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