A House panel says documents obtained from a former Toyota Motor Corp. "whistleblower" lawyer are troubling, and it wants the Japanese automaker to respond.
House Oversight and Government Reform Committee Chairman Ed Towns, D-N.Y., said documents obtained under subpoena from former Toyota lawyer Dimitrios Biller "indicate Toyota deliberately withheld records that it was legally required to produce in response to discovery orders in litigation.
"Many of these documents concern 'rollover' cases in which a driver or passenger was injured, including cases where victims were paralyzed," Towns said.
A Texas court had blocked Biller from releasing the documents, but the subpoena from Congress superseded that ruling.
Toyota has rejected the claims of Biller, who was managing counsel in the product liability group of Toyota Motor Sales USA from April 2003 to September 2007.
"Toyota takes its legal obligations seriously and strives to maintain the highest professional and ethical standards in its legal and regulatory practices. It is not uncommon, however, for companies to object to certain demands for documents made in litigation," spokeswoman Cindy Knight said Friday. "Consistent with that philosophy, we take appropriate steps to maintain the confidentiality of competitive business information and trade secrets. We are confident that we have acted appropriately with respect to product liability litigation."
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Source: The Detroit New
By: David Shepardson
Saturday, February 27, 2010
Friday, February 26, 2010
Privacy, Discovery Collide Over Cell Phone Records in Auto Accident Litigation
"Few things are more personal and potentially more revealing than our phone records. The records of whom we choose to call and how long we speak with them can reveal much about our business and personal lives ..." -- Rep. Lamar Smith, introducing the Law Enforcement and Phone Privacy Protection Act of 2006, 152 Cong. Rec. E90-01 (daily ed. Feb. 8, 2006).
Individuals understand that with the decision to litigate a dispute comes the potential to have aspects of their lives made public that they would rather have kept private. Moreover, it is a reality that just by virtue of being named as a party to an action the same risk exists.
This article discusses recent case law delineating under what circumstances an individual's cell phone records become subject to disclosure in New York during the discovery phase of motor vehicle accident civil litigation. The first case, a decision out of Queens County and what will be considered the seminal state court case in this area, is Morano v. Slattery Skanska Inc., 18 Misc.3d 464, 846 N.Y.S.2d 881 (N.Y.Sup., 2007); second, is Page v. Napier, 2009 NY Slip Op 30325(U) (Sup. Ct. Nassau Co. 2009) (Brandveen, J.); finally, is the pronouncement by the Third Department in Detraglia v. Grant, 2009 NY Slip Op 09120 (3d Dept. Dec. 10, 2009).
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Source: Law.com
By: Joseph D. Nohavicka
Individuals understand that with the decision to litigate a dispute comes the potential to have aspects of their lives made public that they would rather have kept private. Moreover, it is a reality that just by virtue of being named as a party to an action the same risk exists.
This article discusses recent case law delineating under what circumstances an individual's cell phone records become subject to disclosure in New York during the discovery phase of motor vehicle accident civil litigation. The first case, a decision out of Queens County and what will be considered the seminal state court case in this area, is Morano v. Slattery Skanska Inc., 18 Misc.3d 464, 846 N.Y.S.2d 881 (N.Y.Sup., 2007); second, is Page v. Napier, 2009 NY Slip Op 30325(U) (Sup. Ct. Nassau Co. 2009) (Brandveen, J.); finally, is the pronouncement by the Third Department in Detraglia v. Grant, 2009 NY Slip Op 09120 (3d Dept. Dec. 10, 2009).
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Source: Law.com
By: Joseph D. Nohavicka
Thursday, February 25, 2010
ALM's Virtual LegalTech Kicks off Full Day of Live Webcasts and Complimentary CLE Seminars on March 18
ALM's Virtual LegalTech, an online complement to the world's largest and most prestigious legal technology conference and trade shows, will feature a full day of free live Webcasts and CLE-accredited seminars featuring legal industry experts on March 18. The event's virtual exhibit hall, featuring presentations and demonstrations from 19 vendors, will also be available to attendees from their desktops. For a complete conference agenda and to register, visit www.virtuallegaltechshow.com
Virtual LegalTech provides powerful online educational and networking opportunities and showcases the latest hardware, software, tools and services for the legal industry throughout the year. The fully interactive virtual environment enables participants to attend presentations and panel discussions, talk with vendors, view product demonstrations, collect information and network with colleagues. The show is open year-round, 24 hours a day, seven days a week.
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Source: tmcnet.com
Virtual LegalTech provides powerful online educational and networking opportunities and showcases the latest hardware, software, tools and services for the legal industry throughout the year. The fully interactive virtual environment enables participants to attend presentations and panel discussions, talk with vendors, view product demonstrations, collect information and network with colleagues. The show is open year-round, 24 hours a day, seven days a week.
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Source: tmcnet.com
Could Legal Technology Take the Cravath System ‘Back To The Future’?
Although the “Cravath System” has been declared dead for over a year now, this model of leadership has been on the rocks for much, much longer.
Over a century ago, millionaire lawyer Paul Drennan Cravath went out in search of the best and brightest young lawyers from the top law schools, paid them salaries, and mentored them in how to become great litigators. As an associate, you could stay at the firm as long as you were “promotable,” meaning that you had roughly eight years to make partner or you were out. The “Cravath System,” as it would eventually be called, was adopted by almost every major American law firm.
One could argue that part of the Cravath model’s destruction was due to the rise of legal technology. Yet one might also argue that legal technology will begin its rebirth.
The cracks in the Cravath system started to show in the late eighties and early nineties. Around that time, every office of every major firm was outfitted with a PC, and the birth of electronic documents began.
The age of the internet erupted during the mid-90s, and communication by email became mainstream. Because of this, American law saw the advent of e-discovery, and the cost of litigation exploded. Almost overnight, reviews for the discovery of documents were in the hundreds of thousands to millions. Highly-paid law firm associates began to supervise document reviews instead of litigating novel legal issues. Of the “best and the brightest,” fewer associates were “mentored,” making even fewer of them “promotable.” Staff and contract attorneys became more commonplace in large law firms as well.
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Source: Above The Law
By: Gabe Acevedo
Over a century ago, millionaire lawyer Paul Drennan Cravath went out in search of the best and brightest young lawyers from the top law schools, paid them salaries, and mentored them in how to become great litigators. As an associate, you could stay at the firm as long as you were “promotable,” meaning that you had roughly eight years to make partner or you were out. The “Cravath System,” as it would eventually be called, was adopted by almost every major American law firm.
One could argue that part of the Cravath model’s destruction was due to the rise of legal technology. Yet one might also argue that legal technology will begin its rebirth.
The cracks in the Cravath system started to show in the late eighties and early nineties. Around that time, every office of every major firm was outfitted with a PC, and the birth of electronic documents began.
The age of the internet erupted during the mid-90s, and communication by email became mainstream. Because of this, American law saw the advent of e-discovery, and the cost of litigation exploded. Almost overnight, reviews for the discovery of documents were in the hundreds of thousands to millions. Highly-paid law firm associates began to supervise document reviews instead of litigating novel legal issues. Of the “best and the brightest,” fewer associates were “mentored,” making even fewer of them “promotable.” Staff and contract attorneys became more commonplace in large law firms as well.
To Continue Reading: Click Here
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Source: Above The Law
By: Gabe Acevedo
When clouds need to stop at the border
Legal issues such as data privacy and compliance regs may have you considering where the clouds actually reside
Clouds are everywhere and can be used from anywhere, right? Wrong. The fact is that when considering national laws, you may find that your data is legally not able to leave the border.
That's the case in many parts of Europe that forbid some data from being transmitted or stored outside of the country. Canada also has some rules that prohibit some data being stored in the United States due to the U.S. Patriot Act's provisions that let the federal government examine corporate records.
[ Get the no-nonsense explanations and advice you need to take real advantage of cloud computing in the InfoWorld editors' 21-page Cloud Computing Deep Dive PDF special report, featuring an exclusive excerpt from David Linthicum's new book on cloud architecture. Stay up on the cloud with InfoWorld's Cloud Computing Report newsletter. ]
To get around this issue, several cloud computing providers, such as Amazon.com and Salesforce.com, have points of presence in many developed countries. There's a performance argument for this distribution of systems, but another reason is to adhere to many laws directing where some data can legally reside.
To Continue Reading: Click Here
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Source: infoworld.com
By: David Linthicum
Clouds are everywhere and can be used from anywhere, right? Wrong. The fact is that when considering national laws, you may find that your data is legally not able to leave the border.
That's the case in many parts of Europe that forbid some data from being transmitted or stored outside of the country. Canada also has some rules that prohibit some data being stored in the United States due to the U.S. Patriot Act's provisions that let the federal government examine corporate records.
[ Get the no-nonsense explanations and advice you need to take real advantage of cloud computing in the InfoWorld editors' 21-page Cloud Computing Deep Dive PDF special report, featuring an exclusive excerpt from David Linthicum's new book on cloud architecture. Stay up on the cloud with InfoWorld's Cloud Computing Report newsletter. ]
To get around this issue, several cloud computing providers, such as Amazon.com and Salesforce.com, have points of presence in many developed countries. There's a performance argument for this distribution of systems, but another reason is to adhere to many laws directing where some data can legally reside.
To Continue Reading: Click Here
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Source: infoworld.com
By: David Linthicum
Wednesday, February 24, 2010
Toyota, Take Two: Why “Reactive ECA” Doesn’t Work
As we reported last week, Toyota continues to face severe scrutiny amidst multiple recalls, Congressional hearings, grand jury subpoenas and a rising tide of public questions and concerns. Arguably the worst news for the car giant is the fact that the end of the barrage may be nowhere in sight – either on the technical fixes or the PR front. As is often the case in blowups like this, it appears that Toyota has been forced to play catch-up to the events unfolding in front of it (if not over its head) at breathtaking speed.
Wikipedia tells us that the 3 elements to a “Crisis Management” situation are 1) a threat to the organization, 2) the element of surprise, and 3) a short decision time. While we can debate about whether or not Toyota should have been surprised by their current predicament, clearly at this point the company is facing a serious threat, did not expect the situation to have evolved as it has (i.e. it’s safe to say Toyota was surprised), and decision cycles continue to shorten. Put another way, Toyota has been facing and continues to face a crisis; even worse, in the context of elements 2 and 3, this particular crisis appears to have the company very much in reactive mode, responding to events as opposed to shaping them by getting out ahead of things. Simply put, Toyota is not in control of events at this point in time.
This is where Early Case Assessment (ECA) comes in. The whole point of ECA is to 1) give a company instant insight into a situation (notice I did not say “case”), which will allow them to 2) quantify the costs and risk associated with the likeliest outcomes of a situation, and 3) make the best, most informed strategic and tactical decisions from the very outset of a situation. In other words, ECA is meant to allow a party to very quickly become proactive in any situation – making informed decisions that will shape and channel events before they occur. As we have stated again and again, this is impossible to do unless live data is assessed where it sits, before or concurrently with a legal hold or collection. This can logically be called “Proactive ECA” because that is exactly what it is: an early, quick assessment of one’s situation that gives one enough crucial insight to become proactive with any situation before events overtake them.
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Source: Recommind Blog
By: Craig Carpenter
Wikipedia tells us that the 3 elements to a “Crisis Management” situation are 1) a threat to the organization, 2) the element of surprise, and 3) a short decision time. While we can debate about whether or not Toyota should have been surprised by their current predicament, clearly at this point the company is facing a serious threat, did not expect the situation to have evolved as it has (i.e. it’s safe to say Toyota was surprised), and decision cycles continue to shorten. Put another way, Toyota has been facing and continues to face a crisis; even worse, in the context of elements 2 and 3, this particular crisis appears to have the company very much in reactive mode, responding to events as opposed to shaping them by getting out ahead of things. Simply put, Toyota is not in control of events at this point in time.
This is where Early Case Assessment (ECA) comes in. The whole point of ECA is to 1) give a company instant insight into a situation (notice I did not say “case”), which will allow them to 2) quantify the costs and risk associated with the likeliest outcomes of a situation, and 3) make the best, most informed strategic and tactical decisions from the very outset of a situation. In other words, ECA is meant to allow a party to very quickly become proactive in any situation – making informed decisions that will shape and channel events before they occur. As we have stated again and again, this is impossible to do unless live data is assessed where it sits, before or concurrently with a legal hold or collection. This can logically be called “Proactive ECA” because that is exactly what it is: an early, quick assessment of one’s situation that gives one enough crucial insight to become proactive with any situation before events overtake them.
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Source: Recommind Blog
By: Craig Carpenter
What is Content Management?
There's a question that keeps popping up around our industry: "What is Enterprise Content Management?"
You'll find no lack of answers. My colleague Alan argues persuasively that ECM is most useful as a term to describe the biggest platform vendor offerings. Industry association AIIM defines ECM as "...strategies, methods and tools used to capture, manage, store, preserve, and deliver content and documents..." AIIM also held a clever contest to define ECM, where the winning submission suggested it was about laundering and generally taking care of your documents as if they were your clothes. The discussion continues, and there are no lack of definitions.
I suspect the emphasis on ECM definitions stems from a disconnect. We have this all-encompassing term -- Enterprise Content Management -- that doesn't reflect how marketplaces and real-life projects actually break out into very specific categories and disciplines, like Document Management, Web Content Management, Digital Asset Management, Information Architecture, E-discovery, Process Improvement, and so on.
I think there's actually a deeper question that's looking for an answer here. Let's strip out "enterprise" and simply ask: What is Content Management?
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Source: cmswatch.com
By: Tony Byrne
You'll find no lack of answers. My colleague Alan argues persuasively that ECM is most useful as a term to describe the biggest platform vendor offerings. Industry association AIIM defines ECM as "...strategies, methods and tools used to capture, manage, store, preserve, and deliver content and documents..." AIIM also held a clever contest to define ECM, where the winning submission suggested it was about laundering and generally taking care of your documents as if they were your clothes. The discussion continues, and there are no lack of definitions.
I suspect the emphasis on ECM definitions stems from a disconnect. We have this all-encompassing term -- Enterprise Content Management -- that doesn't reflect how marketplaces and real-life projects actually break out into very specific categories and disciplines, like Document Management, Web Content Management, Digital Asset Management, Information Architecture, E-discovery, Process Improvement, and so on.
I think there's actually a deeper question that's looking for an answer here. Let's strip out "enterprise" and simply ask: What is Content Management?
To Continue Reading: Click Here
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Source: cmswatch.com
By: Tony Byrne
Step 1 for Legal Holds: Trigger Events
This series of articles provides an overview of the steps necessary to implement a legally defensible, written litigation hold and are based on the "Seven Steps for Legal Holds of ESI and Other Documents" (ARMA International 2009). The seven steps for legal holds are designed to help organizations tackle the seemingly daunting task of implementing written litigation holds. Although this series was conceived months ago, written litigation holds are now more important than ever in light of U.S. District Court Judge Shira Scheindlin's Opinion and Order in The Pension Committee v. Banc of America, Case No. 05-cv-9016 (SDNY Jan. 11, 2010, as amended Jan. 15, 2010). Her introduction is a fitting opening to the series:
In an era where vast amounts of electronic information is available for review, discovery in certain cases has become increasingly complex and expensive. Courts cannot and do not expect that any party can meet a standard of perfection. Nonetheless, the courts have a right to expect that litigants and counsel will take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated, and that such records are collected, reviewed, and produced to the opposing party. As discussed six years ago in the Zubulake opinions, when this does not happen, the integrity of the judicial process is harmed and the courts are required to fashion a remedy.
Our focus is on helping organizations discharge their duty to preserve electronically stored information and other documents. Absent an effective litigation hold process, an organization will be unable to meet its duty to preserve ESI and other documents. As articulated by various courts (including The Pension Committee v. Banc of America) the failure to implement a written litigation hold is gross negligence. A finding of gross negligence at the onset of a spoliation analysis is a surefire way to be sanctioned. The only question that follows is how much is the sanction.
A litigation hold is as an affirmative act by an organization to prevent the destruction of documents, including ESI and paper relevant to a lawsuit. In our book "Seven Steps" we refer to preservation efforts as a legal hold given its application beyond litigation. The names are interchangeable. A written litigation hold is the written notice distributed to the members of an organization that are custodians of relevant ESI and paper documents informing custodians that a litigation hold is being implemented. The notice must clearly identify the reason for the litigation hold and prohibit recipients from destroying relevant documents.
To Continue Reading: Click Here
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Source: law.com
By: John Isaza and John J. Jablonski
In an era where vast amounts of electronic information is available for review, discovery in certain cases has become increasingly complex and expensive. Courts cannot and do not expect that any party can meet a standard of perfection. Nonetheless, the courts have a right to expect that litigants and counsel will take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated, and that such records are collected, reviewed, and produced to the opposing party. As discussed six years ago in the Zubulake opinions, when this does not happen, the integrity of the judicial process is harmed and the courts are required to fashion a remedy.
Our focus is on helping organizations discharge their duty to preserve electronically stored information and other documents. Absent an effective litigation hold process, an organization will be unable to meet its duty to preserve ESI and other documents. As articulated by various courts (including The Pension Committee v. Banc of America) the failure to implement a written litigation hold is gross negligence. A finding of gross negligence at the onset of a spoliation analysis is a surefire way to be sanctioned. The only question that follows is how much is the sanction.
A litigation hold is as an affirmative act by an organization to prevent the destruction of documents, including ESI and paper relevant to a lawsuit. In our book "Seven Steps" we refer to preservation efforts as a legal hold given its application beyond litigation. The names are interchangeable. A written litigation hold is the written notice distributed to the members of an organization that are custodians of relevant ESI and paper documents informing custodians that a litigation hold is being implemented. The notice must clearly identify the reason for the litigation hold and prohibit recipients from destroying relevant documents.
To Continue Reading: Click Here
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Source: law.com
By: John Isaza and John J. Jablonski
What the Heck Is ECA?
Fresh off the heels of yet another LegalTech New York event in early February, it remains clear that the promise to make a fortune from e-discovery continues to lure more and more companies to the table to claim their fair share of the feast. Working in the legal technology space for a decade as a lawyer and e-discovery consultant, I like to think I know most of the e-discovery players, but the emergence of countless new companies, partnerships, and technologies would probably leave the head of even the most seasoned e-discovery veteran spinning when trying to figure out who's who in the e-discovery zoo.
After slogging through the LTNY vendor exhibition hall, past hundreds of e-discovery vendors, I felt dazed by a roller coaster of emotions. I asked myself if it was normal to feel enlightened, confused, annoyed, and sometimes downright scared, by aggressive marketing after only a brief waltz through e-discovery land. Should I be worried about feeling a bit overwhelmed or was everyone else just as confused by all the hype? Then it hit me like a ton of bricks: "What the heck is ECA?"
Similar to many other LegalTech marketing phrases, over use of the term ECA is a poignant example of why discerning the truth about e-discovery technology is so difficult for those attending LegalTech and those tasked with buying e-discovery tools for their organizations. Early case assessment, or ECA, is one of those nebulous terms like "compliance" or "information governance" that sounds really cool; so the term ends up in marketing brochures and is incorporated into vendor sales pitches in an effort to remain competitive. Sometimes the claims are legitimate and sometimes they are not, but attempting to discern the differences between competing technologies and to separate what is real from over zealous marketing is a challenge that often causes buyers to make expensive mistakes.
My moment of clarity left me feeling better about my confusion, but the question still remained.
WHAT IS ECA?
The ECA concept is simple. E-discovery technology can be utilized to help organizations assess the merit of each new case at an early stage before incurring extremely expensive collection, culling, processing, outside attorney review, and other e-discovery fees.
To Continue Reading: Click Here
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Source: Legal Technology
By: Matthew Nelson
After slogging through the LTNY vendor exhibition hall, past hundreds of e-discovery vendors, I felt dazed by a roller coaster of emotions. I asked myself if it was normal to feel enlightened, confused, annoyed, and sometimes downright scared, by aggressive marketing after only a brief waltz through e-discovery land. Should I be worried about feeling a bit overwhelmed or was everyone else just as confused by all the hype? Then it hit me like a ton of bricks: "What the heck is ECA?"
Similar to many other LegalTech marketing phrases, over use of the term ECA is a poignant example of why discerning the truth about e-discovery technology is so difficult for those attending LegalTech and those tasked with buying e-discovery tools for their organizations. Early case assessment, or ECA, is one of those nebulous terms like "compliance" or "information governance" that sounds really cool; so the term ends up in marketing brochures and is incorporated into vendor sales pitches in an effort to remain competitive. Sometimes the claims are legitimate and sometimes they are not, but attempting to discern the differences between competing technologies and to separate what is real from over zealous marketing is a challenge that often causes buyers to make expensive mistakes.
My moment of clarity left me feeling better about my confusion, but the question still remained.
WHAT IS ECA?
The ECA concept is simple. E-discovery technology can be utilized to help organizations assess the merit of each new case at an early stage before incurring extremely expensive collection, culling, processing, outside attorney review, and other e-discovery fees.
To Continue Reading: Click Here
--------------------------------------------
Source: Legal Technology
By: Matthew Nelson
Text Mining: Will 2010 be the Year when Text Analytics is Adopted by the Masses?
We all see huge business value in text -- in on-line and social media, e-mail, Web pages, surveys, claim forms, documents. We understand that taming text is key to realizing that value. But business analysts can't read everything, hence continued very strong uptake of text analytics.
Seth Grimes, industry expert and Conference Chair at the upcoming 6th Annual Text Analytics Summit says "Solutions have become a linchpin for successful enterprise feedback, media analysis, claims and fraud, and customer satisfaction initiatives, while long-standing text analytics users in intelligence and the life sciences are relying on the technology more than ever. The technology is being built into e-discovery and listening platforms, law-enforcement IT, BI suites, data-mining workbenches, search interfaces, and the Semantic Web. There is a spectrum of applications, reflecting the business value that text analytics delivers."
Text Analytics News will again be organising the Text Analytics Summit which is widely recognized as the number one meeting place to discuss all things text mining…
Seth Grimes, Conference Chair says "The Text Analytics Summit provides common ground for the text-analytics universe: end users, analysts, consultants, researchers, vendors. It's a unique venue where you can hear from peers, find a solution provider, keep up with best practices, and learn about new applications: everything from intelligence to scientific research, from social-media analysis to the emerging Semantic Web."
To Continue Reading: Click Here
---------------------------------------------
Source: prweb.com
Seth Grimes, industry expert and Conference Chair at the upcoming 6th Annual Text Analytics Summit says "Solutions have become a linchpin for successful enterprise feedback, media analysis, claims and fraud, and customer satisfaction initiatives, while long-standing text analytics users in intelligence and the life sciences are relying on the technology more than ever. The technology is being built into e-discovery and listening platforms, law-enforcement IT, BI suites, data-mining workbenches, search interfaces, and the Semantic Web. There is a spectrum of applications, reflecting the business value that text analytics delivers."
Text Analytics News will again be organising the Text Analytics Summit which is widely recognized as the number one meeting place to discuss all things text mining…
Seth Grimes, Conference Chair says "The Text Analytics Summit provides common ground for the text-analytics universe: end users, analysts, consultants, researchers, vendors. It's a unique venue where you can hear from peers, find a solution provider, keep up with best practices, and learn about new applications: everything from intelligence to scientific research, from social-media analysis to the emerging Semantic Web."
To Continue Reading: Click Here
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Source: prweb.com
Tuesday, February 23, 2010
Court, Relying On Pension Committee, Issues Adverse Inference Instruction
In Rimkus Consulting Group, Inc. v. Nickie G. Cammarata, et. al., 2010 U.S. Dist. Lexis 14573 (S.D. Tx. Feb. 19, 2010), U.S. District Court Judge Lee H. Rosenthal citing Judge Shira Schiendlin's recent Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC Opinion granted plaintiff's motion for sanctions holding that defendants willfully destroyed email and other electronic evidence and imposed sanctions that permitted the jury to hear evidence of the defendants' conduct and to give the jury an adverse inference instruction.
In late 2006, plaintiff was sued in Louisiana by previous employees including Cammarata and Gary Bell. The former employees had begun a competing company offering investigative and forensic engineering services for insurance disputes and litigation. In the Louisiana suit, Cammarata and Bell brought a declaratory relief action challenging the enforceability of their non-compete agreements with Rimkus. Rimkus, filed the instant lawsuit for breach of those agreements and theft of trade secrets. Plaintiff brought a motion for sanctions alleging defendants Cammarata and Bell and their counsel conspired to destroy relevant electronic evidence. The defendants admit that certain evidence was destroyed, but argue that plaintiff has suffered no prejudice as a result of such destruction. Defendants, in turn, filed a motion for summary judgment.
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Source: rcalaw.com
In late 2006, plaintiff was sued in Louisiana by previous employees including Cammarata and Gary Bell. The former employees had begun a competing company offering investigative and forensic engineering services for insurance disputes and litigation. In the Louisiana suit, Cammarata and Bell brought a declaratory relief action challenging the enforceability of their non-compete agreements with Rimkus. Rimkus, filed the instant lawsuit for breach of those agreements and theft of trade secrets. Plaintiff brought a motion for sanctions alleging defendants Cammarata and Bell and their counsel conspired to destroy relevant electronic evidence. The defendants admit that certain evidence was destroyed, but argue that plaintiff has suffered no prejudice as a result of such destruction. Defendants, in turn, filed a motion for summary judgment.
To Continue Reading: Click Here
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Source: rcalaw.com
No need to wait for the eDisclosure Practice Direction and Questionnaire – just get on with it
The decision (or, rather, the non-decision) of the Civil Procedure Rule Committee to send the e-Disclosure Practice Direction and EDisclosure Questionnaire off into the sidings of a sub-committee has been the equivalent of coming up behind a funeral cortège whilst driving to catch a train. You have to show respect, of course, but you can feel time and money dripping away as you clench the steering-wheel in frustration.
The delay will not stem the creation of electronic documents nor moderate the need of lawyers to manage those documents for litigation. The purpose of the Practice Direction and Questionnaire is to streamline that effort and that expenditure so that the time and money are spent on things which matter. The worst fear is that the Questionnaire will end up in some appendix as a ‘Guide to Best Practice’ or something equally wet. If the obligations to discuss sources of data have sat unused in the Practice Direction to Part 31 CPR for over five years, it seems unlikely that the addition of a best practice guide will do much to remind lawyers and judges of their obligations, still less actually help with the process, which is what the combination of the draft documents intends.
As I say, I have yet to work out how best to build on the interest in proper management of e-Disclosure in the interim. That existed even before Lord Justice Jackson emphasised the need for education, the value of software demonstrations and, specifically, the role of the questionnaire, and it will not go away during this further delay.
It is worth referring you to articles by two other people with long track-records of thoughtful writing on and around the court processes. Professor Dominic Regan, visiting professor of litigation at City University, London, and Lawrence Eastham, long time editor of the magazine and website of the Society for Computers & Law, each come at the subject from a slightly different angle – Dominic is a black-letter lawyer who has been speaking and writing about all aspects of the rules for some 18 years. Lawrence Eastham’s tenure at the SCL is of similar standing,and he inevitably comes at the subject from a technology and business efficiency viewpoint.
To Continue Reading: Click Here
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Source: eDisclosure Information Project
By: Chris Dale
The delay will not stem the creation of electronic documents nor moderate the need of lawyers to manage those documents for litigation. The purpose of the Practice Direction and Questionnaire is to streamline that effort and that expenditure so that the time and money are spent on things which matter. The worst fear is that the Questionnaire will end up in some appendix as a ‘Guide to Best Practice’ or something equally wet. If the obligations to discuss sources of data have sat unused in the Practice Direction to Part 31 CPR for over five years, it seems unlikely that the addition of a best practice guide will do much to remind lawyers and judges of their obligations, still less actually help with the process, which is what the combination of the draft documents intends.
As I say, I have yet to work out how best to build on the interest in proper management of e-Disclosure in the interim. That existed even before Lord Justice Jackson emphasised the need for education, the value of software demonstrations and, specifically, the role of the questionnaire, and it will not go away during this further delay.
It is worth referring you to articles by two other people with long track-records of thoughtful writing on and around the court processes. Professor Dominic Regan, visiting professor of litigation at City University, London, and Lawrence Eastham, long time editor of the magazine and website of the Society for Computers & Law, each come at the subject from a slightly different angle – Dominic is a black-letter lawyer who has been speaking and writing about all aspects of the rules for some 18 years. Lawrence Eastham’s tenure at the SCL is of similar standing,and he inevitably comes at the subject from a technology and business efficiency viewpoint.
To Continue Reading: Click Here
---------------------------------------------
Source: eDisclosure Information Project
By: Chris Dale
Electronic Discovery Reference Model (EDRM) Announces Public Comment Period for All e-Discovery Projects
The Electronic Discovery Reference Model (EDRM) project teams today announced the beginning of the public comment period for new work product drafts posted on the EDRM website. Updates on each EDRM projects -- Evergreen, Metrics, Search, Information Management Reference Model, Jobs, Model Code of Conduct and XML -- were given at EDRM's luncheon that took place on February 1 during LegalTech New York. The comment period for each of the projects' working drafts extends through April 15, 2010, and includes an "Open Mic" page for general comments, questions and suggestions.
A recap of each of the project updates and work product drafts posted include:
-- Evergreen -- The Evergreen project team has made considerable progress in updating the EDRM.net website to standardize the organizational flow of content across all EDRM working groups. Website updates support Evergreen goals to streamline access to content and promote feedback.
Posted materials include:
-- EDRM Evergreen Overview
-- 2nd level diagram for each EDRM node, plus a Project Management
diagram
-- Metrics -- After three years of hard work, the Metrics project team has
developed an extensive set of codes designed to provide an effective means of measuring the time, money and volumes associated with e-discovery activities. Posted materials include:
-- The EDRM Metrics Cube -- a top-level graphic that portrays interrelationships
-- Version 1.0 of the Metrics Code Set
-- Metrics Problem Profiles -- the first of several case studies that demonstrate the use of metrics in e-discovery
To Continue Reading: Click Here
---------------------------------------------
Source: earthtimes.org
A recap of each of the project updates and work product drafts posted include:
-- Evergreen -- The Evergreen project team has made considerable progress in updating the EDRM.net website to standardize the organizational flow of content across all EDRM working groups. Website updates support Evergreen goals to streamline access to content and promote feedback.
Posted materials include:
-- EDRM Evergreen Overview
-- 2nd level diagram for each EDRM node, plus a Project Management
diagram
-- Metrics -- After three years of hard work, the Metrics project team has
developed an extensive set of codes designed to provide an effective means of measuring the time, money and volumes associated with e-discovery activities. Posted materials include:
-- The EDRM Metrics Cube -- a top-level graphic that portrays interrelationships
-- Version 1.0 of the Metrics Code Set
-- Metrics Problem Profiles -- the first of several case studies that demonstrate the use of metrics in e-discovery
To Continue Reading: Click Here
---------------------------------------------
Source: earthtimes.org
FTC Warns Of Widespread Data Breaches
The Federal Trade Commission on Monday said that it had notified almost 100 organizations in both the public and private sector that they need to review their security practices.
In letters to these organizations, the FTC says that "at least one computer file containing sensitive personal information from or about your customers and/or employees has been shared from your computer network, or the network of one of your service providers, to a peer-to-peer file sharing (P2P) network."
Failure to prevent this information from being shared may represent a violation of one or more laws that the FTC enforces, such as the Gramm-Leach-Bliley Act, the Fair Credit Reporting Act, and the Federal Trade Commission Act. The FTC however has not filed any lawsuits related to these breaches.
FTC Chairman Jon Leibowitz said in a statement that companies of all sizes are vulnerable to P2P-related breaches. He said that the FTC found information that could be used to commit identity theft, including health information, financial data, drivers' license numbers and social security numbers.
"Companies should take a hard look at their systems to ensure that there are no unauthorized P2P file-sharing programs and that authorized programs are properly configured and secure," Leibowitz said. "Just as important, companies that distribute P2P programs, for their part, should ensure that their software design does not contribute to inadvertent file sharing."
To Continue Reading: Click Here
---------------------------------------------
Source: Informationweek
By: Thomas Claburn
In letters to these organizations, the FTC says that "at least one computer file containing sensitive personal information from or about your customers and/or employees has been shared from your computer network, or the network of one of your service providers, to a peer-to-peer file sharing (P2P) network."
Failure to prevent this information from being shared may represent a violation of one or more laws that the FTC enforces, such as the Gramm-Leach-Bliley Act, the Fair Credit Reporting Act, and the Federal Trade Commission Act. The FTC however has not filed any lawsuits related to these breaches.
FTC Chairman Jon Leibowitz said in a statement that companies of all sizes are vulnerable to P2P-related breaches. He said that the FTC found information that could be used to commit identity theft, including health information, financial data, drivers' license numbers and social security numbers.
"Companies should take a hard look at their systems to ensure that there are no unauthorized P2P file-sharing programs and that authorized programs are properly configured and secure," Leibowitz said. "Just as important, companies that distribute P2P programs, for their part, should ensure that their software design does not contribute to inadvertent file sharing."
To Continue Reading: Click Here
---------------------------------------------
Source: Informationweek
By: Thomas Claburn
Legal IT Show, clouds, tweets and virtual reality!
I attended the first day of London’s Legal IT Show last Wednesday. Although it is sometimes considered the poor relation of the more glamorous New York event, following last year’s diary clash, this year the events were a week apart, enabling the keenest legal IT followers to attend, present or exhibit at both – with time in between to travel/recover!
The weather was better too. Although there were a few flurries of snow in London, we had nothing like the white out which hit attendance rather hard in 2009. This year, although the event occupied a noticeably smaller area of London’s Business Design Centre and there were clearly fewer stands, attendance seemed to have improved on last year, with all seats taken at Speakers’ Corner for many of the sessions on the first day.
TheKnowListAwards
2010 has started well in terms of technology events. TheKnowList Awards on 21st January was a great success. All the tables were full and many of movers and shakers in legal IT attended. The venue – the Chancery Court Hotel – was excellent and the event organisers Pink Buddha made sure that the awards presentations went very smoothly.
A welcome innovation was that there were no long after-dinner speeches. But the winners still got a word in as their acceptance speeches were videoed while the guests continued networking at the bar. A short – and entertaining – movie can be accessed at www.theknowlist.com
To Continue Reading: Click Here
-----------------------------------------------
Source: legalitprofessionals.com
By: Joanna Goodman
The weather was better too. Although there were a few flurries of snow in London, we had nothing like the white out which hit attendance rather hard in 2009. This year, although the event occupied a noticeably smaller area of London’s Business Design Centre and there were clearly fewer stands, attendance seemed to have improved on last year, with all seats taken at Speakers’ Corner for many of the sessions on the first day.
TheKnowListAwards
2010 has started well in terms of technology events. TheKnowList Awards on 21st January was a great success. All the tables were full and many of movers and shakers in legal IT attended. The venue – the Chancery Court Hotel – was excellent and the event organisers Pink Buddha made sure that the awards presentations went very smoothly.
A welcome innovation was that there were no long after-dinner speeches. But the winners still got a word in as their acceptance speeches were videoed while the guests continued networking at the bar. A short – and entertaining – movie can be accessed at www.theknowlist.com
To Continue Reading: Click Here
-----------------------------------------------
Source: legalitprofessionals.com
By: Joanna Goodman
'Pension Committee' Clarifies E-Discovery Requirements
In a bombshell opinion and order issued just weeks ago by U.S. Southern District of New York Judge Shira A. Scheindlin, litigants and lawyers have been admonished (again) about their discovery obligations, particularly, to preserve, collect and produce electronic documents, records and data in their possession, custody, or control. Scheindlin, one of the foremost experts on the law of electronic discovery, was the author of the Zubulake line of decisions that many say ushered in a new era of robust electronic discovery. Now, her new blockbuster is the Pension Committee decision,[FOOTNOTE 1] which carries the picturesque title, "'Zubulake' Revisited: Six Years Later." Pension Committee promises to be a guide and oft-cited framework for complying with electronic discovery requirements.
Since the new decision copiously analyzes a series of discovery failures that led to sanctions against numerous plaintiff-companies, it is a practical roadmap on how real people and real attorneys may be confronted by real challenges regarding compliance only to wind up making judgments that come back to haunt them.
Pension Committee also is a kind of "how-to" manual setting forth key principles relating to issuing, monitoring, and enforcing litigation holds, discharging preservation and search techniques, and documenting appropriate behind-the-scenes conduct so that the responding party can withstand accusations of insufficient disclosure by the adversary. Then, too, there is advice regarding sanctions, what needs to be proved and by whom, the criteria of "relevance" and "prejudice," the legal behavior standards of negligence, gross negligence and willfulness, available remedies and, even, the text of an actual spoliation instruction.
To Continue Reading: Click Here
-----------------------------------------------
Source: law.com
By: Michael Hoenig
Since the new decision copiously analyzes a series of discovery failures that led to sanctions against numerous plaintiff-companies, it is a practical roadmap on how real people and real attorneys may be confronted by real challenges regarding compliance only to wind up making judgments that come back to haunt them.
Pension Committee also is a kind of "how-to" manual setting forth key principles relating to issuing, monitoring, and enforcing litigation holds, discharging preservation and search techniques, and documenting appropriate behind-the-scenes conduct so that the responding party can withstand accusations of insufficient disclosure by the adversary. Then, too, there is advice regarding sanctions, what needs to be proved and by whom, the criteria of "relevance" and "prejudice," the legal behavior standards of negligence, gross negligence and willfulness, available remedies and, even, the text of an actual spoliation instruction.
To Continue Reading: Click Here
-----------------------------------------------
Source: law.com
By: Michael Hoenig
Monday, February 22, 2010
IronMountain Buys Archive Appliance Maker, But The Future Is Online
IronMountain announced today that it will pay $112 million for Mimosa Systems, which makes archiving appliances for e-mail, SharePoint and files. The purchase gives IM Digital both a premises archiving product as well as a SaaS-based e-mail archiving service. The SaaS archiving offering uses technology from Mimecast, a UK-based company.
In the short term, the move lets Iron Mountain Digital go after customers--particularly in the mid-market where Mimosa was successful--who are uncomfortable with cloud-based archiving services. Iron Mountain will go head to head with vendors such as Barracuda Networks, which offers a range of archiving appliances, and software vendors such as Symantec, CA and EMC. EMC rebooted its own archiving strategy last spring.
In the long term, I wonder if Iron Mountain Digital is paving the way for a hybrid offering that combines a premises system and a cloud archive. In this vision, customers who aren't ready for a full cloud service can keep X Tbytes in their own racks, while the rest of it moves up to the provider's data centers. Note that this is only speculation on my part.
To Continue Reading: Click Here
-----------------------------------------------
Source: networkcomputing.com
By: Andrew Conry Murray
In the short term, the move lets Iron Mountain Digital go after customers--particularly in the mid-market where Mimosa was successful--who are uncomfortable with cloud-based archiving services. Iron Mountain will go head to head with vendors such as Barracuda Networks, which offers a range of archiving appliances, and software vendors such as Symantec, CA and EMC. EMC rebooted its own archiving strategy last spring.
In the long term, I wonder if Iron Mountain Digital is paving the way for a hybrid offering that combines a premises system and a cloud archive. In this vision, customers who aren't ready for a full cloud service can keep X Tbytes in their own racks, while the rest of it moves up to the provider's data centers. Note that this is only speculation on my part.
To Continue Reading: Click Here
-----------------------------------------------
Source: networkcomputing.com
By: Andrew Conry Murray
Sunday, February 21, 2010
Court Sanctions Plaintiff for Accessing Password-Protected Documents and Other Violations, Reduces Sanction based on Behavior of Plaintiff's Counsel
Lawson v. Sun Microsystems, Inc., 2009 WL 5842136 (S.D. Ind. Oct. 16, 2009); Lawson v. Sun Microsystems, Inc., 2010 WL 503054 (S.D. Ind. Feb. 8, 2010)
Where plaintiff accessed privileged, password-protected documents in defendant’s production, “carelessly” produced poor and incomplete copies of relevant taped conversations, and intentionally lied regarding taped conversations in deposition, the magistrate judge declined to recommend dismissal but recommended monetary sanctions instead. The amount of sanctions recommended was reduced by 25% upon the magistrate judge’s finding that plaintiff’s counsel mitigated plaintiff’s violations by ignoring plaintiff’s emails regarding the password-protected documents. The magistrate judge also found plaintiff’s “improprieties” mitigated “by the part [the defendant] and its counsel played in creating this perfect storm of a disaster” and reduced the sanction an additional 25%. While the magistrate judge recommended plaintiff’s counsel be ordered to pay monetary sanctions equal to a 25% reduction in plaintiff’s maximum sanction, the district court declined to adopt that recommendation. The recommendation was otherwise adopted.
In the course of discovery, defendant produced to plaintiff a hard drive containing large volumes of electronically stored information, some of which was privileged and password-protected. Prior to this production, the parties entered into a protective order and an agreement that plaintiff would provide defendant with fourteen days notice before using any information on the hard drive and that defendant would have seven days to object. It was apparently upon these agreements that defendant relied when producing privileged materials as well as a prior arrangement in which plaintiff had been allowed to return his company issued computer with privileged material encrypted to maintain its protection. Plaintiff's counsel denied the existance of any agreement regarding password-protected documents.
In the transmittal letter accompanying the hard drive, defendant indicated the password-protected documents were privileged. Later, there was disagreement as to whether this letter was provided to plaintiff by his attorneys.
Plaintiff accessed the password-protected documents. Thereafter, he sent an email to counsel disclosing his access with the subject line “Password protected files – Unlocked!” Although disputed amongst the parties, the magistrate judge determined that plaintiff’s attorneys did not open the email and remained unaware of plaintiff’s access. It was also determined that counsel did not see a later email in which the “unlocked documents” were mentioned. Counsel later withdrew.
To Continue Reading: Click Here
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Source: ediscoverylaw.com
Where plaintiff accessed privileged, password-protected documents in defendant’s production, “carelessly” produced poor and incomplete copies of relevant taped conversations, and intentionally lied regarding taped conversations in deposition, the magistrate judge declined to recommend dismissal but recommended monetary sanctions instead. The amount of sanctions recommended was reduced by 25% upon the magistrate judge’s finding that plaintiff’s counsel mitigated plaintiff’s violations by ignoring plaintiff’s emails regarding the password-protected documents. The magistrate judge also found plaintiff’s “improprieties” mitigated “by the part [the defendant] and its counsel played in creating this perfect storm of a disaster” and reduced the sanction an additional 25%. While the magistrate judge recommended plaintiff’s counsel be ordered to pay monetary sanctions equal to a 25% reduction in plaintiff’s maximum sanction, the district court declined to adopt that recommendation. The recommendation was otherwise adopted.
In the course of discovery, defendant produced to plaintiff a hard drive containing large volumes of electronically stored information, some of which was privileged and password-protected. Prior to this production, the parties entered into a protective order and an agreement that plaintiff would provide defendant with fourteen days notice before using any information on the hard drive and that defendant would have seven days to object. It was apparently upon these agreements that defendant relied when producing privileged materials as well as a prior arrangement in which plaintiff had been allowed to return his company issued computer with privileged material encrypted to maintain its protection. Plaintiff's counsel denied the existance of any agreement regarding password-protected documents.
In the transmittal letter accompanying the hard drive, defendant indicated the password-protected documents were privileged. Later, there was disagreement as to whether this letter was provided to plaintiff by his attorneys.
Plaintiff accessed the password-protected documents. Thereafter, he sent an email to counsel disclosing his access with the subject line “Password protected files – Unlocked!” Although disputed amongst the parties, the magistrate judge determined that plaintiff’s attorneys did not open the email and remained unaware of plaintiff’s access. It was also determined that counsel did not see a later email in which the “unlocked documents” were mentioned. Counsel later withdrew.
To Continue Reading: Click Here
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Source: ediscoverylaw.com
Itsy-Bitsy, Teeny-Weeny E-Discovery
E-discovery was once the sole concern of large law firms involved in large-scale litigation. But as EDD increasingly becomes an issue in smaller cases for smaller law firms, small and solo lawyers are learning some hard lessons about electronic evidence in litigation.
Michael Barnsback, an employment and civil litigation senior associate with DiMuro Ginsberg says e-discovery is increasingly an issue for his 12-attorney firm in Alexandria, Virginia. While it is a challenge, he thinks it can sometimes benefit a small firm like his. He says there was a time when big law firms could count on bigger budgets and staff to out-muscle opposing counsel at smaller law firms. In particular, the document dump, the practice of sending as many files for review close to the start of a trial, has long been a favorite tactic for overwhelming an opponent. "It's certainly leveled the playing field for us," he says. "You don't need a big team to do review. If someone dumps a truckload of boxes on you, now you can scan them, put them in a searchable format, and one person on one computer can find what you need to go into the case prepared."
But for many small firms, the technical demands of identifying, preserving, archiving, reviewing, and producing digital evidence for trial is increasingly becoming a problem, and one they cannot avoid. "We're seeing tremendous growth for small firm e-discovery services," says John Simek, a computer forensics specialist with Sensei Enterprises. "Judges are expecting attorneys to take it seriously and the attorneys realize that ethically they have an obligation to consider digital sources for evidence."
Unfortunately, lawyers who haven't been involved in major litigation involving digital documents probably haven't had a chance to learn things that some big firms have learned the hard way. Even more, small and solo firms often have hurdles to overcome that large-scale litigators never have to think about.
To Continue Reading: Click Here
-----------------------------------------------
Source: law.com
By: Jason Krause
Michael Barnsback, an employment and civil litigation senior associate with DiMuro Ginsberg says e-discovery is increasingly an issue for his 12-attorney firm in Alexandria, Virginia. While it is a challenge, he thinks it can sometimes benefit a small firm like his. He says there was a time when big law firms could count on bigger budgets and staff to out-muscle opposing counsel at smaller law firms. In particular, the document dump, the practice of sending as many files for review close to the start of a trial, has long been a favorite tactic for overwhelming an opponent. "It's certainly leveled the playing field for us," he says. "You don't need a big team to do review. If someone dumps a truckload of boxes on you, now you can scan them, put them in a searchable format, and one person on one computer can find what you need to go into the case prepared."
But for many small firms, the technical demands of identifying, preserving, archiving, reviewing, and producing digital evidence for trial is increasingly becoming a problem, and one they cannot avoid. "We're seeing tremendous growth for small firm e-discovery services," says John Simek, a computer forensics specialist with Sensei Enterprises. "Judges are expecting attorneys to take it seriously and the attorneys realize that ethically they have an obligation to consider digital sources for evidence."
Unfortunately, lawyers who haven't been involved in major litigation involving digital documents probably haven't had a chance to learn things that some big firms have learned the hard way. Even more, small and solo firms often have hurdles to overcome that large-scale litigators never have to think about.
To Continue Reading: Click Here
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Source: law.com
By: Jason Krause
E-Discovery Failings That Amount to Gross Negligence
Over the past decade, the law governing litigants' obligations to preserve and collect electronic discovery materials has developed substantially. Much of this development was spearheaded by a series of leading decisions issued by federal district court Judge Shira A. Scheindlin in a long-running litigation known as Zubulake.[FOOTNOTE 1] Recently, Scheindlin -- in a new ruling that she entitled "Zubulake Revisited: Six Years Later" -- held that many of the document preservation and collection obligations that were first recognized in Zubulake and its progeny by now had become so well established that litigants' failure to comply with them warranted severe sanctions, both monetary and substantive. Her ruling, in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC (S.D.N.Y. Jan. 11, 2010), sounds yet another wake-up call to litigants about the seriousness and alacrity with which they must address document preservation and collection once litigation reasonably can be anticipated.
Pension Committee involved 13 plaintiffs, all of whom were found to be negligent in meeting their e-discovery obligations so as to cause relevant documents to be lost or destroyed. Monetary sanctions were imposed on all 13 of these plaintiffs.
In addition, Scheindlin also found six of these plaintiffs to have been not just negligent but grossly negligent, with the result that these six plaintiffs were additionally subjected to an "adverse inference instruction," under which the jury will be told to presume that the destroyed documents would have harmed the plaintiffs' case had they been available. As Scheindlin earlier stated in Zubulake IV, "an adverse inference instruction often ends litigation -- it is too difficult a hurdle for the spoliator to overcome."[FOOTNOTE 2] Scheindlin acknowledged that giving an adverse inference instruction was a severe sanction, but she concluded it was nevertheless warranted in this case because these six plaintiffs' failures to comply with their Zubulake obligations were so pervasive as to amount to gross negligence.
While determining whether particular parties' e-discovery failures were the product of ordinary negligence or gross negligence is ultimately a "judgment call" that "cannot be measured with exactitude and might be called differently by a different judge," Scheindlin asserted that "[a]fter a discovery duty is well established, the failure to adhere to contemporary standards can be considered gross negligence," thus warranting imposition of the adverse inference instruction as a sanction.
To Continue Reading: Click Here
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Source: law.com
By Robert Schwinger and Marcelo Blackburn
Pension Committee involved 13 plaintiffs, all of whom were found to be negligent in meeting their e-discovery obligations so as to cause relevant documents to be lost or destroyed. Monetary sanctions were imposed on all 13 of these plaintiffs.
In addition, Scheindlin also found six of these plaintiffs to have been not just negligent but grossly negligent, with the result that these six plaintiffs were additionally subjected to an "adverse inference instruction," under which the jury will be told to presume that the destroyed documents would have harmed the plaintiffs' case had they been available. As Scheindlin earlier stated in Zubulake IV, "an adverse inference instruction often ends litigation -- it is too difficult a hurdle for the spoliator to overcome."[FOOTNOTE 2] Scheindlin acknowledged that giving an adverse inference instruction was a severe sanction, but she concluded it was nevertheless warranted in this case because these six plaintiffs' failures to comply with their Zubulake obligations were so pervasive as to amount to gross negligence.
While determining whether particular parties' e-discovery failures were the product of ordinary negligence or gross negligence is ultimately a "judgment call" that "cannot be measured with exactitude and might be called differently by a different judge," Scheindlin asserted that "[a]fter a discovery duty is well established, the failure to adhere to contemporary standards can be considered gross negligence," thus warranting imposition of the adverse inference instruction as a sanction.
To Continue Reading: Click Here
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Source: law.com
By Robert Schwinger and Marcelo Blackburn
Developing an Information Security and Privacy Schedule for Service Provider Transactions (Part Two)
In Part One of this blog series, we looked at the proactive nature of a data security and privacy schedule ("Schedule"), and considered the compliance function of a Schedule. Part Two of this series discusses security incident response contract terms that should be considered for a Schedule. In addition, we look at more traditional "risk of loss" contract terms and how data security and privacy risks impact those terms.
Security Incident Response Planning
As mentioned above, a Customer should think of a Service Provider’s security as an extension of its own internal security. This applies not only to the controls the Service Provider maintains, but also how a Service Provider responds to a security incident. The key here is to impose obligations on the Service Provider that provide the Customer with the most control possible in responding to, and mitigating the impact of, a security incident. In addition, in the event litigation or a regulatory action is a possibility, Customers should attempt to secure rights that allow them to collect and preserve evidence relevant to their defense (or in some cases a suit against the Service Provider).
On the front end, Customer should investigate the Service Provider’s security incident response procedures. In particular, the Customer should ask:
•Does the Service Provider have controls and policies in place to detect an incident?
•Once detected is there a chain of communication that escalates the incident to appropriate personnel?
•Are there procedures for ascertaining the risk and potential impact posed by a security incident?
•What processes exist to allow for the quick remediation of a security breach?
To Continue Reading: Click Here
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Source: infolawgroup.com
By David Navetta
Security Incident Response Planning
As mentioned above, a Customer should think of a Service Provider’s security as an extension of its own internal security. This applies not only to the controls the Service Provider maintains, but also how a Service Provider responds to a security incident. The key here is to impose obligations on the Service Provider that provide the Customer with the most control possible in responding to, and mitigating the impact of, a security incident. In addition, in the event litigation or a regulatory action is a possibility, Customers should attempt to secure rights that allow them to collect and preserve evidence relevant to their defense (or in some cases a suit against the Service Provider).
On the front end, Customer should investigate the Service Provider’s security incident response procedures. In particular, the Customer should ask:
•Does the Service Provider have controls and policies in place to detect an incident?
•Once detected is there a chain of communication that escalates the incident to appropriate personnel?
•Are there procedures for ascertaining the risk and potential impact posed by a security incident?
•What processes exist to allow for the quick remediation of a security breach?
To Continue Reading: Click Here
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Source: infolawgroup.com
By David Navetta
Friday, February 19, 2010
Are We Just Makin' Copies?
It's time to treat certain e-discovery work as taxable court costs.
Courts have the power to shift costs of discovery from responding to requesting parties, as a punitive measure or to achieve an equitable result. For lawyers obliged to advance litigationexpenses, the prospect of handing a blank check to the other side is so chilling it may force them to quit the case. That's a powerful weapon, and one that might have gutted historic cases had they been brought in today's world. "If you want the Board of Education's e-mail, Mr. Brown, you'll have to bear the cost of restoration."
Cost shifting is never more fraught with peril than when costs flow from electronic data discovery, because lawyers have proved themselves spectacularly profligate in their approach to digital evidence. Too often, they throw massive amounts of money at any task, in lieu of thought or skill, with much of that money gravitating to attorneys' fees for review of items not requiring lawyers' eyes.
Where else in law can ineptitude stoke revenues and deliver a strategic advantage?
Of course, litigants harmed by poor stewardship of shifted costs can mount a challenge, but it's hard for a judge to distinguish necessary from needless when faced with invoices couched in dollars-per-gigabyte and techno-babble. "Your Honor," the other side counters, "they asked us for any and all responsive electronically stored information, so we processed anything and everything."
To Continue Reading: Click Here
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Source: law.com
By Craig Ball
Courts have the power to shift costs of discovery from responding to requesting parties, as a punitive measure or to achieve an equitable result. For lawyers obliged to advance litigationexpenses, the prospect of handing a blank check to the other side is so chilling it may force them to quit the case. That's a powerful weapon, and one that might have gutted historic cases had they been brought in today's world. "If you want the Board of Education's e-mail, Mr. Brown, you'll have to bear the cost of restoration."
Cost shifting is never more fraught with peril than when costs flow from electronic data discovery, because lawyers have proved themselves spectacularly profligate in their approach to digital evidence. Too often, they throw massive amounts of money at any task, in lieu of thought or skill, with much of that money gravitating to attorneys' fees for review of items not requiring lawyers' eyes.
Where else in law can ineptitude stoke revenues and deliver a strategic advantage?
Of course, litigants harmed by poor stewardship of shifted costs can mount a challenge, but it's hard for a judge to distinguish necessary from needless when faced with invoices couched in dollars-per-gigabyte and techno-babble. "Your Honor," the other side counters, "they asked us for any and all responsive electronically stored information, so we processed anything and everything."
To Continue Reading: Click Here
-----------------------------------------------
Source: law.com
By Craig Ball
Does Discarding Unallocated Space Deserve Contempt?
Overwriting deleted files leads to sanctions for 'international man of mystery'
First of two parts.
A defendant's effort to keep sensitive personal and business data from falling into the wrong hands by taking steps to ensure the deletion of files landed him in contempt of Delaware's Chancery Court, but the court's conclusion that he violated a status quo agreement places a dubious value on the computer equivalent of a wastepaper basket.
In TR Investors LLC v. Genger, No. 3994-VCS, Delaware Court of Chancery (Dec. 9, 2009), the court found defendant Arie Genger in contempt of court for "wiping" the "unallocated space" of the hard drive of his work computer and file server in the face of an order that prohibited him from "tampering with, destroying or in any way disposing of any Company-related documents, books or records."
The court reasoned that e-files that the defendant should have had were missing; such files would have been found in the wiped unallocated space, even if they were in deleted or only temporary form; the order in question prohibited such wiping; and the defendant conducted such wiping in order to destroy the missing files or copies.
The consequences of the court's decision are profound and far-reaching. The court's reasoning, however, is in my view suspect both technically and legally, and thus bears close scrutiny.
ALLOW MYSELF TO INTRODUCE ... MYSELF
In June 2008, defendant was CEO of Trans-Resources Inc.
The plaintiffs, collectively known as the "Trump Group," owned a large but not controlling percentage of stock in TRI. TRI incurred debt that led to an insoluble dispute with the Trump Group over TRI's direction. That, in turn, led to litigation in Chancery Court. Then, in late August 2008, the Trump Group purchased a block of stock from defendant's estranged son, to whom defendant had transferred the stock in connection with his bitter divorce from his son's mother. The Trump Group believed that this purchase gave them "sufficient voting control of TRI" to remove the defendant and TRI's Board, which they voted to do. The defendant and the sitting TRI Board rejected the Trump Group's actions, which led to litigation on this issue.
To Continue Reading: Click Here
-----------------------------------------------
Source: law.com
By Leonard Deutchman
First of two parts.
A defendant's effort to keep sensitive personal and business data from falling into the wrong hands by taking steps to ensure the deletion of files landed him in contempt of Delaware's Chancery Court, but the court's conclusion that he violated a status quo agreement places a dubious value on the computer equivalent of a wastepaper basket.
In TR Investors LLC v. Genger, No. 3994-VCS, Delaware Court of Chancery (Dec. 9, 2009), the court found defendant Arie Genger in contempt of court for "wiping" the "unallocated space" of the hard drive of his work computer and file server in the face of an order that prohibited him from "tampering with, destroying or in any way disposing of any Company-related documents, books or records."
The court reasoned that e-files that the defendant should have had were missing; such files would have been found in the wiped unallocated space, even if they were in deleted or only temporary form; the order in question prohibited such wiping; and the defendant conducted such wiping in order to destroy the missing files or copies.
The consequences of the court's decision are profound and far-reaching. The court's reasoning, however, is in my view suspect both technically and legally, and thus bears close scrutiny.
ALLOW MYSELF TO INTRODUCE ... MYSELF
In June 2008, defendant was CEO of Trans-Resources Inc.
The plaintiffs, collectively known as the "Trump Group," owned a large but not controlling percentage of stock in TRI. TRI incurred debt that led to an insoluble dispute with the Trump Group over TRI's direction. That, in turn, led to litigation in Chancery Court. Then, in late August 2008, the Trump Group purchased a block of stock from defendant's estranged son, to whom defendant had transferred the stock in connection with his bitter divorce from his son's mother. The Trump Group believed that this purchase gave them "sufficient voting control of TRI" to remove the defendant and TRI's Board, which they voted to do. The defendant and the sitting TRI Board rejected the Trump Group's actions, which led to litigation on this issue.
To Continue Reading: Click Here
-----------------------------------------------
Source: law.com
By Leonard Deutchman
Thursday, February 18, 2010
Facebook, MySpace Reach Integration Agreement With Microsoft For Outlook 2010
Undeterred by the firestorm of criticism over Google Buzz, Microsoft is ramping up its social efforts through new partnerships with Facebook and MySpace.
Per the deals, both Facebook and MySpace will be integrated into Outlook Social Connector -- the socially souped-up version of Microsoft's email client -- which will allow users to view friends' activities, photos, and status updates within Outlook, as well as grow their network by adding friends from the same view.
Both Facebook for Outlook and MySpace for Outlook are expected to be available later this year upon the official release of Microsoft's Office 2010.
Separately on Wednesday, Microsoft announced the public beta of LinkedIn for Outlook, which will let Office 2010 Beta users connect the OSC to a public network for the first time.
The service will allow LinkedIn users to view their colleagues' status updates and photos alongside e-mail messages.
To Continue Reading: Click Here
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Source: MediaPost
By Gavin O'Malley
Per the deals, both Facebook and MySpace will be integrated into Outlook Social Connector -- the socially souped-up version of Microsoft's email client -- which will allow users to view friends' activities, photos, and status updates within Outlook, as well as grow their network by adding friends from the same view.
Both Facebook for Outlook and MySpace for Outlook are expected to be available later this year upon the official release of Microsoft's Office 2010.
Separately on Wednesday, Microsoft announced the public beta of LinkedIn for Outlook, which will let Office 2010 Beta users connect the OSC to a public network for the first time.
The service will allow LinkedIn users to view their colleagues' status updates and photos alongside e-mail messages.
To Continue Reading: Click Here
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Source: MediaPost
By Gavin O'Malley
Justice Department Requests Millions for E-Discovery
The Justice Department wants to add dozens of tech-savvy staffers and several lawyers to handle the new problems posed by evolving technologies during the legal discovery process, according to the Justice Department’s budget proposal for fiscal 2011.
The Civil Division of the Justice Department is requesting 12 new positions and a $2 million budget increase, because it doesn’t have enough support staff with technical expertise. The Environment and Natural Resources Division has requested an additional $1 million and nine new positions. And, the Executive Office for U.S. Attorneys, which has no electronic discovery support in place, would like $2 million, to fund 12 new positions for electronic discovery and litigation support.
Newly appointed National Coordinator of Criminal Discovery Initiatives Andrew Goldsmith will act as the primary liaison to all of the United States Attorneys’ Offices and department components on issues related to electronic evidence in criminal cases, according to the Justice Department.
In May, former Deputy Attorney General David Ogden said that the department had established a working group under the direction of the Associate Attorney General, Tom Perrelli, “to look at our civil discovery practices and capabilities to ensure our litigators have the training and resources necessary to deal with the current demands in the electronic era.”
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Source: mainjustice.com
By: Ryan J. Reilly
The Civil Division of the Justice Department is requesting 12 new positions and a $2 million budget increase, because it doesn’t have enough support staff with technical expertise. The Environment and Natural Resources Division has requested an additional $1 million and nine new positions. And, the Executive Office for U.S. Attorneys, which has no electronic discovery support in place, would like $2 million, to fund 12 new positions for electronic discovery and litigation support.
Newly appointed National Coordinator of Criminal Discovery Initiatives Andrew Goldsmith will act as the primary liaison to all of the United States Attorneys’ Offices and department components on issues related to electronic evidence in criminal cases, according to the Justice Department.
In May, former Deputy Attorney General David Ogden said that the department had established a working group under the direction of the Associate Attorney General, Tom Perrelli, “to look at our civil discovery practices and capabilities to ensure our litigators have the training and resources necessary to deal with the current demands in the electronic era.”
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Source: mainjustice.com
By: Ryan J. Reilly
Wednesday, February 17, 2010
Emails, Litigation and "Think Before You Click"
A recent decision by a U.S. District court judge in the Southern District of New York serves as a reminder of the prevalent role that technology plays in our daily lives; as well as what can happen when we forget or "neglect" that fact.
This weeks Massachusetts Lawyers Weekly reported on the case of Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC. In the decision, Judge Shira A. Scheindlin, who has authored prior decisions regarding "electronic discovery" ruled that while the plaintiffs in the case did not "egregiously destroy emails", they deserved to be sanctioned for failing to "properly preserve" evidence.
What makes this case particularly interesting is that, in the course of litigation, I still find it astounding what people put in emails, thinking that their emails are "secret" in some way, or differ, in any respect, from any other document. To the contrary, the first thing I ask for in litigation "discovery" is "all emails in any way relating to the case or matter at issue". In cases where there is evidence that all such information has not been produced, or that someone attempted to delete it, judges will routinely order a "forensic sweep" of a computers' hard drive.
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Source: injuryboard.com
By: Bruce Bierhans
This weeks Massachusetts Lawyers Weekly reported on the case of Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC. In the decision, Judge Shira A. Scheindlin, who has authored prior decisions regarding "electronic discovery" ruled that while the plaintiffs in the case did not "egregiously destroy emails", they deserved to be sanctioned for failing to "properly preserve" evidence.
What makes this case particularly interesting is that, in the course of litigation, I still find it astounding what people put in emails, thinking that their emails are "secret" in some way, or differ, in any respect, from any other document. To the contrary, the first thing I ask for in litigation "discovery" is "all emails in any way relating to the case or matter at issue". In cases where there is evidence that all such information has not been produced, or that someone attempted to delete it, judges will routinely order a "forensic sweep" of a computers' hard drive.
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Source: injuryboard.com
By: Bruce Bierhans
Social Networking: Better With Age?
There probably aren't many people in their mid-60s who have LinkedIn as the homepage on their computer at work. And certainly not many lawyers that age who are active on the lawyer-rating site Avvo.com or the free legal content site JDSupra.com.
But trust and estate solo attorney Jeffrey L. Crown, 65, sees no reason not to embrace social media.
"Maybe I'm an anomaly. I don't really know," said Crown, whose Rocky Hill practice is known as Trustlawyer LLC. "I think you have to be sort of adventurous to some extent to want to do this. I enjoy this. It's fun."
Crown, a 1973 graduate of the University of Connecticut School of Law, has been practicing ever since, and he is no stranger to using technology to stay ahead of his peers. He said he was one of the first lawyers in the state to have a website back in 1996, and it has certainly been redesigned since. However, it wasn't until the past couple years that he expanded to other forms of social media as a way to build a name for his practice, create referral opportunities, and separate himself from his competition.
It's a do-it-yourself strategy for a veteran lawyer whose office consists of a paralegal and an office manager.
First he found LinkedIn, which is considered the social media site for professionals. He has established a personal online network of nearly 100 other professionals while encouraging eight of them to write recommendations of his work.
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Source: law.com
By: Christian Nolan
But trust and estate solo attorney Jeffrey L. Crown, 65, sees no reason not to embrace social media.
"Maybe I'm an anomaly. I don't really know," said Crown, whose Rocky Hill practice is known as Trustlawyer LLC. "I think you have to be sort of adventurous to some extent to want to do this. I enjoy this. It's fun."
Crown, a 1973 graduate of the University of Connecticut School of Law, has been practicing ever since, and he is no stranger to using technology to stay ahead of his peers. He said he was one of the first lawyers in the state to have a website back in 1996, and it has certainly been redesigned since. However, it wasn't until the past couple years that he expanded to other forms of social media as a way to build a name for his practice, create referral opportunities, and separate himself from his competition.
It's a do-it-yourself strategy for a veteran lawyer whose office consists of a paralegal and an office manager.
First he found LinkedIn, which is considered the social media site for professionals. He has established a personal online network of nearly 100 other professionals while encouraging eight of them to write recommendations of his work.
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Source: law.com
By: Christian Nolan
Court Finds Non-Party's Claims of Privilege Waived, Rejects Assertions of Undue Burden, Grants Defendant's Motions to Compel
Seger v. Ernest-Spencer, Inc., 2010 WL 378113 (D. Neb. Jan. 26, 2010)
In this personal injury case, the court found a non-party had waived its claims of privilege as to already-produced documents and granted defendant’s motion to compel their production upon finding that disclosure was “knowing and intentional” as evidenced by the non-party’s failure to establish reasonable precautions to prevent disclosure and its failure to timely assert a claim of privilege, among other things. Rejecting claims of undue burden, the court also granted defendant’s motion to compel the non-party’s production of emails after reducing defendant’s proposed search terms to eliminate those deemed irrelevant or overly broad.
Upon receipt of a subpoena for documents, non-party Valmont Industries, Inc (“Valmont”) retained counsel to review documents and identify those that were privileged. Relying on counsel’s determinations, Valmont then produced responsive discovery to the defendant. Six months later, Valmont produced its privilege log. Upon receipt of that log, defendant notified Valmont that certain documents identified as privileged had already been produced. Valmont responded by declaring the documents privileged and seeking the return of at least one particularly sensitive document. Valmont received no response to its attempts to negotiate (via correspondence) the return of the documents but did not seek judicial intervention. Defendant eventually sought to compel production of the disputed documents.
The court took the “middle of the road approach” to its determination of waiver and identified the appropriate five-step analysis:
These considerations are (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production, (2) the number of inadvertent disclosures, (3) the extent of the disclosures, (4) the promptness of measures taken to rectify the disclosure, and (5) whether the overriding interest of justice would be served by relieving the party of its error.
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Source: ediscoverylaw.com
In this personal injury case, the court found a non-party had waived its claims of privilege as to already-produced documents and granted defendant’s motion to compel their production upon finding that disclosure was “knowing and intentional” as evidenced by the non-party’s failure to establish reasonable precautions to prevent disclosure and its failure to timely assert a claim of privilege, among other things. Rejecting claims of undue burden, the court also granted defendant’s motion to compel the non-party’s production of emails after reducing defendant’s proposed search terms to eliminate those deemed irrelevant or overly broad.
Upon receipt of a subpoena for documents, non-party Valmont Industries, Inc (“Valmont”) retained counsel to review documents and identify those that were privileged. Relying on counsel’s determinations, Valmont then produced responsive discovery to the defendant. Six months later, Valmont produced its privilege log. Upon receipt of that log, defendant notified Valmont that certain documents identified as privileged had already been produced. Valmont responded by declaring the documents privileged and seeking the return of at least one particularly sensitive document. Valmont received no response to its attempts to negotiate (via correspondence) the return of the documents but did not seek judicial intervention. Defendant eventually sought to compel production of the disputed documents.
The court took the “middle of the road approach” to its determination of waiver and identified the appropriate five-step analysis:
These considerations are (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production, (2) the number of inadvertent disclosures, (3) the extent of the disclosures, (4) the promptness of measures taken to rectify the disclosure, and (5) whether the overriding interest of justice would be served by relieving the party of its error.
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Source: ediscoverylaw.com
Court Issues Sanctions, Defers Additional Sanctions Pending Recovery Of Deleted E-mails
In Melendres v. Arpaio, CV-07-2513-PHX (D. Ariz. February 11, 2010) (UNPUBLISHED), U.S. District Court Judge G. Murray Snow granted plaintiffs' motion for sanctions and ruled that the Maricopa County Sheriff's Office ("MCSO") failed to issue a timely litigation hold resulting in the destruction of relevant documents, including e-mails.
Plaintiffs' filed a putative class action in December 2007 alleging broad allegations related to the sheriff department's so-called "immigration sweeps." In July 2008, plaintiffs filed their first amended complaint and in a letter dated July 21, 2008 demanded the defendants preserve records, including e-mails, related to certain prior and all subsequent MCSO "crime suppression operations." Counsel for defendants forwarded the letter to the MCSO but the MCSO failed to act, or institute a litigation hold.
In discovery, plaintiffs learned the MCSO shredded relevant documents (i.e., stat sheets) and deleted e-mails. In addition, not a single deponent was aware of their obligation to preserve evidence. Sheriff Joe Arpaio also admittedly maintained an immigration file that he had not yet produced in the litigation.
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Source: rcalaw.com
Plaintiffs' filed a putative class action in December 2007 alleging broad allegations related to the sheriff department's so-called "immigration sweeps." In July 2008, plaintiffs filed their first amended complaint and in a letter dated July 21, 2008 demanded the defendants preserve records, including e-mails, related to certain prior and all subsequent MCSO "crime suppression operations." Counsel for defendants forwarded the letter to the MCSO but the MCSO failed to act, or institute a litigation hold.
In discovery, plaintiffs learned the MCSO shredded relevant documents (i.e., stat sheets) and deleted e-mails. In addition, not a single deponent was aware of their obligation to preserve evidence. Sheriff Joe Arpaio also admittedly maintained an immigration file that he had not yet produced in the litigation.
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Source: rcalaw.com
Tuesday, February 16, 2010
LegalTech 2010 offers new legal research, dictation, e-discovery tools
LegalTech 2010 got off to a busy start, with lawyers and tech experts crowding exhibit halls and conference rooms to find out the latest news on e-discovery and legal technology services and products.
Here’s a look at some of the most interesting new offerings:
WestlawNext: Searching goes to the next level
Legal research shouldn’t be interesting, fun or easy, right? Westlaw says it can change all that.
With much fanfare, it launched WestlawNext, an upgrade to the existing Westlaw system, on the first day of LegalTech.
The product is a marked change from the prior system, with a dashboard that is cleaner and simpler to use. Users no longer have to work their way through a series of databases in order to search – you simply enter terms or a phrase and choose a jurisdiction.
Search options include case law, statutes, secondary sources and even court orders and administrative decisions, all clearly delineated. Users are given the option of filtering out different types of results and can further limit their search results by judge, reported or unreported opinion, date range or other options.
Some of the new features include a folder system to save documents, case summaries provided for search results, and the ability to highlight portions of a document as well as add notes.
In another improvement, when a document has been “red flagged” WestlawNext explains if it is because the decision was overruled or because it is unreported and therefore can’t be cited in that jurisdiction.
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Source: wislawjournal.com
By: Correy E. Stephenson
Here’s a look at some of the most interesting new offerings:
WestlawNext: Searching goes to the next level
Legal research shouldn’t be interesting, fun or easy, right? Westlaw says it can change all that.
With much fanfare, it launched WestlawNext, an upgrade to the existing Westlaw system, on the first day of LegalTech.
The product is a marked change from the prior system, with a dashboard that is cleaner and simpler to use. Users no longer have to work their way through a series of databases in order to search – you simply enter terms or a phrase and choose a jurisdiction.
Search options include case law, statutes, secondary sources and even court orders and administrative decisions, all clearly delineated. Users are given the option of filtering out different types of results and can further limit their search results by judge, reported or unreported opinion, date range or other options.
Some of the new features include a folder system to save documents, case summaries provided for search results, and the ability to highlight portions of a document as well as add notes.
In another improvement, when a document has been “red flagged” WestlawNext explains if it is because the decision was overruled or because it is unreported and therefore can’t be cited in that jurisdiction.
To Download This Article: Click Here
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Source: wislawjournal.com
By: Correy E. Stephenson
North American law firms outsourcing legal research
E-discovery laws in Canada and the U.S. are fueling a demand for legal services from IT outsourcers. Nestor Arellano reports from the Philippines
They can’t practice on North American soil, but their work often forms the basis American and Canadian lawyers build their legal arguments on.
In recent years, Filipino lawyers retained by outsourced IT services firms in Manila have built a steadily growing online legal process and research market. Legal process and research is among the new tech services being pushed by the Philippine government, which last year saw combined outsourced IT services revenues soar to $7 billion.
Electronic discovery legislation in Canada and the U.S. is largely fueling the demand for outsourced legal work, according to Jay Manahan, director for business development of Sencor, a Philippine online research and analysis research firm headquartered in Makati City, the business district of the country.
“Twenty-five years ago, we were purely a data entry shop. E-discovery legislations in the U.S. and Canada, which began surfacing in 2005 and 2006, encouraged us to venture into attorney-level work,” said Manahan.
The company now employs more than 100 full-time lawyers. That number can swell up to 400 during “peak seasons” according to Manahan who looks more like a fresh college graduate than a business executive in his mid-thirties.
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Source: itworldcanada.com
By: Nestor Arellano
They can’t practice on North American soil, but their work often forms the basis American and Canadian lawyers build their legal arguments on.
In recent years, Filipino lawyers retained by outsourced IT services firms in Manila have built a steadily growing online legal process and research market. Legal process and research is among the new tech services being pushed by the Philippine government, which last year saw combined outsourced IT services revenues soar to $7 billion.
Electronic discovery legislation in Canada and the U.S. is largely fueling the demand for outsourced legal work, according to Jay Manahan, director for business development of Sencor, a Philippine online research and analysis research firm headquartered in Makati City, the business district of the country.
“Twenty-five years ago, we were purely a data entry shop. E-discovery legislations in the U.S. and Canada, which began surfacing in 2005 and 2006, encouraged us to venture into attorney-level work,” said Manahan.
The company now employs more than 100 full-time lawyers. That number can swell up to 400 during “peak seasons” according to Manahan who looks more like a fresh college graduate than a business executive in his mid-thirties.
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Source: itworldcanada.com
By: Nestor Arellano
Safety In the Cloud
The cloud computing technology currently available is carrying us into the future in terms of the remote off-site handling and storage of our data. But are we safe in the cloud? Is our private data secure? Good questions
According to a recent survey commissioned by Microsoft, while 58% of the general population and 86% of senior business leaders are excited with respect to the prospect of the cloud computing technology now available, more than 90% of them are worried about the security, privacy and access of their cloud data. The survey also revealed that the majority of respondents would like the federal government to create laws, rules and policies specifically governing cloud computing.
Following up on these results, Brad Smith, Vice President and General Counsel for Microsoft, has called for a "national conversation" designed to create confidence in cloud computing and he has proposed a Cloud Computing Advancement Act to address cloud privacy and security.
Features of the proposed legislation would include:
•Enhanced privacy protection and data access rules to protect privacy, while specifically strengthening the Electronic Communications Privacy Act;
•Updating the Computer Fraud and Abuse Act to give law enforcement officials the tools they need to pursue hackers and to deter Internet crimes;
•The adoption of truth-in-cloud-computing principles to allow consumers and businesses to understand how information will be accessed, used and protected by service providers; and
•Efforts to create a grapple with cloud computing data protection issues on a global basis.
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Source: Find Law
By: Eric Sinrod
According to a recent survey commissioned by Microsoft, while 58% of the general population and 86% of senior business leaders are excited with respect to the prospect of the cloud computing technology now available, more than 90% of them are worried about the security, privacy and access of their cloud data. The survey also revealed that the majority of respondents would like the federal government to create laws, rules and policies specifically governing cloud computing.
Following up on these results, Brad Smith, Vice President and General Counsel for Microsoft, has called for a "national conversation" designed to create confidence in cloud computing and he has proposed a Cloud Computing Advancement Act to address cloud privacy and security.
Features of the proposed legislation would include:
•Enhanced privacy protection and data access rules to protect privacy, while specifically strengthening the Electronic Communications Privacy Act;
•Updating the Computer Fraud and Abuse Act to give law enforcement officials the tools they need to pursue hackers and to deter Internet crimes;
•The adoption of truth-in-cloud-computing principles to allow consumers and businesses to understand how information will be accessed, used and protected by service providers; and
•Efforts to create a grapple with cloud computing data protection issues on a global basis.
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Source: Find Law
By: Eric Sinrod
Monday, February 15, 2010
Judge refuses to halt building defects case over document discovery failures
A HIGH Court judge has refused to halt a long-running action to establish the cause of defects in hundreds of homes in north Dublin on grounds of “negligent” and “blameworthy” failure by both sides to discover documents.
Because of the discovery of documents failures, 400 affected homeowners awaiting the outcome of the action by developer Menolly Homes against Irish Asphalt Limited (IAL) and several companies in the Lagan group will now have a longer wait before they can proceed with their own actions, all of which arise from swelling and cracking in hundreds of homes allegedly as a result of defective pyrite infill.
Mr Justice Paul Gilligan said yesterday he was conscious of the position of the some 400 homeowners from the Drynam, Myrtle and Beaupark estates in north Co Dublin, who have initiated actions against the Menolly plaintiffs.
Menolly has joined the Lagan defendants to the homeowners’ cases.
After the judge’s ruling yesterday, Paul Gardiner SC, for the homeowners, said his clients have been very prejudiced by the discovery failures and he asked to be heard by the court when the case is mentioned again next Thursday.
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Source: irishtimes.com
By: MARY CAROLAN
Because of the discovery of documents failures, 400 affected homeowners awaiting the outcome of the action by developer Menolly Homes against Irish Asphalt Limited (IAL) and several companies in the Lagan group will now have a longer wait before they can proceed with their own actions, all of which arise from swelling and cracking in hundreds of homes allegedly as a result of defective pyrite infill.
Mr Justice Paul Gilligan said yesterday he was conscious of the position of the some 400 homeowners from the Drynam, Myrtle and Beaupark estates in north Co Dublin, who have initiated actions against the Menolly plaintiffs.
Menolly has joined the Lagan defendants to the homeowners’ cases.
After the judge’s ruling yesterday, Paul Gardiner SC, for the homeowners, said his clients have been very prejudiced by the discovery failures and he asked to be heard by the court when the case is mentioned again next Thursday.
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Source: irishtimes.com
By: MARY CAROLAN
Breaking Point: 2010 State Of Enterprise Storage Survey
We're sure most IT pros will agree that the best thing about 2009 is that it's over. CIOs were forced to run much tighter ships, with capital expenditures postponed or put on hold. Forget introducing innovative storage technologies--or sometimes, even doing basic maintenance, despite the fact that many of our infrastructures are bursting at the seams.
In fact, our InformationWeek Analytics 2010 State of Enterprise Storage Survey of 331 business technology professionals reveals an alarming state of affairs: When asked about their top storage concerns, nearly half of respondents say they have insufficient resources for critical applications. Contrast that finding with a year ago, when data loss was the top worry of the 328 technology pros we surveyed; lack of resources was cited by just 30%. Other 2010 results also reflect a grim financial picture. Compared with a year ago, more IT pros say they have insufficient budgets to meet business demands, insufficient tools for storage management, and insufficient storage resources for departmental and individual use. For some, the reality of stretched resources is sending a harsh wake-up call.
Highpointe Hotel had a major hiccup on its main production server in late December and thought it had lost its RAID system, which would've spelled disaster--not just in terms of guest reservations, but year-end financials, payroll and HR data, and network files. "Fortunately, we didn't, but it brought into clear focus the danger we were in by overextending a critical server because of a lack of resources," says Mark Pate, IT director at Highpointe, a hotel management and development company. "The good news is that I quickly got approval for two new Dell servers, which are being staged to go live within the next two weeks."
Meantime, pressure to meet stringent regulatory and data management requirements isn't letting up, and neither is the rate of data growth. In 2009, 75% of survey respondents reported administering more than 1 TB of data, while 24% managed more than 100 TB. One year later, 87% of respondents manage more than 1 TB, and 29% administer more than 100 TB. A year ago, 21% cited data growth rates below 10% per year. Now, just 15% say they have that (relatively) manageable level of expansion.
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Source: Informationweek
By: Behzad Behtash
In fact, our InformationWeek Analytics 2010 State of Enterprise Storage Survey of 331 business technology professionals reveals an alarming state of affairs: When asked about their top storage concerns, nearly half of respondents say they have insufficient resources for critical applications. Contrast that finding with a year ago, when data loss was the top worry of the 328 technology pros we surveyed; lack of resources was cited by just 30%. Other 2010 results also reflect a grim financial picture. Compared with a year ago, more IT pros say they have insufficient budgets to meet business demands, insufficient tools for storage management, and insufficient storage resources for departmental and individual use. For some, the reality of stretched resources is sending a harsh wake-up call.
Highpointe Hotel had a major hiccup on its main production server in late December and thought it had lost its RAID system, which would've spelled disaster--not just in terms of guest reservations, but year-end financials, payroll and HR data, and network files. "Fortunately, we didn't, but it brought into clear focus the danger we were in by overextending a critical server because of a lack of resources," says Mark Pate, IT director at Highpointe, a hotel management and development company. "The good news is that I quickly got approval for two new Dell servers, which are being staged to go live within the next two weeks."
Meantime, pressure to meet stringent regulatory and data management requirements isn't letting up, and neither is the rate of data growth. In 2009, 75% of survey respondents reported administering more than 1 TB of data, while 24% managed more than 100 TB. One year later, 87% of respondents manage more than 1 TB, and 29% administer more than 100 TB. A year ago, 21% cited data growth rates below 10% per year. Now, just 15% say they have that (relatively) manageable level of expansion.
To Continue Reading: Click Here
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Source: Informationweek
By: Behzad Behtash
Privacy and technology law developments 2009 year in review
In the wake of the financial crisis and fragile recovery that consumed 2009, companies increasingly strove to reduce costs by leveraging technology, including cloud computing and social media, to conduct and grow their businesses.
On the regulatory front, the Canadian government tabled legislation to facilitate electronic surveillance by law enforcement agencies and tackle the ever-present and growing problems of unsolicited commercial telecommunications (including SPAM) and identity theft. However, when Parliament was prorogued, all of these bills died. It remains to be seen whether they will be reintroduced once the next Parliamentary session begins in March 2010.
What follows is a review of some hot button issues of 2009 and a glimpse of what to expect in the coming year.
Looking Back at 2009
Social Networking Comes of Age
The past year saw increased focus on the privacy practices of Facebook as well as growing awareness of the commercial potential of both Facebook and Twitter. A 14-month investigation by the Privacy Commissioner of Canada resulted in a report requiring Facebook to address several violations of the federal Personal Information Protection and Electronic Documents Act (PIPEDA). 1 Facebook ultimately agreed to both minor changes to the wording of its Privacy Policy as well as some major changes affecting both its business model and the functionality of its website. However, Facebook continued to make changes to its Privacy Policy, in particular to the default privacy settings of its users. On December 21, 2009, a coalition of privacy advocates filed a complaint with the United States Federal Trade Commission, claiming that Facebook’s privacy policies are unfair and deceptive. 2 Last month, in response to a complaint filed by an individual, Canada’s Privacy Commissioner launched another investigation into Facebook’s privacy practices. 3
In February of 2009, Facebook was approved as a means to serve a defendant a notice of action in Alberta (as was already the case in Australia and New Zealand). 4
To Download This Article: Click Here
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Source: lexology.com
On the regulatory front, the Canadian government tabled legislation to facilitate electronic surveillance by law enforcement agencies and tackle the ever-present and growing problems of unsolicited commercial telecommunications (including SPAM) and identity theft. However, when Parliament was prorogued, all of these bills died. It remains to be seen whether they will be reintroduced once the next Parliamentary session begins in March 2010.
What follows is a review of some hot button issues of 2009 and a glimpse of what to expect in the coming year.
Looking Back at 2009
Social Networking Comes of Age
The past year saw increased focus on the privacy practices of Facebook as well as growing awareness of the commercial potential of both Facebook and Twitter. A 14-month investigation by the Privacy Commissioner of Canada resulted in a report requiring Facebook to address several violations of the federal Personal Information Protection and Electronic Documents Act (PIPEDA). 1 Facebook ultimately agreed to both minor changes to the wording of its Privacy Policy as well as some major changes affecting both its business model and the functionality of its website. However, Facebook continued to make changes to its Privacy Policy, in particular to the default privacy settings of its users. On December 21, 2009, a coalition of privacy advocates filed a complaint with the United States Federal Trade Commission, claiming that Facebook’s privacy policies are unfair and deceptive. 2 Last month, in response to a complaint filed by an individual, Canada’s Privacy Commissioner launched another investigation into Facebook’s privacy practices. 3
In February of 2009, Facebook was approved as a means to serve a defendant a notice of action in Alberta (as was already the case in Australia and New Zealand). 4
To Download This Article: Click Here
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Source: lexology.com
Friday, February 12, 2010
G-Cloud: What are the legal risks of Whitehall's cost-cutting plan?
You can't fail to have noticed the emergence of cloud computing as a tech buzzword. It's all over the press and market analysts can't stop talking about it.
With regard to shared services, a recent report from consultancy Deloitte went as far as to suggest that, at a local governmental level: "Given the threat to existing levels of public funding there is now a strong case for making the adoption of shared services for certain back-office functions mandatory."
It therefore doesn't come as a surprise to find cloud computing and shared services at the core of the government's new IT strategy. Recently announced by the Cabinet Office, this plan aims to save £3.2bn per year by 2014 and create a "smarter, cheaper and greener" public sector. It highlights the need for greater centralisation and a sharing of resources among different government departments.
While aiming to introduce operational improvements and cost-saving measures, this strategy also raises significant legal challenges, particularly around cloud computing and shared services, both at a senior and local level.
The overriding concern with cloud computing seems to surround data. Government departments will be concerned with ironing out where their data will be held, who else has access to it, what other data might be stored with it in some sort of virtualised or partitioned server; as well as establishing air-tight contracts for good service levels, support and disaster recovery.
To Download This Article: Click Here
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Source: silicon.com
By: Andrew Dyson and Mark O'Conor
With regard to shared services, a recent report from consultancy Deloitte went as far as to suggest that, at a local governmental level: "Given the threat to existing levels of public funding there is now a strong case for making the adoption of shared services for certain back-office functions mandatory."
It therefore doesn't come as a surprise to find cloud computing and shared services at the core of the government's new IT strategy. Recently announced by the Cabinet Office, this plan aims to save £3.2bn per year by 2014 and create a "smarter, cheaper and greener" public sector. It highlights the need for greater centralisation and a sharing of resources among different government departments.
While aiming to introduce operational improvements and cost-saving measures, this strategy also raises significant legal challenges, particularly around cloud computing and shared services, both at a senior and local level.
The overriding concern with cloud computing seems to surround data. Government departments will be concerned with ironing out where their data will be held, who else has access to it, what other data might be stored with it in some sort of virtualised or partitioned server; as well as establishing air-tight contracts for good service levels, support and disaster recovery.
To Download This Article: Click Here
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Source: silicon.com
By: Andrew Dyson and Mark O'Conor
Don’t Kill The Lawyers
When Courts Demand Electronic Documents, IT & Legal Counsel Must Work Together
How would you enjoy spending 9% of your company’s entire revenue for a year, not on new IT or data center capabilities but because of a big, fat mistake? Would you enjoy explaining to your CEO that you made the mistake not through an error of judgment, but from complete and total ignorance of the situation and its implications?
That was the $6 million mess the Office of Federal Housing Enterprise Oversight got itself into last January when its lawyers agreed to comply with a subpoena for electronic documents by the District of Columbia Court of Appeals. Although OFHEO wasn’t even a party in the litigation, the agency’s lawyers agreed to let plaintiffs come up with as many search terms as they wanted for OFHEO’s email and any attachments.
The plaintiffs came up with 400 terms, which produced more than 660,000 documents, about 80% of OFHEO’s total email. OFHEO had to temporarily hire 50 lawyers for the related legal work, which took so long that the agency missed several deadlines and was charged with contempt.
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Source: processor.com
By: Bridget Mintz Testa
How would you enjoy spending 9% of your company’s entire revenue for a year, not on new IT or data center capabilities but because of a big, fat mistake? Would you enjoy explaining to your CEO that you made the mistake not through an error of judgment, but from complete and total ignorance of the situation and its implications?
That was the $6 million mess the Office of Federal Housing Enterprise Oversight got itself into last January when its lawyers agreed to comply with a subpoena for electronic documents by the District of Columbia Court of Appeals. Although OFHEO wasn’t even a party in the litigation, the agency’s lawyers agreed to let plaintiffs come up with as many search terms as they wanted for OFHEO’s email and any attachments.
The plaintiffs came up with 400 terms, which produced more than 660,000 documents, about 80% of OFHEO’s total email. OFHEO had to temporarily hire 50 lawyers for the related legal work, which took so long that the agency missed several deadlines and was charged with contempt.
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Source: processor.com
By: Bridget Mintz Testa
Occam’s Razor and The Cloud
There’s probably not a lot of overlap between scrapbookers and those in the legal community. Leave it to me to be the outlier, however, and say that one of the best personal statements I’ve ever heard came from Ali Edwards, scrapbooker extraordinaire. Her mantra is:
“Don’t make it more complicated than it needs to be.”
The theory of Occam’s Razor puts it this way:
entia non sunt multiplicanda praeter necessitatem
and for those of you who neither speak nor read Latin (Dan Quayle excepted), it translates to:
entities must not be multiplied beyond necessity
And for one final translation, those of us who are Jodie Foster/Matthew McConaughey fans learned it this way by watching the movie Contact:
all things being equal, the simplest explanation tends to be the best one
This is the phrase I keep coming back to over and over again when I read articles about the legal issues surrounding cloud computing: Why must it be so complicated?
The all-mysterious “cloud” is a server that can be accessed over the Internet, sitting behind a firewall on a network in someone’s data center. No more, no less. There are as many ways to access this data as there are 15 year old nerds with HTML experience. My preferred method is a client extranet or e-Room, but a rose by any other name would get you your data just as easily. So why all this talk of “who owns the data” and “what about security”?
Here’s a quote from Lauren Streib’s article What I Learned About Cloud Computing, LegalTech Edition:
“Cloud computing*, which is essentially renting server space from a third-party and using the internet to access the data (or as one panelist defined it, "outsourcing on steroids"), has some obvious dangers. There are intrinsic complications over who owns the documents, who can access them, how they are preserved or disposed of, how they can be cataloged or searched, and what happens if, god forbid, the company that owns the server goes bankrupt.”
Here’s my question: who benefits most from these “intrinsic complications”? Lawyers do. If a situation is labeled as “complicated”, then you need a lawyer to sort it out. As someone who depends on business in the cloud, I’d like to submit that it’s not that complicated at all and any talk otherwise shouldn't stop you from putting your data in a website where it can be accessed by anyone at a moment's notice.
Putting your data in the cloud, specifically speaking in the case of an extranet/e-Room, is exactly the same as renting storage space from your nearest Public Storage site. You pay a fee for the size of the space you need (partition a drive on a server for your data/documents and pay a fee to use it). You get an access code for the gate that surrounds the facility (pay someone to build a website to access your partition on the server), then you get a key from the owner of the facility for your specific storage unit (username and password to log onto your website). The owner of the facility charges you for the use of the space. What you do with it is up to you. At no time is it implied, implicitly or explicitly, that the storage facility owns the oriental rug Aunt Bertha bequeathed to you and that you have subsequently placed into storage there. The very thought is absurd. Of course you own it. It’s yours. You put it there for any number of reasons, but it belongs to you whether it is in the storage unit or your dining room.
Ditto data and documents placed in the cloud. The owner of the documents is the one who is paying for the space in the cloud. But wait, you say. What about law firms that host documents on their extranet that don’t belong to them? We’ve got you now, WOMAN. Nice try, but you haven’t stumped me. In some cases or a lot of cases, doesn’t matter, a law firm might host documents that belong to another firm with which they are working, or more likely for their client. Let’s just continue with our storage unit analogy and say that you might store your neighbor’s futon in your storage unit. Same thing. You and the neighbor work out an arrangement about which portion of the monthly storage unit fee – if any - you’re going to pay and for how long you’ll be needing the shared space, and you call it a day. But again, at no time does the storage facility, or the company hosting your e-Room, as it were, take ownership of your data. The people accessing the data in the cloud make that deal externally.
One of the other big bugaboo's about The Cloud is this: what if the hosting company goes out of business? What if there’s a fire and the facility is destroyed? Well, in the case of the storage units in my analogy, you’re really way more out of luck than you are with storage in the cloud because you can't un-burn-down Aunt Bertha’s rug. But any cloud facility worth it’s money is going to have redundancy. There’d have to be a cataclysmic problem for all the copies of your cloud-stored data to suddenly go *poof*.
So what if the company that hosts your data goes belly up, files bankruptcy? The files are returned to the rightful owners in the same way that the stuff you have in your storage unit is returned to you if the storage unit place runs out of money. Legally speaking (and here I said you didn't need lawyers for this stuff, my bad), it's still your stuff and you still own it and they can't keep it. There's going to be some provision somewhere for the distribution of data and information stored in the cloud back to it's owners in the event the company fails. That sort of thing is written up every single day for storage of hard objects; it's the same for electronic objects.
Make no mistake, I have a vested interest in the cloud being very simple to understand and use because that's my business. But even if I had no personal or professional interest, it seems to me that this is one topic that is overly complicated and mislabeled as problematic when it really just…isn't.
Stephanie Kennedy
Kennedy Wade
www.kennedywade.com
“Don’t make it more complicated than it needs to be.”
The theory of Occam’s Razor puts it this way:
entia non sunt multiplicanda praeter necessitatem
and for those of you who neither speak nor read Latin (Dan Quayle excepted), it translates to:
entities must not be multiplied beyond necessity
And for one final translation, those of us who are Jodie Foster/Matthew McConaughey fans learned it this way by watching the movie Contact:
all things being equal, the simplest explanation tends to be the best one
This is the phrase I keep coming back to over and over again when I read articles about the legal issues surrounding cloud computing: Why must it be so complicated?
The all-mysterious “cloud” is a server that can be accessed over the Internet, sitting behind a firewall on a network in someone’s data center. No more, no less. There are as many ways to access this data as there are 15 year old nerds with HTML experience. My preferred method is a client extranet or e-Room, but a rose by any other name would get you your data just as easily. So why all this talk of “who owns the data” and “what about security”?
Here’s a quote from Lauren Streib’s article What I Learned About Cloud Computing, LegalTech Edition:
“Cloud computing*, which is essentially renting server space from a third-party and using the internet to access the data (or as one panelist defined it, "outsourcing on steroids"), has some obvious dangers. There are intrinsic complications over who owns the documents, who can access them, how they are preserved or disposed of, how they can be cataloged or searched, and what happens if, god forbid, the company that owns the server goes bankrupt.”
Here’s my question: who benefits most from these “intrinsic complications”? Lawyers do. If a situation is labeled as “complicated”, then you need a lawyer to sort it out. As someone who depends on business in the cloud, I’d like to submit that it’s not that complicated at all and any talk otherwise shouldn't stop you from putting your data in a website where it can be accessed by anyone at a moment's notice.
Putting your data in the cloud, specifically speaking in the case of an extranet/e-Room, is exactly the same as renting storage space from your nearest Public Storage site. You pay a fee for the size of the space you need (partition a drive on a server for your data/documents and pay a fee to use it). You get an access code for the gate that surrounds the facility (pay someone to build a website to access your partition on the server), then you get a key from the owner of the facility for your specific storage unit (username and password to log onto your website). The owner of the facility charges you for the use of the space. What you do with it is up to you. At no time is it implied, implicitly or explicitly, that the storage facility owns the oriental rug Aunt Bertha bequeathed to you and that you have subsequently placed into storage there. The very thought is absurd. Of course you own it. It’s yours. You put it there for any number of reasons, but it belongs to you whether it is in the storage unit or your dining room.
Ditto data and documents placed in the cloud. The owner of the documents is the one who is paying for the space in the cloud. But wait, you say. What about law firms that host documents on their extranet that don’t belong to them? We’ve got you now, WOMAN. Nice try, but you haven’t stumped me. In some cases or a lot of cases, doesn’t matter, a law firm might host documents that belong to another firm with which they are working, or more likely for their client. Let’s just continue with our storage unit analogy and say that you might store your neighbor’s futon in your storage unit. Same thing. You and the neighbor work out an arrangement about which portion of the monthly storage unit fee – if any - you’re going to pay and for how long you’ll be needing the shared space, and you call it a day. But again, at no time does the storage facility, or the company hosting your e-Room, as it were, take ownership of your data. The people accessing the data in the cloud make that deal externally.
One of the other big bugaboo's about The Cloud is this: what if the hosting company goes out of business? What if there’s a fire and the facility is destroyed? Well, in the case of the storage units in my analogy, you’re really way more out of luck than you are with storage in the cloud because you can't un-burn-down Aunt Bertha’s rug. But any cloud facility worth it’s money is going to have redundancy. There’d have to be a cataclysmic problem for all the copies of your cloud-stored data to suddenly go *poof*.
So what if the company that hosts your data goes belly up, files bankruptcy? The files are returned to the rightful owners in the same way that the stuff you have in your storage unit is returned to you if the storage unit place runs out of money. Legally speaking (and here I said you didn't need lawyers for this stuff, my bad), it's still your stuff and you still own it and they can't keep it. There's going to be some provision somewhere for the distribution of data and information stored in the cloud back to it's owners in the event the company fails. That sort of thing is written up every single day for storage of hard objects; it's the same for electronic objects.
Make no mistake, I have a vested interest in the cloud being very simple to understand and use because that's my business. But even if I had no personal or professional interest, it seems to me that this is one topic that is overly complicated and mislabeled as problematic when it really just…isn't.
Stephanie Kennedy
Kennedy Wade
www.kennedywade.com
Thursday, February 11, 2010
Engage the Jury: Presenting Electronic and Computer Forensics Evidence at Trial
By now, most lawyers know what e-discovery is. They know about electronically stored information (ESI), have mastered the 2006 e-discovery amendments to the Federal Rules of Civil Procedure and subsequent changes,1 and are keeping track of the proposed e-discovery changes to the Wisconsin civil procedure statutes.2 Most try to keep up with the area’s rapidly evolving case law. Some may even know the difference between a computer forensics expert and an e-discovery expert and the differences in the types of services each provide.
Most lawyers know a “deleted” file is not necessarily a file that cannot be recovered, and that computer forensics examiners can analyze computer hard drives, often restoring deleted files. Computer forensics examiners can determine when an external storage device like a thumb drive or external hard drive has been attached to a computer and from that information infer that files have been copied to the external storage device. Lawyers know these examiners can track Internet history and usage and analyze system-related information to determine when computer files were created, who created them, and when they were last accessed or modified.
On the other hand, most lawyers haven’t faced the challenge of presenting electronic evidence to a jury through the testimony of a computer forensics expert. Based on the author’s personal experience and discussions with nationally known computer forensics experts who have testified in court, the lawyers who have faced the challenge simply relied on the “talking head” to present the expert’s opinions to the jury. That is a risky strategy. Without the use of appropriate demonstrative evidence to describe how the ESI was secured, how it was analyzed, and what information was important to justify your position in the case, you risk confusing a jury with unintelligible technical jargon. You risk exposing your expert to impeachment on the basis of qualifications or methodology simply because the jury did not understand what the expert did or why his or her opinions should be deemed reliable. You risk putting the jury to sleep during your expert’s key testimony.
To Download This Article: Click Here
---------------------------------------------
Source: wisbar.org
By: Bruce A. Olson
Most lawyers know a “deleted” file is not necessarily a file that cannot be recovered, and that computer forensics examiners can analyze computer hard drives, often restoring deleted files. Computer forensics examiners can determine when an external storage device like a thumb drive or external hard drive has been attached to a computer and from that information infer that files have been copied to the external storage device. Lawyers know these examiners can track Internet history and usage and analyze system-related information to determine when computer files were created, who created them, and when they were last accessed or modified.
On the other hand, most lawyers haven’t faced the challenge of presenting electronic evidence to a jury through the testimony of a computer forensics expert. Based on the author’s personal experience and discussions with nationally known computer forensics experts who have testified in court, the lawyers who have faced the challenge simply relied on the “talking head” to present the expert’s opinions to the jury. That is a risky strategy. Without the use of appropriate demonstrative evidence to describe how the ESI was secured, how it was analyzed, and what information was important to justify your position in the case, you risk confusing a jury with unintelligible technical jargon. You risk exposing your expert to impeachment on the basis of qualifications or methodology simply because the jury did not understand what the expert did or why his or her opinions should be deemed reliable. You risk putting the jury to sleep during your expert’s key testimony.
To Download This Article: Click Here
---------------------------------------------
Source: wisbar.org
By: Bruce A. Olson
HP launches updated SharePoint governance tool
HP released Trim 7 this week, the newest update to its SharePoint governance tool. HP acquired Tower Software, the original developers of this software back in 2008.
One of the big complaints from SharePoint administrators has been the difficulty in dealing with the ad-hoc nature and widespread proliferation of SharePoint sites. The good news for users is how easy it is to set up a site. The bad news for IT administrators is how to deal with all of those sites, which can number into the thousands in larger organizations. Trim 7 is designed to deal with that by giving IT administrators a single interface view of the SharePoint environment across the organization.
Mark Gilbert, research vice president at Gartner says that organizations need solutions to manage the explosion of large volumes of information that tools like SharePoint bring to the table. "New solutions are growing rapidly for authoring and managing enterprise content in various formats and sources, and this trend is truly changing the way organizations do business.”
To Download This Article: Click Here
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Source: fiercecontentmanagement.com
By: Ron Miller
One of the big complaints from SharePoint administrators has been the difficulty in dealing with the ad-hoc nature and widespread proliferation of SharePoint sites. The good news for users is how easy it is to set up a site. The bad news for IT administrators is how to deal with all of those sites, which can number into the thousands in larger organizations. Trim 7 is designed to deal with that by giving IT administrators a single interface view of the SharePoint environment across the organization.
Mark Gilbert, research vice president at Gartner says that organizations need solutions to manage the explosion of large volumes of information that tools like SharePoint bring to the table. "New solutions are growing rapidly for authoring and managing enterprise content in various formats and sources, and this trend is truly changing the way organizations do business.”
To Download This Article: Click Here
---------------------------------------------
Source: fiercecontentmanagement.com
By: Ron Miller
Forensic archiving and search of web 2.0 sites
As someone who has worked on a number of web application development projects over the years I understand the challenges of web content management and archiving more than most folks. Thus at LegalTech NY earlier this year I was particularly impressed by a vendor in the web archiving space called Hanzo Archives.
Many of us are familiar with a service called the Internet Archive (more commonly known as “The WayBack Machine”) which offers snapshots of previous versions of thousands of web sites, even small ones. It’s fun, and sometimes useful for information gathering, but hardly rises to the level of detail most of us would hope for in a litigation or compliance scenario.
What Hanzo does is take the idea of archiving web sites to a forensic level by comprehensively recording the content of a web site, including Flash and other non-html content, at frequent intervals. Once recorded, site archives are fully searchable and web content can be “replayed” exactly as it was published on a particular date, all in a manner that can be authenticated in court.
This fall I had the privilege of speaking with Mark Middleton, founder and CEO of Hanzo Archives, to satisfy my curiosity about what his product is capable of and who is using it.
Bruce: Mark, thank you for arranging to speak with me. I think I have a general understanding of what your archives do, but let me start off by asking you for some use cases that illustrate who needs your product and what they need it for.
To Download This Article: Click Here
---------------------------------------------
Source: wilsonig.wordpress.com
By: Bruce Wilson
Many of us are familiar with a service called the Internet Archive (more commonly known as “The WayBack Machine”) which offers snapshots of previous versions of thousands of web sites, even small ones. It’s fun, and sometimes useful for information gathering, but hardly rises to the level of detail most of us would hope for in a litigation or compliance scenario.
What Hanzo does is take the idea of archiving web sites to a forensic level by comprehensively recording the content of a web site, including Flash and other non-html content, at frequent intervals. Once recorded, site archives are fully searchable and web content can be “replayed” exactly as it was published on a particular date, all in a manner that can be authenticated in court.
This fall I had the privilege of speaking with Mark Middleton, founder and CEO of Hanzo Archives, to satisfy my curiosity about what his product is capable of and who is using it.
Bruce: Mark, thank you for arranging to speak with me. I think I have a general understanding of what your archives do, but let me start off by asking you for some use cases that illustrate who needs your product and what they need it for.
To Download This Article: Click Here
---------------------------------------------
Source: wilsonig.wordpress.com
By: Bruce Wilson
Wednesday, February 10, 2010
If You Hold On for One More Daaaay: How Companies Have to Handle Legal Holds
On Jan. 11, 2010, U.S. District Court Judge Shira Scheindlin issued a landmark opinion that has major implications for in-house counsel and how companies handle legal holds.
Although The Pension Committee v. Banc of America Securities (as Amended Jan. 15, 2010) (pdf) was issued in the first weeks of the year, it is likely to become one of the most important opinions of the year. In the opinion, Judge Scheindlin reiterates a host of e-discovery duties made famous by her Zubulake series of opinions (pdf). Key to her opinion is the duty to issue and manage written litigation holds or risk severe sanctions.
The duty to issue a written litigation hold whenever litigation is anticipated is clearly viewed as the only way for litigants to demonstrate the proper discharge of their preservation obligations in federal court. The clear message of Judge Scheindlin's opinion, which took more than 300 collective hours of her time and that of her two clerks, is that organizations must take certain steps necessary to properly preserve ESI.
The case involves a complex securities litigation filed by a group of 96 investors trying to recover $550 million in losses due to the collapse of two British Virgin Islands-based hedge funds. The case was filed in the Southern District of Florida in February 2004 and was then transferred to the Southern District of New York in October 2005. Defendants began asserting discovery violations from October 2007 to June 2008, including allegations that plaintiffs failed to preserve ESI and other documents and then made "false and misleading declarations regarding their document collection and preservation efforts."
To Download This Article: Click Here
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Source: law.com
By: Brad Harris and John Jablonski
Although The Pension Committee v. Banc of America Securities (as Amended Jan. 15, 2010) (pdf) was issued in the first weeks of the year, it is likely to become one of the most important opinions of the year. In the opinion, Judge Scheindlin reiterates a host of e-discovery duties made famous by her Zubulake series of opinions (pdf). Key to her opinion is the duty to issue and manage written litigation holds or risk severe sanctions.
The duty to issue a written litigation hold whenever litigation is anticipated is clearly viewed as the only way for litigants to demonstrate the proper discharge of their preservation obligations in federal court. The clear message of Judge Scheindlin's opinion, which took more than 300 collective hours of her time and that of her two clerks, is that organizations must take certain steps necessary to properly preserve ESI.
The case involves a complex securities litigation filed by a group of 96 investors trying to recover $550 million in losses due to the collapse of two British Virgin Islands-based hedge funds. The case was filed in the Southern District of Florida in February 2004 and was then transferred to the Southern District of New York in October 2005. Defendants began asserting discovery violations from October 2007 to June 2008, including allegations that plaintiffs failed to preserve ESI and other documents and then made "false and misleading declarations regarding their document collection and preservation efforts."
To Download This Article: Click Here
---------------------------------------------
Source: law.com
By: Brad Harris and John Jablonski
Cloud computing creates a new legal ballgame
Although there are a number of benefits that cloud computing brings to the better business table - including reduced servicing costs and increased flexibility on IT services - there are still a number of legal issues that need to be addressed, say the organisers of 360°IT - The IT Infrastructure Event.
According to Natalie Booth, the show's event director, Microsoft is quietly lobbying for new legislation in a number of key countries, with the software giant's general counsel reportedly visiting several countries to lobby for the changes.
"Microsoft's corporate counsel Brad Smith has been globe-trotting in connection with this for some time, as was confirmed by his presentation at the Brookings Institution last month," she said. "Brad Smith referred in his Brookings speech about Facebook's founder Mark Zuckerman's comments that `privacy is no longer a social norm,' and questioned this statement, calling on the US Congress to modernize the law, and filling in the gaps that cloud computing clearly creates," she said.
"Smith also noted that it is often difficult to place a specific monetary value on the theft of content, reasoning that it makes more sense to impose statutory penalties on a per-victim basis," she added.
The problem facing regulators in most countries, Booth says, is that the penalties for hacking into an individual computer are the same as for a cloud-based IT system, even though the potential financial losses are clearly a lot higher.
To Download This Article: Click Here
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Source: datacenterjournal.com
According to Natalie Booth, the show's event director, Microsoft is quietly lobbying for new legislation in a number of key countries, with the software giant's general counsel reportedly visiting several countries to lobby for the changes.
"Microsoft's corporate counsel Brad Smith has been globe-trotting in connection with this for some time, as was confirmed by his presentation at the Brookings Institution last month," she said. "Brad Smith referred in his Brookings speech about Facebook's founder Mark Zuckerman's comments that `privacy is no longer a social norm,' and questioned this statement, calling on the US Congress to modernize the law, and filling in the gaps that cloud computing clearly creates," she said.
"Smith also noted that it is often difficult to place a specific monetary value on the theft of content, reasoning that it makes more sense to impose statutory penalties on a per-victim basis," she added.
The problem facing regulators in most countries, Booth says, is that the penalties for hacking into an individual computer are the same as for a cloud-based IT system, even though the potential financial losses are clearly a lot higher.
To Download This Article: Click Here
---------------------------------------------
Source: datacenterjournal.com
EU Adopts New Standard Contract Clauses for Foreign Processors
Last Friday, the European Commission adopted new "controller-processor" standard contractual clauses ("SCCs" or "model contract") to protect personal data transferred from Europe to a data processor located outside the EU/ EEA. Existing contractual arrangements are grandfathered, but any new contracts with data processors must include the new version of the SCCs.
The principal change from the 2002 controller-processor SCCs is that processing contractors are now obliged to obtain prior written consent from the customer before subcontracting any of the processing, and the subcontractor must be contractually bound to the same obligations that apply to the contractor.
Article 25 of the EU Data Protection Directive directs member states to prohibit the transfer of personal data to countries lacking similar legal protections, unless one of several limited exceptions applies or approved safeguards are in place. EU-approved standard contract clauses between the data "exporter" and data "importer" are a common means of legitimizing data transfers to locations outside the European Economic Area -- the European Union plus Iceland, Liechtenstein, and Norway. (SCCs are not used where the transfers are to a US company that participates in the international Safe Harbor program, or to a company relying on informed consent, nationally approved Binding Corporate Rules, or one of the other "derogations" under Article 26 of the Directive.)
To Download This Article: Click Here
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Source: infolawgroup.com
By: W. Scott Blackmer
The principal change from the 2002 controller-processor SCCs is that processing contractors are now obliged to obtain prior written consent from the customer before subcontracting any of the processing, and the subcontractor must be contractually bound to the same obligations that apply to the contractor.
Article 25 of the EU Data Protection Directive directs member states to prohibit the transfer of personal data to countries lacking similar legal protections, unless one of several limited exceptions applies or approved safeguards are in place. EU-approved standard contract clauses between the data "exporter" and data "importer" are a common means of legitimizing data transfers to locations outside the European Economic Area -- the European Union plus Iceland, Liechtenstein, and Norway. (SCCs are not used where the transfers are to a US company that participates in the international Safe Harbor program, or to a company relying on informed consent, nationally approved Binding Corporate Rules, or one of the other "derogations" under Article 26 of the Directive.)
To Download This Article: Click Here
---------------------------------------------
Source: infolawgroup.com
By: W. Scott Blackmer
Google adds social networking to Gmail
In today's podcast: Google adds social networking to Gmail; PayPal ban on personal transactions in India to continue; and Baidu said boosted by Google's threat to leave China.
Google has given Gmail a social-networking component with its introduction of Buzz, a service built inside of the webmail product that lets users post and share content in similar ways as they do in sites like Facebook and Twitter. How successful Google will be in convincing Gmail users to shift their social-networking tasks over to Buzz remains to be seen. Google believes Buzz offers enough improvements over existing social networks. Specifically, Buzz has been designed to help users deal with the often massive amount of information they receive through their social-networking sites.
PayPal said a ban on personal transactions to and from India will continue for "at least a few months" while the online payment service tries to resolve a problem with local regulators. The ban, which began Saturday and caught PayPal users in the country by surprise, relates to whether personal payments constitute "remittances," or money sent home by people working abroad. The company is working with regulators and bank processing companies to resolve the problem as soon as possible. But personal payments to and from India will be suspended for at least a few months until the company fully resolves questions from the Indian regulators, it said.
To Download This Article: Click Here
---------------------------------------------
Source: blogs.computerworld.com
Google has given Gmail a social-networking component with its introduction of Buzz, a service built inside of the webmail product that lets users post and share content in similar ways as they do in sites like Facebook and Twitter. How successful Google will be in convincing Gmail users to shift their social-networking tasks over to Buzz remains to be seen. Google believes Buzz offers enough improvements over existing social networks. Specifically, Buzz has been designed to help users deal with the often massive amount of information they receive through their social-networking sites.
PayPal said a ban on personal transactions to and from India will continue for "at least a few months" while the online payment service tries to resolve a problem with local regulators. The ban, which began Saturday and caught PayPal users in the country by surprise, relates to whether personal payments constitute "remittances," or money sent home by people working abroad. The company is working with regulators and bank processing companies to resolve the problem as soon as possible. But personal payments to and from India will be suspended for at least a few months until the company fully resolves questions from the Indian regulators, it said.
To Download This Article: Click Here
---------------------------------------------
Source: blogs.computerworld.com
The Enigmatic Posse List
About eight years ago, Washington, D.C., bankruptcy lawyer Greg Bufithis semi-retired and began participating in large document review projects. After a few, he realized that there was no centralized source for temporary attorneys to learn about these opportunities. Ever the entrepreneur, he created one.
He initially registered a Yahoo group that grew to about 200 names in a few months and eventually migrated to an independent mailing list originally called "Contract Attorney Job List." Then one day, Bufithis was reviewing documents and a colleague he did not know approached him and said: "Hey, Kevin at the end of the table sent me and said I should join your posse," Bufithis recalls. "So a name was born and we created a Web site around The Posse List."
According to Bufithis, the initial mission of the now 18,000-plus member Posse List was simply to help others find jobs by posting project listings through agencies, law firms and companies looking for temporary attorneys, paralegals, and computer forensics personnel.
Bufithis quickly realized that the list could offer more and began establishing relationships with agencies, corporations, and online job sites to feed posts into their networks. He personally contacted law firms to obtain background information on projects to provide additional detail to his members. He also began to cover electronically stored information management and e-discovery conferences.
GOING GLOBAL
"When we started The Posse List in 2002, our base was contract attorneys in document review and production on large cases that required an army of reviewers called in like a posse at the last minute," says Bufithis. As technology improved, the need for these large teams declined, but the hunger for additional information and expertise in e-discovery continued to grow.
To Download This Article: Click Here
---------------------------------------------
Source: law.com
By: Ari L. Kaplan
He initially registered a Yahoo group that grew to about 200 names in a few months and eventually migrated to an independent mailing list originally called "Contract Attorney Job List." Then one day, Bufithis was reviewing documents and a colleague he did not know approached him and said: "Hey, Kevin at the end of the table sent me and said I should join your posse," Bufithis recalls. "So a name was born and we created a Web site around The Posse List."
According to Bufithis, the initial mission of the now 18,000-plus member Posse List was simply to help others find jobs by posting project listings through agencies, law firms and companies looking for temporary attorneys, paralegals, and computer forensics personnel.
Bufithis quickly realized that the list could offer more and began establishing relationships with agencies, corporations, and online job sites to feed posts into their networks. He personally contacted law firms to obtain background information on projects to provide additional detail to his members. He also began to cover electronically stored information management and e-discovery conferences.
GOING GLOBAL
"When we started The Posse List in 2002, our base was contract attorneys in document review and production on large cases that required an army of reviewers called in like a posse at the last minute," says Bufithis. As technology improved, the need for these large teams declined, but the hunger for additional information and expertise in e-discovery continued to grow.
To Download This Article: Click Here
---------------------------------------------
Source: law.com
By: Ari L. Kaplan
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