To me, litigation holds in electronic discovery are like Federal sentencing. Most Federal criminal cases end in a plea agreement, so very few are ever tried in front of a jury, but sentencing must occur in 100% of the cases. Preservation is very similar – although you are likely to collect and produce in only a subset of cases, you must preserve in 100% of the cases. So, just as sentencing law is extremely important to the Federal criminal bar, preservation is one of the most important phases of e-discovery to corporate or litigation counsel. Naturally, I am surprised when I talk to corporate law departments that do not have a documented, repeatable process for legal holds that also includes standard procedures for IT. Simply emailing a hold notice to a custodian and recording the hold on a spreadsheet is not enough given Judge Shira Sheindlin’s recent opinion in Pension Committee v. Banc of America Securities.
So, what is a defensible litigation hold strategy, and how do you get it done? It is important to remember that the ultimate goal is preservation of any and all evidence that may be relevant to the matter at hand. There are no hard and fast rules or checklists – only opinions from the bench of what is not enough. The keys to defensibility are consistency, standardization, documentation, and diligence. The place to start is with standardized policies and procedures as well as a person (or a portion of a resource) designated within the enterprise as the single point of contact for all issues related to preservation of evidence (read: project management). Technology can help, but a great preservation strategy can be developed without an expensive or vast technology investment. So, how do you get this done? Here are four steps you should take now:
I. Define the Process (You cannot execute a plan that does not exist):
The first step to creating a great litigation hold strategy is defining a process or set of procedures that can be followed repeatedly. This process could include setting up tiers for ESI sources, with tier one sources always being preserved (these might include frequently requested sources like email, file servers, and perhaps computers of key custodians), tier two sources being preserved on a case by case basis (including sources that are more industry-specific to the enterprise and therefore not always relevant in routine employment litigation or contract disputes), and finally tier three sources which include everything else. By tiering ESI sources, the enterprise can focus on developing detailed preservation protocols for the tier one and tier two sources while developing a less detailed protocol for tier three sources which would include simply naming IT subject matter experts who would be consulted in the event that those sources were ever subject to preservation requirements. This approach would allow the enterprise to prioritize data mapping and cataloging efforts on the tier one and tier two sources first. Data mapping can be an enormous undertaking, so the enterprise might do well to know as much as it can about the email system rather than spending critical time focusing on ESI that may never be subject to any preservation requirement.
To Continue Reading: Click Here
-----------------------------------------
Source: eDiscovery 2.0
By: Brandon D'Agostino
Friday, May 28, 2010
What's in Google's SaaS Contract with the City of Los Angeles? Part One
At the beginning of April, I wrote a blogpost on the City of Los Angeles’ selection of Google Apps to provide the City with Cloud services. As summarized, news outlets reported that Google was willing to compete on various contract provisions in order to win the City's business. They also identified various contractual concessions Google was willing to make. The City has released the Google contract (and another related contract with Computer Sciences Corporation, the company implementing Google's SaaS for LA) and we have had an opportunity to review its provisions.
This multi-part blog series looks at the terms of the Google contract and the corresponding CSC contract, including how the contracts work and the concessions Google and CSC made. Part one of this series focuses on the information security, privacy and confidentiality obligations Google and CSC agreed to. Subsequent parts will review contract provisions related to due diligence, auditing and enforcement, incident response, compliance with privacy and security legal obligations, termination rights, and risk of loss terms (e.g. limits of liability, consequential damages disclaimers, indemnification). Hopefully this post will prove useful for those entering into the Cloud and negotiating contract terms.
The Basics
Before diving into the details of the contracts we must address the basics of the Google/Los Angeles relationships. First off, a third party service provider, Computer Sciences Corporation (“CSC”), is involved in this transaction, and actually has a direct contract with the City of Los Angeles (the “CSC Contract”). CSC has agreed to implement, migrate and deploy Google’s Software as a Service (SaaS) model Email and Collaboration System (e.g. Google Apps Premier Edition). The City also will have a separate contract with Google that they will accept via click-assent once the system is implemented (it is actually included as Appendix J-1 to the CSC Contract – hereinafter referred to as the “Google Contract”). As such, throughout this blogpost we will be looking at both contracts to determine the extent of CSC’s and Google’s obligations (and will attempt to point out material differences between the two).
To Continue Reading: Click Here
-----------------------------------------
Source: infolawgroup.com
This multi-part blog series looks at the terms of the Google contract and the corresponding CSC contract, including how the contracts work and the concessions Google and CSC made. Part one of this series focuses on the information security, privacy and confidentiality obligations Google and CSC agreed to. Subsequent parts will review contract provisions related to due diligence, auditing and enforcement, incident response, compliance with privacy and security legal obligations, termination rights, and risk of loss terms (e.g. limits of liability, consequential damages disclaimers, indemnification). Hopefully this post will prove useful for those entering into the Cloud and negotiating contract terms.
The Basics
Before diving into the details of the contracts we must address the basics of the Google/Los Angeles relationships. First off, a third party service provider, Computer Sciences Corporation (“CSC”), is involved in this transaction, and actually has a direct contract with the City of Los Angeles (the “CSC Contract”). CSC has agreed to implement, migrate and deploy Google’s Software as a Service (SaaS) model Email and Collaboration System (e.g. Google Apps Premier Edition). The City also will have a separate contract with Google that they will accept via click-assent once the system is implemented (it is actually included as Appendix J-1 to the CSC Contract – hereinafter referred to as the “Google Contract”). As such, throughout this blogpost we will be looking at both contracts to determine the extent of CSC’s and Google’s obligations (and will attempt to point out material differences between the two).
To Continue Reading: Click Here
-----------------------------------------
Source: infolawgroup.com
Border searches of laptops may be conducted off-site for cause, court rules Border searches of laptops may be conducted off-site for cause, court rule
Computer searches OK at backup facility if reasonable suspicion exists, judge finds
In recent cases, U.S. courts have supported the government's right to search the contents of computers and other electronic devices carried by travelers arriving at U.S borders.
A federal court in Michigan this week added that if such a search could not be performed at the border, the government has the right to seize and transport a computer to a secondary inspection facility, as long as there's reasonable suspicion.
The issue of border laptop searches is important for business travelers who arrive at U.S airports carrying computers they use for work. Privacy advocates, security analysts and others have expressed concern that such searches could result in the exposure of sensitive company or customer data. The U.S. Department of Homeland Security has previously asserted its right to inspect, copy or download the contents of computers or other electronic devices belonging to travelers at U.S. borders even without cause.
The federal court's ruling was first reported by the Web site FourthAmendment.com. The ruling was in response to a motion filed by the defendant in a child pornography case, who alleged that U.S. customs officials violated his Fourth Amendment rights when they took away one of his computers at Detroit Metropolitan Airport.
To Continue Reading: Click Here
-----------------------------------------
Source: computerworld.com
In recent cases, U.S. courts have supported the government's right to search the contents of computers and other electronic devices carried by travelers arriving at U.S borders.
A federal court in Michigan this week added that if such a search could not be performed at the border, the government has the right to seize and transport a computer to a secondary inspection facility, as long as there's reasonable suspicion.
The issue of border laptop searches is important for business travelers who arrive at U.S airports carrying computers they use for work. Privacy advocates, security analysts and others have expressed concern that such searches could result in the exposure of sensitive company or customer data. The U.S. Department of Homeland Security has previously asserted its right to inspect, copy or download the contents of computers or other electronic devices belonging to travelers at U.S. borders even without cause.
The federal court's ruling was first reported by the Web site FourthAmendment.com. The ruling was in response to a motion filed by the defendant in a child pornography case, who alleged that U.S. customs officials violated his Fourth Amendment rights when they took away one of his computers at Detroit Metropolitan Airport.
To Continue Reading: Click Here
-----------------------------------------
Source: computerworld.com
Tuesday, May 25, 2010
Safe Harbor certification may not mean data protection compliance
German privacy watchdogs have told companies to conduct their own checks of US companies' conduct before passing personal data to them, even if they are signed up to the EU-US 'Safe Harbor' data protection scheme.
The Düsseldorfer Kreis is an informal group of Germany's private sector data protection watchdogs. It has said that companies must not simply take US companies' word on their compliance with EU privacy principles if they plan to send personal data to them. They must make their own checks, the group said.
European Union laws on privacy are amongst the world's strictest, and companies are not allowed to send personal data to countries outside the European Economic Area unless there is a guarantee that it will be protected as well there as it is in the EU.
There are several mechanisms for ensuring this protection. One is that the whole country will be deemed to have 'adequate' data protection, because its laws are at least as stringent as the EU's. Very few countries achieve this rating.
Multinational companies can use binding corporate rules to send data to parts of the company in different countries, and companies can also use model contract clauses produced by the European Commission to bind companies outside of the EU to its high data protection standards.
Another mechanism which only US companies can use is the Safe Harbor agreement. Under this, companies comply with similar privacy standards to those enforced in the EU and register with US consumer protection regulator the Federal Trade Commission (FTC).
To Continue Reading: Click Here
-----------------------------------------
Source: Out-Law
The Düsseldorfer Kreis is an informal group of Germany's private sector data protection watchdogs. It has said that companies must not simply take US companies' word on their compliance with EU privacy principles if they plan to send personal data to them. They must make their own checks, the group said.
European Union laws on privacy are amongst the world's strictest, and companies are not allowed to send personal data to countries outside the European Economic Area unless there is a guarantee that it will be protected as well there as it is in the EU.
There are several mechanisms for ensuring this protection. One is that the whole country will be deemed to have 'adequate' data protection, because its laws are at least as stringent as the EU's. Very few countries achieve this rating.
Multinational companies can use binding corporate rules to send data to parts of the company in different countries, and companies can also use model contract clauses produced by the European Commission to bind companies outside of the EU to its high data protection standards.
Another mechanism which only US companies can use is the Safe Harbor agreement. Under this, companies comply with similar privacy standards to those enforced in the EU and register with US consumer protection regulator the Federal Trade Commission (FTC).
To Continue Reading: Click Here
-----------------------------------------
Source: Out-Law
Manual Collections of ESI in Electronic Discovery Come under Fire
Jason Baron was a keynote speaker at a recent electronic discovery summit and he mentioned an electronic data discovery topic that “ought to be blogged about.” So, with that kind of softball I had to take a swing, particularly because it’s been a topic we (at e-discovery 2.0) have been discussing lately.
The genesis of this blog (per Jason) is the recent “skepticism” evidenced by the bench regarding the defensibility of custodian based collections. ARMA has a good piece on this very topic, entitled “Is ‘Manual’ Collection of ESI Defensible?” The core notion is that the tried and true practice of custodian based ESI collection is now under fire by courts, which appear to be looking at this practice with an increasing level of distrust.
“While it is common for companies to use automated data-collection software and hardware, some corporate litigants opt for more informal, “manual” collection methods (i.e., searches performed by individual records custodians) when responding to ESI requests. Companies may choose the manual collection of ESI to reduce costs, particularly if they have limited levels of litigation or lower risk levels posed by the litigation itself.”
While there’s no dispute that the “automated” collection methods available in litigation software referenced above have a number of features that make this approach more efficient, the question is whether a “manual” (i.e., custodian based) collection process is somehow less defensible. If this is truly the case, then many midsized companies without the budget to purchase such e-discovery applications will inherently be found deficient – which is a daunting notion.
To Continue Reading: Click Here
--------------------------------------------
Source: e-Discovery 2.0
By: Dean Gonsowski
The genesis of this blog (per Jason) is the recent “skepticism” evidenced by the bench regarding the defensibility of custodian based collections. ARMA has a good piece on this very topic, entitled “Is ‘Manual’ Collection of ESI Defensible?” The core notion is that the tried and true practice of custodian based ESI collection is now under fire by courts, which appear to be looking at this practice with an increasing level of distrust.
“While it is common for companies to use automated data-collection software and hardware, some corporate litigants opt for more informal, “manual” collection methods (i.e., searches performed by individual records custodians) when responding to ESI requests. Companies may choose the manual collection of ESI to reduce costs, particularly if they have limited levels of litigation or lower risk levels posed by the litigation itself.”
While there’s no dispute that the “automated” collection methods available in litigation software referenced above have a number of features that make this approach more efficient, the question is whether a “manual” (i.e., custodian based) collection process is somehow less defensible. If this is truly the case, then many midsized companies without the budget to purchase such e-discovery applications will inherently be found deficient – which is a daunting notion.
To Continue Reading: Click Here
--------------------------------------------
Source: e-Discovery 2.0
By: Dean Gonsowski
Monday, May 24, 2010
Failure to Test Keywords by Sampling a Prominent Consideration in Court's Finding of Waiver
Mt. Hawley Ins. Co. v. Felman Prod., Inc., 2010 WL 1990555 (S.D. W. Va. May 18, 2010)
Where plaintiff (Felman Production, Inc.) failed to take sufficiently reasonable precautions to prevent the disclosure of a privileged email, privilege was waived.
In this case, the court addressed a number of issues, including the parties’ compliance with their clawback agreement and the applicability of the crime-fraud exception to 377 inadvertently produced, privileged emails. The primary focus of this summary, however, is the court’s analysis of whether the privilege was waived as to one specific email, “the May 14th email”, and in particular, its analysis of the reasonableness of plaintiff’s precautions to prevent such disclosure.
The May 14th email was inadvertently produced by the plaintiff amidst “a massive disclosure of e-discovery”. Plaintiff learned of the email’s production several months later when defendants attached the email to a motion to amend their answer. Three days later, plaintiff sent a letter noting that the email had been listed on plaintiff’s privilege log and demanding the email’s return. Thereafter, disagreement arose between the parties and the question of waiver was brought before the court.
Taking up the issue, the court first highlighted the five-factor test established in Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008): 1) the reasonableness of the precautions taken to prevent inadvertent disclosure; 2) the number of inadvertent disclosures; 3) the extent of the disclosures; 4) any delay in measures taken to rectify the disclosure; and 5) overriding interests in justice. Next, the court laid out the relevant provisions of Fed. R. Evid. 502(b) and indicated its intent to “apply Rule 502(b), considering Victor Stanley and similar cases as to reasonableness.” The court then quickly determined that the production was inadvertent and that plaintiff promptly took reasonable steps to seek the email’s return. Accordingly, the remaining issue for consideration was the reasonableness of plaintiff’s efforts to prevent such production in the first place.
To Continue Reading: Click Here
--------------------------------------------
Source: ediscoverylaw.com
Where plaintiff (Felman Production, Inc.) failed to take sufficiently reasonable precautions to prevent the disclosure of a privileged email, privilege was waived.
In this case, the court addressed a number of issues, including the parties’ compliance with their clawback agreement and the applicability of the crime-fraud exception to 377 inadvertently produced, privileged emails. The primary focus of this summary, however, is the court’s analysis of whether the privilege was waived as to one specific email, “the May 14th email”, and in particular, its analysis of the reasonableness of plaintiff’s precautions to prevent such disclosure.
The May 14th email was inadvertently produced by the plaintiff amidst “a massive disclosure of e-discovery”. Plaintiff learned of the email’s production several months later when defendants attached the email to a motion to amend their answer. Three days later, plaintiff sent a letter noting that the email had been listed on plaintiff’s privilege log and demanding the email’s return. Thereafter, disagreement arose between the parties and the question of waiver was brought before the court.
Taking up the issue, the court first highlighted the five-factor test established in Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008): 1) the reasonableness of the precautions taken to prevent inadvertent disclosure; 2) the number of inadvertent disclosures; 3) the extent of the disclosures; 4) any delay in measures taken to rectify the disclosure; and 5) overriding interests in justice. Next, the court laid out the relevant provisions of Fed. R. Evid. 502(b) and indicated its intent to “apply Rule 502(b), considering Victor Stanley and similar cases as to reasonableness.” The court then quickly determined that the production was inadvertent and that plaintiff promptly took reasonable steps to seek the email’s return. Accordingly, the remaining issue for consideration was the reasonableness of plaintiff’s efforts to prevent such production in the first place.
To Continue Reading: Click Here
--------------------------------------------
Source: ediscoverylaw.com
Borderless European Cloud Risks Fragmentation
Nationalism is rearing its head in cyberspace. A proposal is gaining ground in France to build a federation of interconnected local computing clouds—funded in part by the government—to protect the country’s sovereignty, data privacy, and jobs. Some observers fear the idea could spread to other countries on the Continent, potentially undermining the promised benefits to Europeans of universal cloud computing, which is being billed as the biggest shift in information technology since personal computers were introduced in the 1970s.
The idea for a cloud à la Française is in part a backlash against American providers of cloud computing services such as Google, Amazon, IBM, and Microsoft. As with Europe’s $6 billion Galileo sat-nav system—an alternative to the U.S.-operated GPS—and various Old World search engine projects such as France’s Quaero, some Europeans worry about becoming overly dependent on American technology in key strategic areas.
On May 17, a group of French technology companies and businesses known as the Association for a Digital Economy in France (l’ADEN), called on local governments in France to partner with private companies to build a network of data centers and shared cloud platforms and services that would cater to the computing needs of French businesses, organizations, governments, and citizens. Such a network would provide an alternative to handing over data and processes to American providers. The group has suggested that the local cloud infrastructure could be built with the help of funds set aside for France’s “grand emprunt national,” a €4.5 billion economic stimulus package that will kick in at the end of next year
To Continue Reading: Click Here
--------------------------------------------
Source: businessweek.com
By: Jennifer Schenker
The idea for a cloud à la Française is in part a backlash against American providers of cloud computing services such as Google, Amazon, IBM, and Microsoft. As with Europe’s $6 billion Galileo sat-nav system—an alternative to the U.S.-operated GPS—and various Old World search engine projects such as France’s Quaero, some Europeans worry about becoming overly dependent on American technology in key strategic areas.
On May 17, a group of French technology companies and businesses known as the Association for a Digital Economy in France (l’ADEN), called on local governments in France to partner with private companies to build a network of data centers and shared cloud platforms and services that would cater to the computing needs of French businesses, organizations, governments, and citizens. Such a network would provide an alternative to handing over data and processes to American providers. The group has suggested that the local cloud infrastructure could be built with the help of funds set aside for France’s “grand emprunt national,” a €4.5 billion economic stimulus package that will kick in at the end of next year
To Continue Reading: Click Here
--------------------------------------------
Source: businessweek.com
By: Jennifer Schenker
Arrogant lawyers: the greatest threat to your organization
Ira Winkler on e-discovery, corporate counsel and the security pro's real role in risk mitigation
While security professionals typically think of computer hackers, malicious insiders, naive employees, or the like as the greatest threat to an organization, I am quickly learning that arrogant lawyers can be the most devastating threat an organization can face. Frankly, the lawyers should be non-issues, but they can get their companies involved in things that should otherwise be avoided.
Clearly, the underlying threat is e-discovery. Information security staff traditionally look at their role in the e-discovery process as ensuring the integrity of the data, making sure that the data is available, providing tracking of that data, etc. However, there is a more fundamental question that has to be asked, which is whether or not you should be involved in the discovery process to begin with. I know that this sounds simple, and most security professionals take the cliche attitude that, "Theirs is not to reason why, theirs is but to do or die."
To Continue Reading: Click Here
--------------------------------------------
Source: networkworld.com
By: Ira Winkler
While security professionals typically think of computer hackers, malicious insiders, naive employees, or the like as the greatest threat to an organization, I am quickly learning that arrogant lawyers can be the most devastating threat an organization can face. Frankly, the lawyers should be non-issues, but they can get their companies involved in things that should otherwise be avoided.
Clearly, the underlying threat is e-discovery. Information security staff traditionally look at their role in the e-discovery process as ensuring the integrity of the data, making sure that the data is available, providing tracking of that data, etc. However, there is a more fundamental question that has to be asked, which is whether or not you should be involved in the discovery process to begin with. I know that this sounds simple, and most security professionals take the cliche attitude that, "Theirs is not to reason why, theirs is but to do or die."
To Continue Reading: Click Here
--------------------------------------------
Source: networkworld.com
By: Ira Winkler
Sunday, May 23, 2010
Ban social networks, but not LinkedIn
That's the surprising consensus reached at a meeting of 30 CSOs representing some of the UK's leading enterprises held in London during the past week. This despite a poll at the bi-annual CSO Interchange event revealing that those same CSOs view social networking as the most over-hyped threat.
When it came to the round table discussions on the subject of social networking, however, the gathered CSOs expressed what has been called a "strong preference" for companies to consider banning them all. Well, almost all, as LinkedIn gets an exception as most of the CSOs considered that acceptable. Could that possibly have something to do with the CSOs being more likely to be active members of LinkedIn, a business-to-business oriented social network, than Facebook or Twitter I wonder? Perhaps they missed the news about LinkedIn and Twitter integration last year.
Indeed, polling showed that some 75 percent of companies represented had already chosen to go down the social networking ban route, pretty much the same number as the same poll last year indicated. Interestingly, considering that this was a meeting of security executives, the ban reasoning was as much to do with an impact on productivity as it was matters security related.
Even more interestingly. the gathered CSOs admitted that they recognised any company which did ban social networking tools risked alienating the younger members of the workforce and they would be likely to resort to their own mobile devices - and potentially open up further cans of security worms as a result.
To Continue Reading: Click Here
--------------------------------------------
Source: daniweb.com
By: Davey Winder
When it came to the round table discussions on the subject of social networking, however, the gathered CSOs expressed what has been called a "strong preference" for companies to consider banning them all. Well, almost all, as LinkedIn gets an exception as most of the CSOs considered that acceptable. Could that possibly have something to do with the CSOs being more likely to be active members of LinkedIn, a business-to-business oriented social network, than Facebook or Twitter I wonder? Perhaps they missed the news about LinkedIn and Twitter integration last year.
Indeed, polling showed that some 75 percent of companies represented had already chosen to go down the social networking ban route, pretty much the same number as the same poll last year indicated. Interestingly, considering that this was a meeting of security executives, the ban reasoning was as much to do with an impact on productivity as it was matters security related.
Even more interestingly. the gathered CSOs admitted that they recognised any company which did ban social networking tools risked alienating the younger members of the workforce and they would be likely to resort to their own mobile devices - and potentially open up further cans of security worms as a result.
To Continue Reading: Click Here
--------------------------------------------
Source: daniweb.com
By: Davey Winder
Could the BP Oil Spill Lead to an e-Discovery Disaster?
As oil from the BP spill continues to spread into the Gulf waters, the eDiscovery scenario for the company continues to expand and worsen as well. BP has already agreed to take full responsibility for the fallout of this catastrophe, which is one of the most epic environmental debacles…ever.
On May 19, the Associated Press reported in an article that “an attorney is asking a federal judicial panel to quickly consolidate more than 100 lawsuits filed against BP and other companies responsible for the massive Gulf oil spill. Louisiana lawyer Daniel Becnel says legal chaos could break out in five Gulf Coast states if the lawsuits aren't combined. Becnel has asked the U.S. Judicial Panel on Multidistrict Litigation in Washington to quickly reconsider whether to order the cases consolidated. The panel has indicated it will not decide until July.”
So as BP braces itself for what will no doubt be a veritable tidal wave of lawsuits in the near future, what kinds of steps will they need to take from an eDiscovery and litigation readiness standpoint to make the processes as painless as possible, and to prevent an eDiscovery disaster of epic proportions?
Attorney Tom O’Connor, eDiscovery expert and founder and director of the New Orleans-based Gulf Coast Legal Technology Center is well familiar with grappling with post-disaster legal issues. Several years ago, he helped Louisiana and Mississippi lawyers get back on their collective feet from a technology and eDiscovery perspective after Hurricane Katrina. He became so dedicated to this part of the country that he eventually relocated to New Orleans from his previous base of Seattle.
To Continue Reading: Click Here
--------------------------------------------
Source: legalitprofessionals.com
By: Christy Burke
On May 19, the Associated Press reported in an article that “an attorney is asking a federal judicial panel to quickly consolidate more than 100 lawsuits filed against BP and other companies responsible for the massive Gulf oil spill. Louisiana lawyer Daniel Becnel says legal chaos could break out in five Gulf Coast states if the lawsuits aren't combined. Becnel has asked the U.S. Judicial Panel on Multidistrict Litigation in Washington to quickly reconsider whether to order the cases consolidated. The panel has indicated it will not decide until July.”
So as BP braces itself for what will no doubt be a veritable tidal wave of lawsuits in the near future, what kinds of steps will they need to take from an eDiscovery and litigation readiness standpoint to make the processes as painless as possible, and to prevent an eDiscovery disaster of epic proportions?
Attorney Tom O’Connor, eDiscovery expert and founder and director of the New Orleans-based Gulf Coast Legal Technology Center is well familiar with grappling with post-disaster legal issues. Several years ago, he helped Louisiana and Mississippi lawyers get back on their collective feet from a technology and eDiscovery perspective after Hurricane Katrina. He became so dedicated to this part of the country that he eventually relocated to New Orleans from his previous base of Seattle.
To Continue Reading: Click Here
--------------------------------------------
Source: legalitprofessionals.com
By: Christy Burke
Proactive Information Management in Government
Information Management: Why It Matters
Government has many critical responsibilities. Among them is making information available to the public. It's a basic duty of government - one that hasn't always been observed as well as it should be.
E-discovery, the Freedom of Information Act (FOIA) and internal investigations are all compelling subjects in this new era - an era in which government is expected to provide more transparency and accountability than ever before.
A New Attitude
In January 2009, President Barack Obama - almost immediately upon taking office - issued an executive order calling for increased diligence on the part of government when it comes to making information available to the public.
"All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open government," the memo stated.
The president's order clearly expressed a new attitude. "A democracy requires accountability, and accountability requires transparency," it read. That means transparency for the greater good. "The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails," the order also stated.
New federal policies, such as the American Recovery and Reinvestment Act, extend this push toward transparency for government organizations. Accessibility to government information at all levels is becoming more and more of an expectation among citizens.
To Continue Reading: Click Here
--------------------------------------------
Source: govtech.com
Government has many critical responsibilities. Among them is making information available to the public. It's a basic duty of government - one that hasn't always been observed as well as it should be.
E-discovery, the Freedom of Information Act (FOIA) and internal investigations are all compelling subjects in this new era - an era in which government is expected to provide more transparency and accountability than ever before.
A New Attitude
In January 2009, President Barack Obama - almost immediately upon taking office - issued an executive order calling for increased diligence on the part of government when it comes to making information available to the public.
"All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open government," the memo stated.
The president's order clearly expressed a new attitude. "A democracy requires accountability, and accountability requires transparency," it read. That means transparency for the greater good. "The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails," the order also stated.
New federal policies, such as the American Recovery and Reinvestment Act, extend this push toward transparency for government organizations. Accessibility to government information at all levels is becoming more and more of an expectation among citizens.
To Continue Reading: Click Here
--------------------------------------------
Source: govtech.com
'Pension Committee' Comes and Goes Around
The Honorable Shira Scheindlin of the Southern District of New York -- author of the seminal Zubulake opinions -- recently issued another landmark e-discovery decision that practitioners will be analyzing for years to come. In The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities LLC, et al., No. 05 Civ. 9016 (SAS), 2010 WL 184312, S.D.N.Y. (Jan. 15, 2010), Judge Scheindlin revisits the issue of spoliation of evidence and the duty to preserve documents. As most practitioners now know, the duty to preserve documents may arise well before the filing of the complaint or even the retention of counsel. The test is whether the party reasonably anticipates litigation. The duty to preserve documents, however, is intertwined with the duty to collect them. Not only must a party institute a written litigation hold in a timely way., it also must collect documents from key players, and depending on the facts and circumstances of the case, collect documents from peripheral and former employees and preserve backup tapes.
The Pension Committee decision involved spoliation sanctions against 13 plaintiffs based on their alleged failure to timely issue written litigation holds and to preserve certain evidence before the filing of the complaint. While acknowledging that litigants were not required to produce documents with "absolute perfection," the court cautioned that "at a minimum they must act diligently and search thoroughly at the time they reasonably anticipate litigation" or face potential spoliation of evidence consequences and sanctions, including but not limited to dismissal of their pleading, an adverse inference and monetary sanctions as may be appropriate. Certain plaintiffs found to have been "grossly negligent" were ultimately subject to an adverse inference instruction and monetary sanctions even though the court found no "egregious examples of litigants purposefully destroying evidence."
In February 2004, plaintiffs, a group of investors holding shares in two British Virgin Island-based hedge funds seeking to recover alleged losses of $550 million arising from the liquidation of the funds, commenced an action in the United States District Court for the Southern District of Florida. In October 2005, the matter was transferred to the Southern District of New York. Between 2004 and February 2007, all discovery was stayed as was required by the Private Securities Litigation Reform Act.
To Continue Reading: Click Here
--------------------------------------------
Source: Law.com
By: Beth S. Rose and Charles J. Falletta
The Pension Committee decision involved spoliation sanctions against 13 plaintiffs based on their alleged failure to timely issue written litigation holds and to preserve certain evidence before the filing of the complaint. While acknowledging that litigants were not required to produce documents with "absolute perfection," the court cautioned that "at a minimum they must act diligently and search thoroughly at the time they reasonably anticipate litigation" or face potential spoliation of evidence consequences and sanctions, including but not limited to dismissal of their pleading, an adverse inference and monetary sanctions as may be appropriate. Certain plaintiffs found to have been "grossly negligent" were ultimately subject to an adverse inference instruction and monetary sanctions even though the court found no "egregious examples of litigants purposefully destroying evidence."
In February 2004, plaintiffs, a group of investors holding shares in two British Virgin Island-based hedge funds seeking to recover alleged losses of $550 million arising from the liquidation of the funds, commenced an action in the United States District Court for the Southern District of Florida. In October 2005, the matter was transferred to the Southern District of New York. Between 2004 and February 2007, all discovery was stayed as was required by the Private Securities Litigation Reform Act.
To Continue Reading: Click Here
--------------------------------------------
Source: Law.com
By: Beth S. Rose and Charles J. Falletta
Friday, May 21, 2010
Producing ESI in Compliance With the FRCP
On December 1, 2006, the electronic discovery amendments to the Federal Rules of Civil Procedure became effective. Although amended Fed. R. Civ. P. 34 established a process to identify the form in which electronically stored information will be produced in federal cases, litigants still struggle with this determination. Courts have ordered parties to re-produce ESI because the initial production did not comply with the rules. The amendments provide a fair process to request a particular form of production, and also to object and propose alternatives. The advisory committee notes make clear that achieving agreement regarding the form of production is the best way to avoid discovery disputes and re-production. The rules, notes, and cases suggest valuable practice tips.
REQUIREMENTS OF THE RULES
Counsel must address the form of production in the initial conference of the parties. Fed. R. Civ. P. 26(f) provides that: "[a] discovery plan must state the parties' view and proposals on. ... any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced. ..."
Amended Rule 34 allows parties to choose the form of production. Subject to the permissible scope of discovery, ESI may be requested in its original form or "after translation by the responding party into a reasonably usable form." The requesting party may specify the form or forms of its choice. The producing party may object to the requested form, or may choose a form if none is specified, as long as that form is one in which the ESI is "ordinarily maintained or ... a reasonably usable form or forms ... ." If no form was specified by the requesting party, the producing party must state the form in which it intends to produce. The advisory committee note emphasizes this requirement: "A party that responds to a discovery request by simply producing electronically stored information in a form of its choice, without identifying that form in advance of the production in the response required by Rule 34(b), runs a risk that the requesting party can show that the produced form is not reasonably usable and that it is entitled to production of some or all of the information in an additional form." If the ESI as ordinarily maintained is searchable, the notes caution that it may not be produced in a form that "removes or significantly degrades this feature."
To Continue Reading: Click Here
--------------------------------------------
Source: Law.com
By: Cynthia K. Courtney
REQUIREMENTS OF THE RULES
Counsel must address the form of production in the initial conference of the parties. Fed. R. Civ. P. 26(f) provides that: "[a] discovery plan must state the parties' view and proposals on. ... any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced. ..."
Amended Rule 34 allows parties to choose the form of production. Subject to the permissible scope of discovery, ESI may be requested in its original form or "after translation by the responding party into a reasonably usable form." The requesting party may specify the form or forms of its choice. The producing party may object to the requested form, or may choose a form if none is specified, as long as that form is one in which the ESI is "ordinarily maintained or ... a reasonably usable form or forms ... ." If no form was specified by the requesting party, the producing party must state the form in which it intends to produce. The advisory committee note emphasizes this requirement: "A party that responds to a discovery request by simply producing electronically stored information in a form of its choice, without identifying that form in advance of the production in the response required by Rule 34(b), runs a risk that the requesting party can show that the produced form is not reasonably usable and that it is entitled to production of some or all of the information in an additional form." If the ESI as ordinarily maintained is searchable, the notes caution that it may not be produced in a form that "removes or significantly degrades this feature."
To Continue Reading: Click Here
--------------------------------------------
Source: Law.com
By: Cynthia K. Courtney
Employment lawyers face challenges with e-mail policies
A recent decision from the New Jersey Supreme Court addressing the attorney-client privilege in the context of employee e-mails has employers concerned about their ability to monitor e-mail and Internet use.
In Stengart v. Loving Care Agency, the state's highest court ruled that an employer couldn't read e-mails between an employee and her lawyer, even though she sent them using her work computer.
The topic of privacy rights is also hot in the legislative arena. The Vermont legislature is currently considering a bill that would bar government agencies from using software to monitor employee Internet use. The Senate passed the bill on a unanimous voice vote, and it is now before the House.
Time to update
The New Jersey ruling has employment lawyers scrambling to update e-mail policies.
"The case will have a significant impact," predicted Philip Gordon, a shareholder at Littler Mendelson in Denver and chair of the firm's Privacy and Data Protection Practice Group. "Most employers do not currently have in place policies specifically addressing employees' use of corporate electronic resources to access personal e-mail accounts, or communicating with an attorney about personal matters using corporate resources."
The court in Stengart relied on several factors in determining that the employee's e-mails were protected by the attorney-client privilege.
To Continue Reading: Click Here
--------------------------------------------
Source: wislawjournal.com
By: Correy Stephenson
In Stengart v. Loving Care Agency, the state's highest court ruled that an employer couldn't read e-mails between an employee and her lawyer, even though she sent them using her work computer.
The topic of privacy rights is also hot in the legislative arena. The Vermont legislature is currently considering a bill that would bar government agencies from using software to monitor employee Internet use. The Senate passed the bill on a unanimous voice vote, and it is now before the House.
Time to update
The New Jersey ruling has employment lawyers scrambling to update e-mail policies.
"The case will have a significant impact," predicted Philip Gordon, a shareholder at Littler Mendelson in Denver and chair of the firm's Privacy and Data Protection Practice Group. "Most employers do not currently have in place policies specifically addressing employees' use of corporate electronic resources to access personal e-mail accounts, or communicating with an attorney about personal matters using corporate resources."
The court in Stengart relied on several factors in determining that the employee's e-mails were protected by the attorney-client privilege.
To Continue Reading: Click Here
--------------------------------------------
Source: wislawjournal.com
By: Correy Stephenson
Cloud Service Users Face Confusing Legal Landscape
Cloud computing has great benefits for businesses but legal uncertainties threaten to hamper adoption, said a group of lawyers speaking during a seminar in Seattle this week.
"We will have to create a robust legal system and we will have to do it sooner rather than later and before we have the cloud computing equivalent of an offshore oil rig blowout," said Barry J. Reingold, a partner at Perkins Coie in Washington, D.C.
Lawyers speaking at the Law Seminars International event on Monday offered advice about the types of research companies should do before signing up for cloud services to make sure they can protect themselves from potential legal fallout.
One of the most important issues facing companies that wish to store or process data in the cloud is determining which legal systems have jurisdiction over the data. "It's a can of worms," said Andy James, a lawyer with Osborne Clarke.
A company using a cloud service could have users all over the world and those users' information could be shifted to facilities around the globe. "So there are four possible legal locations for the information at any moment," James said. Laws applicable to the location of the company's headquarters, the location of the servers, the location of the consumer and the location of the communications equipment transmitting the information between the user and the provider could all potentially apply.
To Continue Reading: Click Here
--------------------------------------------
Source: pcworld.com
By: Nancy Gohring
"We will have to create a robust legal system and we will have to do it sooner rather than later and before we have the cloud computing equivalent of an offshore oil rig blowout," said Barry J. Reingold, a partner at Perkins Coie in Washington, D.C.
Lawyers speaking at the Law Seminars International event on Monday offered advice about the types of research companies should do before signing up for cloud services to make sure they can protect themselves from potential legal fallout.
One of the most important issues facing companies that wish to store or process data in the cloud is determining which legal systems have jurisdiction over the data. "It's a can of worms," said Andy James, a lawyer with Osborne Clarke.
A company using a cloud service could have users all over the world and those users' information could be shifted to facilities around the globe. "So there are four possible legal locations for the information at any moment," James said. Laws applicable to the location of the company's headquarters, the location of the servers, the location of the consumer and the location of the communications equipment transmitting the information between the user and the provider could all potentially apply.
To Continue Reading: Click Here
--------------------------------------------
Source: pcworld.com
By: Nancy Gohring
Watch out for dangerous data
Unless businesses know where their data is, they are at risk
This week, reports emerged that Google is being investigated in the US and Germany for its data collection policies.
Google is certainly not the only large business to find its data privacy arrangements under scrutiny. Facebook, for example, has come in for repeated criticism over its security and privacy settings, and the amount of information it collects on users.
But data privacy is just one, albeit very visible, challenge facing businesses that need to store information electronically (that will be most of them, then). Electronic data is a valuable asset, but also one that poses dangers.
This week, an industry group was launched to highlight another area where businesses need to tread warily: e-disclosure.
According to the group, businesses need to do more than simply ensure private data remains private. They also need to keep that data in a way that allows them to find information, if a court or regulator requires it.
E-disclosure is potentially a massive problem for businesses involved in legal probes, as a court – or the other side’s lawyers – can ask for any information that is held in electronic form. Court, and regulators such as the Financial Services Authority, take a dim view on companies that cannot produce their files in a timely manner.
To Continue Reading: Click Here
--------------------------------------------
Source: itpro.co.uk
By: Stephen Pritchard
This week, reports emerged that Google is being investigated in the US and Germany for its data collection policies.
Google is certainly not the only large business to find its data privacy arrangements under scrutiny. Facebook, for example, has come in for repeated criticism over its security and privacy settings, and the amount of information it collects on users.
But data privacy is just one, albeit very visible, challenge facing businesses that need to store information electronically (that will be most of them, then). Electronic data is a valuable asset, but also one that poses dangers.
This week, an industry group was launched to highlight another area where businesses need to tread warily: e-disclosure.
According to the group, businesses need to do more than simply ensure private data remains private. They also need to keep that data in a way that allows them to find information, if a court or regulator requires it.
E-disclosure is potentially a massive problem for businesses involved in legal probes, as a court – or the other side’s lawyers – can ask for any information that is held in electronic form. Court, and regulators such as the Financial Services Authority, take a dim view on companies that cannot produce their files in a timely manner.
To Continue Reading: Click Here
--------------------------------------------
Source: itpro.co.uk
By: Stephen Pritchard
Thursday, May 20, 2010
Reducing the ESI Burden of Privilege Logs
Privilege logs were never a fun part of business litigation. There are few tasks more tedious than logging individual pieces of correspondence by date, author, recipients, subject matter, reason withheld, etc. In the era of electronically stored information, the creation of a document-by-document privilege log has gone beyond mere tedium to become one of the more costly elements of an ESI burden that, by itself, may be dissuading businesses from pursuing commercial litigation at all. Something has to be done, say many, or else the burden of ESI discovery will foreclose litigation as an option for resolving modestly sized disputes. The authors of a recent law review article, building upon the work of The Sedona Conference, think they have a solution.
THE SCOPE OF THE PROBLEM
The digitization of communication has had a transformative effect upon the process of creating written business correspondence. Before e-mail, company executives dictated or handwrote letters, got a draft back from a secretary, edited it, got a new draft, edited it, and then put the document in final form, which was signed and then mailed, faxed, or sent by overnight courier. It would take a few days to get a response. The slow, multistep nature of business communication served to limit the frequency with which written correspondence was sent. More communication took place by telephone, and went undocumented. A dispute between two companies that was incubating for a year or two before flowering into a lawsuit might involve a few hundred discrete pieces of correspondence. The task of preparing the privilege log was a small part of the process of gathering relevant documents and preparing for production. A handful of attorney hours might be consumed.
Today, the business world revolves around various forms of electronic communication, e-mail, and texting being the most prominent. To say that e-mail has become ubiquitous does not quite do justice to the way in which it dominates the business day. As a result, most commercial disputes require the production of substantial ESI caches. The volume of electronic communication means that the average commercial case might involve many thousands or even millions of discrete ESI records. The privilege review, and the creation of a document-by-document privilege log, can consume weeks of attorney time. The log might contain thousands of entries. The log itself is often too vast to be printed on paper, and is presented to the adverse party in electronic format.
Obviously, anything that consumes weeks of attorney and paralegal time is, by definition, costly. In a litigation of any complexity, the privilege process might cost tens of thousands of dollars. The delivery of the privilege log, of course, is often just the beginning. If the adverse party disputes entries on the log, briefing and an in camera review may follow, costing still more. Though the digitization of business communication has been under way for over 25 years, jurisprudence in the area of e-discovery did not begin to develop until the late 1990s. See David Isom, "Electronic Discovery: New Power, New Risks," 16 Utah Bar Journal 8, 9, & 14 n.7 (2003) ("Until the late 1990s, electronic discovery issues in reported cases were scarce.").
To Continue Reading: Click Here
--------------------------------------------
Source: Law.com
By: Peter Pizzi
THE SCOPE OF THE PROBLEM
The digitization of communication has had a transformative effect upon the process of creating written business correspondence. Before e-mail, company executives dictated or handwrote letters, got a draft back from a secretary, edited it, got a new draft, edited it, and then put the document in final form, which was signed and then mailed, faxed, or sent by overnight courier. It would take a few days to get a response. The slow, multistep nature of business communication served to limit the frequency with which written correspondence was sent. More communication took place by telephone, and went undocumented. A dispute between two companies that was incubating for a year or two before flowering into a lawsuit might involve a few hundred discrete pieces of correspondence. The task of preparing the privilege log was a small part of the process of gathering relevant documents and preparing for production. A handful of attorney hours might be consumed.
Today, the business world revolves around various forms of electronic communication, e-mail, and texting being the most prominent. To say that e-mail has become ubiquitous does not quite do justice to the way in which it dominates the business day. As a result, most commercial disputes require the production of substantial ESI caches. The volume of electronic communication means that the average commercial case might involve many thousands or even millions of discrete ESI records. The privilege review, and the creation of a document-by-document privilege log, can consume weeks of attorney time. The log might contain thousands of entries. The log itself is often too vast to be printed on paper, and is presented to the adverse party in electronic format.
Obviously, anything that consumes weeks of attorney and paralegal time is, by definition, costly. In a litigation of any complexity, the privilege process might cost tens of thousands of dollars. The delivery of the privilege log, of course, is often just the beginning. If the adverse party disputes entries on the log, briefing and an in camera review may follow, costing still more. Though the digitization of business communication has been under way for over 25 years, jurisprudence in the area of e-discovery did not begin to develop until the late 1990s. See David Isom, "Electronic Discovery: New Power, New Risks," 16 Utah Bar Journal 8, 9, & 14 n.7 (2003) ("Until the late 1990s, electronic discovery issues in reported cases were scarce.").
To Continue Reading: Click Here
--------------------------------------------
Source: Law.com
By: Peter Pizzi
Wednesday, May 19, 2010
FTC targets privacy concerns related to copy machines
The U.S. Federal Trade Commission has begun contacting copy machine makers, resellers and office-supply stores about privacy concerns over the thousands of images that can potentially be stored on the machines' hard drives.
FTC Chairman Jon Leibowitz, in a letter to U.S. Representative Ed Markey, said the agency has been working to alert copy machine manufacturers and sellers of the privacy risks of the information that many copy machines store on their hard drives. The FTC is trying to "determine whether they are warning their customers about these risks ... and whether manufacturers and resellers are providing options for secure copying," Leibowitz wrote in a letter released Tuesday by Markey's office.
CBS News, in a report that aired April 19, said that nearly every copy machine built since 2002 stores documents copied, scanned and e-mailed by the machines on their hard drives. The report found sensitive health and law-enforcement investigation information on copy machines ready to be resold.
Markey, in an April 29 letter to the FTC, called for the agency to investigate privacy concerns related to copy machines.
"I am concerned that these hard drives represent a treasure trove for thieves, leaving unwitting consumers vulnerable to identity theft as their Social Security numbers, birth certificates, medical records, bank records and other personal information are exposed to individuals who could easily extract the data from the digital copiers' hard drive and use it for criminal purposes," Markey wrote.
Leibowitz, in response, said the FTC is working with copy machine makers and sellers to provide "appropriate educational materials" to their clients. The FTC is also reviewing its own educational materials related to privacy and computer hard drives, and it will create new information for consumers and businesses on digital copy machines, Leibowitz said.
To Continue Reading: Click Here
------------------------------------------
Source: Computerworld
By: Grant Gross
FTC Chairman Jon Leibowitz, in a letter to U.S. Representative Ed Markey, said the agency has been working to alert copy machine manufacturers and sellers of the privacy risks of the information that many copy machines store on their hard drives. The FTC is trying to "determine whether they are warning their customers about these risks ... and whether manufacturers and resellers are providing options for secure copying," Leibowitz wrote in a letter released Tuesday by Markey's office.
CBS News, in a report that aired April 19, said that nearly every copy machine built since 2002 stores documents copied, scanned and e-mailed by the machines on their hard drives. The report found sensitive health and law-enforcement investigation information on copy machines ready to be resold.
Markey, in an April 29 letter to the FTC, called for the agency to investigate privacy concerns related to copy machines.
"I am concerned that these hard drives represent a treasure trove for thieves, leaving unwitting consumers vulnerable to identity theft as their Social Security numbers, birth certificates, medical records, bank records and other personal information are exposed to individuals who could easily extract the data from the digital copiers' hard drive and use it for criminal purposes," Markey wrote.
Leibowitz, in response, said the FTC is working with copy machine makers and sellers to provide "appropriate educational materials" to their clients. The FTC is also reviewing its own educational materials related to privacy and computer hard drives, and it will create new information for consumers and businesses on digital copy machines, Leibowitz said.
To Continue Reading: Click Here
------------------------------------------
Source: Computerworld
By: Grant Gross
Mechanisms That Help Reduce the Cost of E-Discovery
No matter how vigilant, there is no way to fully insulate yourself from a potential lawsuit. It should come as no surprise that defending a lawsuit, even one where you are ultimately not liable, can be costly. Advancements in technology, including the ubiquitous use of e-mail, can significantly increase the cost of litigation. With all of the unavoidable expenses associated with litigation, in these economic times it is necessary to implement mechanisms that help curtail the cost of litigation, especially with regard to electronic discovery.
RELEVANT COURT RULES REGARDING E-DISCOVERY
Courts have recognized the importance of technological advancements in litigation by implementing rules that require parties to produce electronic information in discovery. Indeed, both the Federal Rules of Civil Procedure and the New Jersey Rules of Court (collectively, the "court rules") require parties to produce their electronically stored information during litigation. Federal Rules 26(a)(1) and N.J. Rules 4:18-1(a).
In federal actions, parties are required to disclose, among other things, documents and other objects within their possession that may be used to support their claims or defenses prior to receiving a discovery request. Federal Rules 26(a)(1)(A)(ii). As of December 1, 2006, the term "documents" has been expanded to include ESI among the type of information and documents produced in litigation. Similarly, the N.J. Rules provide that a party may request ESI from its adversary. N.J. Rules 4:18-1(a).
To Continue Reading: Click Here
--------------------------------------
Source: law.com
By: Nuris E. Portuondo and Melissa A. Silver
RELEVANT COURT RULES REGARDING E-DISCOVERY
Courts have recognized the importance of technological advancements in litigation by implementing rules that require parties to produce electronic information in discovery. Indeed, both the Federal Rules of Civil Procedure and the New Jersey Rules of Court (collectively, the "court rules") require parties to produce their electronically stored information during litigation. Federal Rules 26(a)(1) and N.J. Rules 4:18-1(a).
In federal actions, parties are required to disclose, among other things, documents and other objects within their possession that may be used to support their claims or defenses prior to receiving a discovery request. Federal Rules 26(a)(1)(A)(ii). As of December 1, 2006, the term "documents" has been expanded to include ESI among the type of information and documents produced in litigation. Similarly, the N.J. Rules provide that a party may request ESI from its adversary. N.J. Rules 4:18-1(a).
To Continue Reading: Click Here
--------------------------------------
Source: law.com
By: Nuris E. Portuondo and Melissa A. Silver
Website takes aim at information risk
Given all the fuss about data theft, breaches, cracking, corporate governance and malfeasance, new rules and regs, financial reporting transparency, cloud computing concerns, Facebook profiles and 'smoking gun' email messages - and that's just the first round of buzzword bingo, folks -- it was about time that somebody built a credible website all about information risk management. And here, perhaps, it is.
Inforiskawareness.co.uk is a new portal that aims to provide a heartland for Brits and European end-user organisations interested in the risk factors inherent in publishing electronic information from legal hold, e-discovery and e-disclosure to the latest 'new' world of offshoring and hosted data. News, blogs, whitepapers and more are promised although the site is at an early stage right now.
It's backed by a bunch that you might expect to want you to be keen on learning more, including search and discovery firm Recommind, legal eagles Field Fisher Waterhouse, risk management software and services groups IntApp and Exterro, specialist publication Legal Technology Insider, lobbyist the e-Disclosure Information Project and domain expert group Risk Roundtable.
To Continue Reading: Click Here
--------------------------------------
Source: cio.co.uk
By: Martin Veitch
Inforiskawareness.co.uk is a new portal that aims to provide a heartland for Brits and European end-user organisations interested in the risk factors inherent in publishing electronic information from legal hold, e-discovery and e-disclosure to the latest 'new' world of offshoring and hosted data. News, blogs, whitepapers and more are promised although the site is at an early stage right now.
It's backed by a bunch that you might expect to want you to be keen on learning more, including search and discovery firm Recommind, legal eagles Field Fisher Waterhouse, risk management software and services groups IntApp and Exterro, specialist publication Legal Technology Insider, lobbyist the e-Disclosure Information Project and domain expert group Risk Roundtable.
To Continue Reading: Click Here
--------------------------------------
Source: cio.co.uk
By: Martin Veitch
Tuesday, May 18, 2010
FOCUS — Never Give Up
Owners of U.S. intellectual property (IP) can exclude illegal imports from the United States by successfully enforcing their rights at the International Trade Commission (ITC).
To be successful in ITC litigation, an IP owner needs to be focused, prepared and persistent. Our litigation team at McAndrews, Held & Malloy recently employed that approach on behalf of IP owner Amsted Industries Incorporated in ITC Investigation No. 337-TA-655, Certain Cast Steel Railway Wheels, Certain Processes For Manufacturing Or Relating To Same And Certain Products Containing Same.
We successfully proved and obtained remedies for misappropriation of 128 trade secrets by two Chinese companies and two U.S. companies. The remedies are a ten-year limited exclusion order (LEO) and ten-year cease and desist orders (C&DO's).
Focus, preparation and persistence in ITC litigation involve ten steps.
First, appropriately staff the outside litigation team.
A leanly staffed team possesses concentrated case knowledge, which will improve the quality of the representation and the result of the litigation. In contrast, an overly staffed team possesses diluted case knowledge, which will detrimentally affect the quality of the representation and the result of the litigation.
To Continue Reading: Click Here
--------------------------------------
Source: law.com
By: Dean Pelletier
To be successful in ITC litigation, an IP owner needs to be focused, prepared and persistent. Our litigation team at McAndrews, Held & Malloy recently employed that approach on behalf of IP owner Amsted Industries Incorporated in ITC Investigation No. 337-TA-655, Certain Cast Steel Railway Wheels, Certain Processes For Manufacturing Or Relating To Same And Certain Products Containing Same.
We successfully proved and obtained remedies for misappropriation of 128 trade secrets by two Chinese companies and two U.S. companies. The remedies are a ten-year limited exclusion order (LEO) and ten-year cease and desist orders (C&DO's).
Focus, preparation and persistence in ITC litigation involve ten steps.
First, appropriately staff the outside litigation team.
A leanly staffed team possesses concentrated case knowledge, which will improve the quality of the representation and the result of the litigation. In contrast, an overly staffed team possesses diluted case knowledge, which will detrimentally affect the quality of the representation and the result of the litigation.
To Continue Reading: Click Here
--------------------------------------
Source: law.com
By: Dean Pelletier
Monday, May 17, 2010
Disk and cloud emerge as archiving options
While many in the data storage field tend to use the terms data backup and data archive interchangeably, they actually are distinct functions, said Enterprise Strategy Group analyst Brian Babineau. Data backup refers to data needed regularly for production, and data archive refers to data accessed rarely and held primarily for compliance reasons.
The Storage Networking Industry Association (SNIA) defines an archive as "A collection of data objects, perhaps with associated metadata, in a storage system whose primary purpose is the long-term preservation and retention of that data." That definition hints at a further distinction. Data that is archived is not usually expected to be readily searchable. So, if you have a sudden need for, say, a series of emails from five years ago -- you might need to think about what you will need to do to locate and read that information.
Karen Grost, the business contingency/security plan administrator for NuUnion Credit Union, understands the differences between backup and archiving. Her organization recently started using the STORServer Backup Appliance to handle backup and to also help manage archiving.
From a backup perspective, "We chose tape because it is easier and less expensive for us to move data to an off site facility that way," she said. Similarly, the STORServer appliance and the Tivoli Storage Manager software it uses help manage archiving, which is also based on tape. She said the focus of archiving is to maintain data for seven years "in case someone subpoenas us." And, she noted, tape again offers lower costs. "We set the tapes to expire after seven years and Tivoli Storage Manager tracks that for us," she added. So far, she said, "we haven't come close to running out of space because we already had so much tape."
To Continue Reading: Click Here
----------------------------------------------------
Source: searchstorage.techtarget.com.au
By: Alan R. Earls
The Storage Networking Industry Association (SNIA) defines an archive as "A collection of data objects, perhaps with associated metadata, in a storage system whose primary purpose is the long-term preservation and retention of that data." That definition hints at a further distinction. Data that is archived is not usually expected to be readily searchable. So, if you have a sudden need for, say, a series of emails from five years ago -- you might need to think about what you will need to do to locate and read that information.
Karen Grost, the business contingency/security plan administrator for NuUnion Credit Union, understands the differences between backup and archiving. Her organization recently started using the STORServer Backup Appliance to handle backup and to also help manage archiving.
From a backup perspective, "We chose tape because it is easier and less expensive for us to move data to an off site facility that way," she said. Similarly, the STORServer appliance and the Tivoli Storage Manager software it uses help manage archiving, which is also based on tape. She said the focus of archiving is to maintain data for seven years "in case someone subpoenas us." And, she noted, tape again offers lower costs. "We set the tapes to expire after seven years and Tivoli Storage Manager tracks that for us," she added. So far, she said, "we haven't come close to running out of space because we already had so much tape."
To Continue Reading: Click Here
----------------------------------------------------
Source: searchstorage.techtarget.com.au
By: Alan R. Earls
Wisconsin Supreme Court tackles creating e-discovery standards
Attorneys in Wisconsin will finally have guidance on the discovery of electronically stored information after the state Supreme Court adopted part of the federal court system’s e-discovery guidelines.
In late April, the Supreme Court adopted a petition submitted by the Wisconsin Judicial Council to incorporate elements of the 2006 updates to the Federal Rules of Civil Procedure pertaining to e-discovery and the Uniform Rules on the Discovery of Electronically Stored Information into state statute. Previously, electronically stored information fell under general discovery rules, meaning that documents stored in a computer and documents stored in a file cabinet were subject to the same rules.
Among the requirements supported by the majority of the court is the ability of parties to specify the form or forms in which electronically stored information is to be produced and a “safe harbor” provision that would prohibit court sanctions if a party fails to produce electronically stored information lost as a result of routine operation of a system, such as a server crash.
However, the court deviated from the council’s recommendation for discretionary meet and confer sessions to discuss scope and cost prior to engaging in electronic discovery.
Rather, the justices, by a 5-2 vote, made the sessions mandatory in all cases which involve e-discovery, consistent with the federal rule.
To Continue Reading: Click Here
--------------------------------------
Source: wislawjournal.com
By: Jack Zemlicka
In late April, the Supreme Court adopted a petition submitted by the Wisconsin Judicial Council to incorporate elements of the 2006 updates to the Federal Rules of Civil Procedure pertaining to e-discovery and the Uniform Rules on the Discovery of Electronically Stored Information into state statute. Previously, electronically stored information fell under general discovery rules, meaning that documents stored in a computer and documents stored in a file cabinet were subject to the same rules.
Among the requirements supported by the majority of the court is the ability of parties to specify the form or forms in which electronically stored information is to be produced and a “safe harbor” provision that would prohibit court sanctions if a party fails to produce electronically stored information lost as a result of routine operation of a system, such as a server crash.
However, the court deviated from the council’s recommendation for discretionary meet and confer sessions to discuss scope and cost prior to engaging in electronic discovery.
Rather, the justices, by a 5-2 vote, made the sessions mandatory in all cases which involve e-discovery, consistent with the federal rule.
To Continue Reading: Click Here
--------------------------------------
Source: wislawjournal.com
By: Jack Zemlicka
Do You Know Where Your Employees' Data Is?
Human resources execs, pressed to control costs and increase efficiency, are increasingly turning to third-party services providers to process sensitive data. Everything from payroll data to performance reviews to health care and personal background information is being handled in remote data centers maintained by third parties.
Any company considering using these services needs to take extra precautions. "Be mindful of geography," says Jonathan Novich, founder of The Code Works, a staffing and recruitment consultant. "Know where the data is coming from, where it's being held. And consult a lawyer."
With data taking center stage in every organization, the ability to make sense and take action on that data is vital. Technology like Many Eyes will make that process more inviting.As more software-as-a-service vendors process very sensitive employee or company data, that's where security and geography become concerns. The attention SaaS providers pay to these details varies, contends Scott Blackmer, founding partner of InfoLawGroup, an information law specialist in Salt Lake City. "It's not always clear how they're going to provide security, who handles data, where they handle it, who handles breaches, and how they handle them," Blackmer says. "Those are things that can get a company into trouble."
SaaS providers say privacy and security are some of their key assets. SuccessFactors, for instance, says it has layers of security covering data access, handling, and storage. The protections were enough to persuade a multinational giant with 2 million employees worldwide to sign up recently.
To Continue Reading: Click Here
--------------------------------------
Source: Informationweek
By: Irwin Speizer
Any company considering using these services needs to take extra precautions. "Be mindful of geography," says Jonathan Novich, founder of The Code Works, a staffing and recruitment consultant. "Know where the data is coming from, where it's being held. And consult a lawyer."
With data taking center stage in every organization, the ability to make sense and take action on that data is vital. Technology like Many Eyes will make that process more inviting.As more software-as-a-service vendors process very sensitive employee or company data, that's where security and geography become concerns. The attention SaaS providers pay to these details varies, contends Scott Blackmer, founding partner of InfoLawGroup, an information law specialist in Salt Lake City. "It's not always clear how they're going to provide security, who handles data, where they handle it, who handles breaches, and how they handle them," Blackmer says. "Those are things that can get a company into trouble."
SaaS providers say privacy and security are some of their key assets. SuccessFactors, for instance, says it has layers of security covering data access, handling, and storage. The protections were enough to persuade a multinational giant with 2 million employees worldwide to sign up recently.
To Continue Reading: Click Here
--------------------------------------
Source: Informationweek
By: Irwin Speizer
Massachusetts Privacy Laws got toned down [some] but they're still a compliance headache
Brooke’s Note: I first heard about Massachusetts’ intensive new privacy laws from financial advisors in New England. These weren’t Massachusetts RIAs but they had clients there and they weren’t going to give them up to dodge the new regulations. But these advisors were seriously worried. They realized they’d have to rethink every communication and the placement of every file and its movement in the office. Life as a financial advisor seemed complex enough. Now this. Since then I’ve looked for an opportunity to write on the subject. The opportunity arose when I spoke to Wade Spencer, director of technology consulting for Schwab Advisor Services. He’s noticed that many advisors need a wake-up call on privacy regardless of whether they have clients in the Bay State. Many RIA firms, for example, keep a server in a closet with no lock. Spencer encourages them to at least attach a bicycle lock-type device to discourage thieves from literally walking away with their clients data. But of course there’s much more to the story that U-locks.
The State of Massachusetts implemented strict new guidelines on March 1 surrounding how businesses need to act to safeguard client data.
These regulations establish minimum standards to be met in connection with the safeguarding of personal information contained in both paper and electronic records. The goal is to protect against unauthorized access to or use of such information that may harm or inconvenience any consumer, according to the state’s website.
The rules apply to all companies but they may be of particular concern to financial advisors because they possess so much confidential information of a sensitive nature.
To Continue Reading: Click Here
----------------------------------------------------
Source: riabiz.com
By: Brooke Southall
The State of Massachusetts implemented strict new guidelines on March 1 surrounding how businesses need to act to safeguard client data.
These regulations establish minimum standards to be met in connection with the safeguarding of personal information contained in both paper and electronic records. The goal is to protect against unauthorized access to or use of such information that may harm or inconvenience any consumer, according to the state’s website.
The rules apply to all companies but they may be of particular concern to financial advisors because they possess so much confidential information of a sensitive nature.
To Continue Reading: Click Here
----------------------------------------------------
Source: riabiz.com
By: Brooke Southall
National Archives attorney offers e-mail counsel
By all accounts, Jason Baron, the Director of Litigation for the Office of General Counsel at the National Archives and Records Administration (NARA), has visited & counseled the records keeping offices of nearly every cabinet level department and independent agency in the federal government.
In a lively, and somewhat irreverent, yet informative talk to NARA's recent Records Administration Conference, Baron discussed something that remains an on-going headache for those responsible for government records: electronic mail.
What we are doing is confronting the 800-pound gorilla in our lives, which is e-mail. I know that we have been talking about this for a number of years, but emerging in the marketplace are some products, tools, and services that might be helpful.
Baron is enthusiastic about the subject of records management, and his zeal for helping agencies comply with the law, especially when it comes to electronic communications, has made him homething of a legend and a popular visitor in many federal government agencies. He told the RACO conference two recent cases, ripped from contemporary law journals, points up the need, and the seriousness of dealing with e-mail:
To Continue Reading: Click Here
----------------------------------------------------
Source: federalnewsradio.com
By: Max Cacas
In a lively, and somewhat irreverent, yet informative talk to NARA's recent Records Administration Conference, Baron discussed something that remains an on-going headache for those responsible for government records: electronic mail.
What we are doing is confronting the 800-pound gorilla in our lives, which is e-mail. I know that we have been talking about this for a number of years, but emerging in the marketplace are some products, tools, and services that might be helpful.
Baron is enthusiastic about the subject of records management, and his zeal for helping agencies comply with the law, especially when it comes to electronic communications, has made him homething of a legend and a popular visitor in many federal government agencies. He told the RACO conference two recent cases, ripped from contemporary law journals, points up the need, and the seriousness of dealing with e-mail:
To Continue Reading: Click Here
----------------------------------------------------
Source: federalnewsradio.com
By: Max Cacas
Sunday, May 16, 2010
Where Were You During the Social Media Boom?
In the most recent sequel to the "Die Hard" movie series, "Live Free or Die Hard," the movie's villain is a technical genius who creates mass chaos by hacking into the major U.S. computer systems. Once again, Bruce Willis plays John McClane, the streetwise detective in the "Die Hard" films, who is greatly overmatched by his nemesis -- a young computer mastermind. Because of his lack of technical expertise, McClane's enemy tauntingly refers to him as "a Timex watch in a digital age." Although Timex now does in fact sell digital watches, I reference one of my favorite movie lines because it's instructive for those of you not using social media like Facebook, MySpace, and Twitter.
Statistics show that social media are booming. Facebook's website indicates that it has 400 million active users; MySpace's online press report from earlier this year says it has 100 million active users (this number has been disputed somewhat, but it is still in the millions); and a recent news article in PCWorld said that in January of this year, Twitter had 75 million visitors. Individuals, celebrities, corporations, nonprofit organizations, political campaigns, media outlets, associations, societies, movements, and others are all using social media to communicate, and their messages are being heard.
The social media websites are influencing serious as well as the not-so-serious issues. By example, they are credited with greatly contributing to President Obama's 2008 victory, as well as with helping 88-year old Betty White to host "Saturday Night Live" after a Facebook group generated more than a half a million followers in support of her appearance. Lawyers must acknowledge social media's importance.
To Continue Reading: Click Here
----------------------------------------------------
Source: law.com
By: Gregory Spizer
Statistics show that social media are booming. Facebook's website indicates that it has 400 million active users; MySpace's online press report from earlier this year says it has 100 million active users (this number has been disputed somewhat, but it is still in the millions); and a recent news article in PCWorld said that in January of this year, Twitter had 75 million visitors. Individuals, celebrities, corporations, nonprofit organizations, political campaigns, media outlets, associations, societies, movements, and others are all using social media to communicate, and their messages are being heard.
The social media websites are influencing serious as well as the not-so-serious issues. By example, they are credited with greatly contributing to President Obama's 2008 victory, as well as with helping 88-year old Betty White to host "Saturday Night Live" after a Facebook group generated more than a half a million followers in support of her appearance. Lawyers must acknowledge social media's importance.
To Continue Reading: Click Here
----------------------------------------------------
Source: law.com
By: Gregory Spizer
SaaS Strategy: What The Top Brass Wants To Know
Here are five areas to cover to deliver the right message to fellow executives and board members about software as a service.
You've made countless presentations during your career, but there's something about this one that has you particularly anxious. The CEO asked you to put together a presentation for the board about the company's software-as-a-service strategy and "the cloud."
The request nags. Why now? What have they been reading? What do they want to know? And what do they know that I don't?
Relax. Whether it's with the board of directors, an executive committee, or a group of business unit leaders, CIOs everywhere are having the SaaS talk. SaaS is at that point of maturity when business technology leaders need to have an opinion on it--where it works, where it might, and where it won't. And given the implications for speed and cost of deployment, expect them to have their own well-formed opinions. There are several key points they'll want to hear about, and some misconceptions you'll want to clear up.
But first: Do you have a SaaS strategy? Most IT organizations don't. In our InformationWeek Analytics survey of 131 SaaS customers, 59% say it's a point solution, not a long-term strategy. Yet SaaS and the broader concept of cloud computing are the hottest topics in IT since the Internet itself, so it's not surprising there's much interest among your company's leadership. Your CEO and CFO are reading about the trend; they hear it talked about at conferences. And your business unit leaders have been pitched by SaaS vendors, and they may have bought some. So any blanket "not for us" won't cut it. Our survey finds that 47% of companies use some SaaS, and that number is certain to rise rapidly.
To Continue Reading: Click Here
----------------------------------------------------
Source: informationweek.com
By: John Soat
You've made countless presentations during your career, but there's something about this one that has you particularly anxious. The CEO asked you to put together a presentation for the board about the company's software-as-a-service strategy and "the cloud."
The request nags. Why now? What have they been reading? What do they want to know? And what do they know that I don't?
Relax. Whether it's with the board of directors, an executive committee, or a group of business unit leaders, CIOs everywhere are having the SaaS talk. SaaS is at that point of maturity when business technology leaders need to have an opinion on it--where it works, where it might, and where it won't. And given the implications for speed and cost of deployment, expect them to have their own well-formed opinions. There are several key points they'll want to hear about, and some misconceptions you'll want to clear up.
But first: Do you have a SaaS strategy? Most IT organizations don't. In our InformationWeek Analytics survey of 131 SaaS customers, 59% say it's a point solution, not a long-term strategy. Yet SaaS and the broader concept of cloud computing are the hottest topics in IT since the Internet itself, so it's not surprising there's much interest among your company's leadership. Your CEO and CFO are reading about the trend; they hear it talked about at conferences. And your business unit leaders have been pitched by SaaS vendors, and they may have bought some. So any blanket "not for us" won't cut it. Our survey finds that 47% of companies use some SaaS, and that number is certain to rise rapidly.
To Continue Reading: Click Here
----------------------------------------------------
Source: informationweek.com
By: John Soat
Friday, May 14, 2010
Cellphones Now Used More for Data Than for Calls
Liza Colburn uses her cellphone constantly.
Liza Colburn and her 12-year-old daughter, Abigail, use their cellphones for many tasks, but make relatively few phone calls.
She taps out her grocery lists, records voice memos, listens to music at the gym, tracks her caloric intake and posts frequent updates to her Twitter and Facebook accounts.
The one thing she doesn’t use her cellphone for? Making calls.
“I probably only talk to someone verbally on it once a week,” said Mrs. Colburn, a 40-year-old marketing consultant in Canton, Mass., who has an iPhone.
For many Americans, cellphones have become irreplaceable tools to manage their lives and stay connected to the outside world, their families and networks of friends online. But increasingly, by several measures, that does not mean talking on them very much.
For example, although almost 90 percent of households in the United States now have a cellphone, the growth in voice minutes used by consumers has stagnated, according to government and industry data.
This is true even though more households each year are disconnecting their landlines in favor of cellphones.
To Continue Reading: Click Here
----------------------------------------------------
Source: NY Times
By: Jenna Wortham
Liza Colburn and her 12-year-old daughter, Abigail, use their cellphones for many tasks, but make relatively few phone calls.
She taps out her grocery lists, records voice memos, listens to music at the gym, tracks her caloric intake and posts frequent updates to her Twitter and Facebook accounts.
The one thing she doesn’t use her cellphone for? Making calls.
“I probably only talk to someone verbally on it once a week,” said Mrs. Colburn, a 40-year-old marketing consultant in Canton, Mass., who has an iPhone.
For many Americans, cellphones have become irreplaceable tools to manage their lives and stay connected to the outside world, their families and networks of friends online. But increasingly, by several measures, that does not mean talking on them very much.
For example, although almost 90 percent of households in the United States now have a cellphone, the growth in voice minutes used by consumers has stagnated, according to government and industry data.
This is true even though more households each year are disconnecting their landlines in favor of cellphones.
To Continue Reading: Click Here
----------------------------------------------------
Source: NY Times
By: Jenna Wortham
Federal Pilot Program Curbs E-Discovery Fights
The results of the first phase of a closely watched federal court pilot program on electronic discovery show that having a set of fair-play rules at the outset of a case helps quell pretrial brawls between parties.
The goal of the program, launched in May 2009 and spearheaded by James Holderman, chief judge of the Northern District of Illinois, was to find ways to reduce the massive costs and burdens of electronic discovery. Chairing the program is Magistrate Judge Jan Nolan, also of the Northern District of Illinois.
The first-phase of the 7th Circuit's pilot program indicated that when judges and attorneys had a set of specific principles to guide electronic discovery, it improved the process -- or, at least, didn't make it worse.
"It was very encouraging," said Holderman.
The first phase of the program involved 13 district court judges overseeing 93 civil cases and 285 attorneys between October 2009 and March 2010. The program required the judges and attorneys to follow a set of principles, drafted by the program's committee members, during electronic discovery. Those principles called for:
To Continue Reading: Click Here
------------------------------------------
Source: law.com
By: Leigh Jones
The goal of the program, launched in May 2009 and spearheaded by James Holderman, chief judge of the Northern District of Illinois, was to find ways to reduce the massive costs and burdens of electronic discovery. Chairing the program is Magistrate Judge Jan Nolan, also of the Northern District of Illinois.
The first-phase of the 7th Circuit's pilot program indicated that when judges and attorneys had a set of specific principles to guide electronic discovery, it improved the process -- or, at least, didn't make it worse.
"It was very encouraging," said Holderman.
The first phase of the program involved 13 district court judges overseeing 93 civil cases and 285 attorneys between October 2009 and March 2010. The program required the judges and attorneys to follow a set of principles, drafted by the program's committee members, during electronic discovery. Those principles called for:
To Continue Reading: Click Here
------------------------------------------
Source: law.com
By: Leigh Jones
How Do You Sell the Business on E-Mail Archiving?
Sometimes one of IT's biggest challenges is convincing upper management a particular technology purchase or deployment would be the best thing for a company. Especially if that purchase requires a lot of money up front and then it's rather difficult to quantify the return.
Compliance software, whether it's an e-discovery system, or a PCI or HIPAA compliance solution, is often in that category. When the manager says, "We're decreasing our risk? Ok. What do we really have to show for it?" how does IT respond?
Last week I had the chance to speak with representatives from e-mail archiving software vendors to get their advice about that particular vein of software. Responses were more varied than I thought they'd be.
For instance, Craig Carpenter, marketing VP and general counsel at Recommind, told me the first step is to make sure everyone understands why the archive is necessary, and that it will be much more than a "garbage dump" where e-mail goes to die.
To Continue Reading: Click Here
------------------------------------------
Source: itbusinessedge.com
By: Laura Bentley
Compliance software, whether it's an e-discovery system, or a PCI or HIPAA compliance solution, is often in that category. When the manager says, "We're decreasing our risk? Ok. What do we really have to show for it?" how does IT respond?
Last week I had the chance to speak with representatives from e-mail archiving software vendors to get their advice about that particular vein of software. Responses were more varied than I thought they'd be.
For instance, Craig Carpenter, marketing VP and general counsel at Recommind, told me the first step is to make sure everyone understands why the archive is necessary, and that it will be much more than a "garbage dump" where e-mail goes to die.
To Continue Reading: Click Here
------------------------------------------
Source: itbusinessedge.com
By: Laura Bentley
Backup Data Migration Made Easy
This article, part 2 of the three part series focusing on backup data, will discuss data migration. Often IT departments feel locked into their choice of backup systems, even when new technology comes to market. This feeling stems from wanting to avoid maintaining multiple backup environments necessary to access the data each system backed up. A new methodology eliminates the need to maintain multiple environments, and allows data migration into any new platform you choose.
We know that backup is a critical part of the IT infrastructure. A number of popular software solutions exist that make this process easy. Most companies live with their backup software vendor for many years, even if they discover a better solution. Changing to new backup software is not easy, as it would preclude you from accessing historical data backed up with the legacy software.
In a sense backup software is proprietary; data backup to tape is only accessible by the original software. If you decide to move to a new backup software vendor, you will be forced to maintain multiple platforms in order to support future access to this historical content as Brand X will not restore data or even read Brand Y’s tapes. In the past you typically did not need to access this content, however times have changed. Legal requirements along with corporate records management and archiving initiatives now require access to historical records in order to satisfy regulations and court proceedings.
A new approach delivers access to this proprietary backup data without the need for the original backup software. With this new level of access to tape content, data on tape no longer is “owned” by the backup software. This allows freedom to migrate to the backup software vendor of your choice, without any concern for getting access to historical tape data.
To Continue Reading: Click Here
------------------------------------------
Source: wwpi.com
By: Jim McGann
We know that backup is a critical part of the IT infrastructure. A number of popular software solutions exist that make this process easy. Most companies live with their backup software vendor for many years, even if they discover a better solution. Changing to new backup software is not easy, as it would preclude you from accessing historical data backed up with the legacy software.
In a sense backup software is proprietary; data backup to tape is only accessible by the original software. If you decide to move to a new backup software vendor, you will be forced to maintain multiple platforms in order to support future access to this historical content as Brand X will not restore data or even read Brand Y’s tapes. In the past you typically did not need to access this content, however times have changed. Legal requirements along with corporate records management and archiving initiatives now require access to historical records in order to satisfy regulations and court proceedings.
A new approach delivers access to this proprietary backup data without the need for the original backup software. With this new level of access to tape content, data on tape no longer is “owned” by the backup software. This allows freedom to migrate to the backup software vendor of your choice, without any concern for getting access to historical tape data.
To Continue Reading: Click Here
------------------------------------------
Source: wwpi.com
By: Jim McGann
Thursday, May 13, 2010
Uncovering ESI: 20 Search Term Tips
Over the years we have keyword searched thousands of hard drives, e-mail stores, thumb drives, CD’s and servers. Using keywords to identify potentially relevant documents is a well established practice in the eDiscovery world. When combined with other methods search terms can be a powerful means for culling down a large dataset. When implemented improperly they can cause major headaches. To help on the path the keyword nirvana we have outlined 20 helpful (we hope) tips below.
False positive defined: A search term “hits” within a document but not for the meaning that was intended. For example, the term “comput*” would return “computer” (the intended term) but would also return “computational” (not intended). Computational would be the “false positive” term.
To Continue Reading: Click Here
------------------------------------------
Source: Bowtie Law
By: Peter Coons and Tom Groom
False positive defined: A search term “hits” within a document but not for the meaning that was intended. For example, the term “comput*” would return “computer” (the intended term) but would also return “computational” (not intended). Computational would be the “false positive” term.
To Continue Reading: Click Here
------------------------------------------
Source: Bowtie Law
By: Peter Coons and Tom Groom
Managing IT Workflow For E-Discovery
Electronic discovery (eDiscovery) has become a front-and-center IT concern as increasing numbers of companies struggle to respond effectively and efficiently to legal actions. Earlier this year, a landmark court opinion issued by U.S. District Court Judge Shira Scheindlin significantly upped the ante for organizational responsibility to preserve data by imposing monetary penalties on 13 plaintiffs for negligence and gross negligence in failing to protect discoverable data.
This ruling, which outlines new contemporary standards for eDiscovery, has been characterized as a “wake-up call” to litigants. The decision also raises the bar for IT involvement in preserving electronically stored information (ESI), which has become incredibly complex due to the sheer volume of records that needs to be managed. Discoverable data has also at the same time grown to include emails, files, documents, backup and archive data, often across multiple sites and media and some times geographies. New social media formats, such as Facebook and Twitter, also now are considered part of ESI.
Evolving case law and growing regulatory pressures now force organizations to gain greater control of their data, fueling new investments in eDiscovery technologies. According to Gartner Group, spending on electronic discovery software and services will grow between 25 and 35 percent annually through 2012. Despite this uptake, many organizations are still grappling with budget constraints and therefore must focus on finding ways to improve eDiscovery readiness in response in increasing litigations without incurring huge IT and legal costs.
To Continue Reading: Click Here
--------------------------------------------
Source: wwpi.com
By: Simon Taylor
This ruling, which outlines new contemporary standards for eDiscovery, has been characterized as a “wake-up call” to litigants. The decision also raises the bar for IT involvement in preserving electronically stored information (ESI), which has become incredibly complex due to the sheer volume of records that needs to be managed. Discoverable data has also at the same time grown to include emails, files, documents, backup and archive data, often across multiple sites and media and some times geographies. New social media formats, such as Facebook and Twitter, also now are considered part of ESI.
Evolving case law and growing regulatory pressures now force organizations to gain greater control of their data, fueling new investments in eDiscovery technologies. According to Gartner Group, spending on electronic discovery software and services will grow between 25 and 35 percent annually through 2012. Despite this uptake, many organizations are still grappling with budget constraints and therefore must focus on finding ways to improve eDiscovery readiness in response in increasing litigations without incurring huge IT and legal costs.
To Continue Reading: Click Here
--------------------------------------------
Source: wwpi.com
By: Simon Taylor
EU opinion imperils privilege for in-house counsel
Canadian companies operating in the European Union and their in-house lawyers could soon face a new challenge in their practice of privilege.
Communication between companies and their in-house lawyers does not have the same solicitor-client privilege in EU competition cases as communication between companies and outside counsel, according to the April 29 opinion in Akzo Nobel Chemicals Ltd. and Akcros Chemicals Ltd. v. European Commission by Advocate General Juliane Kokott that faces approval at the Court of Justice of the European Union later this year.
“A salaried in-house lawyer, notwithstanding any membership of a bar of law society, does not enjoy the same degree of independence from his employer as a lawyer working in an external law firm does in relation to his client. Consequently, equal treatment of both professional groups in regard to legal professional privilege is not required as a matter of law,” notes a press release from the court on the opinion.
The advocate general’s opinion is not binding on the court. It is the AG’s role to propose an independent legal solution to the court in cases for which it is responsible and that raise new points of law. Their opinions are advisory, but are very influential and followed in the majority of cases. The judges of the court are now deliberating the Akzo case.
Due to the international nature of most EU competition cases and the fact it is common for Canadian companies to work with EU-based counsel and vice versa, if the opinion becomes a ruling, it would leave Canadian companies and their in-house counsel in Europe in jeopardy, says Randy Hughes, a partner and head of the competition group at McCarthy Tétrault LLP.
“Companies and their counsel need to be prudent in their communications under these circumstances,” says Hughes. “The opinion is not helpful because it makes them even more subject to the erosion of privilege.”
To Continue Reading: Click Here
--------------------------------------------
Source: Canadian Lawyer Magazine
By: Andi Balla
Communication between companies and their in-house lawyers does not have the same solicitor-client privilege in EU competition cases as communication between companies and outside counsel, according to the April 29 opinion in Akzo Nobel Chemicals Ltd. and Akcros Chemicals Ltd. v. European Commission by Advocate General Juliane Kokott that faces approval at the Court of Justice of the European Union later this year.
“A salaried in-house lawyer, notwithstanding any membership of a bar of law society, does not enjoy the same degree of independence from his employer as a lawyer working in an external law firm does in relation to his client. Consequently, equal treatment of both professional groups in regard to legal professional privilege is not required as a matter of law,” notes a press release from the court on the opinion.
The advocate general’s opinion is not binding on the court. It is the AG’s role to propose an independent legal solution to the court in cases for which it is responsible and that raise new points of law. Their opinions are advisory, but are very influential and followed in the majority of cases. The judges of the court are now deliberating the Akzo case.
Due to the international nature of most EU competition cases and the fact it is common for Canadian companies to work with EU-based counsel and vice versa, if the opinion becomes a ruling, it would leave Canadian companies and their in-house counsel in Europe in jeopardy, says Randy Hughes, a partner and head of the competition group at McCarthy Tétrault LLP.
“Companies and their counsel need to be prudent in their communications under these circumstances,” says Hughes. “The opinion is not helpful because it makes them even more subject to the erosion of privilege.”
To Continue Reading: Click Here
--------------------------------------------
Source: Canadian Lawyer Magazine
By: Andi Balla
How Defensible Collection Fits In Your Information Governance Strategy
Conducting defensible eDiscovery collections can be challenging, but will pay off in both the near- and long-terms. What any organization does depends upon their specific maturity level and requirements. In general, though, organizations that want to take control of eDiscovery collection should:
•Take an infrastructure approach. Think of eDiscovery collection tools as part of the plumbing of the organization. While it’s not necessary to deploy some kind of uber-repository to house all information, it is necessary to be able to connect to all sources of information – that’s what a collection program should ensure. Ideally, the right collection tool will provide a single interface to search across all information sources, connectors to the most important information sources (and the ability to easily connect to more as needed), and the scalability to parse through a large volume of information. An infrastructure point-of-view, however, does not initially mean spending huge dollars. Each organization needs to decide how many information sources are in-scope for collection – laying down the plumbing for collection does not mean deploying pipes to each information source on day one.
•Give IT final decision-making authority. Anytime an organizations needs to put infrastructure in place, IT should be making the final decisions and have budget authority. This does not mean that the legal department is not an important influencer in the decision-making process; rather, legal should be acting as the business user of any kind of collection, legal hold, and/or ECA tool, defining requirements like user interface needs, search and analytics capabilities, and review formats that need to be supported. Ultimately, though, IT should be pulling the trigger on the purchase of tools. Figure 4 below depicts the features and functions that Legal and IT should care most about, respectively.
To Continue Reading: Click Here
--------------------------------------------
Source: eDiscovery Journal
By: Barry Murphy
•Take an infrastructure approach. Think of eDiscovery collection tools as part of the plumbing of the organization. While it’s not necessary to deploy some kind of uber-repository to house all information, it is necessary to be able to connect to all sources of information – that’s what a collection program should ensure. Ideally, the right collection tool will provide a single interface to search across all information sources, connectors to the most important information sources (and the ability to easily connect to more as needed), and the scalability to parse through a large volume of information. An infrastructure point-of-view, however, does not initially mean spending huge dollars. Each organization needs to decide how many information sources are in-scope for collection – laying down the plumbing for collection does not mean deploying pipes to each information source on day one.
•Give IT final decision-making authority. Anytime an organizations needs to put infrastructure in place, IT should be making the final decisions and have budget authority. This does not mean that the legal department is not an important influencer in the decision-making process; rather, legal should be acting as the business user of any kind of collection, legal hold, and/or ECA tool, defining requirements like user interface needs, search and analytics capabilities, and review formats that need to be supported. Ultimately, though, IT should be pulling the trigger on the purchase of tools. Figure 4 below depicts the features and functions that Legal and IT should care most about, respectively.
To Continue Reading: Click Here
--------------------------------------------
Source: eDiscovery Journal
By: Barry Murphy
Wednesday, May 12, 2010
Show Us the Love to Avoid Discovery Fights, Attorneys Urge
Attorneys were blunt during a litigation conference at Duke University School of Law about what they need from judges and opposing counsel to fix trial practice in federal courts.
"We'd all be a lot happier if we had some romancing foreplay pre-trial and left the rough stuff for trial," said Ariana Tadler, a partner in the New York office Milberg LLP.
Tadler, speaking about cooperation between attorneys "on both sides of the v.," participated in a six-member panel discussion of what works and what doesn't in the federal courts. The presentation took place on Tuesday, the second and final day of the 2010 Conference on Civil Litigation, sponsored mainly by the U.S. Judicial Conference's Advisory Committee on Civil Rules.
The conference focused on whether changes to the Federal Rules of Civil Procedure are needed to resolve cases more efficiently and justly. The consensus emerging among conference participants was that large-scale revisions to the rules are not necessary. Rather, most practitioners agreed that what's needed is better judicial management of cases. Many also wanted to see a tailoring of procedural rules according to the specific kind of case -- so-called nontransubstantive rules.
Pfizer Inc. general counsel Amy Schulman agreed that cooperation between opposing counsel helps all parties, but she said that corporate defendants involved in high-stakes cases are often mischaracterized.
"There's this fundamental notion that we don't want to play fair," Schulman said to the crowd of about 150 federal judges, large-firm defense counsel, plaintiffs attorneys and legal scholars. Schulman said her position when confronting a lawsuit against the company was simple: "Sometimes we do things wrong. When we do, we settle cases." In cases that have "grey areas," she said, "we want is to know that the system is operating fairly."
To Continue Reading: Click Here
-----------------------------------------------
Source: law.com
By: Leigh Jones
"We'd all be a lot happier if we had some romancing foreplay pre-trial and left the rough stuff for trial," said Ariana Tadler, a partner in the New York office Milberg LLP.
Tadler, speaking about cooperation between attorneys "on both sides of the v.," participated in a six-member panel discussion of what works and what doesn't in the federal courts. The presentation took place on Tuesday, the second and final day of the 2010 Conference on Civil Litigation, sponsored mainly by the U.S. Judicial Conference's Advisory Committee on Civil Rules.
The conference focused on whether changes to the Federal Rules of Civil Procedure are needed to resolve cases more efficiently and justly. The consensus emerging among conference participants was that large-scale revisions to the rules are not necessary. Rather, most practitioners agreed that what's needed is better judicial management of cases. Many also wanted to see a tailoring of procedural rules according to the specific kind of case -- so-called nontransubstantive rules.
Pfizer Inc. general counsel Amy Schulman agreed that cooperation between opposing counsel helps all parties, but she said that corporate defendants involved in high-stakes cases are often mischaracterized.
"There's this fundamental notion that we don't want to play fair," Schulman said to the crowd of about 150 federal judges, large-firm defense counsel, plaintiffs attorneys and legal scholars. Schulman said her position when confronting a lawsuit against the company was simple: "Sometimes we do things wrong. When we do, we settle cases." In cases that have "grey areas," she said, "we want is to know that the system is operating fairly."
To Continue Reading: Click Here
-----------------------------------------------
Source: law.com
By: Leigh Jones
Ayotte to AG: Go beyond law on e-mails
Former Attorney General Kelly Ayotte yesterday asked her successor to make public all of her e-mail and schedules during her five years in office, including files that are currently on the state back-up system and not subject to the right to know law.
A Republican U.S. Senate candidate, Ayotte asked Attorney General Michael Delaney in a letter to "go beyond the requirements of the right to know law to ask the (state) Office of Information Technology to restore and produce to the public any of my e-mails and schedules related to my tenure as attorney general that are retained on the state's back-up computer storage devices."
Ayotte also asked that the office additionally make public "all e-mails contained within all case files in the office during my tenure as attorney general."
Delaney said his office is working with the state Information Technology Office to determine if Ayotte's e-mail account, which was removed from the active system after she left office and saved on a non-public back-up system, can be restored.
To Continue Reading: Click Here
-----------------------------------------------
Source: unionleader.com
By: John Distaso
A Republican U.S. Senate candidate, Ayotte asked Attorney General Michael Delaney in a letter to "go beyond the requirements of the right to know law to ask the (state) Office of Information Technology to restore and produce to the public any of my e-mails and schedules related to my tenure as attorney general that are retained on the state's back-up computer storage devices."
Ayotte also asked that the office additionally make public "all e-mails contained within all case files in the office during my tenure as attorney general."
Delaney said his office is working with the state Information Technology Office to determine if Ayotte's e-mail account, which was removed from the active system after she left office and saved on a non-public back-up system, can be restored.
To Continue Reading: Click Here
-----------------------------------------------
Source: unionleader.com
By: John Distaso
Risk Management and E-Discovery: Qualcomm Revisited
Almost three years ago, we wrote about the tension between a lawyer's defense of his own professional conduct and his duties of loyalty and confidentiality to his client. The issue was presented in Qualcomm Inc. v. Broadcom Corp., a California patent infringement case involving cell phone technology.
During trial, the court learned that Qualcomm and its counsel did not produce more than 200,000 pages of relevant electronic documents. As a result, Qualcomm was ordered to pay Broadcom's hefty legal fees ($8.5 million), and the district court judge referred the matter to a magistrate for consideration of further sanctions. The magistrate found that Qualcomm intentionally withheld thousands of documents that had been requested during discovery and that certain of the withheld documents directly contradicted one of Qualcomm's key arguments. In addition, the magistrate sanctioned Qualcomm's attorneys based upon the premise that they failed to conduct a reasonable inquiry into the adequacy of Qualcomm's document production.
Those sanctions were vacated by the district court, and the matter was remanded to the magistrate to provide counsel the opportunity to defend themselves. On April 2, 2010, the magistrate ruled that the attorneys should not be sanctioned, as the record demonstrated that they took significant steps to comply with the original discovery obligations. While the attorneys were vindicated, the court's decision provides important guidance on discovery practices, as well as how to maintain both objectivity and integrity in our relationships with clients.
First, the magistrate took issue with counsel's failure to personally meet with the Qualcomm custodians whose documents were being collected. In today's technological society, despite the fact that we are constantly connected to one another through electronic media, nothing replaces the face-to-face meeting. Language can be misread out of context in an e-mail, and the ability to see the confusion (or conversely, understanding) on someone's face is completely lost when your interaction is limited to a 13-word text message. Thus, it is critically important to get face time with the client, as it allows for a clear explanation of all the relevant issues.
To Continue Reading: Click Here
-----------------------------------------------
Source: law.com
By: Ellen C. Brotman and Michael B. Hayes
During trial, the court learned that Qualcomm and its counsel did not produce more than 200,000 pages of relevant electronic documents. As a result, Qualcomm was ordered to pay Broadcom's hefty legal fees ($8.5 million), and the district court judge referred the matter to a magistrate for consideration of further sanctions. The magistrate found that Qualcomm intentionally withheld thousands of documents that had been requested during discovery and that certain of the withheld documents directly contradicted one of Qualcomm's key arguments. In addition, the magistrate sanctioned Qualcomm's attorneys based upon the premise that they failed to conduct a reasonable inquiry into the adequacy of Qualcomm's document production.
Those sanctions were vacated by the district court, and the matter was remanded to the magistrate to provide counsel the opportunity to defend themselves. On April 2, 2010, the magistrate ruled that the attorneys should not be sanctioned, as the record demonstrated that they took significant steps to comply with the original discovery obligations. While the attorneys were vindicated, the court's decision provides important guidance on discovery practices, as well as how to maintain both objectivity and integrity in our relationships with clients.
First, the magistrate took issue with counsel's failure to personally meet with the Qualcomm custodians whose documents were being collected. In today's technological society, despite the fact that we are constantly connected to one another through electronic media, nothing replaces the face-to-face meeting. Language can be misread out of context in an e-mail, and the ability to see the confusion (or conversely, understanding) on someone's face is completely lost when your interaction is limited to a 13-word text message. Thus, it is critically important to get face time with the client, as it allows for a clear explanation of all the relevant issues.
To Continue Reading: Click Here
-----------------------------------------------
Source: law.com
By: Ellen C. Brotman and Michael B. Hayes
Tuesday, May 11, 2010
The Quest for eDiscovery: Creating a Data Map
Discovery of electronic documents can be one of the most expensive aspects of a lawsuit in today’s information-glutted society if left undone until the 11th hour – to say nothing of the role it plays in obtaining a favorable judgment.
A key aspect of ediscovery is the creation of a data map to determine precisely what information is available within an organization and where it resides. This is a process that should begin long before a company ever finds itself in court.
The phone rings. It is the general counsel. The organization may be sued over patent infringement. Counsel knows that this could be “The Big One.” All sorts of data, documents, metadata, emails, and other forms of information may be required. Counsel asks IT: Do you have, or can you get together, a list of all systems and the data they contain?” There is a long, silent pause on the phone. Then the IT manager says “Well, we do have a list of systems. Let me send it your way.” Counsel gets the list. It is nothing close to the data map it needs. Instead it is a list of servers, their IP addresses, platform configuration, and their physical rack location in the data center. Good information for disaster recovery purposes, but not particularly helpful in court.
“Well, this is the best I’ve got,” comes the retort from IT. “We do not have a data map nor would we know how to create one – and, by the way, do you really think we have the bandwidth to work on this now?”
Why You? The Challenge of Data Mapping
So who gets stuck with the job? You do. You might argue that “IT manages all the infrastructure and stuff, why couldn’t they just run an inventory on their systems?” And IT will reply that “Well, we do manage the infrastructure, but we know very little about the inputs, outputs, documents, records, and other information on these applications. Go talk to the business side.” And you go to business, and business will tell you that “I just use the system and click these buttons on the screen. The system is a black box to me. I have no idea about all of the underlying data, metadata, and data structures. I suggest you talk to the operational folks.” And you talk to the operational folks, and they say, “What are you talking about? We just execute business processes. Don’t ask us about data and metadata. Go talk to the analyst who worked on the system design.” And you look for the analyst, and you eventually learn that …“Oh, she was a consultant and she left the project three years ago.”
To Continue Reading: Click Here
-------------------------------------------
Source: aiim.org
A key aspect of ediscovery is the creation of a data map to determine precisely what information is available within an organization and where it resides. This is a process that should begin long before a company ever finds itself in court.
The phone rings. It is the general counsel. The organization may be sued over patent infringement. Counsel knows that this could be “The Big One.” All sorts of data, documents, metadata, emails, and other forms of information may be required. Counsel asks IT: Do you have, or can you get together, a list of all systems and the data they contain?” There is a long, silent pause on the phone. Then the IT manager says “Well, we do have a list of systems. Let me send it your way.” Counsel gets the list. It is nothing close to the data map it needs. Instead it is a list of servers, their IP addresses, platform configuration, and their physical rack location in the data center. Good information for disaster recovery purposes, but not particularly helpful in court.
“Well, this is the best I’ve got,” comes the retort from IT. “We do not have a data map nor would we know how to create one – and, by the way, do you really think we have the bandwidth to work on this now?”
Why You? The Challenge of Data Mapping
So who gets stuck with the job? You do. You might argue that “IT manages all the infrastructure and stuff, why couldn’t they just run an inventory on their systems?” And IT will reply that “Well, we do manage the infrastructure, but we know very little about the inputs, outputs, documents, records, and other information on these applications. Go talk to the business side.” And you go to business, and business will tell you that “I just use the system and click these buttons on the screen. The system is a black box to me. I have no idea about all of the underlying data, metadata, and data structures. I suggest you talk to the operational folks.” And you talk to the operational folks, and they say, “What are you talking about? We just execute business processes. Don’t ask us about data and metadata. Go talk to the analyst who worked on the system design.” And you look for the analyst, and you eventually learn that …“Oh, she was a consultant and she left the project three years ago.”
To Continue Reading: Click Here
-------------------------------------------
Source: aiim.org
Discovery on Enterprise Archives and Content Platforms
My first article on corporate data collections focused on preserving the content, container and context of native files as found on network shares and desktop folders. Discovery requests are increasingly targeting email archives, content management systems and other semi-structured data sources. Most of these sources include search and retrieval features, so one could assume that this makes them a safer candidate for in-house collections. This is not automatically true and it’s definitely worth talking through some of the common problems that can lead to incomplete or altered retrievals. The first thing to realize is that these systems were not designed to comply with legal discovery requests as found in the United States. The search and retrieval functionality was added to support a business user seeking to find a few specific emails or an IT administrator restoring a larger set of items that were either lost or need to be transferred to a new user. Both of these scenarios stress quick, simple search without needing to verify the accuracy or integrity of the search or restoration.
Does this mean that these systems cannot be used to comply with discovery requests? They should not be used for legal requests without a thorough understanding of their architecture, component technologies, and the overall data lifecycle. This gives you the foundation to answer hard questions about how your communications and files have flowed into the system, what happens to them, who had access, how they could have been changed and how they are reassembled when they are retrieved. The next step is to perform some reasonable diligence testing on known custodians, dates, and search criteria. Federal magistrate judges have clearly expressed their expectation that counsel and clients will be able to answer the basic question, “How do you know that your search was successful?” To me, that means knowing the capabilities and limitations of your system, the characteristics of your ESI, and the efficacy of your relevance criteria. For corporate IT or LitSupport personnel, the first goal should be validating the system and being able to confidently assert what can be searched and declare what cannot.
To Continue Reading: Click Here
-----------------------------------------------
Source: eDiscovery Journal
By: Greg Buckles
Does this mean that these systems cannot be used to comply with discovery requests? They should not be used for legal requests without a thorough understanding of their architecture, component technologies, and the overall data lifecycle. This gives you the foundation to answer hard questions about how your communications and files have flowed into the system, what happens to them, who had access, how they could have been changed and how they are reassembled when they are retrieved. The next step is to perform some reasonable diligence testing on known custodians, dates, and search criteria. Federal magistrate judges have clearly expressed their expectation that counsel and clients will be able to answer the basic question, “How do you know that your search was successful?” To me, that means knowing the capabilities and limitations of your system, the characteristics of your ESI, and the efficacy of your relevance criteria. For corporate IT or LitSupport personnel, the first goal should be validating the system and being able to confidently assert what can be searched and declare what cannot.
To Continue Reading: Click Here
-----------------------------------------------
Source: eDiscovery Journal
By: Greg Buckles
Big Jump Predicted in Use of e-Discovery, CompTIA Survey Reveals
Organizations will increase their use of electronic discovery, according to new research from CompTIA, the leading trade association for the world’s information technology (IT) industry.
The CompTIA study shows 88 percent of attorneys surveyed expect law firms to engage in e-discovery processes more frequently as more and more cases involve electronic information.
Among more than 650 IT professionals surveyed, 53 percent expect the use of e-discovery within their organizations to increase over the next few years.
E-discovery conventionally refers to the discovery process in civil litigation using electronically stored information. However, many firms routinely engage in data collection and informal investigations related to personnel matters, violations of company policies and security breaches that never involve the legal system but may nonetheless fall under the umbrella of e-discovery.
The CompTIA survey identified situations that most often trigger the use of e-discovery. They include:
• Investigating an employee suspected of violating company rules (cited by 66 percent of survey respondents)
• Security breach stemming from an outside threat (62 percent)
• Pending lawsuit (60 percent)
• Intentional internal security breach (53 percent)
• Unintentional internal security breach (44 percent)
To Continue Reading: Click Here
-------------------------------------------
Source: comptia.org
The CompTIA study shows 88 percent of attorneys surveyed expect law firms to engage in e-discovery processes more frequently as more and more cases involve electronic information.
Among more than 650 IT professionals surveyed, 53 percent expect the use of e-discovery within their organizations to increase over the next few years.
E-discovery conventionally refers to the discovery process in civil litigation using electronically stored information. However, many firms routinely engage in data collection and informal investigations related to personnel matters, violations of company policies and security breaches that never involve the legal system but may nonetheless fall under the umbrella of e-discovery.
The CompTIA survey identified situations that most often trigger the use of e-discovery. They include:
• Investigating an employee suspected of violating company rules (cited by 66 percent of survey respondents)
• Security breach stemming from an outside threat (62 percent)
• Pending lawsuit (60 percent)
• Intentional internal security breach (53 percent)
• Unintentional internal security breach (44 percent)
To Continue Reading: Click Here
-------------------------------------------
Source: comptia.org
Five tips on Securing Your Information in the Cloud
Cloud computing offers great potential—reduced expenses, decreased administrative overhead, superior performance and availability, and a predictable monthly fee (in most cases). However, there is another side to cloud computing that holds significant business impact but is often not addressed to the fullest extent—information security.
How do you keep your information secure in the cloud? Are you absolutely sure your data is safe? Can you easily access your information when you need to?
As you migrate to the cloud, keep in mind that the security of your information is largely dependent on the expertise and knowledge of your service provider. Here are five factors to consider when assessing a service provider’s information security efforts.
Do the research now so you won’t be left standing in the rain later.
1.Provider security posture should equal yours.Make sure that your service provider has at least the same level of security processes and technology that you employ. If you deploy third-party auditing, penetration testing, monitoring, intrusion prevention, and other controls required by regulatory bodies, your service provider needs to offer the same level of service.
To Continue Reading: Click Here
-------------------------------------------
Source: techjournalsouth.com
By: Daniel Milburn
How do you keep your information secure in the cloud? Are you absolutely sure your data is safe? Can you easily access your information when you need to?
As you migrate to the cloud, keep in mind that the security of your information is largely dependent on the expertise and knowledge of your service provider. Here are five factors to consider when assessing a service provider’s information security efforts.
Do the research now so you won’t be left standing in the rain later.
1.Provider security posture should equal yours.Make sure that your service provider has at least the same level of security processes and technology that you employ. If you deploy third-party auditing, penetration testing, monitoring, intrusion prevention, and other controls required by regulatory bodies, your service provider needs to offer the same level of service.
To Continue Reading: Click Here
-------------------------------------------
Source: techjournalsouth.com
By: Daniel Milburn
When E-Discovery Is Used as a Weapon
The attorney-client privilege is perhaps the oldest of the privileges for confidential communications known to common law. But the privilege is not available to a client who seeks legal advice to commit an ongoing or future crime or fraud. To prevent those abuses, courts have fashioned a limited exception to the privilege known as the crime-fraud exception.
Most attorneys understand that if they advise a client on how to rob a bank or perpetrate a fraud, their communications will not be shielded by the privilege. Yet, few attorneys realize that there is an increasing risk that their adversaries in litigation may use the crime-fraud exception to strip away the privilege protecting attorney-client communications in civil discovery. Most attorneys would view such an intrusion as an assault on the basic structure of the privilege. Without a strong, clear standard against such efforts in the civil arena, we expect there to be more attempts to expand the application of the crime-fraud exception to collateral litigation-related conduct in civil cases: particularly in the fast-evolving area of e-discovery and the unfamiliar and intimidating realm of information technology.
The strategy works as follows. The attorney planning to strip the privilege serves a typically overbroad set of document requests. She then follows up with a Federal Rules of Civil Procedure §30(b)(6) (or state law equivalent) deposition of the company's representative to determine the failures or weaknesses in the company's preservation, search, and production of electronically stored information. Technological advances have significantly increased the ways in which ESI can be saved, including but not limited to folders on various network drives that reside on different servers, hard drives, laptops, hand-held devices, home computers, and external storage applications. This increasing complexity is compounded by hardware and software that is constantly being updated or replaced. Personnel changes can also result in leaving no one with knowledge of each employee's record-keeping habits. Faced with a broad-ranging document request, an attorney's task of preserving and locating all relevant data becomes extraordinarily challenging. To make matters worse, the opposing counsel may then move to compel the production of documents under the low threshold of what is discoverable, which does not require proof of actual relevancy or admissibility at trial. The purpose is to create the impression that documents are missing or have been withheld.
To Continue Reading: Click Here
-------------------------------------------
Source: law.com
By: Zuzana S. Ikels
Most attorneys understand that if they advise a client on how to rob a bank or perpetrate a fraud, their communications will not be shielded by the privilege. Yet, few attorneys realize that there is an increasing risk that their adversaries in litigation may use the crime-fraud exception to strip away the privilege protecting attorney-client communications in civil discovery. Most attorneys would view such an intrusion as an assault on the basic structure of the privilege. Without a strong, clear standard against such efforts in the civil arena, we expect there to be more attempts to expand the application of the crime-fraud exception to collateral litigation-related conduct in civil cases: particularly in the fast-evolving area of e-discovery and the unfamiliar and intimidating realm of information technology.
The strategy works as follows. The attorney planning to strip the privilege serves a typically overbroad set of document requests. She then follows up with a Federal Rules of Civil Procedure §30(b)(6) (or state law equivalent) deposition of the company's representative to determine the failures or weaknesses in the company's preservation, search, and production of electronically stored information. Technological advances have significantly increased the ways in which ESI can be saved, including but not limited to folders on various network drives that reside on different servers, hard drives, laptops, hand-held devices, home computers, and external storage applications. This increasing complexity is compounded by hardware and software that is constantly being updated or replaced. Personnel changes can also result in leaving no one with knowledge of each employee's record-keeping habits. Faced with a broad-ranging document request, an attorney's task of preserving and locating all relevant data becomes extraordinarily challenging. To make matters worse, the opposing counsel may then move to compel the production of documents under the low threshold of what is discoverable, which does not require proof of actual relevancy or admissibility at trial. The purpose is to create the impression that documents are missing or have been withheld.
To Continue Reading: Click Here
-------------------------------------------
Source: law.com
By: Zuzana S. Ikels
Government Examines Cloud Privacy
The government has never been far from the Internet, which has its origins in the Advanced Research Projects Agency. The explosion of the Web in the 1990s and growth of electronic commerce brought another form of government involvement. Congress passed the Internet Tax Freedom Act of 1998, which placed a moratorium on Internet access taxes. That moratorium was most recently extended in 2007 and now runs through November 2014. A dozen years after the original tax moratorium, government entities are again looking at the Internet. The focus this time has shifted to privacy. And, of particular interest to service providers, cloud computing falls within the scope of the latest inquiry.
In one thrust, the Department of Commerce recently launched a task force to review Internet privacy policy. The Internet Policy Task Force aims to examine the “nexus between privacy policy and innovation in the Internet economy,” according to Commerce. The department wants the public to comment on how U.S. and international privacy laws affect the development of the information economy. The deadline for comments is June 7. Information on submitting comments is available here: http://www.ntia.doc.gov/frnotices/2010/FR_PrivacyNOI_04232010.pdf.
Cloud computing surfaces a couple of times in the department’s Notice of Inquiry requesting public comment. The main point of interest: the potential for conflicting legal obligations.
To Continue Reading: Click Here
-------------------------------------------
Source: mspmentor.net
By: John Moore
In one thrust, the Department of Commerce recently launched a task force to review Internet privacy policy. The Internet Policy Task Force aims to examine the “nexus between privacy policy and innovation in the Internet economy,” according to Commerce. The department wants the public to comment on how U.S. and international privacy laws affect the development of the information economy. The deadline for comments is June 7. Information on submitting comments is available here: http://www.ntia.doc.gov/frnotices/2010/FR_PrivacyNOI_04232010.pdf.
Cloud computing surfaces a couple of times in the department’s Notice of Inquiry requesting public comment. The main point of interest: the potential for conflicting legal obligations.
To Continue Reading: Click Here
-------------------------------------------
Source: mspmentor.net
By: John Moore
Conference Attendees Seek Adjustments, Not Sweeping Change to Litigation Rules
It was mostly facts and figures on the first day of a judicial conference at Duke University School of Law as judges, attorneys and scholars gathered from around the country to talk litigation reform.
Some 200 participants were deluged with statistics from roughly two dozen surveys and studies that pinpointed the frustrations practitioners and the judiciary experience with pleadings and discovery in the federal court system.
The goal of Monday's presentations was to attach hard numbers to problems with the federal court system and move away from anecdotes and unsubstantiated conclusions.
"Lawyers and judges are not good students about actual behavior going on," said Marc Galanter, author of the study, "The Vanishing Trial," and a professor at the University of Wisconsin and at the London School of Economics and Political Science. "They tend to reflect what's published in popular media."
Drawing a single message from the avalanche of data proved difficult for conference participants, but some common threads emerged.
Most attorneys don't want a broad-scale overhaul of civil procedure rules. Most want judicial intervention early to control discovery, and many would welcome tailoring pretrial rules for certain kinds of cases, including civil rights and employment matters.
To Continue Reading: Click Here
-------------------------------------------
Source: law.com
By: Leigh Jones
Some 200 participants were deluged with statistics from roughly two dozen surveys and studies that pinpointed the frustrations practitioners and the judiciary experience with pleadings and discovery in the federal court system.
The goal of Monday's presentations was to attach hard numbers to problems with the federal court system and move away from anecdotes and unsubstantiated conclusions.
"Lawyers and judges are not good students about actual behavior going on," said Marc Galanter, author of the study, "The Vanishing Trial," and a professor at the University of Wisconsin and at the London School of Economics and Political Science. "They tend to reflect what's published in popular media."
Drawing a single message from the avalanche of data proved difficult for conference participants, but some common threads emerged.
Most attorneys don't want a broad-scale overhaul of civil procedure rules. Most want judicial intervention early to control discovery, and many would welcome tailoring pretrial rules for certain kinds of cases, including civil rights and employment matters.
To Continue Reading: Click Here
-------------------------------------------
Source: law.com
By: Leigh Jones
Monday, May 10, 2010
Social networking boosts legal, regulatory issues
Popular social networking sites, such as Facebook, Twitter and LinkedIn, are causing a stir in the financial services community as well as other highly regulated industries as companies seek ways to control how the sites are used to communicate with potential clients and colleagues.
Popular social networking sites, such as Facebook, Twitter and LinkedIn, are causing a stir in the financial services community as well as other highly regulated industries as companies seek ways to control how the sites are used to communicate with potential clients and colleagues.
Social networking sites have proved valuable for sales-lead generation, marketing and general broker-client relations, but regulators have been quick to take notice and to offer the same warnings they did more than a decade ago when e-mail and instant messaging (IM) became common.
However, controlling communications on social networking Web sites is far more complex for corporations because they're attempting to control communications on Web sites that are outside their IT systems and that are almost continuously changing or adding to the number of applications that can be used to network.
To Continue Reading: Click Here
-------------------------------------------
Source: news.idg.no
By: Lucas Mearian
Popular social networking sites, such as Facebook, Twitter and LinkedIn, are causing a stir in the financial services community as well as other highly regulated industries as companies seek ways to control how the sites are used to communicate with potential clients and colleagues.
Social networking sites have proved valuable for sales-lead generation, marketing and general broker-client relations, but regulators have been quick to take notice and to offer the same warnings they did more than a decade ago when e-mail and instant messaging (IM) became common.
However, controlling communications on social networking Web sites is far more complex for corporations because they're attempting to control communications on Web sites that are outside their IT systems and that are almost continuously changing or adding to the number of applications that can be used to network.
To Continue Reading: Click Here
-------------------------------------------
Source: news.idg.no
By: Lucas Mearian
Subscribe to:
Posts (Atom)
