Criminal vs Civil - What’s The Difference? - Computer Forensics

In the field of computer forensics, as in the field of law, procedures in civil cases differ somewhat from those in criminal cases. The collection of data and presentation of evidence may be held to different standards, the process of data collection and imaging can be quite different, and the consequences of the case may have very different impacts.

Computer forensics reports are prepared by computer forensics investigators. They gather the necessary information, analyze them and then draft out the final computer forensics reports. As good as they are, computer criminals oftentimes leave behind clues which aid the investigators to track down the root cause of their crime.

Even when the files have been deleted from the specific location in the computer, the original data is not at all erased from the entire computer system. With certain techniques, tools, and skills that the investigators are equipped with, the analysis of the fraudulent act or crime can be made with such accuracy.

Where does the computer forensic report information come from?

There are four main areas where the investigators gather their evidence from. There are other areas which are looked into but the following are the most commonly looked areas.

Civil law covers everything else, such as violations of contracts and lawsuits between two or more parties. The loser in such a dispute often must give payment, property or services to the prevailing party. Imprisonment is not at issue in civil cases. As a result, the standard for evidence is not as high in civil cases as in criminal cases.

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Source: technologyinfo.baydem.com

When the Lawyers Come Knocking: Info Management and E-Discovery

Dealing with a haphazard sprawl of corporate information is a big enough headache in and of itself, but when it's combined with legal issues and litigation, problems can snowball fast. Not being able to fulfill a request for discovery and information in its various electronics forms can come at a high penalty.

Today, the discussion is on gaining control over information sprawl at enterprises. We'll take a look at the short-term and potentially massive savings from thwarting legal discovery fulfillment problems in advance by controlling information. And we'll examine how management life cycle approaches can bring long-term payoffs through better analytics and regulatory compliance, while reducing the cost of data storage and archiving.

To help us better understand the perils and promise around the well-managed -- versus the haphazard -- information oversight approach, we're joined by two executives from HP (NYSE: HPQ) .

Please join me in welcoming Jonathan Martin, vice president and general manager for information management at HP. We're also joined by Gaynelle Jones, Discovery Counsel at HP.

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Source: eCommerce Times
By: Dana Gardner

The Critical Need for e-Discovery Certification

Today's screaming for qualified e-discovery professionals has reached an unprecedented volume. Recently, Socha-Gelbman published an overview of the results of their annual survey on the Legal Technology News site.

One of the most important single observations from it is the shortage of expertise in the market-place with providers, law firms and corporations reported as "fighting each other for the few people who actually understand what is involved in handling electronic documents". That is significant because the lack of qualified professionals can only grow. Predictions of 20%- 25% growth in the field does not guarantee that a generation of skilled and knowledgable people are simply going to pop up.

Most litigation support staff learn on the job. Many are victims of degenerative on-the-job training. That is to say, the trainer received inadequate training; he/she trains another individual who receives even more inadequate training; that person trains another who now receives twice as much inadequate training as the previous inadequately trained individual and so on and so on and so on.

Most law firms and vendors do not have substantive ediscovery training programs. There's plenty of continuing ed and in-house seminars but no real comprehensive long-term courses nor exams to certify core competencies. Reputations and careers are at risk.

Further, law firms hesitate to spend money on any employee who is not slated for partnership. Firms and vendors alike may hire a person from another position i.e., litigation paralegal; computer technician or someone from outside the field, to transition into the lit. support field. Only after plenty of trial and error (possibly on your case), are they called an "expert". There is no test, certification nor standards to enter or stay in this relatively new profession.


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Source: examiner.com
By: Chere Estrin

Enterprise data explosion will only get bigger

Managing the data mountain will be an ongoing issue, says Eric Knorr

Am I the only one to notice that the two big trends of the day, cloud computing and mobile tech, seem to have so little to do with the core issues that concern IT professionals?

While the guys at Gartner and Forrester dream of other things, at InfoWorld we've given a name to the most pervasive underlying trend in all of IT: the enterprise data explosion.

You've heard the basic IDC stat, which sounds like a malign inversion of Moore's Law: Data doubles every 18 months. And the explosion shows no sign of abating. New compliance regulations in the wake of the global financial meltdown will likely mandate even more data retention, while the imperative to digitise healthcare records in the United States will prompt a fresh set of storage requirements. With the cost of disk space at an all-time low and the vagaries of compliance laws compelling businesses to "save everything" as a brute force method to reduce risk, enterprises are adding capacity at an astounding rate.

IDC analysts predict that unstructured data will grow at twice the rate of conventional structured data held in databases. By 2010, this "dark matter", so named due to the challenge of extracting useful information from raw data, will make up the majority of all enterprise data stored.

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Source: computerworld.co.nz
By: Eric Knorr

Cloud Computing for Mobile Lawyers

As a trial lawyer who spends as much time out of the office as in, I need secure access to all of my client data on the road. I need to be able to send and receive e-mail, review document drafts, collaborate with clients and counsel, check and update task assignments to my staff, and make court filings from just about anywhere. Oh, and I would like this capability without spending a small fortune on a customized server system or hiring a small army of IT workers. How is this possible? Simple: My firm is in the cloud.

What does "cloud computing" mean? This is an increasingly difficult question to answer, as the power and number of applications for cloud computing continues to increase. In a nutshell, "cloud computing" refers to Internet-based applications or computer infrastructure in which the computing resources and often the storage capacity for the data itself are located away from the user's site and accessed through the Internet. "Cloud" is simply a metaphor for the unseen network systems accessed over the Internet.

The cloud services that attorneys use most are cloud storage solutions and software applications that run over the Web. Many of these services, such as Web-based e-mail, have reached widespread adoption.

Online storage: Think of cloud-based storage as having a C: drive in the sky, accessible from any computer on the Internet. Such services allow secure storage of files on an online drive accessible from any computer as if it was an internal drive on the local machine. Also included in this category are online backup services, which upload and back up data to an offsite storage facility. In most cloud-based systems, a firm's data will reside 1) on servers or drives at the office and 2) in the cloud, thus providing an extra layer of data backup.

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Source: law.com
By: Christopher McKinney

Double trouble with double-deleting

Squamish – Some provincial Liberal political aides “double-deleted” emails in an attempt to keep their communications confidential, Public Eye has exclusively learned.

The aides believed “double-deleting” would prevent their emails from being saved by the government’s back-up tapes, according to sources familiar with the practice.

Here’s how it worked: the aides would delete message from their Outlook inbox and then empty the program’s deleted messages folder.

The sources couldn’t say how widespread the “double-deleting” was or whether that practices has continued.

But the sources, who requested anonymity to speak candidly about the government, stressed aides were never instructed to “double-delete” their emails.

Nevertheless, it’s one more reason to question just how committed the Liberals have been to running the most open and accountable government in Canada – a promise they made in the 2001 election platform.

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Source: squaminshchief.com

Computer Hacker to Plead Guilty in Major Identity Theft Case

A sophisticated computer hacker who allegedly participated in a conspiracy that netted more than 40 million credit and debit card accounts from at least nine corporations has agreed to plead guilty to wire fraud and conspiracy charges in federal court in Boston, capping one of the largest-ever identity theft prosecutions, Justice Department officials said Friday.

Albert Gonzalez, 28, a Miami native and one-time Secret Service informant, is scheduled to plead guilty in U.S. District Court for the District of Massachusetts next month, according to a plea agreement filed Friday.

Several other codefendants in the Boston case have already pleaded guilty for having roles in the cyber fraud conspiracy that struck several retailers including Barnes & Noble, Sports Authority and, TJX Companies, which owns discount clothing stores T.J. Maxx and Marshalls. TJX has claimed in court papers that it incurred more than $130 million in losses stemming from the intrusion.

According to the plea agreement, Gonzalez will also plead guilty to similar charges in the U.S. District Court for the Eastern District of New York. Gonzalez was indicted in New York in May 2008 for allegedly breaking into the computer system of Dave & Buster’s restaurant chain. That case was scheduled to go to trial next month.

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Source: legaltimes.typepad.com

What your emails say about you

Our electronic trails are powerfully revealing – for those who can decode them

How many emails did you send today? What time did you swipe in with your keycard? Did you IM your friends? Did you make changes to a shared document? When you went to lunch, did you bring your BlackBerry? If your boss walked in the door right now, could you say how productive you've been? You may not have a ready answer, but those digital breadcrumbs you've been leaving can answer for you.

Cataphora is a Silicon Valley company that tries to model what an "effective" employee looks like based upon her electronic trail. The company began in the e-discovery field, dealing with the massive corporate databases that are now routinely subpoenaed as trial evidence. Imagine you're a lawyer tasked with going through a few terabytes of email to see if there's anything damaging to your client. A keyword search isn't going to cut it; the linguists and programmers at Cataphora (and similar companies) specialize in sifting through electronic records to figure out what's useful and relevant.

Over the years, Cataphora has helped out in many cases where it's useful to know whether an employee is thriving within the company. This may indicate whether he will be a co-operative witness. Or take the example of a whistle-blower. While it's against the law to conduct a witch-hunt and fire the whistle-blower, it's very advantageous to know, before you get into court, who the whistle-blower may be (i.e., is it someone in a position to give a lot of information to the government?). When dealing with these kinds of issues, Cataphora started with the basic tradecraft assumption that a happy employee is unlikely to cause problems.

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Source: thestar.com
By: Michael Agger

Spoliation Leads to Severe Sanctions

The significant growth in the volume and complexity of e-discovery has brought about an inevitable increase in scrutiny over the obligation to preserve and produce relevant electronically stored information. Given the sheer number of cases that now involve large amounts of ESI, the escalating trend of asserting and defending claims of spoliation should come as no surprise.

The attendant threat of sanctions -- ranging from awards of attorney's fees and costs to default judgment -- provides yet another compelling reason for counsel and clients alike to work toward good-faith compliance with e-discovery obligations.

It is now clearer than ever that parties who shirk their obligations to preserve and produce ESI do so at great peril. A recent opinion from the Southern District of New York sounds a clear warning that courts, in their wide discretion to impose spoliation sanctions,[FOOTNOTE 1] may regard the destruction of relevant evidence to be serious enough to warrant sanctions that effectively may be dispositive of a claim or defense.

In Arista Records LLC v. Usenet.com, 2009 WL 1873589 (S.D.N.Y. June 30, 2009), Judge Harold Baer held that the appropriate sanction, in light of a record replete with "strong evidence of extreme wrongdoing" by defendants throughout the course of discovery, was to preclude the wrongdoers from asserting their affirmative defense during the remainder of the case. Because that defense constituted the very grounds on which defendants premised their motion for summary judgment, Baer dismissed defendants' motion as moot and went on to grant summary judgment for plaintiffs on all claims.

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Source: law.com
By: H. Christopher Boehning and Daniel J. Toal

Cloud computing concerns remain, despite growing acceptance

The concept of “cloud computing” has been around perhaps longer than most of us realize. It popped up almost a decade ago as grid computing, software-as-a-service (SaaS) and virtualization began to take hold. Software companies and service providers started developing “pay as you go” products and services that helped reduce computing technology capital expenditures for companies that had the need but not the cash for heavy-duty IT infrastructures.

IT cloud services are entering a period of accelerated adoption, according to a recent user survey by Framingham-based research firm IDC. Cloud computing is ready to cross over from being an early-adopters market to one of mainstream acceptance and use over the next three years.

The term “cloud computing” — as just about everyone who uses a keyboard now knows — originated with the use of a cloud symbol in network illustrations to depict a nebulous, off-premise network environment. While the definition of what really constitutes the cloud remains vague, it is generally understood to include three main on-demand service areas: software, infrastructure and platform. Major service providers such as Amazon.com Inc. and Google Inc. have played key developmental roles in the growth of cloud architectures, having beefed up their data center capabilities and capacity as a result of the technology downturn and infamous dot-com bubble burst back in 2000.

“Amazon has helped define the market,” said Will Kohler, a partner in Needham-based investment firm Prism Ventureworks. “They can offer data storage services at very high scalability levels, which is critical for cloud computing, and that’s a very hard thing to architect.”

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Source: masshightech.com
By: Jim Schakenbach

Document Management: Figure Out How Much Storage You Need

You probably know your company shouldn't save every bit of data. Given regulatory requirements and the role that electronic records play in lawsuits, some enterprises save everything just to be safe. Yet, "more companies are sensitive to the fact that we can't just keep throwing storage at the issue," says IDC analyst Rick Villars.

Storage is cheap, but it adds up. IDC, a sister company to CIO, found a 27 percent drop in the cost of disk storage between 2007 and 2008. Nevertheless, worldwide spending on storage reached $80 billion last year. Furthermore, if your company gets sued, or even called as a witness, experts say it can cost millions to identify needed documents--$250 to $600 per hour for the work and $150 to $1,900 per gigabyte for the software.

It's better to figure out what you really need to save (there's software to help) and buy only the storage you need, says Enterprise Strategy Group analyst Brian Babineau.

What You Keep and Why

Tucson Electric Power (TEP) has procedures to carry out data retention policies set by its legal department. This helps the utility company contain its need for storage--currently 200TB and increasing, says Chris Rima, supervisor of infrastructure systems.

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Source: networkworld.com
By: Stephen Lawson

Making Data An Asset

Data is often looked at as a liability; something that has to be stored, protected and preserved. Data storage has led to massively expanding storage environments and such initiatives as archive. Protection has led to incredibly elaborate backup and recovery schemes and preservation has led to eDiscovery and compliance. All of these processes are reactive, how can the view of data be changed to proactive, to using data as an asset?

The first step is to build on the preservation of the asset solutions and to broaden their scope. Preservation of data often involves some sort of eDiscovery component. These typically provide context based indexing and classification of data or a subset of data. Applying this type of technology to all your data could provide you with the ability to know not only where your data is but also what it contains. This then builds the foundation so that when a research request comes up, being able to find that information based on content and doing so in an instant is a key component into turning data into an asset.

Companies like Kazeon and Index Engines have built a good business in the litigation readiness space. Requiring the indexing of a smaller subset of data that you think there is a likelihood of a discovery request being generated against. What if some enterprise strength was added to these solutions so their use became more mainstream across all the data in the enterprise?

Part of such a solution will mean not requiring a never ending array of appliances to chew through more and more data. Ideally an IT manager wants the ability to plug in one box and index the enterprise in relatively quick order. Telling an IT manager that he needs 10 or 20 indexing appliances to index his enterprise is not going to be popular. The potential value in knowing exactly what is in the enterprise will be overshadowed by the implementation complexity and management of 10 to 20 additional pieces of indexing appliances. More efficient indexing will lead to simplified implementation and management that will lead to faster adoption.

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Source: informationweek.com
By: George Crump

States step up to the electronic challenge

Oregon’s office of the Secretary of State is six months into the implementation of an electronic records management system (ERMS). And according to Oregon state archivist Mary Beth Herkert, the change is long overdue if state agencies are going to respond effectively to electronic discovery and public document requests.
"In the paper world, we did an OK job of filing, but we rarely got requests because people didn’t want to take six months to wade through boxes and mounds of paper. The risk was the same, but the probability of requests was low," Herkert says. "In the electronic world, the risk is accelerated, but all our bad habits are magnified."

Most Oregon agencies don’t yet have structured electronic filing systems for documents, and having to search through thousands of e-mail files compounds the problem.

"Agencies in our state have gone to court thinking they were clear on what was happening, only to see a smoking gun they didn’t know about," Herkert says. "They are paying penalties, and they are paying people to work full time on e-discovery and public document requests. It shouldn’t be that way. We are in a cycle of constantly responding to requests and litigation."

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Source: kmworld.com
By: David Raths

Dutch Court Rules Against P2P Site In Copyright Case

A Dutch court ordered peer-to-peer found Wednesday that the BitTorrent site had the capability to filter links that pointed to commercially produced films, games, music, TV shows and other copyrighted material. The court gave the site three months to make the ordered changes or face a penalty of up to 5 million euros, or about $7.1 million.

The ruling, a Google translation of which is here, stemmed from a lawsuit filed by the Brain Foundation, which argued that as much as 90% of a random selection of files accessible through the site contained copyrighted material.

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Source: informationweek.com
By: Antone Gonsalves

Technology is changing IT disaster recovery outsourcing

Many enterprises have been insourcing IT disaster recovery (DR) in recent years through a combination of disk-based backup, server virtualization and, increasingly, cloud server capacity. DR providers are now doing many of the same things, changing the nature of what CIOs can and should expect from outsourcing DR.

One clear example is the shift from tape to disk backup. DR providers have long made a living picking up and storing tapes. Now, almost all the vendors interviewed for our DR trends story said they were advising clients to move from tape to electronic vaulting for backup, both to save money and improve recovery service levels.

While tape certainly is less expensive than a replication infrastructure, providers said that CIOs need to factor in the "people and risk" costs associated with tape in a recovery scenario, including the time spent on managing the tape, the risk of lost tapes, and being unable to recover tapes.

Consultant Jon Toigo, CEO of Toigo Partners International, a DR expert and contrarian, argues that many of the problems with tape backup can be fixed by batching jobs according to volume of data and connecting interface speed to the network. "Set up the job as a string of sequential jobs," he said, by investing in a storage resource management tool.

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Source: searchcio.techtarget.com
By: Linda Tucci

eDiscovery could be next target for ECM vendors

At the end of last year, I tried to predict some trends for this year, and right there at number three was "eDiscovery continues to grow." As it turns out, I think that prediction has held true. It's no secret that this has been a good year for eDiscovery, and that could mean that some of the stand-alone eDiscovery companies have caught the eye of ECM vendors looking to expand their portfolios and get in on some of the action.

As courts demand faster and more comprehensive compliance with requests for electronic records discovery, law firms and companies buried in electronic records have turned to eDiscovery software vendors like Recommind and Kazeon to help. Perhaps that's why I wasn't surprised when I came across this post on BNET, reporting that EMC was rumored to be interested in Kazeon. While the rest of the industry struggles, eDiscovery grows and it makes a lot of sense that the major vendors would start cherry picking the eDiscovery vendors out there.

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Source: fiercecontentmanagement.com
By: Ron Miller

The Cost of Data Management

One of my all-time favorite movies is All the President's Men. The best line in the movie is when Deep Throat (played by the great character actor Hal Holbrook) meets with Bob Woodward (Robert Redford) and hears him explain how his investigation has hit a dead end.

After a pause, Deep Throat coolly advises: "Follow the money." Those words become the driving force behind the Watergate investigation that ended with President Nixon's resignation.

This memorable scene comes to mind as I've listened to many of you talk about your biggest pain points today. Right after the economy, the three most common words would be "follow the data." While the cost of storage keeps falling, the cost of data management keeps climbing.

IDC (a sister company to CIO) reports that, with a compound annual growth rate of almost 60 percent, the digital universe is projected to hit nearly 1.8 zettabytes (1,800 exabytes) by 2011. That's a tenfold increase within five years.

What are the core factors driving this enterprise data explosion? Eric Knorr, editor in chief of InfoWorld, identifies those factors in five categories:

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Source: computerworld.com
By: Michael Friedenberg

Deduplication: Custodian vs. Case

Deduplication has become a mainstay of electronic data discovery processing where documents, such as word-processing files and e-mail messages, are assigned an algorithmically calculated alphanumeric value (typically an MD5 hash) and compared to all other electronic files in a data set. Documents with the same MD5 hash values are considered duplicates. As simple as this process seems, there are two different bases for deduplication: by custodian and by case. Both have their advantages and pitfalls.

Deduplicating documents by custodian results only in the removal of duplicates within one person's data set. A custodian is the owner of the electronic data harvested from one person's hard drive, company network or e-mail account. If the data is collected only once, typically only a small number of duplicates exist. But if the custodian's data is harvested on a rolling basis over time, the percentage of deduplicated items will increment with successive collections. For example, a file containing one week of e-mail messages will contain a relatively small amount of new data compared to the previous week's messages. Examples of duplicate documents per custodian may be, for example, copies of e-mail messages created automatically by an "AutoArchive" rule established by the custodian.

Deduplication by custodian is the basis preferred by vendors for several reasons. One obvious reason: deduplicating data sets by custodian results in fewer duplicates than deduplication by case and thus more documents can be generated for review -- vendors that offer to print data sets on demand can possibly earn the most income by deduplicating by custodian. For a more subtle reason, custodian deduplication provides the fewest headaches and worries to the EDD processing vendor and makes it easier to communicate to the law firm how data sets were deduped using the hash comparison explained above. But it is not as easy to conduct and explain deduplication by case, or global deduplication.

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Source: law.com
By: Alex K. Schiller

Backup Strategies for Data, Multimedia, System Files

Your hard drive might crash. Thieves might steal your laptop at a café. You might realize on Friday that you desperately need the now-departed Wednesday version of an important document that you significantly altered on Thursday.

Your hard drive might crash. Thieves might steal your laptop at a café. You might realize on Friday that you desperately need the now-departed Wednesday version of an important document that you significantly altered on Thursday.

At times like these, having a secure, up-to-date backup of your hard drive can be a lifesaver. Here are seven practical strategies, including using USB storage, backing up via the Internet or through your local network, backing up Windows itself, and preserving huge media files like songs and videos.

What to Back Up

Your hard drive may contain hundreds of thousands of files. Many of them should be backed up every day, others only oc­­casionally, and still others--including temp files, the hibernation file (hiberfil.sys), and your browser cache--not at all. Let's look at the different kinds of files individually.

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Source: news.idg.no
By: Lincoln Spector

Look Into the Future of Litigation Tech

In the single generation since computer litigation support became commonplace in American firms, the role of the lawyer as the primary agent in organizing and analyzing pretrial discovery has faded from foregone conclusion to marginal factor.

Ostensibly, this shift away from lawyers personally conducting their own trial preparation became necessary because of the vastly greater scale of information now found in discovery. As electronically generated communications and documents became the mainstay of personal and corporate communications, word was that lawyers could not keep up with so much information and that computer litigation support technologies would solve the problem of analyzing so many documents.

After wading neck deep in electronic discovery for the past decade, lawyers have realized that there is a gap -- more like a chasm -- between what a string of binary code can make a computer do with information and what a dual-hemisphered lawyer's brain needs to accomplish with it in preparing for trial. The honeymoon with legal computing is over -- the giddy days when technology was the object of everyone's desire, adored but never to be judged. What kind of meaningful relationship is ahead in the marriage of litigators and computers, now that lawyers want technology that respects their intellect and do not just want to flaunt a trophy PC?

Twenty years ago, technology advocates, myself included, told every lawyer who would listen that litigation technology could even the playing field for smaller law practices. Any lawyer would be able to take on cases of massive scale by harnessing digital technology to cope with legions of facts that only the largest firms could handle before the advent of the personal computer. Implicit in those promises was the empowerment of individual lawyers to try complex cases without a coterie of associates, paralegals and contract employees. Trial technology would make it possible to try a difficult case as long as a lawyer had the will, even if he did not have the wallet.

What has become of that idealism almost 10 years into the new millennium? While there certainly are more complex criminal and civil trials today, featuring millions of documents sprung from computers and countless file storage boxes, has technology delivered on its promise to democratize trial law, as it has democratized video and print publishing, the Web and Internet commerce? Can the average lawyer with an average budget master a big case with the aid of technology? The answer is clearly "no," or at least "not yet."

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Source: law.com
By: Sam Guiberson

Social Networks Help Judges Do Their Duty

Judges and lawyers are among the millions of people using online social networking sites such as Facebook. But there are few rules to guide them in the legal arena.

Should a judge set limits on what alleged juvenile offenders can post on their MySpace pages? Should a lawyer be wary about discussing clients and cases online?

What follows are three takes on how Texas judges use social networking sites to help them do their jobs.

On July 31, Judge Susan Criss of Galveston's 212th District Court was a panelist at an American Bar Association Judicial Division discussion titled "Courts and Media in the 21st Century: Twitterers, Bloggers, the New Media, the Old Media, and What's a Judge to Do?"

Criss, a judge since 1999, says she started using Facebook about six months ago when she accepted an assignment on the planning committee for her 30th high school reunion and needed to track down alumni. A Facebook regular since then, she has one page she uses for personal and professional networking purposes. She says she started "friending" lawyers on Facebook to network and possibly to campaign in the future. (Friends generally can see what other friends post on their Facebook pages.) But Criss steers clear of what may be perceived as online ex parte communications by asking lawyers who represent parties in her courtroom to "de-friend" her when a trial commences.

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Source: law.com
By: Miriam Rozen

Two Courts, Two Views of 'Rambus'

The obligation that can arise to preserve documents when litigation is contemplated holds true in patent cases. There are many types of events that will almost certainly lead to a duty to preserve, such as a breakdown of licensing negotiations and conducting litigation firm "beauty contests." There also are things that could lead to an earlier duty to preserve, such as developing licensing and litigation strategies, identifying potential targets and creating claim charts. In addition, one must consider more administrative tasks, such as litigation budgeting and setting litigation-oriented employees' goals. Finally, one must be conscious that a duty to preserve may be imposed even before the cause of action exists.

On Jan. 9, the U.S. District Court for the District of Delaware issued a surprising decision, holding that Rambus Inc.'s patents-in-suit were unenforceable against Micron Technology Inc. due to spoliation. Micron Tech. Inc. v. Rambus Inc., 255 F.R.D. 135 (D. Del. 2009). The decision was surprising because the U.S. District Court for the Northern District of California reached a contrary decision two years earlier, has since upheld that decision and has awarded Rambus nearly $400 million against HynixSemiconductor Inc. Hynix Semiconductor Inc. v. Rambus Inc., 591 F. Supp. 2d 1038 (N.D. Calif. Jan. 5, 2006). However, while both courts looked at essentially the same facts, there were differences in the two cases that caused them to reach very different conclusions.

As one would expect of similarly oriented analyses of essentially the same facts, there is significant commonality between the two opinions. To start, both opinions discussed Rambus' history, that it was founded and filed its first patent application in 1990. Both mentioned Rambus' participation in the Joint Electron Devices Engineering Council from 1991 to 1995.

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Source: law.com
By: Michael Sutton and David Terrell

E-Discovery: What Technology Professionals Must Know

In 2006, the Federal Rules of Civil Procedure - the court process for civil lawsuits - were changed because more than 95 percent of all information is now electronic. Many other states have followed suit, and litigation in the U.S. is now dominated by electronically stored information (ESI). ESI has spawned a new consulting marketplace of consultants, IT professionals and expert witnesses who specialize in the identification and control of ESI. As a result, IT professionals need to understand the Law of Evidence and Rules of Civil Procedure as much as they do the server technology and storage area networks.

Lawyers, on the other hand, have yet to master IT, not just IT lingo, but how IT professionals manage their business. So there is confluence of IT and law that has subsumed litigation in the U.S. Outside the U.S. courts and arbitration systems, we do not subscribe to the open-end litigation which happens in the United States.

In the U.S., litigation is ruled by state or federal courts systems, or by private arbitrations governed by the rules of the American Arbitration Association, or some other organization like Judicial Arbitration and Mediation Services (JAMS), a private alternative dispute resolution (ADR) provider.

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Source: govtech.com

Getting To The Last Copy Of Data

One of the storage management challenges we see every day in customer data centers is there are too many copies of data in circulation. Ironically its this fact that built much of the value and motivation behind data deduplication. It should not be this way. Why should you get to a last copy of data?

One of the downsides to inexpensive capacity is that storage practices don't have to be as strict. You can store hundreds of versions of the same or similar data and suffer limited hard cost impact. Deduplication further enhances the affordability of capacity making this practice more forgivable from a expense standpoint.

Of course the data is not just stored multiple times on the file server, versions of it exist on laptops, thumb drives, tape media, replicated disk and a host of other "just in case" storage locations. Ironically it seems, especially as this data ages, having this many copies of the same piece of data make it no easier to find nor any faster to recover, it just means there are that many more places to look for the data.

Ideally a best practice would be that as data ages there are less copies of it and the final copy moves to a known good location, potentially a disk archive solution and is replicated to a disk archive at a disaster recovery site. This means that part of the policy will be to have inactive data moved to an archive much sooner. Disk archive as we discuss in our article on Archiving Basics enables a much more aggressive migration policy because the recall of data happens with almost no noticeable performance impact on the user. In addition the backup application will need to be set to tape media age-out and be retired much sooner.

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Source: informationweek.com
By: George Crump

How to destroy old backups

Much of the emphasis in the data backup world revolves around recovering data, but what about data you want to destroy rather than recover?

You don't want to just dump tape cartridges or disk in the trash. That's not green, and it may cause legal problems if the media contains personal information such as social security numbers. But there are environmentally friendly options for destroying backup media, whether it's tape or disk. There are also software programs that will overwrite data, and there is degaussing, which exposes the media to a powerful magnetic field and wipes out all of the data. Another option is to send your tapes to a company that offers tape destruction services.

According to a June 2009 research report by the Enterprise Strategy Group called "Protecting Confidential Data Revisited," 53% of large enterprises surveyed used "brute-force" methods, such as physically destroying their disk drives and tapes. Other enterprises used data destruction software (35%) and homegrown tools and processes (25%). But whatever method they chose, 82% of respondents said they have formal policies and procedures in place for data destruction of storage media.

Green data destruction

Russ Fellows, senior analyst with the Evaluator Group, considers destroying data with a degausser the greenest method for data destruction.

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Source: searchstorage.techtarget..com.au
By: Heather Darcy

Integreon Releases eView(TM) 3.0 for Increased Productivity of Attorney Document Review

Integreon, the global leader in integrated discovery solutions and legal process outsourcing (LPO), today announced the launch of its eView(TM) 3.0 platform for hosted document review. eView is Integreon's marquee offering for efficient workflow management and productivity tracking of complex attorney document review.

The new eView release enables legal professionals to better manage the risk of electronic discovery and lower the cost of document review, which is the most expensive stage of e-discovery. New concept search and document clustering use advanced mathematics to allow users to find similar, related, and relevant documents based purely on the concepts discussed within those documents; and the representation of the results in cluster formation allows users to quickly gain an understanding of the various topics the data contains prior to performing a doc-by-doc traditional linear review. Production and privilege log management further ensures that only those documents targeted for production are actually produced.

"eView is a key component of our integrated Doctane(TM) discovery services platform that lets corporations and law firms buy all of the component parts of the discovery process from one single provider," said Matthew Banks, senior vice president of legal process outsourcing at Integreon. "Our integrated discovery approach has numerous benefits for lawyers - including improved defensibility, unified project management, reduced risk through seamless chain of custody, and predictable and reduced cost that eliminates the 'blank check book' concern of working with multiple vendors."

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Source: prnewswire.com

Ethics: Harder in a Recession?

Information technology consultant Dena L. Smith lays out a hypothetical dilemma: Should an IT department hire a more expensive vendor because the vendor shares its own company's ethics standards, or should it go with a lower-cost provider that doesn't?

Companies with established ethical standards that guide how they conduct business frequently confront this kind of question, Smith says, but it's a particularly tough question today, given the recession.

Prediction: Former HP CEO Carly Fiorina formally announces run for U.S. Senate?
With IT departments forced to cut budgets and staff, CIOs will find it difficult to allocate dollars for applications that promote corporate ethics.

"The decisions were easier in the days when the economics were favorable, but the choices may have to be more limited now," says former CIO John Stevenson, president of consultancy JG Stevenson Associates. "Now it's how much can you afford to do versus how much do you have to do so you don't get burned."

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Source: thestandard.com
By: Mary K. Pratt

How Many Electronic Copies Is Too Much?

If you send an e-mail to three people, your system keeps one copy, with all three people listed in the "To" field. If you need to see all your e-mails to just one of those people, you search for that name. It's still just one copy. Indeed, it would be silly to have multiple copies. The same holds true for document discovery repositories, yet a recent survey suggests that lawyers still don't "get it," and often insist on keeping multiple, unnecessary copies.

Lawyers who fail to check for duplicates across multiple custodians, instead removing only duplicates from within the records of individual custodians, end up reviewing at least 20 percent more records on average. Whether or not their document review bills are ever audited, these lawyers are not meeting their ethical obligations to both clients and the justice system.

In May, we surveyed electronic data discovery providers to learn what their clients requested with respect to management of duplicate records.


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Source: Law.com
By: Anne Kershaw and Joseph Howie

Apple exec balks at testifying, Mac clone maker claims

Psystar wants judge to force Phil Schiller to explain how clones injure Apple

The Mac clone maker battling with Apple over copyright infringement allegations complained to a federal judge Tuesday that a top Apple executive was "unprepared" and "unwilling to testify" during a recent deposition.

In a separate brief, Florida-based Psystar also revealed the "bootloader" it initially used to start up Mac OS X 10.5, aka Leopard, on the generic Intel-based machines it sells.

On Tuesday, lawyers for Psystar told U.S. District Court Judge William Alsup that Philip Schiller, Apple's senior vice president of marketing, "appeared at his deposition wholly unprepared and unwilling to testify" on the subject of how Apple was damaged by the clone maker's practice of installing Mac OS X on its computers.

According to Psystar, Schiller was deposed a week ago, on Aug. 13, as part of a deal Psystar and Apple struck that to let both companies' lawyers take depositions from the other's employees.

Others on the deposition list included Bob Mansfield, Apple's senior vice president of Macintosh hardware engineering; Mike Culbert, the senior director of Mac hardware; Simon Patience, who heads Apple's core operating system development; and Mark Donnelly, a vice president of finance at Apple.

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Source: cio.com.au
By: Gregg Keizer

EMC Rumored Buying eDiscovery Vendor Kazeon

EMC looks set to expand its document management and storage business with the adjunction of ediscovery specialist Kazeon Systems.

EMC and Kazeon are already partners, so EMC knows exactly what it’s getting, and an acquisition would ensure that Kazeon doesn’t get snapped up by rivals like Oracle, HP or Microsoft, which also provide application suites intended to help enterprise customers manage their vast stores of data. The deal also illustrates the success that vendors are having in convincing enterprise customers that ediscovery software can be a more strategic tool than simply a way to ensure compliance with government regulations and litigation rules.

In fact, EMC also partners with two other ediscovery vendors, Clearwell and StoredIQ, but those vendors sell more limited point solutions geared uniquely to legal applications, while Kazeon has more rounded expertise in enterprise search. Kazeon is thus a more compelling acquisition because EMC can position its search technology and expertise as a more strategic application and expand further into enterprise search, which is one of the few sectors of the software industry that didn’t miss a beat despite the downturn.

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Source: industry.bnet.com
By: Michael Hickins

Boom & Bust: E-discovery Industry Seeing Slower Growth, More Mergers

A funny thing happened on the way to amending the federal Rules of Civil Procedure in 2006: That watershed event triggered a surge of investment in e-discovery software and services, fueling a mini tech bubble. The number of players exploded from a few dozen in 2000 to about 600 these days.

“It was almost like a gold rush,” says John Bace, research vice president of Gartner Inc. in Stamford, Conn. “People saw e-discovery as a quick and easy way to make money.”

With data and lawsuits proliferating, there still is plenty of money to be made in electronic data discovery. Look no further than the exhibit hall at ABA Techshow 2009, where e-discovery vendors were prominent.

Commercial spending in this young niche is expected to increase this year by 20 percent to $4.05 billion, according to consultant George J. Socha Jr., who co-founded the Electronic Discovery Reference Model, an industry consortium that sets guidelines and standards.

But growth has slowed sharply from annual rates of more than 40 percent just a few years ago, according to Socha’s surveys. And it’s getting much harder to compete profitably in an industry that is coming of age during the worst economic downturn in decades. For one thing, clients no longer are willing to write open-ended checks for services that easily can exceed $1.75 million for an average case.

“Growth has started to moderate and margins have started to decrease,” says Nick Baughan of investment banking firm Marks Baughan & Co. in Cornshohocken, Pa., which advised such deals as Applied Discovery’s sale to LexisNexis.

“There is real technology disruption,” he adds. Big tech companies continue developing tools to classify and store data in formats that permit more efficient archival and retrieval for litigation and regulatory review. “They can do it at a push of the button,” Baughan says.


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Source: abajournal.com
By: Barbara Rose

For Discovery Violations, Court Sanctions Plaintiff and Counsel... Again

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 2407754 (M.D. Fla. Aug. 3, 2009)

In this case, plaintiff Bray & Gillespie Management, LLC (“B&G”) sought to recover payment for, among other things, business interruption losses allegedly suffered as the result of damage from Hurricane Jeanne in 2004. Defendant, Lexington Insurance Company (“Lexington”), refused payment for several reasons, including its belief that the damages alleged were caused by two prior hurricanes and that the hotel at issue was not open at the relevant time. In this opinion, one of several addressing discovery issues in this ongoing litigation, the court addressed Lexington’s motion for sanctions following numerous discovery violations on the part of B&G and its counsel. The alleged violations revolved around the untimely production of “room folios” – evidence which would have shown who, if anyone, had stayed at the hotel following Hurricane Jeanne, and thus, the extent of the business interruption losses sustained. Finding in favor of Lexington, the court prohibited B&G from presenting evidence in support of their claim for business interruption losses, struck the portions of their expert’s report addressing that claim, and ordered B&G and counsel jointly and severally liable for Lexington’s reasonable expenses.

While the details are numerous, the crux of Lexington’s motion for sanctions was B&G’s failure to adequately and timely respond to discovery, including its failure to timely and diligently search for and produce requested room folios. Moreover, as established in the court’s opinion, plaintiff’s counsel acted in a “deplorable” manner by making misrepresentations regarding the completeness of plaintiff’s production and by purposefully delaying the production of the room folios in order to obtain strategic advantage during the deposition of Lexington’s expert witness, even in the face of numerous court orders directing

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Source: ediscoverylaw.com

Court Articulates Analysis Under FRE 502, Finds No Waiver of Inadvertently Produced Emai

Coburn Group, LLC v. Whitecap Advisors, LLC, 2009 WL 2424079 (N.D. Ill. Aug. 7, 2009)

In this case, defendant, Whitecap Advisors LLC (“Whitecap”), sought to compel the return of one privileged email and to strike deposition testimony regarding the same. Plaintiff, Coburn Group, LLC (“Coburn”), resisted returning the email arguing that it was not protected work product, that privilege was waived by production, and that Coburn was “entitled” to the email because it revealed that Whitecap had mislead the court. Finding that the email was protected as work product and that no waiver occurred, the court granted Whitecap’s motion.

In responding to Coburn’s discovery requests, Whitecap provided its counsel with approximately 72,000 pages of potentially responsive documents. Counsel assigned two experienced paralegals to review the documents and to separate them into categories, including privileged materials. 40,000 pages were eventually produced. Counsel learned of the inadvertent production only when Coburn’s counsel began to question the author of the email about it at deposition. Counsel for Whitecap objected at that time and re-stated his objection in following days, including in writing. Coburn resisted returning the email and the parties agreed to allow Coburn time to research the issue. Coburn agreed to “quarantine” the email in the interim. Resolution could not be reached, and Whitecap filed a motion to compel the email’s return.

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Source: ediscoverylaw.com

Los Angeles gets its Google Apps groove

On August 11, Randi Levin, the chief information officer of the city of Los Angeles, stood before City Council members at a hearing of the information technology committee and made her case for why the nation's second-largest city should adopt Google Apps.

"The ability to get whatever information the city needs, whenever they need it, on whatever device they need it on will fundamentally change the way the city works and enhance productivity greatly," she said. "In a fiscal crisis it is difficult to find technology solutions that will save money without requiring a significant capital outlay to achieve those objectives."

Security concerns have kept many government agencies and large corporations away from Google Apps. That is starting to change. A number of small U.S. cities are using the suite and there are Google Apps pilots in more than a dozen federal agencies. If Los Angeles signs on, it would join the District of Columbia as one of the largest government adoptions.

Randi Levin, chief information officer of the city of Los Angeles and a key player in the city's move to adopt Google Apps.

(Credit: City of Los Angeles)Security experts and officials in other state and federal government departments tend to be wary about outsourcing the management and storage of highly sensitive data to an outside company.

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Source: news.cnet.com
By: Elinor Mills

Eight top tips to ensure your business continuity plan is upto scratch

In the event of a widespread outbreak of swine flu expected this autumn is your IT department ready and what are your business planning assumptions? Here are eight top tips to ensuring business continuity.

A human influenza pandemic is considered a certainty - when it happens is uncertain. It is estimated that illness will be highest among school children (about 40%) and decline with age. Among working adults, an average of 20% will become ill during an outbreak. People can transmit infection for up to one day before the onset of illness. Viral shedding and the risk of transmission will be greatest during the first two days. Multiple waves (periods during which outbreaks occur across the country) of illness could occur with each wave lasting two to three months. For businesses, rates of absenteeism will depend on the severity of the pandemic. If severe, absenteeism attributable to illness, the need to care for others, public transportation closures, may reach 40% during the peak of an outbreak.

1. Continuity Planning
Business continuity planning for pandemic influenza is critical, particularly in the IT department, as your organisation will be relying on IT like never before. So identify a pandemic coordinator and/or team with defined roles and responsibilities for preparation and response planning immediately. The planning process should include input from all relevant stakeholders in your business including sub-contractors, outsourced services and the logistic providers needed to maintain business operations by location and function.

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Source: computerweekly.com
By: Michael Pincher

Apple Involved in Second No-Employee-Poach Mess

Apple has been attracting significant attention from regulators and the press for some of its actions: alleged product safety issue with iPods and iPhones and its relationship with Google, including having Eric Schmidt on the board, banning Google Voice from the iPhone app store, and engaging in an unofficial policy of not hiring people away from each other. Now Connie Guglielmo at Bloomberg has a story claiming that Palm’s ex-CEO Ed Colligan rejected overtures from Steve Jobs to similarly implement a no-poach policy.

Colligan, who stepped down as CEO in June, discussed the matter with Jobs in August 2007, as the mobile-phone war heated up, according to the communications. Apple had introduced the iPhone two months earlier, just as Palm hired a former Apple executive, Jon Rubinstein, to develop new smart phones. Jobs, Apple’s CEO, told Colligan he was concerned that Rubinstein was recruiting Apple employees. “We must do whatever we can to stop this,” Jobs said in the communications.

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Source: industry.bnet.com
By: Erik Sherman

Make sure you talk to your lawyers

As an IT manager, it's important to really know your company's legal team, not just who they are. It's important to have conversations with them long before you have to.

Gartner blogger Frank Kenney outlines what you need to know from the legal department. Here are a few questions to ask:

•How is information that flows in and out of your department governed and controlled?
•How are you maintaining chain of custody processes and procedures?

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Source: fiercecio.com

Report: Cloud services can't handle the pressure

According to a new report by researchers in Australia, stress tests have revealed that the "infrastructure-on-demand services offered by Amazon, Google and Microsoft suffer from regular performance and availability issues."

The seven month study of Amazon's EC2, Google's App Engine, and Microsoft's Azure cloud computing services simulated 2,000 concurrent users connecting to services from each of the three providers, with researchers measuring response times and other performance indicators.

The results were at best mixed, and at worst, severely dysfunctional. For example, I'd never heard that when using Google App Engine, none of your data-processing tasks can last longer than 30seconds, lest the service throw an exception back at you.

Researchers found that the three platforms "delivered wildly variable performance results as Amazon, Google and Microsoft trialled, added and dropped new features."

Response times on the service also varied by a factor of 20 depending on the time of day the services were accessed. Anna Liu, associate professor in services engineering at the University of New South Wales School of Computer Science responsible for the study, also noted the immature monitoring tools and the inability to accurately estimate cost:

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Source: news.cnet.com
By: Dave Rosenberg

Search for email evidence in BC Rail corruption case taxing Speaker's staff

The search for potential evidence in the BC Rail corruption case is apparently taxing staff at the B.C. legislature in Victoria as they prepare for a new session that starts Monday.

A lawyer for Speaker Bill Barisoff told B.C. Supreme Court Judge Elizabeth Bennett the Speaker's staff have worked weekends and given up vacations to fulfil a defence request to unearth old MLA emails that may be related to the case.

Frank Falzon said via conference call from Victoria he's ready to turn over a batch of emails from 15 MLAs named in an earlier court order.

But he is balking at a new list of email searches requested by the defence, which he says are too broadly worded, will take hundreds more hours and which in some cases infringe on legislative privilege.

Former cabinet aides Bobby Virk and Dave Basi are charged with fraud and breach of trust related to the $1-billion sale of Crown-owned BC Rail to CN Rail in 2003.

Basi's cousin, former government communications officer Aneal Basi, is charged with money-laundering.

The ministerial assistants were charged in the wake of a Dec. 28, 2003 police raid on the legislature looking for evidence they had leaked information about the sale process to Pilothouse Communications, a lobby firm employed by CN competitor OmniTrax.

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Source: google.com
By: Steve Mertl

Successfully Navigating Cross-Border E-Discovery Disputes

Conducting cross-border e-discovery is rife with challenges, but it has become an inescapable part of doing business globally. Fortunately, there are processes and policies that will help an enterprise successfully navigate these treacherous waters and ensure a successful outcome when engaged in a cross-border dispute.

Sun Microsystems (Nasdaq: JAVA) CEO Scott McNealy summed up the American policy on the disclosure of corporate and personal information when he said, "You already have zero privacy -- get over it."

Corporate America has widely accepted the erosion of data privacy and the fact that electronic data residing within an organization is no longer private. Legal and IT departments take it one step further, understanding that any and all electronic data housed within an enterprise is subject to discovery for litigation or investigatory purposes.

Without weighing in on the pros and cons of our lack of information privacy, it is interesting to note that the U.S.'s laissez-faire concept of privacy exists in stark contrast to the ideas held in much of the developed world, where data privacy is a "fundamental human right."

However, as regulators increasingly crack down under laws such as the Foreign Corrupt Practices Act (FCPA), and more and more business transactions cross international borders, this debate moves from the philosophical to the practical.

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Source: technewsworld.com
By: Dean Gonsowski

Legal Implications of Cloud Computing — Part One (the Basics and Framing the Issues)

I had the pleasure of hearing an excellent presentation by Tanya Forsheit on the legal issues arising out of cloud computing during the ABA Information Security Committee’s recent meeting (at the end of July) in Chicago. The presentation resulted in a spirited debate between several attorneys in the crowd. The conversation spilled over into happy hour and became even more interesting. The end result: my previous misunderstanding of cloud computing as “just outsourcing” was corrected, and now I have a better appreciation of what “the cloud” is and the legal issues cloud computing raises.

Bottom line: this is not your father’s outsourcing relationship, and trying to protect clients with contracts may be very difficult or impossible unless the cloud computing community begins to build standards and processes to create trust. This post is not for my tech/security friends, it is for the attorneys out there, especially the general counsel and transactional attorneys who draft terms for tech contracts (e.g. outsourcing contracts, ASP contracts, software licenses, etc.). So tech friends, please cut me some slack as I completely mangle proper terminology in order to try to explain this in plain English (and of course if I get something wrong, shoot me a comment or email so I can correct — we attorneys need you on this one).

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Source: infoseccompliance.com

Some missing documents recovered, court told

Some potentially relevant internal government e-mails in the BC Rail corruption case that were said to have been erased have been recovered, government lawyer George Copley told B.C. Supreme Court yesterday.

The case of the missing documents made headlines when it was disclosed that four years of B.C. cabinet e-mails between 2001 and 2005 might have been wiped out, much to the anguish of defence lawyers who contend their clients, charged with fraud and breach of trust in connection with the sale of BC Rail, were acting on government instructions.

But Mr. Copley said a search of backup tapes from e-mail servers has turned up 97 that could be relevant to current proceedings. In addition, 48,000 more documents have also been recovered. However, they have not yet been analyzed for relevancy, he said.

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Source: theglobeandmail.com

Allocating E-Discovery Costs in New York

The explosion of electronically stored information and the issues it raises for litigators has been well chronicled by federal judges and commentators of federal procedure. So, too, have the issues about who is responsible for paying the soaring costs incurred to preserve, search, retrieve, review and produce ESI in the discovery process.

Indeed, "cost-shifting" with respect to e-discovery was at the center of the seminal decisions Rowe Entertainment Inc. v. William Morris Agency Inc.,[FOOTNOTE 1] and Zubulake v. UBS Warburg LLC.[FOOTNOTE 2] That is because the discovery provisions of the Federal Rules of Civil Procedure presume that the party responding to document requests bears the costs of producing the documents.[FOOTNOTE 3] Consequently, federal courts are routinely required to balance the need of the requesting party for e-discovery against the burden and expense imposed upon the responding party and to decide how the costs of such discovery should be allocated among the parties.

Much less has been written on who pays for e-discovery in New York state court litigation.[FOOTNOTE 4]

Initially, one might conclude that is because the CPLR is clear on the subject: Contrary to the federal courts, New York courts presume, on the basis of CPLR 3120, that the requesting party pays for the documents it seeks.[FOOTNOTE 5] It follows that a requesting party must also bear the costs incurred with the production of ESI. Generally, that has been the conclusion of the trial courts that have been confronted with the question of who should pay for e-discovery.[FOOTNOTE 6]

The issue does not end there, however. No New York appellate court has yet ruled on whether a requesting party presumptively bears the costs of e-discovery. Furthermore, several courts and bar-bench committees have proposed or instituted rules to govern e-discovery and none of them presupposes that the requesting party is exclusively responsible for the costs of e-discovery.

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Source: law.com
By: Christopher M. Caparelli and Tracy Zanco

For Litigators, a Different Kind of Recession

The hoped-for litigation surge hasn't materialized, and the fear is that this economy has changed the old rules

What happened to the wave of litigation that was supposed to swamp corporate America in 2009?

A year ago, as the economy began its freefall, corporate law departments were preparing for an all-out assault by plaintiffs. Some 34 percent of in-house counsel polled as part of Fulbright & Jaworski's annual Litigation Trends Survey said they expected to face more suits against their companies in the coming 12 months -- a significantly higher percentage than in the previous year. That result made sense: Recessions usually breed litigation.

The early numbers for this recession are showing something quite different. Litigation, a number of recent surveys show, isn't really all that more active than it was before the recession. The Hildebrandt International Peer Monitor Economic Index -- a quarterly survey of legal market conditions -- reported in May that demand for litigation services among Am Law 200 firms was flat during the first quarter of 2009 compared with the same period in 2008. A Hildebrandt study released in January found that demand for litigation services in 2008 dropped by 3 percent compared with 2007 -- a result the study's authors called "surprising." Boston-based BTI Consulting Group surveyed general counsel at Fortune 1000 companies in May and found that legal departments on average spent 1 percent less on litigation during the first half of 2009 compared with one year earlier.

Average spending on intellectual property litigation dropped even more, by nearly 8 percent, said BTI President Michael Rynowecer. BTI's findings were in line with recent data from the Stanford Law School IP Litigation Clearinghouse indicating that intellectual property litigation has dropped off. The clearinghouse reported that the total number of patent infringement filings fell by more than 8 percent in 2008 compared with 2007, and the decrease has been steeper so far in 2009.

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Source: law.com
By: Karen Sloan

'Vanish' Encryption Raises Serious E-Discovery Concerns

Last week I spoke to Adam Landa, a Greenberg Traurig shareholder who co-chairs the law firm's e-retention and e-discovery practice group about the Vanish encryption technology that, in essence, allows electronic documents to "self destruct" after a period of time.

First, he spoke about how such technology could impact a company's data retention obligations and perhaps open the company to liabilities if it cannot retain certain documents. Then Landa spoke specifically to the implications Vanish might have on e-discovery requirements for companies that are involved in litigation.

"It almost seemed like the Vanish team got so excited at the idea that they could get around all the technical barriers, that they didn't understand all the legal implications," he told me.

For instance, those implementing Vanish might subject themselves to adverse inferences or presumptions that they destroyed evidence in the event of litigation. Landa explained:

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Source: itbusinessedge.com
By: Lora Bentley

In this Recession, Litigation Isn't a Savior

Oh, litigation savior, where art thou? Over the last several months, stressed-out managing partners have slowly come to the distressing realization that a litigation tsunami is not going to carry all firms to safer and more profitable shores. If you want to see the depressing data, check out this National Law Journal piece (registration required) by Karen Sloan. Some snippets:

*Demand for litigation services in 2008 dropped by 3 percent from 2007, according to a Hildebrandt survey.

*Legal departments on average spent 1 percent less on litigation in the first half of 2009 than they did in the first half of 2008, according to a BTI survey of Fortune 100 general counsel.

*Patent infringement filings fell by more than 8 percent from 2007 to 2008--and this year the drop is even steeper, according to the Stanford Law School IP Litigation Clearinghouse.

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Source: law.com
By: Andrew Longstreth

Data Protection – It all starts with protecting your own!

Despite all the headlines created by the high profile loss of data the problems still continue. Only last week a GP in Ipswich was found to be in breach of the Data Protection Act when a PC was found in a car park with both patient and employee records on it and last month HSBC were fined over £3 million for data protection failings in 3 areas of the business – the list is endless.

Some of it is just out and out carelessness – firms have rules and procedures in place but people ignore them. They don’t see it as important. They attend training because they have to and switch off because it is dull and interesting. It won’t affect them!

Ignoring the loss of data through not following rules with the potential to land in the wrong hands the other big loss is by theft, and ID theft is big business.

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Source: blog.managers.org.uk
By: Adi

Q&A: Windows forensics

Harlan Carvey, CISSP, is a computer security engineer and book author. He has conducted penetration tests and vulnerability assessments in support of corporate and federal government clients. He has also performed a wide range of incident response activities, and conducts computer forensics research, with specific attention to the Microsoft Windows family operating systems. In this interview, he discusses Windows forensics, forensics in general, as well as his latest book.

How has Windows forensics evolved since the days of Windows XP? What does Windows 7 bring to the table?

Microsoft has a well-established habit of changing things up for forensic analysts... look at how memory analysis changes not only between versions of Windows, but in some cases, between Service Packs. Between XP and Vista, there were changes in how some information is recorded in files on the system, in particular in the Registry and the Event Logs.

As Microsoft "evolves" the user experience and adds complexity and functionality to the operating system and applications, what we're seeing isn't necessarily that forensic artifacts are going away, but rather that they're moving. As such, there's been a great deal of research in the community to map those artifacts, but the fact remains that there needs to be a great deal more in order to understand what interactions lead to the creation or modification of an artifact.

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Source: net-security.org
By: Mirko Zorz

Security and the Cloud

Will focus shift to the customer?

I was talking with Avanade’s Senior Director for Enterprise Security, Ace Swerling, earlier today. The conversation touched on a wide range of security and identity management issues that I’ll probably return to, but one of Ace’s comments brought my attention back to an issue that has been nagging at me for a while.

As I’m sure we all know, security concerns often figure highly in discussions about moving Enterprise applications and data to the Cloud. Indeed, I spoke with other Avanade executives earlier this year to report on a survey they had commissioned that suggested just how significant these concerns can be for potential customers.

In today’s conversation, Ace appeared to agree (as do I) with the frequent assertion that Cloud providers’ own systems will tend to be more secure than those that the majority of potential customers have in-house today. These service providers have their entire reputation riding on their security, it’s absolutely core to their business model, and they can invest in the facilities, procedures and people to get it right. They’re not claiming to be invincible; nothing is. But the good ones should certainly be capable of being as secure as anything else connected to a network.

Which brings me to the ‘problem;’ a data centre like the one in the video below can be physically and virtually secure, equipped with the best hardware, software, procedures and brains that money can buy.

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Source: java.sys-con.com