of case law, or case corpora, for those cases that are relevant to the case at hand and, from those, select the ones with high precedential value. In this article, we discuss available bodies of case law, how electronic searches are currently conducted, their result sets, and the opportunities to apply natural language processing tools to deliver richer, more accurate and more analytic results faster and more cost-effectively.

CASE CORPORA

The largest, best-known legal information service providers are Westlaw and LexisNexis, subscription-based services that use proprietary search interfaces. In exchange for value-added features such as head notes, commentary, quality control and advisory services, legal researchers accept access restrictions to the case corpora as well as what search tools they can use. In this sense, we can say that legal research is carried out in a "closed source" corpora with "closed search" tools, in contrast to "open source" corpora and "open search" tools.

Let us first consider the emerging trend toward "open source" corpora. In 1979, then-President Carter signed an executive order to create JURIS, a public corpus of federal legal information. In 1993, the Clinton administration moved to privatize JURIS. Participants in the Taxpayer's Assets Project petitioned the government to maintain an open source of legal information. Professor Carole Hafner in the Department of Computer Science at Northeastern University was one of the key proponents; her main line of research was the computational analysis of legal information such as cases.

Hafner argued that a public corpus of case law would encourage novel methods of search and analysis which were hindered due to a lack of raw source material. In addition, legal researchers and public administrators could get a better idea of how the law, as represented in a public corpora, functions. However, the Clinton administration went ahead with privatization, giving commercial legal service providers a virtual monopoly on the corpora. More recently, a worldwide coalition of legal information institutes have circumvented the need for governmental endorsement and created free online corpora of legal information for the U.S. as well as for many other countries. For example, decisions of the U.S. Courts of Appeals are freely available online and public.resource.org distributes a range of other primary legal materials.

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Source: law.com
By: Dr. Adam Zachary Wyner

K&L Gates Obtains Ruling Denying Defendant's Motion for Contempt Against Plaintiff's Technical Consultant, and Court Grants Plaintiff's Motion for San

Technical Sales Assocs., Inc. v. Ohio Star Forge Co., Nos. 07-11745, 08-13365 (E.D. Mich. Mar. 19, 2009)

In this case arising from a dispute over sales commissions, the court denied Defendant Ohio Star Forge Company’s (“OSF’s”) motions for contempt and sanctions and granted plaintiff, Technical Sales Associates, Inc.’s (“TSA”), motion for sanctions for destruction of electronic evidence. The court concluded that OSF deleted approximately 70,000 files and moved several email folders to the recycling bin despite a duty to preserve relevant evidence.

In July 2007, TSA sought the production of all emails between certain specified persons for the purpose of obtaining a particular email alleged by TSA to exist on OSF’s information system and, specifically, in the e-mailbox of OSF employee Patrick Billups. Notwithstanding numerous targeted requests for the e-mail, OSF did not produce it.

Thereafter, TSA sought and received permission to examine OSF’s computer system. The parameters of the examination were set forth in a Stipulated Order. Essentially, Midwest Data Group, LLC (“Midwest”), a consulting company retained by TSA to conduct the examination, was to make a mirror image of OSF’s system hard drive and each of two computers previously or currently used by OSF employee Patrick Billups. Midwest was then to perform a narrowly tailored search and provide the results to OSF’s counsel along with an acquisition report detailing additional information about the search. Midwest was not to provide the search hit results or the acquisition report to TSA until OSF had had the opportunity to conduct a privilege and confidentiality review.

Midwest conducted the inspection, but did not locate the email in question or any other relevant electronically stored information. In other words, it had no “hits” from the court-ordered searches.

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Source: ediscoverylaw.com

Gartner Highlights Seven Great Concerns for CEOs in 2009

Today's CEO Priorities Will Become CIO Priorities in Six to 18 Months

With CEOs facing unprecedented challenges ahead as businesses struggle with the realities of dealing with the economic downturn, Gartner, Inc. has identified the seven greatest concerns for CEOs in 2009."

The tumultuous events of the past 12 months have shocked the world. CEOs are confronting reduced revenues and profits and need to restructure their businesses accordingly," said Mark Raskino, vice president and Gartner fellow. "As a consequence, CIOs should plan for extraordinary requests in 2009 for work and changes."

"Today's CEO concerns provide an advanced look at what will become CIO priorities in six to 18 months," said Jorge Lopez, vice president and distinguished analyst at Gartner. "We've identified these conclusions based on more than a dozen sources of CEO insights, our own analysis of business and economic trends, and changes in the IT landscape."

CEO Issue One: Restructuring

Restructuring is impacting companies in a number of ways from organisational restructuring in the form of layoffs, financial restructuring through deleveraging of financial structure, corporate restructuring via entity consolidation, and finally industry restructuring through the failure and survival of different players and business models.

As the restructuring plan unfolds, CIOs must be prepared to clear the table of current plans and start again, deliver significant cost reduction, deliver significant headcount reduction, cancel some major projects no longer aligned with survival and ensure that all outsourcing partners are viable. At the same time, they will need to deal with unexpected acquisitions and divestitures, manage higher risk taking on projects, work with lower procedural obstacles and stronger CIO powers, and build contingency plans for significant suppliers.

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Source: pressbox.de

Enterprise 2.0 Tools Align with McKinsey Steps for Making Good Business Decisions

A recent McKinsey survey on how companies make good decisions suggests several actions that are strongly associated with good financial and operational outcomes. In their survey, they asked executives on a global basis about a capital or human-resources decision their companies made. The results highlight the real business benefits such as increased profits and rapid implementation of several decision-making disciplines. It seems to me that in three of the four social media can play a useful role. Although in the end it is the people and what they might do with the technology, not the technology, that matter.

Here are the four approaches McKinsey mentioned and some comments on how enterprise 2.0 tools relate to each with links to AppGap reviews in most cases.

1. Ensuring that people with the right skills and experience are included in decision making - Social media can be very helpful in finding the right people with the right skills within a large organization, or even a small one. Tools like Connectbeam that help you find the right people can address this. I recently spoke with Johan Rosius from Novell Teaming, who shared with me a related example of a significant return on an enterprise 2.0 investment. The engineering group at Shell has a diverse set of skills and is scattered around the globe. When one of their plants goes down, it can very expense for each day it does not get back up and running. Shell found that the key was getting people with the right prior experience to work on these down plants.

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Source: fastforwardblog.com
By: Bill Ives

Newly Released Solutions Address Problems of America’s Ailing Civil Justice System

On March 11, 2009, the Institute for the Advancement of the American Legal System (IAALS) at the University of Denver and the American College of Trial Lawyers (ACTL) Task Force on Discovery released proposed Principles designed to streamline a U.S. civil justice system that has become mired in cost and delay.

The 29 Principles addressed many of the system’s problem areas with recommendations that included: emphasis on proportional discovery, replacement of notice pleading with fact pleading, significant reduction in expert witnesses and limits on depositions, as well as a call for case management by a single judicial officer rather than rotation by multiple judges.

The Principles contained in the Final Report on the Joint Project of the ACTL Task Force on Discovery and the Institute for the Advancement of the American Legal System were developed in the wake of key findings distributed last fall, which underscored mounting concern about the functionality of our civil justice system. In a national survey of Fellows of the ACTL, respondents overwhelmingly concluded that the cost of litigation was impeding the fair resolution of cases and deserving cases were not being brought because they failed a rational cost-benefit test.

These Principles are the culmination of an 18-month process that included comprehensive analysis of previous reform efforts in the U.S. and abroad, existing scholarship, and the extensive experience of civil justice system experts and practitioners associated with the project.

What’s next? In the coming months, the two organizations will work together to support implementation of these Principles through pilot projects. And, it is expected that the release of these recommendations will provide the platform for debate and constructive action that could lead to the transformation of civil procedure in federal and state systems throughout the United States.

The Final Report is available in its entirety on the websites of both organizations at:
Institute for the Advancement of the American Legal System:
www.du.edu/legalinstitute
American College of Trial Lawyers:
www.actl.com

Building a Case for Rule 34 Relief

In the first part of this article, I reviewed Mintel International Group Ltd. v. Neergheen, No. 08-CV-3939 (N.D. Ill. Feb. 3, 2009), where Magistrate Judge Maria Valdez rejected a plaintiff's efforts to secure a court order that would allow it to search the computers of a defendant's new employer.

In that case, Valdez refused to grant plaintiff's motion under Federal Rule of Civil Procedure 34 to be allowed to make forensic images of the computers of a third party. The third party, Datamonitor, was the new employer of Meesham Neergheen, a former employee of Mintel International Group. Mintel International wanted to search for files which defendant Neergheen may have taken to Datamonitor, which was a direct competitor of Mintel International.

Mintel IV was the latest of four opinions, the first of which, Mintel International Group Ltd. v. Neergheen, No. 08-CV-3939 (N.D. Ill. July 11, 2008), I discussed last August.

Last week we reviewed the facts in the Mintel litigation, the legal and technical background of Rule 34 searches, and Mintel International's ongoing attempts to persuade the court to order Datamonitor to submit to a Rule 34 search. This week we will discuss the court's decision and its implications for e-discovery practitioners.

THEY SHOULD HAVE DONE MORE

When determining whether to grant Mintel International's motion for reconsideration, Valdez looked at several factors. First, she stressed that Mintel was derelict in obtaining its evidence. It completed its analysis of the USB drives outside of the agreed-upon expedited discovery schedule. Knowing that discovery was scheduled to close on Nov. 30, it should have moved faster. It then would have been able to obtain from Datamonitor, prior to the Dec. 23 hearing, the admission that the separation letter from one USB drive had been printed on its printer, and so would have been able to better support its Rule 34 motion at that hearing. The court noted that the "lack of diligence alone is grounds for denying the motion for reconsideration."

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Source: law.com
By: Leonard Deutchman

IQPC - 7th eDiscovery 2009

IQPC will best hosting their 7th eDiscovery conference April 27th - 29th in San Francisco, CA. The current economic crisis is forcing companies to look for ways to cut costs wherever possible. Proactive ediscovery solutions are more cirtical to legal departments yet the solutions for costs, implementation, and management are still widely unknown.

The 7th eDiscovery conference will provide strategies for ediscovery success including:

• Proactive strategies for record management
• Global privacy issues, data security laws, regulations
• Specific cost control options
• Judicial perspective
• Cutting edge software solutions

Learn from Experts Including:

• Mark E. Michels, Managing Attorney, CISCO SYSTEMS, INC.
• David C. Shonka, Principal Deputy General Counsel, FEDERAL TRADE COMMISSION
• Theresa Beaumont, Discovery Counsel, GOOGLE, INC.
• Gene Stavrou, Associate Director, Global Records Management, KRAFT FOODS
• Angeline G. Chen, Associate General Counsel, LOCKHEED MARTIN CORPORATION
• Cheryl Strom, Sr. Manager, Records Information Management, MCDONALD'S CORPORATION
• Tracy Greer, Trial Attorney, Networks & Technology Enforcement Section, U.S. DEPARTMENT OF JUSTICE, ANTITRUST DIVISION
• Honorable Elizabeth D. Laporte, US Magistrate Judge, U.S. DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA

IQPC is offering a 15% discount to readers here at EDD Blog Online. Please mention the code IUS_EDD_ED to receive your 15% discount off the standard conference price.

To register, please call 1-800-882-8684 or email Event Marketer, Nisha Prasad at nisha.prasad@iqpc.com

E-mail compliance is a process, not a technology

It's not just local legislative requirements that are making e-mail compliance an extremely important corporate objective at the moment. Growing incidents of confidential data theft and costly, reputation-damaging litigation are making South African organisations of all sizes take the issue very seriously. Hennie Moolman, Managing Director of network security expert, Africa SD, outlines some of the key considerations.

Most of us have little difficulty accepting research that suggests as much as 60% of an organisation's critical information can be found in its e-mail traffic. Aside from the sensitive documents that are routinely exchanged, e-mail is increasingly the only form of written communication that exists between a company and its clients and suppliers.

This state of affairs, coupled with local legislation that dictates that companies must securely store all e-mail sent or received for up to 10 years1 and the growing trend of using e-mail evidence in lawsuits, has made e-mail compliance an extremely important corporate objective.

In many organisations, the responsibility for achieving this goal is handed to the IT department and can prove much more of a headache than initially anticipated, considering the wide variety of ways of addressing this particular requirement and different systems that can be employed to help do so. Nonetheless, there are several universal considerations that will need to be taken into account, regardless of the specific solution employed, and these are outlined in this article.

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Source: itweb.co.za
By: Hennie Moolman

Leveraging SharePoint as an Archival Service

With the vast quantities of data that IT organizations are now being asked to manage, thanks in part to rise of compliance and multimedia data types, a lot of organizations are asking themselves if there's a better way to store data over the long term.

It takes a lot of people and storage resources to not only store data, but also actually be able to retrieve it. All too often, IT organizations will discover that data has been misplaced or tapes will have been corrupted. Worse yet, most IT organizations don't have any truly effective way of searching data once it has been archived.

These are all the reasons that it's now interesting to watch online services based around document management capabilities start to mature. Beyond the fact that they basically take the drudgery of archiving off the shoulders of IT, they create a more efficient economic model for archiving by allowing IT to treat archiving as an operational expense, instead of having to allocate capital budget to mass quantities of storage.

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Source: blogs.eweek.com
By: Michael Vizard

Twitter Has a Voice in Federal Court

Some federal judges are opening the door to the press reporting directly from their courtrooms in the interest of bringing more transparency to the judicial process.

Judge Tom Marten of the U.S. District Court for the District of Kansas this month is letting a reporter for the Wichita Eagle send Twitter messages, which are short electronic postings, directly from the courtroom where a trial of gang members is under way. Judge Mark Bennett of the U.S. District Court for the Northern District of Iowa also this year allowed blogging from his courtroom in the trial of a landlord who pleaded guilty to fraud, but went to trial on income tax violations.

Many federal court judges have barred the use of electronic devices in their courtrooms, prohibiting everything from laptops to hand-held devices that can send electronic messages, often in the interest of insulating jurors from media coverage to ensure a fair trial for defendants. Judges have also been concerned about the potential disruption to their courtroom proceedings.
Still, the U.S. Judicial Conference has no formal policy on the matter, leaving such questions up to individual judges.

"We're by choice the most mysterious and least transparent branch of government, and I think we have an obligation to be more transparent," Bennett said.

While there has been press blogging from some other high-profile federal trials, including that of I. Lewis "Scooter" Libby, former chief of staff to former Vice President Dick Cheney, in Washington and newspaper publisher Conrad Black in Chicago, those dispatches were not made directly from the courtrooms, and such coverage would have been prohibited at those courts.
Variations among federal courts on such rules have existed for years with some federal courts, such as the U.S. District Court for the Eastern District of Arkansas, allowing reporters to use tape recorders in courtrooms (the tape recorders are for the reporters' personal use, not for broadcast).

Marten and Bennett both allowed the coverage after the individual reporters approached them and asked about doing it. Marten said he has known Ron Sylvester, the Wichita Eagle reporter Twittering from his courtroom, for years and respects his reporting, but would likely extend the same privilege to other reporters too. The judge said he was quickly able to overcome one defense lawyer's concerns that jurors might breach court rules to view the reporting and be inappropriately swayed.

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Source: Law.com
By: Lynne Marek

10 Steps to Manage E-Discovery Projects

Like it or not, lawyers involved in e-discovery matters must become project managers. In addition to advising and representing clients, they must help clients select and supervise vendors of e-discovery services (from simple photocopying, to forensic analysis, to data retrieval and production, to expert testimony on the adequacy of e-discovery efforts). This article outlines 10 key steps in a typical e-discovery project, suggesting ways that lawyers can help ensure that such projects proceed successfully.

1. SCOPE OF THE PROJECT

No two e-discovery projects are the same. And many projects change, over time. But it is generally possible, at the outset of any case, to estimate the size and complexity of the project. What is the volume of data (in gigabytes, terabytes or more)? How many servers and custodians are there? How structured (searchable) is the data with existing client capabilities? Are there any unusual media (legacy systems no longer operating, nonstandard storage methods or other challenges)? Where is the data located (including offshore and outsourced locations)? What staff and resources can the client dedicate to the project? What incumbent vendor services does the client use?

These kinds of questions are well worth asking, before work begins on the project. The aim is to establish (at least) broad parameters for the work, in order to assign responsibility for the work most efficiently, to the lawyers, to the vendor, to client staff, or (most likely) some combination of all three.

2. REQUEST FOR PROPOSALS

With the scope of the project in mind, counsel should identify three or more service providers with varying qualifications to submit proposals for the vendor portion of the work. If a vendor has not provided service (to counsel or client) before, it may be worthwhile to send a sample set of data to the vendor for a demonstration of the vendor's capabilities. Ideally, the demonstration should use a sample of the client's actual data. Assuming that each vendor can perform services as required, each vendor should provide a detailed bid, addressing all functionality and cost issues associated with the project. Any vendor who responds that pricing is "to be determined" or that pricing is "subject to change" should be eliminated from consideration. Vendors should give their best and most accurate bids up front.

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Source: Law.com
By: Steven C. Bennett and Marla S.K. Bergman

American College of Trial Lawyers Releases Final Report Addressing Discovery and Issues Impacting Discovery, Encourages Public Comment and Debate

On March 11, 2009, the American College of Trial Lawyers released its report on discovery and issues impacting discovery. The report is the final product of a joint project between members of the American College of Trial Lawyers Task Force on Discovery and The Institute for the Advancement of the American Legal System. The project was “conceived as an outgrowth of increasing concerns that problems in the civil justice system, especially those relating to discovery, have resulted in unacceptable delays and prohibitive expense.” The goal of project was to provide Proposed Principles that would “ultimately result in a civil justice system that better serves the needs of its users.”

The Final Report identifies problems in several areas including pleadings, discovery, experts, and dispositive motions and provides Proposed Principles intended to address and resolve those problems. The report’s discussion of discovery includes several Proposed Principles directly addressing the perceived problems in electronic discovery. Among those Proposed Principles are:

• Promptly after litigation is commenced, the parties should discuss the preservation of electronic documents and attempt to reach agreement about preservation. The parties should discuss the manner in which electronic documents are stored and preserved. If the parties cannot agree, the court should make an order governing electronic discovery as soon as possible. That order should specify which electronic information should be preserved and should address the scope of allowable proportional electronic discovery and the allocation of cost among the parties.

• Electronic discovery should be limited by proportionality, taking into account the nature and scope of the case, relevance, importance to the court’s adjudication, expense and burdens.

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Source: ediscoverylaw.com

Bribery case creates possible IT security nightmare in D.C.

Arrest of security exec leaves district officials facing 'huge mess' over potential security issues

After being arrested on bribery charges yesterday, the District of Columbia's top information security official is being held without bail, partly because of uncertainty about whether he still has the ability to access the district's IT systems.

That's just one of many potential security issues facing D.C. government officials after the FBI raided the district's IT offices and arrested Yusuf Acar, its acting chief security officer, and a second man in connection with an alleged bribery scheme.

For instance, Acar had access to personnel data and other confidential information in the district's systems as part of his job. Court documents submitted by the FBI claim that several other district employees were also involved in the bribery scheme. Security analysts warn that Acar and his alleged accomplices could have created backdoors into systems. And since the alleged scheme included misdoings on a purchase of security software, there may be questions about the quality of the district's security tools.

From an IT security standpoint, municipal officials in Washington have a nightmare on their hands, said Johannes Ullrich, chief technology officer at the SANS Institute's Internet Storm Center in Bethesda, Md.

As a security official in the IT department, Acar would have had widespread access to the district's networks and probably also its databases and password files, Ullrich said. In addition, he would have been privy to details about its user-access-control procedures. That level of access and knowledge could have enabled him to do a variety of things, virtually undetected, if he so chose, according to Ullrich.

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Source: Computerworld
By: Patrick Thibodeau and Jaikumar Vijayan

Case Management: Time for a Tune-Up

I don't know about you, but I'm on recession overload. Lately, I turn the news off and skip the newspaper.

Part of the problem are all the so-called experts offering "advice" that does nothing but confuse and scare people. They remind me of the self-proclaimed gazillionaires on 3 a.m. infomercials hyping their "How to Make a Million Dollars in Your Sleep" books. We all know they are just hot air and smoke.

So let's throw some common sense on this situation. Some law firms thrive in bad times, others suffer -- it's the nature of the industry. That's why you'll find firms with both transactional and litigation practices. But whether your firm is stable, growing or teetering, this is a great time to pay attention to your existing case or matter management system and learn how to better exploit its capabilities.

Just as your car works better with proper maintenance and tuneups, your firm's attorneys will be more productive if they get the necessary training and refresher courses on how to get the most from case management systems.

Effectively using CMS not only will empower your users with increased productivity, but will lower costs and increase your firm's profits in tangible, measureable ways. Here are some tips on how to fire up the engines.

WHERE IS EVERYBODY?

First, don't assume everyone is up to speed on even the basics of your system. Ideally, all personnel received the initial training -- but no doubt, at least a few attorneys dodged the classroom, citing "urgent client matters." And those who did attend may have been concentrating more on dinner plans than documents.

But now that everybody's anxiety level is palpable, this may be the time to reinforce that there are basic functions everyone really needs to know: specifically, how to find client and case/matter information and documents. Declare an "amnesty" for all and dive into a refresher smorgasbord.

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Source: law.com
By: Andrew Adkins III

Litigant Access to Opponent ESI Challenged

Even if a judge's reasoning may give rise to criticism, an opinion can shed much light on how courts approach judgment calls over opening access to a litigation opponent's electronically stored information.

One such opinion was filed last month, in a case captioned Mintel International Group Ltd. v. Neergheen, No. 08-CV-3939 (N.D. Ill. Feb. 3, 2009). In that case, Magistrate Judge Maria Valdez rejected a plaintiff's efforts to secure a court order that would allow it to search the computers of a defendant's new employer.

Last summer, in a column discussing "departing employee" litigation, I wrote about an earlier opinion in Mintel International Group's litigation against Meesham Neergheen.

In Mintel International Group Ltd. v. Neergheen, No. 08-CV-3939 (N.D. Ill. July 11, 2008), or "Mintel I," Mintel International sought a temporary restraining order against its former employee, Neergheen, who left to work for a direct competitor.


In that piece, I looked at the "constellation of issues" which tend to arise in "departing employee" litigation and which were addressed in the opinion: whether the departing employee has deleted or destroyed any of the former employer's ESI, copied or sent any proprietary information, such as pricing, customer lists, agreements or technical specifications or violated any covenants of noncompetition, disclosure and so on.

The Mintel litigation has progressed rapidly in the last six months, leaving quite a paper trail; three additional opinions have been issued, all of them focused upon issues of e-discovery.

Valdez's Feb. 3 opinion is the most recent, and I'll refer to it as "Mintel IV." In Mintel IV, Valdez rejected Mintel International Group's second motion for reconsideration of denial of an order to allow it to make forensic images of and search defendant's new employer's computers.

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Source: law.com
By: Leonard Deutchman

Is EMC Searching For Search?

EMC could be in the market for an enterprise search company.
As opposed to Web search, enterprise search is used by companies internally to help comply with legal discovery requirements, identify documents that can be archived in inexpensive storage devices, and increasingly, to improve productivity by helping knowledge workers find information more effectively.

The enterpise search market grew by approximately 22% in 2008, according to IDC analyst Sue Feldman, not even pausing for breath in the fourth quarter.

Feldman agreed it’s “a good guess” that EMC would want in on that.

There’s more than simply growth that should attract EMC’s attention. Feldman told me that vendors are starting to gain traction with a concept called “unified access” — the ability to pull content from a variety of sources into a single platform.

Most major software vendors, including Microsoft, Oracle, SAP, IBM and SAS, have over the past year acquired FAST Search and Transfer, Hyperion, Business Objects, Cognos and Teragram, which were either business intelligence software vendors with integrated search components or, in the cases of FAST and Teragram, stand-alone enterprise search vendors.

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Source: industry.bnet.com
By: Michael Hickins

Australia Pushes for e-Discovery to Cut Compliance Costs

The Federal Court of Australia has released long-awaited rules that require companies involved in certain legal disputes to exchange documents in a searchable, electronic format. The “e-discovery” move is part of a government effort to overhaul Australia’s legal system—it wants to reduce compliance costs and make the country an easier place for foreign companies to do business.

The court’s new Practice Note applies to any proceeding where a judge has told the parties that discovery of documents should be in electronic format, or where it wants to conduct a hearing using electronic documents. The note sets out some of the principles that the parties will have to follow. It comes with template agreements, such as document management protocols and pre-discovery checklists, that parties are meant to discuss and then adopt.

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Source: complianceweek.com

Evidence in an Age of Self-Surveillance

George Orwell's state-run surveillance society had children spying on parents, neighbors scrutinizing neighbors and Big Brother watching over everyone. What Orwell did not foresee was a time when people would voluntarily publish chronicles of their lives for public consumption.

Imagine bookstores suddenly inundated with truckloads of privately published diaries, photo albums and home movies. An unlikely scenario until the mass marketing of computers, digital cameras and Internet access provided an inexpensive outlet.

Millions are participating in online social networks in an age of unprecedented self-surveillance (sousveillance). And these sites are pushing criminal investigation into uncharted waters.

Two of the most popular networking sites are MySpace and Facebook, each of which boasts over 100 million users. And according to a 2008 Pew Internet and American Life Project survey, the numbers of adult users with online profiles increased more than 400 percent over the last four years.[FOOTNOTE 1]

Evidence derived from social networking comes into play in several ways. Law enforcement and prosecutors use it to identify suspects and build cases. And defense attorneys have begun to mine this resource for information that can exculpate their clients, impeach a state's witness or provide a basis for a reduced sentence or post-conviction review.

A couple of months ago, Newsweek reported on an investigation concerning the murder of a British college student in Italy.[FOOTNOTE 2] The suspects in that case were identified through Skype, an Internet phone service; and additional leads revealed by photos and short stories appearing on a Facebook page, an unsettling YouTube video and queries found in the history of a Google search engine. All told, these social networking and Internet communication sites collectively created a "virtual crime scene," the output of which is finding its way into the courtroom.

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Source: Law.com
By: Ken Strutin

The top ten IT management mistakes and how to avoid them

Working with IT managers on a regular basis allows me to see some great management styles and some really poor ones. There are ten major mistakes that I see IT managers make on a regular basis. Some of these errors have even cost some managers their jobs. Here they are:

Number 1: Focusing on technology and not the business

The typical IT manager comes from a technical background in either infrastructure or development. Based on their technical roots, they tend to focus their efforts in their expertise when in fact they should be looking for ways to support, enable, and improve the business. In order to be successful, it is imperative that IT managers become a business leader and turn their focus and expertise on business issues and problems first.

Number 2: Thinking "out of sight is out of mind"

It's important to remember that in IT, no news is not good news. IT managers tend to trudge along without ever looking at their progress. The most powerful task an IT manager could ever do is an assessment. There are several ways to do this. You can do a SWOT (Strengths, Weaknesses, Opportunities, and Threats) analysis, or you could do a full blown formal IT Assessment. You can even use a scorecard system to track where you are as a department. See: http://techrepublic.com.com/5138-1035_11-5670861.html for a scorecard developed specifically for this purpose.

Number 3: Thinking that your team has it covered

In the TV show "The Apprentice," so many teams ended up in the boardroom because the leader delegated a job, but didn't follow up to make sure it was done right. Following up is not micromanagement. It's your job as a leader to ensure that the task gets done correctly.

Number 4: Not inspecting what you expect

This mistake has its roots in mistake number 3, but can be carried forward into other aspects of IT. For instance, you could possibly expect great performance out of your servers, but may not have a system to make sure they're running at peak capacity. This ultimately leads to poor planning, budgeting, staffing, etc. If you want to avoid this common pitfall, make a comprehensive list of your expectations for your entire department. This could include critical projects, network and server performance, client satisfaction, etc. Double-check the list to make sure you are inspecting all expectations on a regular basis. Keep a checklist or develop a daily disciplines worksheet to follow everything that needs daily inspection.

Number 5: Not creating a partnership with business management

I find a great deal of IT managers reporting to operations and finance personnel instead of presidents and CEOs. The only way IT can be an effective and strategic element to business is through partnership with business executives. You must lead and influence your reports, peers, and leaders to have a maximum impact on the organization. The quicker you can get on the leadership team, the quicker you will have the ability to execute on number 1.

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Source: Tech Republic
By: Joey Smith

Firms advised to meet Telephone Recording regulations, whilst avoiding risk and ensuring evidential weight

At a recent seminar held ahead of the March 6th 2009 FSA deadline to record and store all relevant telephone and electronic communications, firms were advised to meet their ’Taping’ requirements, whilst avoiding risk and ensuring the evidential weight of their documentation.

Organised by Open-Tec and Obsidian Wireless who have developed a data capturing and Repository solution for mobile voice and SMS recording and storage, attendees also heard the views of the FSA’s Sumaiya Khoda, and Peter Howes, a member of the BSI panel responsible for their evidential weight and legal admissibility codes/standard.

Commenting on the seminar, attendee John Bromley, Manager of Voice & Market Data Services at Commerzbank, said: “We found the quality and content of the day to be excellent. The presentation by the FSA was informative, and noted with interest that one of the principle reasons they have delayed mandating the recording of mobile communication was because, at the time, solutions were not widely used or sufficiently proven. The seminar opened up new areas of thought around the importance of not just of storing information for the regulators, but as a key requirement of a broader risk management strategy and the absolute need to ensure that any captured data has evidential weight. The live demonstrations showing the capture of voice, SMS and Instant Messaging were also impressive.”

The new FSA requirements state that a firm must take reasonable steps to retain all relevant records made by it for a period of at least six months and in a medium that permits the FSA to access the records readily. Where corrections or amendments are required to such records then the situation prior to these changes should also be easily ascertained from the records – i.e an audit trail needs to be maintained of the changes made. This new requirement will help firms to deter market abuse if staff know that their conversations are going to be recorded. Mobile conversations have been made exempt from this regulation at present, this will be reviewed mid to late 2009. However industry expects that this will be included as the current typical solution, which is to ban use of mobile phones, is impractical.

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Source: Techwhack

E-Mail Sent on Company Laptop Waives Privilege

Before Maria Stengart quit her job, she was already making plans to sue her employer. She e-mailed her lawyer during business hours from her company-issued laptop, though she was circumspect enough to use her personal Web-based Yahoo e-mail account.

It was not until discovery in the ensuing hostile-workplace, constructive-discharge case that she learned company lawyers had a copy of the message, which was automatically saved on the laptop's hard drive as a temporary file.

Now a Bergen County, N.J., judge has held the e-mail isn't protected as an attorney-client communication, finding Stengart waived the privilege by using the company computer and network.

On Thursday, Superior Court Judge Estela De La Cruz refused to exclude the e-mail at trial or to sanction the employer's law firm, Sills Cummis & Gross of Newark, which obtained it.

The ruling, in Stengart v. Loving Care Agency , BER-L-858-08, is a first for a New Jersey state court and one of only a few across the country to deal with the factual scenario presented.

The other cases cited by De La Cruz turned on whether the employer had a clear policy putting the employee on notice that e-mails sent on company systems are not private.

Loving Care Agency, a home health-care company in Fort Lee, has an employee handbook, distributed to staff and made available on the company servers, which warned that e-mail and voicemail messages "are considered part of the company's business and client records" and "are not to be considered private or personal to any employee."

The handbook prohibits using the e-mail system for job searches, "other employment activities outside the scope of the company business" or for "solicitation of outside business ventures." It allows "[o]ccasional personal use."

Stengart, the director of nursing, had worked for the company since 1994 and helped create and distribute the handbook. "Consequently, when plaintiff decided to use company time, equipment and resources to communicate with her attorney regarding the terms of her resignation from Loving Care, she proceeded with knowledge that such computer use and communications would not be private or personal to her," wrote De La Cruz.

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Source: law.com
By: Mary Pat Gallagher

Gartner Announces 2009 Risk Management & Compliance Summit

When: April 29-May 1, 2009

Where: Sheraton Chicago Hotel & Towers, Chicago, IL.

Details: Going forward, Governance, Risk and Compliance tools & technologies will have a bigger and more important role to play in organizations. The Gartner Risk Management and Compliance Summit theme is the Inflection Point for Business Value, and will provide attendees with the direction, tools, workshops and program content around how to leverage their risk management and compliance programs to maximize their business performance.

In two and a half days attendees will get the knowledge necessary to:

* Use automation to cut the costs of audit and compliance

* Establish an effective vendor risk management program

* Align IT risk management and compliance to strategic objectives and business performance

* Meet the challenges of new legal risks with better information governance, privacy practices, e-discovery and records management

* Align IT risk management and compliance with the enterprise risk management program

* Make the business case for risk management to executive audiences

* Embrace environmental sustainability and corporate social responsibility while meeting business goals

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Source: webwire.com

State Laws Require Secure Personal Data

Connecticut, Massachusetts and Nevada recently enacted laws requiring businesses to institute certain compliance measures to secure personal information that can be used to perpetrate identity theft. The Massachusetts law applies to a business located anywhere in the United States that stores or maintains personal information about a Massachusetts resident. This article discusses the requirements of these new state laws and their practical significance for businesses.

The personal information at issue includes Social Security, driver's license and financial account numbers, each in combination with a person's name. Forty-four states, including Connecticut, Massachusetts and Nevada, currently require businesses to notify individuals if there is a breach of personal information. This notification permits individuals to take steps to protect their credit cards and bank accounts from identity theft. Rather than simply requiring businesses to respond to a data breach with notifications, the new Connecticut, Massachusetts and Nevada laws impose certain compliance obligations on businesses to protect personal information from a data breach.

The Nevada and Connecticut laws each became effective on Oct. 1, 2008. The Nevada law, the least onerous of the three, mandates that "[a] business in this State shall not transfer any personal information of a customer through an electronic transmission other than a facsimile to a person outside of the secure system of the business unless the business uses encryption to ensure the security of electronic transmission." Nev. Rev. Stat. § 597.970(1). Connecticut's security measures go beyond encryption. Businesses must "safeguard the data, computer files and documents containing the information from misuse by third parties" and "destroy, erase or make unreadable such data, computer files and documents prior to disposal." Conn. Pub. Act 08-16, § 1.

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Source: law.com
By: Nick Akerman and Melissa J. Krasnow

Why I Hate Technology and How to Fix It

As manager of law department operations for Aon Corp., I sit at the crossroads of law and technology. I spend time and energy translating "techie" for our attorneys who are, effectively, my clients. Here's what I hate about technology, in terms any law school graduate should be able to understand.

Fraud in the Inducement: It's been 10 years since you bought a VCR, but its clock is still blinking 12:00. Even if we finally set it up right, we are forced to deal with power grid surges, daylight savings or three-year-old twins who think unplugging stuff is fun. I hate when we are sold on the sizzle but never take the time to figure our how the things work.

Tortious Interference: Why do I shake with fear every time I must create another password? I have at least 700, all designed to manage my life and "make it easier." Why must they all be different -- with a special character, a capital letter and at least eight characters? Do passwords really need to be like unique snowflakes, designed to melt away on some arbitrary expiration date? It reminds me of the Law School Admissions Test, where we had to figure out what outfit Susan would wear on Monday if she had to wear the brown shirt on Wednesday but could never wear the red pants with the blue sweater. I hate it when technology forces me to play logic games.

Detrimental Reliance: Who hasn't been involved in an e-mail stream 15 messages long when a simple face-to-face conversation would resolve the issue in minutes. I hate it when technology makes me less efficient.

False Imprisonment: When it's time for me to go home, I ask Windows to kindly to shut down my machine. However, Windows takes my request as mere suggestion -- so there I sit staring at my PC, then at my watch, then at my PC, waiting, waiting, waiting. I hate when technology makes me feel like I'm Dave trying to turn off HAL in "2001: A Space Odyssey."

Negligent Infliction of Emotional Distress: I hate the guilt I feel when impatient people behind me start to sneer as I try to figure out how to get a self-serve kiosk to sell me a mass transit ticket and take my money. I put the $1 bill in and it spits it out. I put it in again and it spits is out again. I smooth the bill, make sure it's not Canadian currency, and try again. Meanwhile, the line keeps growing. I hate it when technology makes me fear for my life from an angry mob.

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Source: law.com
By: David Cambria

Technology Changes Law Firm Management

My office is in Miami, yet most of my cases and colleagues are in faraway states. How can I practice law this way? One word: technology. My files are all maintained electronically, I correspond with other lawyers using video and Web conferencing, and my court filings are done via the Internet. Technology enables me to work anywhere. People like me are changing the practice of law because we use technology in our practice every day. Technology innovations in legal practice will become standard as my generation moves into management and leadership roles.

One of my mentors was told when he was a young lawyer that the road to partnership was "paved" with paper cuts. Those lawyers spent years digging through boxes of documents and thumbing through legal texts. No more. Now that road is increasingly paved with computer clicks. The traditional law office, with a receptionist, secretary, paralegal and attorney writing longhand briefs is disappearing. In its place is a whole new world.

Here are a few major technology-related changes:

PAPERLESS OFFICES

Many lawyers store files electronically on password-protected Web sites or in databases. No more overflowing paper files stored in cramped file rooms. This not only is efficient for organization, but also environmentally friendly. A few mouse clicks can lead to thousands, if not millions, of files stored in one easily-accessible location.

INSTANTANEOUS COMMUNICATION

Everything in legal practice can now happen with a few computer clicks. Lawyers can now close deals and file briefs electronically. Documents can be sent securely through e-mail without worrying about couriers, Federal Express or unreadable facsimiles. BlackBerrys and other wireless devices enable conversations and resolutions without unnecessary meetings, phone calls or other activities that add up on a client's bill.

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Source: law.com
By: Jeremy T. Elman

NYPD theft could have been avoided expert says

On Wednesday, letters to both active and retired NYPD officers were being sent out warning them of possible identity theft related issues. The letters come after a civilian employee of the department’s pension fund was accused in the theft of eight tapes that contained nearly 80,000 records detailing names, Social Security numbers, addresses, medical information, and bank information (direct deposit).

An official with the NYPD says that 36,000 active and 43,000 retired NYPD officers are expected to get a letter. What police are still working on is how the man accused gained access to the disaster recovery site in the first place.

Anthony Bonelli, 46, the pension fund's director of communications, is charged with third-degree burglary, fourth-degree grand larceny, and computer trespass. If convicted he faces 13 years in prison. According to reports, Bonelli accessed the building where the tapes were stored, simply by showing identification and walking past the guard. He had no authority to enter the area, but being who he was, the guard most likely didn’t think twice.

Once inside the building, Bonelli is said to have disabled the cameras and walked off with the tapes. They were later recovered at his home when he was arrested.

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Source: thetechherald.com
By: Steve Ragan

Properly redacting documents crucial

Despite recent high-profile redaction slips most law firms have failed to implement stringent policies, training and software to minimize the risk of redaction leaks.

For instance, recent headlines highlighted the February fiasco that embroiled leading social networking site Facebook.

Some background: Founders of student social networking site ConnectU sued Facebook, accusing creator Mark Zuckerberg of basing the popular networking website on ConnectU intellectual property.

Nearing a settlement and striving to keep terms confidential, Facebook representatives asked the judge to remove reporters from the courtroom while the two parties finalized the deal. The press received a redacted transcript that hid settlement details.

However, an Associated Press reporter copied text from an electronic version of the transcript and pasted that text into a blank document, thus learning the settlement amount and other closely-guarded information.

“The message must not be getting out yet,” says Christine Musil, director of marketing for Scottsdale, Ariz.-based content visualization, collaboration and redaction technology firm Informative Graphics Corp. “This is not the first headline.”

But even redaction-savvy organizations slip up. For instance, the U.S. federal government, already defending itself against allegations of what the Electronic Frontier Foundation calls “warrantless wiretapping,” came under further fire last year when a document attempted to justify the existence of an AT&T communications surveillance room.

The shot in the foot: Until AT&T’s attorneys released the document, with all mention of the room “redacted,” the EFF didn’t know about the room.

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Source: lawyersweekly.ca
By: Luigi Benetton

American Bar Association Publishes Next Generation Book on Electronic Discovery

Akerman Senterfitt, today announced that the American Bar Association has published and released Introduction to E-Discovery: New Cases, Ideas, and Techniques, authored by Akerman attorney Ralph Losey. This marks the second book on e-discovery to be authored by Mr. Losey in the past 13 months.

Mr. Losey, a leading authority on e-discovery, has more than 30 years of experience in computer technology; with 28 years of experience in associated commercial litigation leading more than 70 published legal opinions. He has authored numerous law review articles, including reviews of the mathematics underlying e-discovery and the "ethics" of e-discovery. In addition to these articles, Mr. Losey's first book E-Discovery: Current Trends and Cases is one of the ABA's bestsellers and has already been cited by several judges and commentators. Both books are based on Losey's popular weekly blog, "e-discovery Team" (www.ralphlosey.wordpress.com).

"In this economic environment, e-discovery has become recognized as an important part of any responsible corporate strategy to reduce costs," commented Michael McMahon, Chair of Akerman's Litigation Practice Group. "There is a universal need for people to understand the e-discovery process, and we are pleased to have an Akerman attorney leading the discussion of opinion in this space."

Mr. Losey's book explains, in easy to read language, the complex legal and technology issues involved in electronic discovery. Similar to his first effort, this book helps lawyers and IT experts better understand the latest thinking and techniques for transferring critical information from the computer to the courtroom. It includes examinations of new case law and opinions of jurists and experts in the field, and provides a diverse number of views on the subject, including the two most popular e-discovery guides used by judges. Furthermore, the book outlines the interdisciplinary team approach to solving the unique problems of e-discovery and also covers:

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Source: news.prnewswire.com

INTERNET LAW - E-Discovery: Sanctions for Spoliation of E-Mails

Generally, parties are expected to preserve all relevant documents as soon as litigation commences or even prior to that, if litigation is reasonably anticipated. This standard also applies to e-mails. When there is evidence of spoliation of e-mails after litigation has commenced or is anticipated, or after a preservation order has been issued by the court, sanctions may be imposed on the party that destroys the e-mails.

In Zubulake v. UBS Warburg LLC, F.R.D. 309 (S.D.N.Y., 2003), the New York district court discussed principles concerning the preservation of electronic evidence and the sanctions that may be imposed on the party who destroys electronic evidence. In this case, the defendant had deleted e-mails after the litigation had begun. The court instructed the jury that it could draw an adverse inference from such destruction.

In Zubulake, the court confirmed that the power to grant sanctions for spoliation arises both under the Federal Rule of Civil Procedure 37 and the inherent authority of the court. The court also set out the elements that must be established by the party requesting sanctions for spoliation.

What elements must a party prove when seeking sanctions for spoliation?
According to Zubulake, a party seeking sanctions for spoliation must prove that,

(1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed;

(2) the records were destroyed with a “culpable state of mind;” and

(3) the destroyed evidence was “relevant” to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.

Moreover, when there is evidence of bad faith, this fact alone is sufficient to establish the relevance of the destroyed materials and warrants a jury instruction on adverse influence. This instruction directs the jury that it is permitted, albeit not required, to infer that that the destroyed evidence would have been unfavorable to the defendants.

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Source: ibls.com
By: Staff Attorneys

Court Addresses Tension between Defamation Victim's Rights and First Amendment Protection of Anonymous Internet Speech, Provides Guidance

Indep. Newspapers, Inc. v. Brodie, 2009 WL 484956 (Md. Feb. 27, 2009)

Finding plaintiff/appellee failed to show a valid cause of action for defamation, the appellate court vacated an order requiring appellant to identify the alleged anonymous defamers and remanded the case for entry of an order granting appellant’s motion to quash.

In this defamation case, plaintiff/appellee Brodie sought to enforce a subpoena to compel the production of the identities of several persons who posted allegedly defamatory statements about the plaintiff, anonymously, on defendant/appellant Independent Newspaper’s (“Independent”) Internet forum. The circuit court granted Brodie’s motion and ordered Independent to identify the anonymous forum participants. Independent appealed. Finding that the circuit court abused its discretion when it denied Independent’s motion for a protective order because “Brodie had not pleaded a valid defamation claim against any of [the anonymous forum participants],” the appellate court vacated the prior judgment and remanded the case with instructions to grant defendant’s motion for a protective order and quash the subpoena.

On May 26, 2006, Brodie filed a complaint against Independent and three anonymous persons alleging “defamation and conspiracy to defame.” The comments at issue were posted on Independent’s Internet forum by anonymous persons identified only by their chosen pseudonyms. Thereafter, Brodie served Independent with a subpoena seeking the identities of the anonymous forum participants responsible for the allegedly defamatory posts. In response to the allegations and the subpoena, Independent filed several motions, including a motion for a protective order to prevent being compelled to identify the anonymous forum participants. Independent argued that “both as a discovery matter, and as a matter involving the First Amendment, … Brodie should be required to make a legal and evidentiary showing that he had a valid cause of action” before being permitted discovery of the participants’ identities. The circuit court disagreed and ordered compliance with the subpoena. (Pursuant to a separate motion, Independent was also dismissed from the case.)

Upon reconsideration, the circuit court agreed to dismiss the causes of action premised on statements referring to persons other than Brodie, but refused to reconsider its order to disclose the identity of the persons responsible for the comments regarding Brodie and his food establishment posted on Independent’s forum.

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Source: ediscoverylaw.com

Documents Re-Organized and Stored are No Longer Maintained in "Usual Course of Business," Offer of Inspection Inadequate Discovery Response

Ak-Chin Indian Cmty. v. U.S., 85. Fed. Cl. 397 (Fed. Cl. Jan. 14, 2009)
Ak-Chin Indian Cmty. v. U.S., 2009 WL 320333 (Fed. Cl. Feb 5, 2009)

(Denying Defendant’s Motion for Reconsideration but amending prior order in 85 Fed. Cl. 397 to delete certain findings of fact).

In this case, the court granted plaintiff’s motion to compel the defendant to organize and label its responses to plaintiff’s requests for production according to category, and to identify the specific documents from which responses to interrogatories could be derived.

Defendant responded to plaintiff’s discovery requests by making the requested information available for inspection. The information could allegedly be located by querying a database containing data about the contents of each box stored at a particular location. Plaintiff objected to defendant’s response and requested the information be organized and labeled according to the categories of its requests. Finding that the documents offered for inspection were not maintained “in the usual course of business” and thus defendant’s response did not comply with RCFC 34, the court ordered defendant to organize and label the documents as requested by plaintiff. The court also held that defendant had not met the requirements to properly rely upon RCFC 33(d) in responding to interrogatories where the rule allowed the production of business records as a response only where the burden of ascertaining the answer would be substantially the same for either party.

A. The documents stored at a records repository were not maintained in the ordinary course of business pursuant to RCFC 34 [Note: Per its Advisory Committee Notes, RCFC 34 reflects the amendments to Fed. R. Civ. P. 34]

Defendant responded to plaintiff’s discovery requests by “making documents available for inspection” at the American Indians Record Repository (“AIRR”), “a federal records center… built… to preserve and protect Indian trust records and to accommodate research of those records.” Defendant asserted that the information stored there was “indexed using the Box Index Search System (‘BISS’)” – an off the shelf program that captures information about the contents of each box and enters it into a searchable database. Specifically, defendant stated that “…potentially relevant boxes of records from which the answer may be derived or ascertained are set forth in the BISS query results that will be produced to plaintiff.” Plaintiff objected and brought a motion to compel defendant to organize and label any documents responsive to its requests.

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Source: ediscoverylaw.com

Deloittes documents regulatory challenges for Aus

March 9, 2009: Seventy two percent of respondents to Deloitte’s 2009 In-house Counsel Survey expect to see an increase in regulator activity in the next 12 months, and yet the vast majority are not confident that they could identify and produce all relevant electronic documents in response to a legal or regulatory document production request.

Of the 209 in-house lawyers from the Australian private and public sector that responded to the survey, almost two-thirds (62%) of survey respondents indicated that they were not confident that they could identify and produce all relevant electronic documents in response to a legal or regulatory request.

According to Nicholas Adamo, Lead Partner of Deloitte’s Forensic Data practice, “Given the current economic conditions, this result does highlight the need of corporates to look at ways that they should prepare for and manage the process,” he says.

“The anticipated increase in the level of regulatory enquiry is consistent with local and international governments demanding regulatory bodies utilise their investigative and enforcement powers in the wake of the global financial crisis,” he says.

“The pressure to deal with regulatory compliance typically falls on the shoulders of in-house counsel. Given the tight timelines for compliance, many may find that they are not able to meet those deadlines nor suggest how long it may take for them to put forward their case,” Sound management should include putting the right systems and processes in place to facilitate document production, and if necessary engaging external consultants to assist.

Interestingly, 20% of survey respondents indicated that providing regulatory compliance legal advice as one of the busiest areas of their legal practice. They also believed that the demand for advice about regulatory compliance will increase in the next 12 months.

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Source: Image and Data Manager

Cloud Computing & The Impact On Digital Forensic Investigations

Below is an abstract of the research I am currently conducting under the supervision of Dr. Stilianos Vidalis.

I believe it to be a topic that will fuel debate and discussion on the premise that Gartner Consulting, in 2008 suggested that investigating inappropriate or illegal activity may be impossible in Cloud Computing.

Abstract

Cloud Computing & The Impact On Digital Forensic Investigations

CLOIDIFIN

Cloud Computing (CC) as a concept and business opportunity is likely to see many organisations experiencing the ‘credit crunch’, embrace the relatively low cost option of CC to ensure continued business viability and sustainability. The pay-as-you-go structure of the CC model that is available is typically suited to SME’s who do not have the resources to completely fulfil their IT requirements. However, as with many opportunities that offer legitimate users enormous benefits, unscrupulous and criminal users will also look to use CC to exploit the many loopholes that may exist within this new concept, design and IT model.

CLOIDIFIN is a research project that will highlight the vulnerabilities of the cloud and the impact it will have on the digital forensic investigation that could ensue following a crime, policy contravention or data compromise episode.

Traditional digital forensic methodologies permit investigators to seize equipment and perform detailed analysis on the media and data recovered. The likelihood therefore, of the data being removed, overwritten, deleted or destroyed by the perpetrator in this case is low. More closely linked to a CC environment would be businesses that own and maintain their own multi-server type infrastructure, though this would be on a far smaller scale in comparison. However, the scale of the cloud and the rate at which data is overwritten is of concern. Live digital forensics is a technique that is also currently in its infancy, which CLOIDIFIN will test to establish suitability. E-discovery and the vendor being subpoenaed to retrieve data of potential evidential value will also be researched and tested for aptness.

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Source: zdnet.co.uk
By: Bigsey

What's the best tape rotation scheme for you?

Tape rotation is an essential part of backing up to tape and creating an effective data backup strategy. Here's a look at the most common backup tape rotation schemes and the pros and cons of each.

An effective data backup system using tape requires more than one tape set. A tape set is the number of tapes needed to do the appropriate backup. If a full backup takes two tapes, then two tapes constitute a tape set. If you do incremental backups on weekdays that only take one tape per backup, then your tape set for those days is one tape.

One-tape set backup

The least sophisticated -- and riskiest -- scheme is not to rotate your backup tapes at all. Simply back up to the same tape every day, occasionally replacing the tape as it wears. This is probably the most common method and is used by many small- to midsized businesses (SMBs).

One-tape backup is better than not backing up at all, but not by much. If something goes wrong with the backup or restore, or if the tape fails, you're left with no backup at all. Because the tape is so heavily used, the chances that something will go wrong multiply. An adequate tape backup scheme requires multiple tape sets.

One nasty characteristic of backups, especially tape backups, is that it is entirely possible to make a bad backup and not know it. Backup software typically performs on-the-fly error checking and most software will also do verification -- if you're willing to take the time to let it.
But if the data itself has been corrupted, say by a virus, the backup will happily save the corrupted -- and unusable -- data.

The first lesson from this is to do test restores on a regular basis. The second lesson is to keep multiple backups stretching back over time. The further back you have to go when you restore, the more data you will lose, but you shouldn't lose everything.

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Source: Search Storage
By: Rick Cook

Finding Safe Harbor for Your eDiscovery Data as EDD Vendors Navigate Stormy Economy

EDD Vendor Selection: The Importance of Considering Financial Stability

A recent report from the Integreon Blog highlights the importance of understanding the financial stability of EDD vendors as a criterion for vendor selection. This is critical in light of the present economic downturn in which some EDD vendors have recently gone out of business with little or no notice to their clients.

According to Integreon’s Liam Brown: (Source: Integreon Blog)

Industry sentiment is that Q4 08 was very challenging for many EDD vendors as corporations reined in litigation spending. And Q1 09 looks to be the same, if not worse. Tanking Economy Hits eDiscovery Firms (The National Law Journal, January 29, 2009) reveals that some EDD vendors are in financial distress or have simply gone out of business. One can only imagine the consequences of litigation data suddenly becoming unavailable during a lawsuit.

Corporations and their legal advisors should now urgently diligence the financial health and capital structures of their EDD vendors and consider those dimensions beyond the usual price, experience, technology, information security and disaster recovery capabilities. It’s not sufficient to be told, “we have big private equity investors with deep pockets” — the wallets of those very investors who were spending their way into the ‘hockey stick’ EDD market growth, e.g. described in the 2008 Socha-Gelbmann Survey (Law Technology News, August 11, 2008), are now superglued shut despite pleas for cash from their portfolio companies.

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Source: onsite3.com

Social Media — The Next Smoking Gun

Galina Datskovsky, senior vice president and general manager of the Information Governance business unit at CA (NYSE: CA), chuckled as she recalled how businesses grappled with e-mail back in the 1990s, and how some business owners and managers swore they would never allow employees to use e-mail.
"I had one attorney friend who said to me, 'I will never allow e-mail in here. They can just fax me the stuff,'" she said. Some 10 years later, this same attorney friend walks around with a BlackBerry.

And just as e-mail caused much hand-wringing for enterprises back in the 1990s over how to capture, store, manage and retrieve e-mailed information, social networking sites and applications such as Facebook, instant messaging (IM) and Twitter are causing similar amounts of hand-wringing today. Yet, as Datskovsky noted, social networking, just like e-mail, "is a tidal wave that cannot be stopped."

So what is the key to managing the social media and instant networking tsunami? It's not to bury your head in the sand and ignore the problem, she said, but rather to think about the implications of social media from a security, privacy, productivity and bandwidth point of view and create policies around its use.
Friending Social Media in the Workplace

For many companies, including CA, the solution to dealing with sites like Facebook and LinkedIn, as well as instant messaging and Twittering, up until now has been to just block them. But that passive approach, said Datskovsky, is short-sighted and unrealistic.

"Social pressures, the pressures of the new incoming workforce that's used to using these kinds of tools for various reasons, are going to push enterprises towards allowing these kinds of tools to eventually be used [in the workplace]," she explained.

And just as companies were forced to deal with e-mail, largely because of the importance of e-mail to e-discovery and regulatory compliance, by creating policies around its use and adopting software to properly store and manage it, companies need to think and act in the same way for social networking applications. "I don't think we're going through anything new," said Datskovsky. "It's just a new set of tools.

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Source: enterprisestorageforum.com
By: Jennifer Schiff

Inadvertent Disclosure: A Lesson Learned

While electronic discovery has gone from a party crasher to an expected guest in litigation, lawyers are still learning where to seat it, what to feed it and how not to offend it. While lawyers are more familiar with e-discovery now than they were just five years ago, the consequences for failing to properly utilize, monitor and control electronic discovery could be fatal.

As e-mail has become the main form of communication, mastery of the nuances of electronic discovery will not only be recommended, but vital to success as a lawyer.

One of the inevitable occurrences that comes up during the course of a voluminous and complex e-discovery is the inadvertent disclosure of privileged documents. While the rules shield inadvertence, they condemn laziness.
In November, the Eastern District of Pennsylvania applied the newly adopted Federal Rule of Evidence 502 in Rhoads Industries Inc. v. Building Materials Corp. of America. The court held that the plaintiff had waived the attorney-client privilege for documents that it had failed to timely list on its updated and amended privilege log produced after the defendants notified the plaintiff of its disclosure of privileged documents. The court also ruled that the company did not waive the attorney-client privilege for more than 800 privileged documents it inadvertently produced to defendants.

FACTS

In February 2007, the plaintiff began preparing for litigation and retained consulting experts. In June 2007, it realized that extensive electronic discovery would be involved in this lawsuit. Therefore, it directed its IT consultant to research various software programs. After the IT consultant tested various programs, he purchased a computer program to perform the necessary electronic searches. According to plaintiffs counsel, who was conducting her first electronic document review, she and the IT consultant reasonably believed the computer program would screen out all privileged material, according to the opinion.

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Source: law.com
By: Michael A. Iannucci

United States: Process of Instituting A Litigation Hold - Tip of the Month

Mayer Brown's Electronic Discovery & Records Management practice's Tip of the Month series provides practical information for litigators, IS and other business professionals. This February 2009 edition addresses the process of instituting a litigation hold.

Scenario:

A large company implements a set of policies that govern the retention and destruction of data and documents. On March 1, 2009, a lawsuit is filed alleging that the company engaged in a price-fixing conspiracy for the past several years. Under the company's retention policies, many of the documents relating to the pricing and sale of the product at issue would be eligible to be discarded or destroyed.

What to Do Before Litigation Occurs

Courts have held that when a party reasonably anticipates litigation, "it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of regular documents."1 Although the process of instituting a litigation hold is often viewed as the first step when responding to an anticipated litigation or investigation, there are a few other steps that organizations can take to help control the costs and minimize the risks associated with document preservation.

Understand the ESI Landscape

In order to implement an adequate and defensible litigation hold, an organization should understand the types of electronically stored information (ESI) that exist, where the ESI is located, and who has control over the ESI. To do so, it can be helpful to catalogue all of the organization's active and legacy ESI. The level of detail depends upon the business, but organization should consider developing a catalogue that will:

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Source: mondaq.com

The Sedona Conference® Announces International Programme on Cross-Border eDiscovery, eDisclosure & Data Privacy

The Sedona Conference® announces that it is now accepting applications for its International Programme on Cross-Border eDiscovery, eDisclosure and Data Privacy, to be held at the Hotel Arts in Barcelona, Spain on Wednesday and Thursday, 10 and 11 June. This programme will focus on conflicting data privacy and eDiscovery demands in the context of international litigation, regulation and arbitration. It will provide a rare opportunity for participants to engage in dialogue with legal experts and European data protection commissioners on data privacy and eDiscovery issues. Registration for the conference is strictly limited to 75 participants to ensure an intimate environment for meaningful dialogue, the hallmark of The Sedona Conference®. Because of the space limitation, registration is by invitation only. To apply for an invitation and view the complete agenda and faculty bios, go to http://www.thesedonaconference.org/conferences/intl/20090610.

The all-star faculty of lawyers, judges, and government data privacy officers includes Hon. Simon Brown, QC (Birmingham Civil Justice Centre, Birmingham), Geraldine Dersley (UK Data Commission, London), Dr. Alexander Dix (Commissioner for Data Protection & Freedom of Information, Berlin), Damon Greer (U.S. Department of Commerce, Washington, DC), Dr. Waltraut Kotschy (Austrian Data Protection Commission, Vienna), Philippos Mitletton (Data Protection, EU Commission, Brussels), Dr. Hiroshi Miyashita (Office of Personal Information Protection, Tokyo), Yann Padova (Secretary General, CNIL, Paris), Hon. David Waxse (U.S. District Court, Kansas City), and Master Steven Whitaker (Senior Master, Queens Bench Division, London).

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Source: webwire.com

INTERNET LAW - Failure to Produce E-Discovery and the Honest Mistake Defense

In the case of R & R Sails, Inc. v. Insurance Company of the State of Pennsylvania, Case No. 07-cv-0998-H (POR) (S.D.Cal., Apr. 18, 2008), the court held that overlooking e-discovery information due to honest mistake may serve to avoid court-imposed sanctions. Though, the court found proper to impose sanctions upon the party claiming to have omitted production due to honest mistake when a reasonable inquiry into the nature of the requested material might have prevented the mistake from occurring.

In R & R Sails, Inc. v. Insurance Company of the State of Pennsylvania, Case No. 07-cv-0998-H (POR) (S.D.Cal., Apr. 18, 2008) (R&R Sails), plaintiff requested several documents from defendant in the course of litigation. Plaintiff defined "document" as including every other means of recording any tangible thing and form of communication or representation, including letters, words, pictures, sounds, or symbols or combinations thereof.

Upon plaintiff’s notification that electronic and handwritten daily activity records were missing from defendant’s response, defendant explained that it did not maintain daily logs or telephone records. Subsequently, the defendant realized that the requested records existed in an AEGIS computerized database and sent the electronic notes to plaintiff, conceding that his previous declaration was incorrect and was an honest mistake, and that a claim log was maintained electronically.

The court ordered defendant to show cause to avoid sanctions for failure to timely produce electronically-stored information. Furthermore, plaintiff sought attorneys’ fees and costs associated with defendant's untimely production of electronically-stored information. Plaintiff also requested non-monetary sanctions that would preclude defendant from entering or relying upon any evidence which had not been produced to-date, as well as precluding any further changes to deposition transcripts.

In issuing its decision in the plaintiff’s favor, the court noted that although an honest mistake would excuse a party’s neglect to produce requested documents, in this particular case, defendant could have taken steps to prevent its omission, and therefore an award of sanctions was warranted.

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Source: ibls.com
By: Staff Attorneys

Out-of-the-Box Practice Management

After graduating from New York University in 1994, George Rudoy intended to become an attorney. But first he dipped a toe into the field by working as a legal assistant in the litigation department of Andrews Kurth. A year in, he didn't want to be a lawyer after all -- but he did want to stay in the legal field, and incorporate his computer science background.

Since then, Rudoy's filled bigger and bigger legal support roles at a series of firms. In his current job, as the director of global practice technology and information services at 19-office Shearman & Sterling, he's been an advocate for extending the principles of case management beyond litigation to other practice areas.

Q: Tell me a little bit about your work background, before Shearman & Sterling.

A: I was the assistant manager of litigation support at Cravath, Swaine & Moore. My job was to go out there and talk to every case team, understand the cases they were working on -- their goals, deadlines and deliverables -- and advise them on what kind of technology could be applied. After mapping out the support plan, I'd turn the projects over to project managers, who would provide agreed-upon services for the duration of the supported cases.

In 2002, I left to join Schulte Roth & Zabel, which was expanding its litigation support department. At that time electronic discovery was rapidly replacing its paper predecessor, as e-mail was becoming a dominant way of business communication, and more and more documents were staying electronic. So the efficiencies were looked upon very differently. The task of collecting data in an electronic format and converting it into a universal database format for the convenience of review became the primary focus of the litigation support department.

More importantly, documents' metadata -- information that is lost if you print an electronic document -- became a subject of discussion, resulting in efforts to keep all discovery documents in the electronic format. That was the main difference in the way that we started supporting litigation -- but we're still talking litigation-specific, at this point.

Q: So how did you move beyond just supporting litigation?

A: Everything depends on the environment. At Schulte, they were open to suggestions. It was common for the litigation department leader to pick up the phone and call the head of the other practice groups and say, "You know, we have this department that does all these great things for us with computers. Maybe you can utilize them."

Q: How much did you branch out beyond litigation at that firm?

A: Certainly the bankruptcy, intellectual property, trusts and estates, and the employment practice groups became full-time customers. Around 2003 or 2004, there was a need to start exchanging documents with clients in electronic format, with an ability to work together on it -- commonly known as the extranet. This is when the corporate practice groups became interested in applying technology against their practice, beyond what IT was offering.

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Source: law.com
By: Pam Smith

No Excuses for Technical Incompetence

There is widespread anecdotal support for the proposition that many lawyers are technologically incompetent.

At his keynote speech at LegalTech New York on Feb. 4, 2009, U.S. Magistrate Judge John Facciola cited numerous examples of technical incompetence.

Incidents included opposing counsel who agreed not to use e-discovery, and one particularly jarring case where an attorney representing a defendant in a child pornography case involving computers admitted to Facciola that he didn't "understand this computer stuff."

Akerman Senterfitt shareholder Ralph Losey -- writing on his blog e-Discovery Team (http://ralphlosey.wordpress.com) -- says the situation has reached a tipping point: "Some experts believe that attorney incompetence in e-discovery is so widespread that it presents a massive ethical crisis across the entire legal profession."

MODEL RULES

Several rules from The American Bar Association's Model Rules of Professional Conduct are relevant:

• Rule 1.1 is the most direct. It requires that a lawyer should provide "competent representation," which is defined as "the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."

• Rule 1.3 requires that a lawyer "shall act with reasonable diligence and promptness in representing a client."

• Rule 8.4(d) also states that it is professional misconduct for a lawyer to "engage in conduct that is prejudicial to the administration of justice."

Other than bribery or dishonesty, what could be more prejudicial to a client or to the administration of justice -- or demonstrate less diligence -- than to represent a client despite being incompetent to discover and manage the evidence most directly pertaining to the facts of the case?

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Source: law.com
By: Joseph Howie

Blunt email report: Governor’s office was non-compliant with law

By failing to preserve e-mails as public records, the office of former Missouri Gov. Matt Blunt ran afoul of two state record retention laws, a 15-month investigation concluded. Investigators do not plan to refer any violations to prosecutors.

In a report filed with the Cole County Circuit Court Tuesday morning, investigators Mel Fisher and Rick Wilhoit cited several areas of noncompliance with the law and blamed bad legal advice for getting Blunt’s office on the wrong side of state statutes.

The investigators stopped short of saying that Blunt had specific knowledge of the legal compliance issues, in part because they were unable to interview him.

“Absent the opportunity to conduct an interview, the (investigative) team is unable to determine of Gov. Blunt had … any independent and/or special knowledge that might negate any good faith belief he had in the incorrect legal advice that he received as governor from his general counsel, Henry Herschel.”

Herschel, who was Blunt’s top attorney and the custodian of records, is blamed in the report for not understanding the state statutes and offering incorrect and sometimes contradictory advice to Blunt and other employees of the governor’s office. Blunt replaced Herschel as general counsel shortly after the investigation began.

The report is inconclusive on the most explosive issue that came up during the investigation, that an employee or employees of the governor’s office sought to destroy records on the backup tapes. There is insufficient evidence to “prove or disprove” that allegation, the report says.In comments that are attached to the report that was filed with the court, Blunt, through his attorneys, denied most of the report’s conclusions.

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Source: stltoday.com
By: Tony Messenger

Think you’re compliant? Corrupt metadata could land you in jail

The amount of data that companies must store is growing at an enormous pace as regulations including Sarbanes-Oxley, HIPAA, SEC 17a-4, and the Federal Rules of Civil Procedure —to name just a few—place an increasing burden on enterprise storage, backup and recovery needs. Fail to protect information in a recoverable state, and company officers face fines, other penalties and even jail time.

Matters are made more complex when enterprise content management (ECM) systems are in use. The benefits of ECM - workflow, collaboration, and integrated management of information assets - bring an extra level of responsibility when it comes to protecting the content and metadata within them. That extra level of care required primarily relates to ECM metadata –audit trails, digital signatures, workflows, renditions and other “data about data,” which must be backed up with the content it supports in a synchronous manner to ensure full recoverability and compliance with regulatory mandates.

Most C level executives believe the information in their ECM systems is already protected by their enterprise backup systems. “We’re compliant,” they’ll say. “We have an enterprise content management system in place, and my IT team assures me it’s being backed up.”

Is this CEO asking the right questions? If you ask your IT department if your ECM information is backed up, the answer you will inevitably get back is “yes.” But you need to ask much deeper, probing questions if you are to protect your organization and yourself from the risks of data loss. ECM systems present several challenges to recoverability: complex data structures, large databases and critical metadata that cannot be lost.

Today’s regulatory environment is forcing many companies to re-evaluate their company-wide processes and procedures, including backup and recovery strategies. Section 404 of the Sarbanes-Oxley act of 2002, specifically, makes C level executives accountable for misrepresentation of corporate, operational or financial information. Without a sound backup strategy that protects content and metadata in ECM systems, the risk of non-compliance grows.

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Source: s-ox.com
By: Mike Fernandes

Rights to networking information a hot issue

Facebook caused an Internet uproar a few weeks ago when it made a few changes to its terms of service agreement -- basically, saying that even if you deleted your Facebook account, the social networking site still maintained rights to what you had published.

The ruckus was such that last week, the company said it would solicit comments from the millions of Facebook users, through online town hall-style meetings, to develop a new set of principles regardng information on the site.

We think the reason it caused such a furor was because people were finally coming to terms with the fact that information posted online doesn't just disappear when it drops out of news feeds -- it actually can be a permanent thing.

Enter Douglas E. Winter, who heads the Electronic Discovery Unit for the law firm Bryan Cave.

The Washington, D.C., lawyer wants people who use social networks like Facebook and Twitter to know that their posts may not only be permanent, they can also be used against you in legal proceedings.

He sees a couple of ways employees get themselves into trouble on social networks.

The first involves people who are saying things they shouldn't about co-workers. Lawsuits, including sexual harassment cases, can consider statements on social networks as evidence.

''Most social networking online between employees is similar to what they used to call the conversation around the water cooler,'' Winter said. ``People usually say things in front of a water cooler that they wouldn't say to a boss.''

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Source: miamiherald.com
By: Niala Boodhoo & Bridget Carey

eDiscovery Rules for Document Preservation

Technology is often key to helping any business endure a government investigation or lawsuit—and can just as often be the company’s undoing if it navigates the perils of e-discovery poorly.

Lackey “The work you’ve done prior to that day is going to determine in large measure how effective you’re going to be in your response,” Michael Lackey, a partner at the law firm Mayer Brown, said during a Jan. 28 Webcast on best practices to manage e-discovery.

One best practice, Lackey said, is to have a sense of what electronic documents will be examined—either by government investigators or defense attorneys—and what issues you may have with those systems. “Do I have an automatic deleting system where I’m going to have to act quickly?” he said. “What is my back-up system? Am I rotating tapes, and do I need to stop doing that?”

Likewise, determine as quickly as possible exactly when you must implement a “litigation hold” on relevant documents, and what the scope of that hold is. “Where you cannot implement a hold, you need to document that,” said Angeline Chen, associate general counsel of Lockheed Martin, who also spoke during the Jan. 28 Webcast. “That’s really the best that you can do.” Not saying anything at all about litigation holds is a big mistake, she added.

The patent infringement case Keithley v. Homestore.com is a good example, according to Browning Marean of the law firm DLA Piper, who spoke during another e-discovery Webcast last week. In the Keithley case, a federal magistrate ruled against three businesses for destroying evidence and for claiming they didn’t have key documents and source code, which promptly showed up when sanctions were threatened.

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Source: complianceweek
By: Jaclyn Jaeger

End of paper chase: Federal Court unveils e-discovery rules

The Federal Court of Australia has brought the nation's legal system into the computer age, with new e-discovery rules requiring all electronic documents and emails to be produced and exchanged electronically, preferably in their original formats.

An updated Practice Note (the use of technology in the management of discovery and the conduct of litigation) essentially spells an end to voluminous paper files in commercial cases and could slash millions of dollars from litigation bills.

Issued by Chief Justice Black after 19 months of consultation, the e-discovery rules aim to improve efficiencies and help contain costs at a time when protracted litigation between corporate players and inquiries into financial misconduct have placed extreme pressure on court resources.

However, hopes that the Federal Court Practice Note would underpin more uniform e-discovery procedures nationwide have been torpedoed by the NSW Supreme Court, which also handles a large volume of commercial litigation.

NSW Chief Justice Jim Spigelman issued a Practice Note on the Use of Technology that came into effect in August last year.

Lawyer and computer forensics expert Seamus Byrne said the NSW rules were announced without warning to the legal profession. "The NSW Practice Note is a step in the right direction," Mr Byrne said.

"However, the Federal note is much more comprehensive and from the industry perspective it's had the benefit of input from a much larger group of people.

"Unfortunately, the NSW Note recommends, as a default, that electronic documents be exchanged on a floppy disk. It doesn't bode too well for the perception that the law keeps pace with technology."

Last month, Justice Spigelman warned that economic adversity meant lawyers would have to reduce their costs or risk being marginalised. And federal Attorney-General Robert McClelland has warned that lawyers and courts face further reform as part of the Rudd Government's response to the global financial crisis.

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Source: australianit.news.com.au
By: Karen Dearne

Digital Forensics Certification Board (DFCB) Now Accepting Candidates for Professional Certifications

DFCB Offers Digital Forensics Certified Practitioner (DFCP) and Digital Forensics Certified Associate (DFCA) Designations From Independent, Community-Driven Organization

The Digital Forensics Certification Board (DFCB), an independent certifications organization for digital evidence examiners, today officially launched its highly anticipated certification program that offers two levels of professional designations. As part of the Board's certification launch, candidates may apply through the DFCB's limited "Founders Process."

Applications for the Founders Process will be accepted March 2nd through August 30, 2009. These candidates will assist in the creation of formal examination content and processes. The DFCB's Founders Process offers those who have several active years of experience in the digital forensics discipline the opportunity to become certified by demonstrating extensive expertise and experience.

For complete Founders Process requirements, additional information and downloads of the application and instruction documents, visit www.dfcb.org.

"Truly independent, professional certifications in digital forensics are something the community has needed for years -- and it is now a reality," said Sam Guttman President of the Digital Forensics Certification Board. "The DFCB is pleased to now offer an independent digital forensics professional certification for law enforcement, private sector, government, military and academia professionals. The National Institute of Justice funded the development of this professional certification program for the digital forensics community."

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Source: msnbc.msn.com

Rulemaking In State Courts: A Rationale For Adopting ESI Provisions Of FRCP 26

The Federal Rules of Civil Procedure were amended on December 1, 2006 to address discovery of electronically stored information (ESI). Among the amendments to the Federal Rules were significant changes to Rule 26 that provide additional protections to litigants who are dealing with a proliferation of computer usage, inexpensive data storage, and developments in communication technology that have changed discovery practice tremendously over the past several years. While several states have adopted (or are working on adopting) new rules, some of which are modeled after the Federal Rules, many states have either decided not to implement new rules or have adopted a "wait and see" approach to see how the Federal Rules work before adopting state rules. We have seen since its adoption in 2006, that three provisions in Fed. R. Civ. P. 26 greatly benefit litigants: the so-called "claw-back" provision; the two-tiered bifurcation of discovery based on active and "not reasonably accessible" information; and the inclusion of a discussion of ESI in early case planning conferences. Some states decided long ago not to compel litigants into early case management conferences and may not be likely to revisit that issue. Adopting the claw-back and two-tiered approach, however, would provide litigants with much needed protection and predictability in the discovery process.

The Claw-Back Provision: Fed. R. Civ. P. 26(b)(5)(B)

Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.

Modern discovery practice is a burdensome and expensive endeavor. The sheer volume of unorganized electronic information and embedded metadata involved in modern document productions increases the risk that attorney-client communications or attorney work product will be inadvertently produced to opposing counsel during discovery. Due to the risk of the possibility of a subject matter waiver arising from such inadvertent disclosure, the burden and expense of discovery are often enormously increased by the countless hours spent by attorneys and paralegals diligently screening potentially responsive documents and electronic information for privileged or protected communications. The "claw-back" agreement has made its way in to recent discovery practice as a means of easing the burden and expense of privilege screening.

Under a claw-back agreement, the parties agree that documents will be produced without any intent to waive privilege or other protections. A typical agreement will provide that if a privileged or protected document is inadvertently produced, the producing party informs the receiving party, who is obliged to return the document and prohibited from using it in the litigation. Parties will commonly present the agreement to the court in the form of a stipulated protective order or case management order.

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Source: metrocorpcounsel
By: Gregory D. Shelton & Williams Kastner

Hot Issues Alerts - Law Firms Electronic Discovery Costs And Burdens Require New Rules

As discovery of information in litigation continues to drive costs ever upward, more claimants are driven out of the judicial system and the system serves far fewer of the purposes for which it was designed. The technological revolution has had a substantial impact upon discovery in civil litigation as the scope of what is included in the phrase "electronically stored information" ("ESI") can be enormous and the protection of privileged and work product information made more difficult.

The Electronic Discovery Landscape

More than just gross volume and multiple, disparate locations, electronic information is infamous for its complexity. Finding it, moving it, and understanding it may require a number of different disciplines and a variety of components.

Court rules now frequently involve an extensive search through many separate computer systems. Electronic media has become the nearly exclusive manner of producing and storing information in the corporate world.

For many litigants, the electronic data that accumulates on a daily basis is vast and difficult to manage. Much of this data is stored in reasonably accessible sources, which people use in the ordinary course of business, but vast quantities of this data are also preserved in sources that are not reasonably accessible, such as back-up storage media used for disaster recovery. Furthermore, substantial amounts of information consist of files that have been purportedly "deleted," yet may still be recovered (albeit at significant burden and expense). Requiring a litigant to restore and retrieve data at its own expense from back-up tapes, "deleted" files, and other sources that are not readily accessible is having significant negative financial impact and resulting in substantial interference to the day-to-day business activities of many litigants.

When discovery processes were put in place, data of such magnitude and complexity were unfathomable.

The Complexity, Cost And Burden Of E-Discovery

Examples are legion of the enormous direct costs of production of electronically stored information in today's litigation, often running into the millions of dollars in just one case.

Computer systems are not only complicated but are designed and operated for business needs that have nothing to do with litigation. The features that make systems efficient for business may make them inefficient for retrieving information for pretrial discovery. Clearly, something must be done to alleviate the burden, expense and uncertainty of complying with electronic discovery requests. Unfortunately, courts have been slow to acknowledge that litigants should not be penalized for the use of computer technology, as the use of such technology is no longer simply a choice, but a necessity.

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Source: metrocorpcounsel
By: Alfred W. Cortese, Jr.

The Case For Outsourcing Document Review

The Editor interviews Jean Weir, Director in the Forensic & Dispute Practice of Deloitte Financial Advisory Services LLP. She specializes in the management of electronic and hard copy discovery projects involving document collection, review and production for law firms and law departments.

Editor: How has the economy affected how companies are viewing document review services?

Weir: I think that the economic downturn has forced companies to take a harder look at their total legal spend. In particular, companies appear to be closely evaluating discovery-related spending and seem to be focusing more quickly and strategically on finding ways to help reduce their discovery budgets. Companies appear to be recognizing that the time to identify cost control and reduction strategies is now. I have also seen that there is a growing interest and demand in exploring the use of document review services. Since one of the biggest spends in discovery is document review, one area that is of predominant interest to many companies is outsourcing, both domestically as well as foreign or "offshoring."

Editor: How have companies and law firms responded to the pressures of e-Discovery related costs?

Weir: I think parties involved understand that the sheer volume of data created and maintained by companies can make the collection, processing, review and production of discovery documents an overwhelming, expensive and high-exposure endeavor. It's no surprise that electronically stored information will likely only continue to grow. In order to address these concerns, companies and law firms are recognizing the value of working with document review service providers. Not only will companies require new ways to reduce the data that needs to be reviewed and produced, but the document review needs to be conducted in the most efficient and cost-effective manner.

Editor: How could the relationship between in-house counsel, law firms and vendors change?

Weir: Reducing discovery spend is going to require a commitment from in-house counsel, law firms and vendors and the paradigm in which discovery matters were addressed between in-house counsel and law firms may change. I think law firms may seek vendors more now than in the past in order to help out their clients with cost containment and data reduction. Law firms appear to be recognizing the potential value of document review service providers and appreciate that they can help support and serve their clients by providing an alternative and typically more cost-effective option to traditional document review. In addition, the litigation support industry has many technologies for document review and most document review service providers use technology whenever possible to streamline their work.

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Source: metrocorpcounsel

Cloud computing won't improve application security

Cloud computing is the bomb. There's no doubt about many of its benefits. From economies of scale to application availability, cloud computing can definitely bring some positives into your application environment.

Many in IT (especially the vendors) believe that once applications are out of the building and into the "cloud," there's less to worry about. Well, maybe, maybe not. One thing's for sure -- it's not that simple. To the dismay of many, cloud computing doesn't make your application security responsibilities magically disappear.

I hear about management concerns over mobile devices and telecommuting. Some claim "they're just too risky."

Yet many of these people are willing to give up control of their business applications and sensitive data to the cloud without question. It's a naïve approach. Regardless of where the computing takes place, you're going to have security issues in the same old areas: technology, people, business processes.

Here are some cloud computing security misconceptions and considerations that you don't want to overlook.

Practically every aspect of cloud-based applications is affected -- not just generic HTTP traffic going over ports 80 and 443. From user authentication to transaction processing to back-end data access and even Web services exposures. There's a lot to consider -- and secure. Interestingly, this is not much different than the application security concerns in our "old-school" data center configurations. Just don't overlook the details involved.

What about co-mingling? Is your sensitive data going to be mixed in with other people's systems? Shared Web servers have always made me nervous in the past. If one site is compromised it can put all of the other sites hosted on that server in jeopardy as well. With cloud computing, practically every component of the OSI layers 1 through 7 is shared -- not just the application layer -- so the attack surface can be exponentially increased.

Penetration testing and source code analysis is still going to be required. Albeit, I could foresee some of the service providers offering "security assessments as a service" -- at least at the OS and network levels -- looking at everyone's systems across the board. Once you get to layer 7 though, every application is unique and so are the security issues. No generic scans here.

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Source: Search Security
By: Kevin Beaver

Dealing With Confidential Metadata

What should you do when confronted with possible disclosure of confidential metadata? Conversely, what should you do if you learn that confidential metadata has been disclosed? Some recent cases may offer insight:

1. Exercise reasonable care.

In People v. Gomez, 134 Cal. App. 3d 874, 879 (1982), the court, dealing with privileged material in general, held that failure to take reasonable precautions to maintain the confidentiality of information may be deemed consent to its disclosure.

Amersham Biosciences Corp. v. Perkinelmer, Inc., 2007 WL 329290 (D. N.J. 2007), may be particularly instructive in determining the meaning of "reasonable precautions" when dealing with confidential metadata, as it is the only case dealing with this particular topic. The New Jersey district court was asked to decide whether reasonable precautions were taken in the inadvertent disclosure of some 500-plus privileged Lotus Notes e-mail documents that were deleted within subfolders when converted to CD, but remained embedded in the larger folder when converted to single image files.

The court held that if the confidential nature of the documents was apparent on the face of the documents after their conversion from their native form to single image files, then the final spot check conducted by the disclosing party may not have been reasonable. Consequently, it would appear that reasonable precautions means that counsel should probably review each electronically stored document at every stage of the conversion process.

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Source: law.com
By: Browning Marean