Choosing a data archiving strategy: Disk archiving vs. tape archiving

Data archiving is a vital process for many data storage environments for several reasons. First, archiving data, either for long term or short term, allows a company to go back into archived files to retrieve a specific piece of data for customers or themselves. Second, data archives are often kept for a specific number of years for government regulations. With this in mind, companies generally have three data archiving strategies they can choose from: disk archiving, tape archiving or both. What are the pros and cons of each method? Which is better for your company? Or, is it best to use a mixture of disk and tape for your data archives?

There are several advantages and disadvantages to disk archiving and tape archiving, so many organizations often choose a combination of disk and tape, using disk for short-term archives and then transferring archived data to tape for long-term retention.

"Everybody should use both," said Brian Babineau, senior consulting analyst at the Enterprise Strategy Group (ESG), Milford, Mass. "Your access requirements are going to vary, but in the first few years of your retention period, keeping it more accessible so you can get it back quickly is going to be critical. If you just need to keep it around and don't need to access it, tape becomes a logical choice for long-term archives."

Dean Flanders is the head of infomatics at Friedrich Miescher Institute (FMI), a biomedical research institute, and using both disk and tape for his data archives has served him well. For his short-term archives, he uses Oracle's Sun Storage Archive Manager to move data to disk. And every night, he archives his disk data over to his Spectra Logic tape system as well as an offsite tape storage facility.

"It makes sense to use a mixture of disk and tape," said Flanders. "Because you just have this security blanket knowing you have an extra copy of the data [on tape]."

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Source: searchdatabackup.techtarget.com
By: Megan Kellet

Yale postpones move to Google Apps over cloud fears

US university delays switch to Google’s online email and applications service after faculty and students express legal and security concerns

Prestigious US university Yale has postponed a plan to adopt web giant Google’s online email service after faculty and students expressed technology and legal concerns, according to the university’s daily news site.

Quoting the university’s computer science professor Michael Fischer, the Yale Daily News claims that some parties were concerned that Google’s policy of replicating data across its global data centre operations could cause legal difficulties for the university.

Fischer also reportedly believes that Google’s high profile makes it a more appealing target for hackers. Other concerns include Google’s carbon footprint and the risk of over reliance on a single supplier.

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Source: information-age.com

Google, Microsoft Push Feds to Fix Privacy Laws

A coalition of the net’s biggest online service providers, including Google and Microsoft, are joining with the top internet rights groups to demand Congress modernize the nation’s privacy laws.

Among the reforms pushed by the so-called Digital Due Process coalition is a requirement that law enforcement get warrants from a judge when they want to force companies to turn over your e-mails, documents and location data. But despite issuing a clarion call to change privacy laws, none of the companies that are pushing citizens to store more and more sensitive information online announced any change to their own practices.

The coalition announced its four principles in a conference call with reporters Tuesday. The group says they’ve briefed the White House, the FBI and Congress on the proposed changes and expect hearings this year. Congress isn’t expected to act before 2011, because of a crowded legislative agenda.

Changes in technology dictate the need to update the nation’s electronic privacy law, known as the 1986 Electronic Communications Protection Act, according to Jim Dempsey of the Center for Democracy and Technology.

“With the emergence of location services and the transfer of a huge amount of data to the cloud and our huge reliance on cloud storage of e-mail messages, the law has become outdated and needs to be updated,” Dempsey said in the conference call.

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Source: wired.com
By: Ryan Singel

Changes to the Federal Rules of Civil Procedure – Computer Forensics and E-Discovery

On December 1, 2006, many amendments to the Federal Rules of Civil Procedure went into effect. There are three rules specifically that impact Computer Forensics and E-Discovery which need to be considered when building a case for your client, as well as protecting your client’s rights.

Most companies fail to realize the following two points:

•Any data that can be compiled into viewable form, whether presented electronically or printed on paper, is potentially within the definition of “document”.
•Electronic documents may be considered obsolete by the business in terms of its current computer infrastructure, but may have archival value and be recoverable to a readable format by specialized forensic techniques.
FRCP – Rule 26 (LII 2007 ed.)

With the new law regarding E-Discovery now in place, Rule 26a1 changes are very important.

At the first sign that litigation is coming, a company must use their Litigation Hold procedures and not wait for the courts to act. The problem is most companies do not have these procedures in place, nor do these companies know that litigation holds must start this early in the process.

Of course in order to have Litigation Hold Procedures, a company must have a retention policy and know where the company’s data is stored and must be easily accessible.


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Source: Forensics Computer
By: Jason Perry

Making E-discovery an Internal Function

NBC Universal is one of the largest media and entertainment companies in the world. Chief Information Security Officer Jonathan Chow and his team manage information security for several business lines within NBCU, including its broadcast and cable television to film production, online ventures and its two theme parks in Hollywood, California and Orlando, Florida. Among one of the biggest challenges in the last few years has been the incredible explosion in demand for e-discovery services, according to Chow.

Since different legal teams handle the needs of each line of business, the workflows associated with managing electronic discovery vary as well, adding another layer of complexity. And because of the growing number of cases, and increases in both the amount of electronically stored information and hours spent supporting the process, demand for e-discovery services has increased 30 to 50 percent annually. The costs were spiraling out of control and this sent Chow looking for a way to manage the process internally.

Chow spoke to CSO about how NBCU tackled the costly and time-consuming process and turned it into a cost-effective and more efficient system that has seen a 40-45 percent gain efficiency since its implementation.

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Source: computerworld.com
By: Joan Goodchild

Analyst: Don't be duped by de-dupe

De-duplication described as a "band-aid" solution.

De-duplication, one of the most hyped storage technologies of the past two years, is a "band-aid" solution for organisations with lax IT policies, according to one of Australia's leading enterprise IT analysts.

IBRS analyst Dr Kevin McIsaac said that while there are some use cases for de-duplication - which aims to identify multiple redundant copies of the same file in a given storage system, deleting copies and leaving a pointer to one single copy to save the organisation disk space - it is not the panacea portrayed by some storage vendors.

In many cases, the analyst said, organisations would be better off improving their data management processes to avoid duplication of the data in the first place.

McIsaac told iTnews that the technology assumes that organisations have multiple redundant copies of the same data on their network.

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Source: itnews.com.au
By: Brett Winterford

(Tick, Tick, Tick, Tick) Wake Up! The Clock's Running on Evidence Retention

The Jan. 15, 2010, opinion of Judge Shira Scheindlin in Pension Committee of the University of Montreal Pension Plan et al., v. Banc of America Securities, LLC (Pension Committee) is potentially the most significant e-discovery decision affecting counsel and litigants in six years.

Prior decisions, such as those of Judge Scheindlin in Zubulake v. UBS Warburg and Judge Barbara Major in Qualcomm Inc. v. Broadcom Corp., have made clear that inside counsel's conduct in supervising e-discovery, interfacing with outside counsel, and assuring internal corporate compliance with discovery obligations is potentially subject to judicial review. Yet those decisions did not address all of the applicable standards and obligations relating to the electronic discovery process.

In Pension Committee, Judge Scheindlin does exactly that, and, while ostensibly merely synthesizing existing standards "set by years of judicial decisions," appears, in fact, to increase compliance requirements and increase the risk of noncompliance by applying enhanced sanctions for gross negligence and willfulness to discovery misconduct.

The detailed decision is a must read for those involved in litigation as it is likely to be persuasive to other courts because of Judge Scheindlin's reputation. It is of particular significance for in-house counsel, as many of the litigation-related obligations it imposes arise prior to the retention of outside litigators and the penalties for noncompliance could be particularly harsh.

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Source: law.com
By: Wayne Matus & David Stanton

Rethinking the Adversarial Approach

Fade in: An almost empty courtroom, except for counsel, the judge, the court reporter and two lone observers. There is a muffled clatter of handcuffs as prisoners -- in a rare display -- shuffle through the back of the courtroom on their way from holding cells to hearings. Except for a brief interlude of shouting in the hallway, which causes the judge to ask no one in particular whether he should "push the button," there is no crowd of onlookers, no "Law and Order" moment -- only the sparring of opposing counsel in a prediscovery preservation hearing.

It's a scenario that has been repeated in courtrooms across the country. The hearing comes after weeks of expensive yet unsuccessful meetings between the parties regarding document preservation. The court had earlier ordered the parties to reach an agreement as to the scope and process of preservation, in the hope that seasoned and reasoned minds would prevail and everyone could get on with the business of the case. It was not to be.

"Liars and miscreants, who are trying to 'hide the ball,' " claim the plaintiffs.

"Ignorant of our complex technology and preservation challenges," retort the defendants.

"We have no idea what defendants have, so in the interest of justice they must preserve it all."

"We can't preserve it all because we're too big, it's too much data, and it would be hideously expensive and disruptive."

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Source: Law.com
By: Deborah H. Juhnke

When policy and Ed Tech kick each other in the teeth

I just sat through a presentation by a lawyer/IT guy (apparently, these two professions can coexist) from our state’s DA’s office. He was a great presenter and the dialog that resulted was very informative. Good stuff, right? However, as he spoke it became abundantly clear that the policies from state and federal levels he was describing were completely at odds with modern, technology-infused educational philosophy.

Email remains an important business tool, but most students view it as largely irrelevant. Why settle for email when rich social media and synchronous chat tools work so well, right? This point of view is certainly reflected in many newer companies and startups; the Socialwok application for Google Apps similarly embraces social tools. I know this isn’t something that a lot of administrators, parents, or school committee members want to hear. There are plenty of districts where even providing email to students makes people uncomfortable, let alone moving to a more social, collaborative environment.

A look at the National Educational Technology plan, however, makes it clear that an approach leveraging social tools and 24-7 learning environments will not only be encouraged, but required:

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Source: education.zdnet.com
By: Christopher Dawson

Revisiting 'Zubulake' Six Years Later

In January, Judge Shira Scheindlin of the Southern District of New York, who authored the landmark electronic discovery decisions in Zubulake v. UBS Warburg LLC, issued an opinion that she titled "Zubulake Revisited: Six Years Later." See Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of America Sec. LLC, No. 05 Civ. 9016, 2010 WL 184312, at *1 (S.D.N.Y. Jan. 15, 2010).

Although the case did not present any "egregious examples of litigants purposefully destroying evidence," 13 plaintiffs were sanctioned -- seven for negligence and six for gross negligence -- due to their lackluster preservation, collection, search, and production efforts. Id. at *10, *15-*27. All of those plaintiffs were subject to monetary sanctions, two were to provide additional discovery, and the grossly negligent plaintiffs were subject to a carefully tailored, rebuttable spoliation instruction.

In Montreal Pension, the court analyzes levels of unacceptable discovery conduct and differing burdens of proof in establishing sanctions and potential sanctions. The case provides guidance to courts and practitioners and is likely to be widely cited in the future.

The plaintiffs in the case were investors suing to recover $550 million in losses due to the liquidation of two British Virgin Island hedge funds.

In April 2003, the entity that managed the hedge funds filed for bankruptcy and, in July 2003, the funds were placed into receivership. During the summer of 2003, a group of investors formed a committee to, among other things, monitor court proceedings and retain counsel as necessary. They met with prospective counsel in September 2003 and retained litigation counsel in October or November 2003.

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Source: Law.com
By: Arthur C. Fahlbusch Jr.

Don't Lose Sleep over U.S. e-discovery Nightmares

What, exactly, is the difference between e-discovery laws in Canada and the U.S.? Two lawyers highlight the basics for those of us who don't work in the legal department.

E-discovery has been a hot topic ever since changes made to the U.S. Federal Rules of Civil Procedure broadened the scope of electronic evidence back in 2006.

Efficiency and Cost Control In Network and Application Management: Download nowBut Canadian IT departments shouldn't lose sleep over e-discovery nightmares taking place in the U.S., according to one lawyer with experience practising on both sides of the border.

"The sky is not falling, No. 1," said Stephen Maddex, associate in the Commercial Litigation Group at Lang Michener LLP in Ottawa, who is a member of the bar in Ontario and Texas.

"No. 2, organization is key," he said. "The more businesses do get organized, the simpler it all becomes."

Broadly speaking, there are two major differences between general Canadian practice and the U.S. federal rules, said Maddex.

One is the scope of discovery. "In the U.S., you can ask for pretty much anything, which is why e-mail has become such an important problem there," he said. But Canadians "don't have that same problem because the scope is narrower."

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Source: Network World
By: Jennifer Kavur

Challenging 'Manual' ESI Collections

Discovery of electronically stored information is now an integral part of civil litigation in federal courts. Although Fed. R. Civ. P. 26(b)(2)(B) and 34 address production of electronically stored information, they are silent on related procedures for searching and collecting ESI. For various business reasons, including burden and expense, some corporate litigants opt for more informal, "manual" collection methods (i.e., searches performed by individual records custodians, often without sophisticated data-collection software and hardware) when responding to ESI requests.

What happens when the requesting party challenges the results of a production based on manual collection methods or otherwise objects to the propriety of those methods? In Ford Motor Co. v. Edgewood Properties Inc., 257 F.R.D. 418 (D.N.J. 2009), the District of New Jersey analyzed whether manual collection methods (versus automated) are sufficiently reasonable to meet a party's electronic discovery obligations. This article will address this evolving issue and the guidance provided by Ford and other relevant decisions.

Since the Federal Rules of Civil Procedure do not specify procedures for searching and collecting ESI, the Sedona Conference, a respected nonprofit research and educational institute that has provided substantial guidance on e-discovery best practices, has established some benchmarks. In June 2007, the Sedona Conference published the second edition of its ­seminal work, The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production. The Sedona Principles elaborate on 14 principles intended to frame e-discovery best practices including ESI search and collection procedures. These now-essential guidelines were followed by the Best Practices Commentary on the Use of Search And Information Retrieval Methods In E-Discovery, which contains eight "practice points," several recommendations and extensive discussion on the current state of search and retrieval methodologies and practice.

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Source: Law.com
By: Mark S. Sidoti, Wendy R. Steinand and Verne A. Pedro

Zurich Insurance loses 600k records on backup tape

Zurich Insurance has promised to improve its information security after losing personal financial information on 46,000 British clients through careless handling of unencrypted backup tapes.

The back-up tape, which also contained personal details of 1,800 third party insurance claimants from the UK, was lost by Zurich's South African sister company during what was described as a routine transfer to a data storage facility in South Africa in August 2008.

In total, 51,000 British records were on the tape, along with with a much larger number of details about Zurich customers in South Africa (550,000) and Botswana (40,000). Zurich's UK arm wasn't informed about the problem until a year later.

There's no evidence that the information was subsequently used in ID theft or other scams in any country, but that's down to good luck rather than basic safeguards, which were notably absent.

The case was reported to UK privacy regulators, who extracted a promise from Zurich to improve its procedures or risk tougher action for any future data breaches.

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Source: theregister.co.uk
By: John Leyden

'Sexting,' Texting and EDD Before High Court

While stories of "sexting" and cheating husbands are common fare in tabloid magazines, such salacious facts are a relative rarity in U.S. Supreme Court cases. It is equally unusual for the Supreme Court to issue opinions with the potential to touch upon aspects of electronic discovery. A perfect storm is brewing in the form of City of Ontario v. Quon, No. 08-1332, in which the Supreme Court will address a government employee's expectation of privacy in text messages sent from his employer-issued device -- including spicy text messages sent to his wife and alleged mistress. Although Quon involves a public employer, the Court's ruling potentially could have far-reaching implications for workplace best practices in the private sector as well. In addition, Quon has the potential to extend its reach to other forms of electronic communication beyond text messages, including other types of "outlier" electronically stored information.

Text messages are just one form of outlier ESI, data that parties are more likely to overlook during the discovery process given that it may exist "out of sight" and/or "out of mind." Common sources of outlier ESI include cellphones and personal digital assistants, voice mail systems, instant messaging systems, chat rooms and web sites. Few court decisions have addressed the preservation and production requirements of outlier ESI in litigation. Under certain circumstances, however, failure to preserve and produce outlier ESI has been held to constitute spoliation and resulted in sanctions such as an adverse inference.

Although Quon itself addresses the privacy of a public employee's text messages sent and received via pager, a broad ruling in Quon could very well collide with principles of e-discovery preservation and production of outlier ESI for private employers, as well.

BACKGROUND IN QUON
The Court will consider the U.S. Court of Appeals for the 9th Circuit's ruling in Quon v. Arch Wireless Operating Co. Inc., 529 F.3d 892 (9th Cir. 2008), petition for rehearing en banc denied, 554 F.3d 769 (9th Cir. 2009), cert. granted, 130 S. Ct. 1011 (2009). The case involves Sergeant Jeff Quon, a member of the city of Ontario, Calif.'s SWAT team, who used his city-issued, text-messaging pager for personal communications. There was no official city policy governing use of the pagers, but the city's "Computer Usage, Internet and E-mail Policy" specified that e-mail and Internet usage would be monitored and that users should have no expectation of privacy. Quon signed this policy and also was later informed by his supervisors that text messages would be considered e-mail and audited under the policy.

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Source: law.com
By: Farrah Pepper and Jeffrey D. Coren

NCOIC Discusses e-Discovery and Cloud Computing

With government use of cloud computing expected to grow, the group reach out to Mr. Jason R. Baron, Director of Litigation

Last week during its weekly meeting, the NCOIC Cloud Computing Working Group (CCWG) examined some of the legal aspects surrounding electronically stored information.

With government use of cloud computing expected to grow, the group reach out to Mr. Jason R. Baron, Director of Litigation for the United States National Archives and Records Administration for some guidance. Mr. Baron is an internationally recognized speaker and author on the preservation of electronic records.

In 2009 he was named Co-Chair of The Sedona Conference® Working Group on Electronic Document Retention and Production, and has previously served as Editor-in-Chief of The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery (2007), and Co-Editor-in-Chief of The Sedona Conference Commentary on Achieving Quality in the E-Discovery Process (2009).

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Source: cloudcomputing.sys-con.com
By: Kevin Jackson

The Electronic Turn in Criminal Subpoenas

Companies served with a criminal subpoena often face a challenging dilemma. With hundreds of gigabytes, or even a few terabytes, of electronically stored information on their servers and employees' hard drives, how do they ensure an adequate response to the subpoena without their electronic discovery costs spiraling out of control?

In the civil context, parties are encouraged to meet, confer, and cooperate in the selection of key words or other search methodologies. In a criminal investigation, however, no parallel system exists.

Strict compliance with a subpoena seeking ESI may be extraordinarily burdensome and unreasonable both in time and expense. While a subpoenaed company may correctly believe that conducting highly targeted searches would result in its producing documents directly relevant to the government's investigation, the company is often at risk as to whether the protocols it employs may later be deemed by a prosecutor or regulator to be insufficient. The consequences could range from a motion to compel compliance with the subpoena to actual charges of obstruction of justice.

Unfortunately, these issues are rarely presented to courts for resolution, because companies do not wish their first significant interaction with the criminal prosecutor to be a motion to quash the subpoena.

Initial dialogue with the government about ESI in a criminal investigation raises a unique set of issues. The government will likely argue that any discussion over narrowing the scope of the subpoena, through use of specific search terms or otherwise, might reveal information about its investigation that it does not wish to show at that stage. On the other side, a company may not wish to reveal its methods for responding to the subpoena, which it may regard as attorney work product.

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Source: law.com
By: Daniel R. Margolis, Mark R. Hellerer and Wayne C. Matus

Drowning in ESI? Grab A Buoy

For at least the last decade, the legal system in the US has been on the verge of drowning in ESI (electronically stored information). The waves have been getting higher and the ocean deeper. The volume of information that must be considered during discovery continues to grow exponentially, but the resources to deal with it are not.

Some years ago, I found that the number of cases that mentioned electronic documents was doubling about every six months. As electronic information came to dominate discovery, though, there was a shift. Cases no longer needed to discuss electronic documents explicitly, because virtually all of them—all of the documents and all of the cases—were electronic. Electronic discovery simply became "discovery."

Ten years ago, a gigabyte was a big collection, now a terabyte (a thousand gigabytes) is not unusual and multi-terabyte collections are common. Ten years ago, the big discussion was paper or plastic? Do you have to print out documents in order to effectively review them or can you review them from a computer screen? Now the big discussion is how can we use technology rein in the burden of eDiscovery.

Fortunately, there are tools available to help to provide a flotation vest for the problems of ESI volume. The tools I want to talk about today are directed at making accessible the responsive information and minimizing the amount of irrelevant material that must be considered.

Attorneys have, for example, come to rely increasingly on key word or Boolean searches to identify documents that need to be reviewed. They have been encouraged by the courts and by various organizations, for example, the Sedona Conference, to negotiate these terms early in the process.

The biggest limitation to using search terms to cull or select documents is the risk of not guessing the right words to search for. A seminal study in this area (Blair and Maron, 1985), for example, found that attorneys were only about 20% effective at guessing the right terms. Their search terms retrieved only 20% of the actually responsive documents along with a large volume of irrelevant documents.

To use search terms, or more complex, Boolean expressions (e.g., using NOT, OR, AND and proximity), can be very risky. Documents that are not selected may never be considered again and any information they contain may be lost from the case. You may be prevented from discovering or introducing exculpatory evidence, simply because it was not selected by your initial keyword search.

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Source: Applied Discovery
By: Herb Roitblat Ph.D.

Dueling Opinions: Scheindlin’s Pension Committee vs. Rosenthal’s Rimkus

The new decade has begun with conflicting and complementary opinions from Judge Rosenthal of Texas and Judge Scheindlin of New York. These opinions, penned by United States District Court judges, will frame the behavior and motion practice around federal e-discovery sanctions into the near future.

Before the ink was dry on Judge Scheindlin’s groundbreaking “no written legal hold = gross negligence” opinion in The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al., 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) (Amended Order), subtitled “Zubulake Revisited: Six Years Later,” Judge Rosenthal, in Rimkus v. Cammarata, 07-cv-00405 (S.D. Tex. Feb. 19, 2010) drew careful lines around the court’s inherent power to sanction, even in the face of bad faith, and introduced the concept of preservation proportionality. Both opinions are available at the end of this article.
Both judges left it to the jury to determine whether to consider lost/destroyed evidence as being detrimental to the alleged spoliator. It is their analysis that causes Craig Ball to sound like Paul Revere , John Jablonski to describe the opinions in prizefighting metaphors and Ralph Losey to allude repeatedly to pole vaulting to underscore the extent to which the bar has been raised.

Judge Scheindlin put forth the following framework to determine whether sanctions attach:

The question, then, is whether plaintiffs’ conduct requires this Court to impose a sanction for the spoliation of evidence. To answer this question, there are several concepts that must be carefully reviewed and analyzed. The first is plaintiffs’ level of culpability – that is, was their conduct of discovery acceptable or was it negligent, grossly negligent, or willful. The second is the interplay between the duty to preserve evidence and the spoliation of evidence. The third is which party should bear the burden of proving that evidence has been lost or destroyed and the consequences resulting from that loss. And the fourth is the appropriate remedy for the harm caused by the spoliation.

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Source: discoveryresources.org

SMBs look to cloud storage services for data compliance and e-discovery

Small- to medium-sized businesses (SMBs) facing e-discovery requirements are beginning to use cloud storage services and other Software-as-a-Service (SaaS) offerings for data compliance needs such as email and collaboration, experts say.

Many SMBs outsource base systems such as email and customer relationship management (CRM) to SaaS providers as their first online services because of potentially large cost savings and infrastructure flexibility, said Ed Laczynski, CTO of LTech Consulting LLC, a Bridgewater, NJ-based cloud service provider and consulting firm.

"More often than not they are looking for an on-ramp to the cloud," Laczynski said, citing online email and collaboration services as functions SMBs are switching to the cloud.

Even if SMBs procure basic email services to test the online storage services waters, they remain responsible for complying with regulatory compliance and e-discovery requirements. SMBs in regulated industries might be required to keep correspondence and documents for years. According to Laczynski, basic SaaS services such as Google Inc.'s Google Apps, don't include business-class compliance features. He said 60% of his smaller SMB customers are asking for additional online data backup and data archiving products.

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Source: searchsmbstorage.techtarget.com
By: Todd Erickson

Confusion Carries the Day in E-Discovery

Lawyers and vendors look for ways to create common standards in e-discovery.

As the market for electronic discovery software and services continues to grow and mature, making sense of exactly what it is e-discovery vendors are selling is not always easy. "I've been hearing from providers for years, 'look, you don't understand e-discovery. We've got the ultimate solution -- those other guys you've talked to don't know what they're doing,'" says George Socha, an attorney and e-discovery consultant in St. Paul, Minnesota. "Well, they all can't be right. But there was and is no way to verify a lot of the claims vendors are making."

Lawyers trying to find out the cost to process electronic records for litigation often run into a confusing array of data and terminology that can obscure the issue. Everyday terms such as cull, image, document, and duplicate take on new meanings in e-discovery projects and legal processes like early case assessment, and production varies depending on the discovery query and the data set. And that's not even considering the variation in local rules in different jurisdictions.

The explosion of digital evidence has been extreme, so that e-discovery firms are wrestling with how to prove their capabilities in processing huge volumes of evidence. "Two or three years ago a big job might involve thirty, maybe fifty gigabytes of evidence," says Jim McGann, vice president of marketing with Index Engines, a New Jersey-based e-discovery software maker. "Now we have to handle terabytes of data in just days, which is such an extreme increase that you can't pretend the same old hardware and software will do the job."

E-discovery vendors regularly throw around impressive-sounding numbers about the speeds at which their software tools can index and search data, though these numbers often lack context. In practice, e-discovery processing depends on a number of factors, such as the computing platforms data resides on, the types of media it is stored on, and the types of attachments and associated information included in a data set.

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Source: law.com
By: Jason Krause

Don't lose sleep over U.S. e-discovery nightmares

What, exactly, is the difference between e-discovery laws in Canada and the U.S.? Two lawyers highlight the basics for those of us who don’t work in the legal department

E-discovery has been a hot topic ever since changes made to the U.S. Federal Rules of Civil Procedure broadened the scope of electronic evidence back in 2006.

But Canadian IT departments shouldn’t lose sleep over e-discovery nightmares taking place in the U.S., according to one lawyer with experience practising on both sides of the border.

“The sky is not falling, No. 1,” said Stephen Maddex, associate in the Commercial Litigation Group at Lang Michener LLP in Ottawa, who is a member of the bar in Ontario and Texas.

“No. 2, organization is key,” he said. “The more businesses do get organized, the simpler it all becomes.”

Broadly speaking, there are two major differences between general Canadian practice and the U.S. federal rules, said Maddex.

One is the scope of discovery. “In the U.S., you can ask for pretty much anything, which is why e-mail has become such an important problem there,” he said. But Canadians “don’t have that same problem because the scope is narrower.”

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Source: itworldcanada.com
By: Jennifer Kavur

South Africa publishes issue paper on electronic evidence in criminal and civil proceedings

The South Africa Law Reform Commission has approved the publication of its Issue Paper on “Electronic Evidence in Criminal and Civil Proceedings: Admissibility and Related Issues” for general information and comment. The paper has attempted to draw attention to issues for law reform with regard to matters relating to admissibility of electronic evidence in criminal and civil proceedings. This preliminary research paper has set out to identify shortcomings in the evidential provisions of the Electronic Communications and Transactions (ECT) Act 25 of 2002. The closing date for comment is 30 June.


A recent survey of South African litigation practitioners revealed that less than 30% of documents produced during discovery or at trial are produced in electronic form, despite the fact that more than 90% of litigious documents are created electronically. In it’s 2009 year-end review of the world-wide electronic discovery software market, Gartner mentioned the growing need and demand of e-discovery software in South Africa. Many South African law commentators have discussed that current litigation practice falls short of best practice. All of these developments expalin the issuance of the issue paper.

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Source: jdsupra.com
By: The Possee List

ESI Culling: Trouble With Image Files

Some e-discovery cases intrinsically deal with digital image file formats, e.g., workplace pornography and image copyright disputes. But what about cases that, at a glance, don't involve image files at all? Should you include image files (visual image files not forensic or bit-for-bit copies) in your culling criteria? Is it a waste of time and money -- or is it "due diligence" to include them?

There are many cases for which including image files in your culling criteria might seem useless. But consider these relatively common business practices: taking photos of products or product packaging, and uploading them as JPEGs; keeping copies of incoming or outgoing faxes as TIFFs for digital record-keeping purposes; and scanning documents, saving them as non-searchable PDFs, and destroying the originals to save precious filling cabinet space.

Given these practices, it's much easier to see why including certain image file formats in your culling criteria may be important to your case. Images, though, are a different breed of file than TXT, DOC, or other content files; and standard keyword searching is usually not the best fit for culling image files. In fact, because of the basic nature of image files, relying on standard culling strategies could wrongly include a large number of false positives, or worse, exclude items that are truly responsive and relevant.

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Source: law.com
By: Jason Briody

Is a legal challenge to cloud inevitable?

I've been spending this week at the Cloud Connect conference at the Santa Clara Convention Center, in Santa Clara, Calif., listening closely to the broad range of opinions and concerns raise by both the customers of cloud and it's vendor community. The conference has been an amazing place to get a sense of what those deeply involved in cloud believe will happen in the next few years.

What has surprised me a little bit has been an apparent consensus that more and more applications will leverage public clouds, and that a large number of enterprises will adopt those services for certain classes of applications as early as 2013.

Contrast that with the agenda for a legal seminar being put on in Seattle this May, titled "Cloud Computing New business models and evolving legal issues", at which I will be presenting. Here is just a sample of the topics to be discussed:

Interoperability: Perspectives on Cloud Governance Through Standards Setting Organizations
Legal perspective on the standards setting process: Pros and cons for cloud computing providers in light of Rambus and other recent cases.

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Source: news.cnet.com
By: James Urquhart

Cloud Connect: NIST Prepares 'Use Case' Site

The National Institute of Standards and Technology will build a "use case" repository that may eventually give shape to cloud computing specifications.

NIST, a federal agency that has been instrumental in defining cloud computing, will take on an additional role as a central publisher of cloud use cases accompanied by a recommended reference technology implementation.

It's not standards setting, exactly, something the weary veterans of government vs. industry battles inside the National Institute of Standards and Technology would rather avoid. But the airing of strong use cases where a technology set is deemed suitable for a particular problem could lead to a specification for a standard, a NIST representative at the Cloud Connect show in Santa Clara, Calif., said Wednesday in an interview.

Lee Badger, a computer scientist in the Computer Security Division of NIST, said use cases submitted by federal agencies, vendors in the computer industry, or enterprise cloud implementers will be reviewed and validated by NIST, to see if they prove to be a satisfactory solution to a problem.

"We will make the results available to everyone" at a future portal site that is likely to be built by this unit of the agency, Badger said. No date has been set for launch and Badger resisted committing the agency to any time frame that fell within the next few months. But he didn't reject the notion that it is likely to be in operation sometime this year.

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Source: Informationweek
By: Charles Babcock

Despite Malaysian Blocking Statute, Court Compels Third Party's Production of Foreign Banking Information Pursuant to Subpoena

Gucci Amer., Inc. v. Curveal Fashion, 2010 WL 808639 (S.D.N.Y. Mar. 8, 2010)

Plaintiff sought to compel the production of documents and information regarding defendants’ Malaysian bank accounts pursuant to a subpoena served on United Overseas Bank’s New York Agency (“UOB NY”). UOB NY was not a party to the underlying action, nor was its parent company. Despite substantial evidence that production of the requested information was prohibited by Malaysian law and that violation of the law could subject a person to civil and criminal penalties, the court concluded that compliance with the subpoena was warranted and ordered UOB NY to produce the information within two weeks.

In this trademark infringement case, plaintiffs served a subpoena on UOB NY seeking information regarding defendants’ Malaysian bank accounts. UOB NY refused arguing that Malaysian banking secrecy laws prohibited such production. During the pendency of this discovery dispute, plaintiffs were awarded default judgment in the amount of $13.7 million. The order awarding default directed all defendants’ asset holders, including UOB, to liquidate defendants’ assets to fulfill the judgment, among other things. Plaintiffs continued to seek production of the requested documents as the bank records were necessary to enforce the order.

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Source: ediscoverylaw.com

Citing First Amendment, Court Denies Motion to Compel Production of Information Sufficient to Identify Anonymous Discussion Board Users

McVicker v. King, 2010 WL 786275 (W.D. Pa. Mar. 3, 2010)

In this suit arising from claims of unlawful and discriminatory termination, plaintiff, a former employee of the Borough, sought to compel a third-party owner of an internet discussion board to produce information sufficient to identify anonymous authors of certain, relevant posts. Plaintiff argued the identities of the posters may be relevant to impeach defendants’ testimony regarding when the determination to terminate plaintiff was first discussed. Citing First Amendment considerations, the court denied plaintiff’s motion to compel.

The issue of when defendants learned that plaintiff filed an EEOC claim was critical to plaintiff’s claims. Based on the content of certain posts to an internet discussion board on which local government activities were discussed, plaintiff issued a subpoena seeking to compel the production of information related to the identities of the anonymous writers. Plaintiff believed that their identities would be relevant to impeach defendants’ testimony. The owner of the discussion board, Trib Total Media (“Trib”), objected and refused to produce the requested information absent court order.

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Source: ediscoverylaw.com

Hybrid computing: A perspective from the trenches

I recently wrote about hybrid computing, and the following post came directly from one of my comments in that discussion thread.

I work for a healthcare solution provider. This is going to be complicated, and I’ve got to be a little careful – but… here goes:

We host Electronic Practice Management and Electronic Medical Record services (EPM/EMR) for small, medium, and large medical practices. We also do billing, posting, and other medical clerical, administrative, and related services.

The federal government has mandated that practice adopt EPM and EMR solutions for medical records. They offer incentives for early adopters and fine those who drag their feet. There are also all kinds of regulations, including HIPAA and Red-Flag laws that affect the healthcare industry.

A small medical practice can’t afford to host its own SQL DB, electronic prescription service, and EMR and EPM solution.

It really is a disaster and a tempest all at once. The doctors are doctors — not businessmen and certainly not IT. But what happens in an industry like this is that you get some group of doctors who either fund developers or learn how to develop themselves, and then they create an application and decide to market it. You end up with a mix of all the problems of healthcare and all of the problems of IT.

People in IT love to feel under-appreciated and think and/or ask, “If IT shut down, packed up, and went home, how long could this business operate?” And often it’s true. IT is seen as a cost-center, difficult to deal with, egotistical, and not in tune with the rest of the business. Also, IT is seen as being “enabled” to have this kind of attitude, because it’s critical and you’re going to have to pay up for IT one way or another

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Source: blogs.techrepublic.com
By: Sonja Thompson

Social Networking Pitfalls for Judges, Attorneys

Populous and widespread, social networking sites draw participants from an increasingly broad spectrum. They comprise an open forum that has torn down walls established by many institutions, including the legal system.

Social networking online is a remote sensory experience engaging our minds at many levels, and it will take time for us to adapt to this unprecedented way of communicating with one another. Moreover, it imposes a unique burden on the judicial component of our system. Several recent cases illustrate the pitfalls for judges and lawyers who use social networking.

Early in 2009, the Advisory Committee on Judicial Ethics[FOOTNOTE 1] issued opinion No. 08-176 prompted by an inquiry from a judge who received an invitation to join a social networking site. This site was aimed at professional networking that would allow sharing business-related information, contacts and, most notably, the ability to "interact with lawyers and litigants."

The committee recognized a host of potential benefits from membership, such as staying in touch with distant family members, former schoolmates and associates. There was nothing "inherently" wrong with joining, since it was comparable to the type of socializing judges already do in person. They keenly divorced the mode of communication from how it was used.

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Source: law.com
By: Ken Strutin

Producers’ conclusory statements fail to justify protective order

Cartel Asset Management v. Ocwen Financial Corp., 2010 U.S. Dist. LEXIS 17857 (D. Colo. Feb. 8, 2010)

Producers had objected to several of requestors’ interrogatories and requests for production on the grounds that they sought ESI not reasonably accessible because of undue burden or cost. The court noted that producers bore the burden of persuasion, which “cannot be sustained with bald generalizations.” Producers must “present details sufficient to allow the requesting party to evaluate the costs and benefits of searching and producing the identified sources.” Id. at *44.

Producer Ocwen’s SVP of Sales and Marketing indicated that he was responsible for gathering responsive information. His declaration stated that “the process of producing responsive information ‘would affect our profitability and ability to serve our clients.’” Id. at *46. The court analogized this statement as “the e-discovery equivalent of an unsubstantiated claim that the ‘sky is falling.’” Id. The declarant’s statement lacked “specific information indicating how the Ocwen Defendants store electronic information, the number of back-up or archival systems that would have to be searched in the course of responding to Plaintiff’s Second Requests, or Defendants’ capability to retrieve information stored in those back-up or archival systems.” Id. at *45.

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Source: electronicdiscoveryblog.com

The Trials and Tribble-ations of the Data Deluge

The cover article in this week’s The Economist magazine is The data deluge, featuring a 14-page special report on information management entitled Data, data, everywhere. This article, and our collective situation of data overload, reminds me of one of my favorite Star Trek episodes, The Trouble With Tribbles. The cute little ESI files that everyone owns are now growing out of control and as result our institutions are imperiled. There is great good that can come out of all this data, as the article points out, but a whole lot of tribble too. (Sorry.)

The Economist article talks about the insights that can be teased out of the data deluge, while at the same time pointing out that no one really knows how to manage it. Information management is a key part of the e-discovery world. In fact, it is the first step in the nine-fold Electronic Discovery Reference Model. We all know that ESI should be better managed, but it seems nigh impossible to do right. For some, it is a mess because they don’t even try. But for others, especially large organizations, it is beyond their capacity no matter how hard they try, primarily because of the information explosion. How can you manage something that multiplies faster that you can count ? How do you find something that moves and morphs into something new when you are not looking? One day its a word doc, the next a wiki, the next a twitter.

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Source: e-discoveryteam.com
By: Ralph Losey

Government sends e-mails; it just can't save them

As the Justice Department hunts for the latest batch of missing federal e-mails, the officials who oversee spending of $71 billion a year for information technology got a big raspberry Friday for a 14-year-long failure to ensure that government e-mails are preserved.

For all the spending it oversees, the Federal Chief Information Officers Council is virtually unknown to the general public. Now it has "won" this year's Rosemary Award for the worst open government performance.

The Rosemary is bestowed by the National Security Archive, a private group that publishes declassifed government information and files lawsuits and many Freedom of Information Act requests for federal records. The award is named for former President Richard M. Nixon's secretary Rose Mary Woods, known for re-enacting her claim to have accidentally erased 18 1/2 minutes of a White House tape recording when she stretched to answer a phone.

Comprised of the chief information officials from 28 departments and agencies, the council was established by President Bill Clinton in 1996 and written into law by Congress in 2002. It describes itself as the "principle interagency forum for improving practices in the design, modernization, use, operation, sharing, and performance of federal government information resources."

The archive, however, said neither the council's founding documents, its 2007-2009 strategic plan, its transition memo for the Obama administration, nor its current Web site even mention the challenge of managing e-mail records.

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Source: ap.google.com
By: Michael J. Sniffen

Legal Project Management in the Cloud

Introduced as a beta at LegalTech in February, Onit is a Web-based project management tool described as being for "anyone and everyone who manage projects – big, small, business, legal." It specifically includes a Legal Edition designed for legal matters and cases. During its beta period, the system is free for anyone to use. Even after its formal launch, slated for April, the basic legal edition will remain free.

Because Onit is Web based, there is no software to download or install and it can be deployed in just minutes. Sign up using an e-mail address and receive an activation code within seconds. Once you receive the code, it takes just a minute more to launch a project, requiring only that you give the project a name. From there, invite participants, create a project plan, establish a budget, and add documents, notes and updates.

The beauty of Onit is its simplicity. Use it to manage multiple projects and coordinate multiple participants. Each project gets a home page where participants can plan, collaborate, budget and share. Participants can provide status updates in the same way they would using Twitter or Facebook, or by sending an e-mail to a special e-mail address that Onit creates for each project.

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Source: www.legaline.com
By: Robert J. Ambrogi

SharePoint Presents Very Real eDiscovery Challenges

Microsoft SharePoint has spread like wildfire through organizations of all shapes and sizes. SharePoint delivers real business benefits by enabling collaboration in efficient ways, providing ways to track versions of documents edited by multiple parties, allowing non-technical businesspeople to apply basic workflow to content-driven processes, and faster access to information (via search and integration with the MS Office suite of apps).

Many laypeople assume that if information is searchable, eDiscovery will be no problem when the time comes. But as is often the case in life, the devil is in the details. Because SharePoint allows users to add value to content (e.g. adding workflow tasks), there is the factor of metadata to consider. We’ve discussed metatdata and the challenges it can create in collection in earlier journal entries. This issue will be paramount in SharePoint instances because of the fact that so many organizations use SharePoint and most collection tools are only able to grab SharePoint document libraries (as they are stored on file systems). It’s only a matter of time before the legal community figures out the value of these other content items

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Source: eDiscovery Journal
By: Barry Murphy

Linklaters ‘could face litigation’ over explosive Lehman report

Linklaters could find itself the subject of litigation from creditors of Lehman Brothers after it emerged that the bank had misused an opinion from the firm to tidy up its balance sheet before its collapse in September 2008.

Last week a report into the bank’s demise found that Lehman had used an advice letter written by Linklaters, which was intended specifically for use with reference to the bank’s UK and EU subsidiaries, to keep up to $50bn (£33.24bn) of debt off its US balance sheet.

While there was no suggestion in the report, written by Jenner & Block chairman Anton Valukas, that Linklaters had acted illegally, the bank’s actions have left the firm open to being sued by aggressive US creditors for aiding and abetting ­securities fraud.

“They [Linklaters] have exposed themselves to ­litigation, as the administrators to Lehman or a ­creditor might think they have a claim,” said a source at risk management ­consultancy Kroll.

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Source: The Lawyer
By: Gavriel Hollander

Don't Let Your CRM System Feed the Lawsuit Beast

"Discovery" sounds so positive and beautiful, they named a cable channel after it. But when it comes to legal discovery, there's nothing you'd want to put on TV. Think you don't have anything discoverable in your CRM system? Think again.

Part of my consulting work is as an expert witness, working with lawyers as a forensic CRM analyst. These cases usually involve mergers, reseller agreements, and breaches of contract. But they may also involve wrongful termination, customer privacy issues, trademarks, and compliance issues. For an analyst who knows what they are doing, your CRM system holds a wealth of discoverable clues that can be turning points for lawsuits.

For any modern marketing and selling organization, CRM is as essential as an accounting system. But most organizations don't realize the value and the scope of the data their CRM represents. You need to understand the policies and the best practices to keep your compliance and legal discovery issues to the absolute minimum. Get this on your agenda pronto.

Financial and Personal Data

At the top of everyone's list should be the customers' financial information. The best way to avoid PCI audits and headlines about credit card lists leaking to the internet is to not store that data in the CRM system in the first place. Although your customer service reps (CSR) may need to access that data, the CRM system should hold only pointers (external keys) to the system of record for credit card numbers, bank account numbers, payment history, etc. A good integration broker can bring that information over for real-time display purposes only — this is where a browser UI and Web 2.0 mashups really shine. If you must cache some customer-sensitive information in the CRM system, truncating the fields ("last four digits of your social") is the least you can do: multiple obfuscation techniques should be used in tandem.

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Source: cio.com
By: David Taber

Defending Against Spoliation Claims

Scenario: A large company finds itself defending against a contentious employment discrimination lawsuit. During discovery, the company's document production includes electronically stored information. Plaintiff alleges a gap in the ESI produced by the company and asserts that it resulted from the company's failure to implement an adequate litigation hold. Accordingly, plaintiff makes a motion seeking spoliation sanctions.

DEFENDING AGAINST SPOLIATION

The duty to adopt appropriate measures to preserve relevant evidence arises when a party receives notice of or reasonably anticipates litigation. Significantly, the preservation obligation can occur well before a lawsuit is actually filed. Even after a "triggering event" has happened, a company still is not required to preserve "everything," e.g., every e-mail sent or received, all of its hard copy or electronic documents, or every backup tape then in existence. Rather, the law attempts to strike an appropriate balance; one that allows companies the flexibility they need to continue day-to-day operations while also ensuring that the parties are able to conduct full and fair discovery.

Spoliation Factors

While there is no single test or set of factors to determine if spoliation sanctions are warranted, generally speaking, a party engages in spoliation when:

• it destroys or significantly alters evidence that is relevant to pending, imminent, or reasonably foreseeable litigation; or

• it fails to preserve relevant property for another's use in litigation.

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Source: law.com
By: Kim Leffert and Michael P. Daly

How safe is cloud computing?

Stormy weather could be on the horizon for cloud computing as security experts warn not enough is being done to make sure one of the hottest IT trends is safe.

"There are many motivations for why an individual or a company would want to engage in cloud computing," said Thomas Parenty, managing director of Parenty Consulting, a Hong Kong-based information security consulting firm. "None of them have to do with enhanced security."

The reasons why more businesses and individuals are tapping into cloud power boil down to economics and convenience.

Broadly speaking cloud computing refers to outsourcing data once stored on privately owned computers. If you have an email account or are on a social networking site, like Facebook, you are using a cloud platform. The date is stored on servers operated by someone else, which means that data is subsequently available to use anywhere there is an Internet connection.

On an enterprise level, this allows companies to cut IT costs by reducing the amount of hardware and software they need to purchase and maintain or store information.

For individuals, photos or documents uploaded to the cloud (using services like Flickr or Google Docs) are accessible from home, from cyber cafes, or via mobile devices.

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Source: cnn.com
By: Lara Farrar

Data Security Regulation Prompts Storage Policy Review

A sweeping Massachusetts data security regulation that kicked in on March 1 is prompting companies to seek legal review of how they store and use the personal information of Massachusetts residents.

The regulation defines "personal information" as a name plus a Social Security number, driver's license or other government-issued number, or bank or credit card account number.

Local and out-of-state law firms are jockeying to help companies of all sizes change their procedures to comply with the regulation, which was initially slated to take effect on Jan. 1, 2009, then Jan. 1, 2010.

Holland & Knight's firmwide technology partner, Ieuan Mahony, a Boston intellectual property lawyer, spoke with The National Law Journal about the scope of the regulation and how the firm is helping clients comply with it. The Q&A has been edited for length and clarity.

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Source: Law.com
By: Sheri Qualters

Negotiating Cloud Computing Agreements

Cloud computing has been characterized as a paradigm-shifting phenomenon that will change how we purchase IT resources. Though given different names, cloud computing has been around for some time, and the legal lessons learned from experience with traditional software licensing and outsourcing agreements can and should be applied to cloud agreements, but there are new issues which will need new solutions.

Cloud computing is a loose term that describes a variety of data storage, processing, and application services, normally provided by a third party using equipment not located on the customer's site. These services include providing raw processing power on demand, special purpose applications on a subscription basis, and remote data storage. An early form of cloud computing was Application Service Provider or ASP services, and another is currently known as software as a service or SaaS. Cloud services are normally provided using internet technology, where the customer uses inexpensive hardware and an internet browser to access the service and/or remotely stored data.

The ease of access and simplicity of using cloud applications are part of its attraction. Unfortunately, the same cannot be said for the legal issues related to cloud computing. While traditional software licensing and IT outsourcing agreements can be used as a model for cloud computing, there are new risks and business practices not addressed in those older agreements that must be considered.

OUTSOURCING AGREEMENTS AS A MODEL FOR CLOUD AGREEMENTS

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Source: law.com
By: Michael P. Bennett

The Lowdown on Backups

Sometimes, tape backups can save the day.

Backup is the Rodney Dangerfield of information technology. It don't get no respect. Or maybe it's Milton, the Office Space sad sack with the Coke-bottle glasses and the red stapler. Backup is pretty much ignored . . . until headquarters burns to the ground, and it turns out the tapes hold the last copies of the TPS reports.

But to lawyers, backup is the fearsome Lord Voldemort of electronically stored information; so much so that the two imperatives every lawyer accepts about e-discovery are: (1) instruct clients to preserve backup tapes; and (2) resist all efforts to obtain information from those tapes.

Backup tape has long been the poster child for ESI deemed "not reasonably accessible." After all, you can't search backup tapes unless you restore them, and everyone knows it's a slow, laborious and expensive task. Doesn't restoration require companies to re-create entire server environments just to have a place to return restored data? And what about redundancy? Because each backup set is a snapshot of data on a particular day, the information captured from one backup to the next is 90% the same. Reviewing such massively duplicative data is a costly, risky proposition. That's all well settled, right?

Except it's not.

In recent years, while the legal profession resigned itself to backup tapes being out-of-bounds in discovery and access was generally secured only via sanctions, technology pressed forward and turned much of the bench and bar's well-settled assumptions about backup tapes on their ear.

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Source: law.com
By: Craig Ball

Women in eDiscovery to Conduct Educational Session at IQPC’s Legal IQ London Conference

US and UK members and judges to share thoughts on technology, e-disclosure and compliance

Women in eDiscovery, a non-profit organization that brings together women interested in technology related to the legal industry, today announced that it will host an interactive educational session at Legal IQ’s fifth annual Information Retention & E-Disclosure Management Summit in London. The conference will be held at the Dexter House, Tower Hill, London on May 18-19. Women in eDiscovery co-founder, Shawnna Childress, and Director of the London Group, Laura Kelly, will host a two-part interactive educational session that delves into developments in the law and practice of disclosure and the application of technologies that effectively reduce costs and assist with compliance as it pertains to litigation.

This is Legal IQ’s fifth annual Information Retention & E-Disclosure Management Summit and it is Europe’s premier event with a 40-strong speaker faculty including members of Women in eDiscovery, judges from around the world, and counsel from some of the largest corporations and law firms dealing with the challenges of e-disclosure on a daily basis.

More specifically, the Women in eDiscovery panel will include US and UK judges and other industry experts talking about developments in the law and practice of disclosure with a particular focus on e-disclosure. In the afternoon, attendees will experience an extended insight into technology suppliers who will illustrate modern software concepts – forensic data collections, early case assessment, concept searches and e-mail threading. Attendees will see examples from a broad range of applications whose function is to improve processing, reduce costs, as well as to comply with the rules and obligations. There will be opportunities to ask questions of both the judges and the suppliers during this afternoon session.

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Source: prlog.org

You Store More and More Data. Can You Find It?

Storing data is nothing new for securities firms. In many operations, every action of every executive and staffer, from business transactions to phone calls to emails, is recorded and stored electronically. In the digital era, it's become common practice, a sign of good business management.

But, with the onslaught of high-profile media cases and new regulations handed down from the Securities and Exchange Commission and other government agencies, the issue is not keeping that data "somewhere."

The real issue is retrieving the data, when needed. From the cloud. From servers. From cassettes. Even from cabinets.

Quickly.

"With the regulatory and compliance initiatives coming up now increasingly, financial firms and a lot of corporations have the mindset that they have to keep everything and store it. However, when you do that, you're not necessarily thinking about how you're going to get it out later,'' said Katey Wood, an analyst who covers the process called e-discovery for research firm 451 Group. "You just want to make sure it's there if you need it."

For example, any time there's a lawsuit your securities firm is going to have to produce all of its relevant electronically-stored information that's related to the case. "There are really tight timeframes around that and tough sanctions if you don't comply with them," Wood says. "Therefore, companies want to be able to gather up their information quickly and determine what's relevant."

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Source: insurancenetworking.com
By: Alexa Jaworski

Archiving: Put Your Ducks in One Row

Susan Hall spoke with Albert Barsocchini, director and assistant general counsel for Guidance Software. In an article in Real eDiscovery magazine, Barsocchini makes the case for a single archiving system for e-discovery, internal investigations, audit and compliance.

Hall: It seems obvious that companies should have a central system for e-discovery, compliance and internal investigations. If companies haven’t had that, how have they managed their data in the past?

Barsocchini: There’s been a big gap with the fact that this stuff has been handled separately. There has been no uniform procedure and protocol for doing these things, knowing they have very similar risks and similar processes. A lot of companies have been very ad hoc in how they handle these things. But because of the judicial pressure and the other underlying compliance pressures, these companies are having to look at this stuff seriously and unify it and have a better, unified process for it.

Hall: With a multinational company, the headquarters might be in another country. Does unifying these systems mean that all information has to come out of one central office, such as that headquarters?

Barsocchini: Well, no. It just means you have a way to reach out and know where the various evidence resides. To attack this, a lot of companies are doing No. 1, what is called data mapping – trying to figure out where everything is, having a master map of the documents – and No. 2 having technology to go out there and grab the information, whether that’s some type of sophisticated document-management system or enterprise indexing technology to be able to go out there and grab the documents, locating those documents by doing searches across the enterprise.

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Source: itbusinessedge.com
By: Susan Hall

Firms Slow to Awaken to Cybersecurity Threat

Differentiated from hackers, 'advanced persistent threats' spy on high-profile targets for long periods of time

An oddly worded e-mail was the first sign of something amiss at Los Angeles firm Gipson Hoffman & Pancione. It didn't read like the messages the firm's attorneys usually sent each other -- didn't pass the "smell test."

His suspicions raised, the recipient, associate Gregory Fayer, picked up the phone and discovered that the colleague who supposedly sent the e-mail knew nothing of it. Other attorneys at the firm also received the bogus e-mail, which was eventually traced to China -- where Gipson Hoffman is litigating a $2.2 billion copyright infringement suit against the government. Fayer was well aware that cyberattackers often use fake e-mail messages to break into computer networks.

The firm couldn't directly link the bogus messages to its lawsuit -- the FBI is still investigating the matter -- but found it hard to dismiss as mere coincidence. Notably, the episode followed closely on the heels of Google's announcement that hackers had broken into the Gmail accounts of several Chinese human rights activists.

Although the public acknowledgement of the attack was unusual, it was hardly the first time that a law firm has been targeted by a sophisticated network of overseas hackers looking to infiltrate computer systems in order to gather data or monitor attorney activity, according to attorneys and technology experts.

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Source: law.com
By: Karen Sloan

Massachusetts’ Tough Privacy Law Takes Effect

Corporate compliance, legal, and IT officers entered a brave new world last week, when Massachusetts’ strict new data privacy law finally went into effect.

The law, bureaucratically known as 201 CMR 17.00, took hold on March 1 after a year of delays to quell anxiety among corporations that the specific details of implementation were vague, impractical, and expensive. Those concerns don’t seem to have receded much in that time, but regardless, the nation’s newest and most far-reaching regulation to protect consumers’ privacy has now arrived.

The law applies to any company anywhere in the world that “owns or licenses” personal information—whether stored in electronic or paper form—about Massachusetts residents. Personal information is defined as a person’s first and last name, or first initial and last name in combination with any of the following: Social Security Number; driver’s license or state-issued I.D. card numbers; financial account numbers; and credit or debit card numbers

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Source: complianceweek.com
By: Jaclyn Jaeger

Data Integration: The Next Step for Cloud Computing

Cloud services have gained a foothold in the enterprise mainly by virtue of their low cost and virtually unlimited scalability to meet ever-increasing data requirements.

To date, most cloud deployments have been experimental. This is perfectly natural for a new technology, as enterprises are loathe to commit serious resources to, or place significant responsibilities on, an architecture that has yet to be proven in real-world situations.

But now that more organizations are gaining experience on the cloud, the industry seems poised to take the next step -- integrating cloud services with legacy enterprise infrastructure. After all, few organizations will simply junk systems and technology that they've spent millions to acquire just to port everything over to someone else's data center. It's a topic IT Business Edge's Loraine Lawson is thinking about as well.

That kind of integration is easier said than done, however. To date, only a handful of small vendors have taken a stab at smoothing the rough spots when it comes to sharing data and applications across on-premises and cloud architectures.

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Source: itbusinessedge.com
By: Arthur Cole

Can an In-House E-Discovery Solution Be Built in a Day?

After more than ten years of IT experience and over a year of experience as an attorney working exclusively with e-discovery, I am delighted to join the E-Discovery 2.0 team. I am a member of the South Carolina Bar Association and the American Bar Association. In this and future posts, I will try to bring a practical perspective or view from the trenches to this blog – a look at how to deal with some of the day-to-day problems facing e-discovery practitioners today. I will begin with a discussion about how to approach the decision to move e-discovery in-house, and although the desire to build a solution “in a day” is tempting (and sometimes precipitated by necessity), a solution that will stand the test of time and provide the greatest ROI requires a bit more planning and care.

E-Discovery can sometimes be thought of as an ailment that requires a quick remedy in the form of software or services. We continue to be reminded, however, that e-discovery is much more than a fleeting malady; it is an ongoing business problem that must be treated with the same diligence and meticulous execution as regulatory compliance or data security.

So where should the prudent practitioner begin?

Every good IT project manager I have ever worked with always had the same mantra when it came to solving a problem with technology – make sure the business problem has been well defined and establish detailed requirements before venturing into the marketplace. So, why are so many companies sending out form RFPs containing canned text expecting to find a miracle “end-to-end” e-discovery solution in a relatively short period of time? The answer, I believe, lies both in the abundance and availability of generic information about e-discovery and the fact that most companies looking to bring e-discovery in-house are already feeling the pain of rising costs and demands on existing staff. They are, in short, trying to conquer their e-discovery problem in a day. To truly conquer the problem, it should be attacked from the areas causing the greatest pain and expense first, and those areas should be thoroughly examined using proven project management techniques.

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Source: eDiscovery 2.0
By: bdagostino

Witness Interviews Aren't Privileged Work Product, Says Calif. Court

Witness statements recorded or taken in writing by attorneys or their representatives aren't privileged work product and, therefore, are open to discovery, a divided California appellate court ruled Thursday.

Surprisingly, the justices, including the dissenter, took the opportunity to harshly criticize a 14-year-old appellate ruling out of Sacramento that held just the opposite. The majority called it "cursory" and the dissent said the 1996 holding went "too far."

That thrilled victorious lawyer Joseph Carcione Jr., who called that old opinion "terrible" and said it has been the bane of plaintiffs lawyers statewide.

"We have been laboring under a case that has been perverting the truth in the state to a very large degree," Carcione, a partner with Redwood City, Calif.,'s Carcione, Cattermole, Dolinski, Okimoto, Stucky, Ukshini, Markowitz & Carcione, said Thursday. "Both the majority opinion and the dissent understand that case ... is terrible law."

The castigated ruling is Nacht & Lewis Architects Inc. v. Superior Court (McCormick) , 47 Cal.App.4th 214 , in which the 3rd District Court of Appeal held that recorded witness statements are entitled to absolute work-product protection because they could reveal an attorney's "impressions, conclusions, opinions or legal research or theories."

Stanislaus County Superior Court Judge William Mayhew relied on Nacht & Lewis to deny Carcione access to the recorded statements of four juveniles who witnessed the drowning death of a 13-year-old boy in the Tuolumne River in 2007. Carcione represents the boy's mother in a wrongful death suit against the state and the city of Modesto.


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Source: Law.com
By: Mike McKee

10 Important Issues For Risk and Compliance Managers

As risk and compliance managers look toward the new decade, they are hoping for several changes in the GRC landscape. Based on conversations with industry experts and customers, we've compiled 10 of the most important issues for compliance professionals. Here you give you a look at the first 5.

ONE: Regulatory Clarity
At the top of any GRC manager’s wish list is regulatory clarity for the financial services sector in 2010. In the depths of the financial crisis, the Obama administration promised financial services regulatory reform. President Obama himself remarked during his inaugural address: “But this crisis has reminded us that without a watchful eye, the market can spin out of control.”

But what has happened since then? A credit card bill was passed, but meaningful overhaul is still buried in the legislative process, and there are still major differences between the House and Senate versions of the critical elements of reg reform, including the systemic risk regulator, consumer protection and mortgage reform.

The political climate in Washington has shifted over the last year, and financial services reg reform is not the top priority for the administration — health care is (and now terrorism). In the end, as the political momentum behind reg reform fragments into competing alternatives, GRC managers are going to have to accept this uncertainty and the current regulatory structure, which may endure longer than expected.

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Source: cmswire.com
By: Gordon Burnes

Courts finally catching up to texting jurors

Enough with the tweets, the blogs, the Internet searches.

That's the message being communicated by courts across the country as jurors using their portable electronic devices continue to cause mistrials, overturned convictions and chaotic delays in court proceedings.

Last year a San Francisco Superior Court judge dismissed 600 potential jurors after several acknowledged going online to research the criminal case before them.

Baltimore Mayor Sheila Dixon challenged her misdemeanor embezzlement conviction after discovering five jurors "friended" one another on Facebook during the trial.

And a federal judge in Florida declared a mistrial after eight jurors admitted Web surfing about a drug case.

But the rules for jury service in state and federal courts alike are evolving to grapple with this 21st century issue. New jury instructions are being adopted and electronics are being banned from courtrooms.

In January, the federal court's top administrative office, the Judicial Conference of the United States, issued so-called "Twitter instructions" to every federal judge, which are designed to be read to jurors at the start of the trial and before deliberations.

"You may not use any electronic device or media" in connection with the case, the recommended federal instructions admonish. They also bar visits to "any Internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter."

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Source: ap.google.com
By: Paul Elias