Tape remediation is quickly becoming the preferred method
"How many backup tapes do you have?"
"I have no idea - probably thousands."
"Do you need to keep them?"
"No."
"Why don't you recycle them?"
"Legal won't let us."
This might be a typical storage manager's response when questioned about a company's backup tape stockpile. These tapes are often created in response to a key objective of any IT organization - to protect enterprise data assets. Thus a mountain of old backup tapes has been amassed, largely tapes that have long outlived their disaster recovery purpose. Why not recycle or destroy all these old tapes? Federal regulations forbid it. Data on these tapes "may" be necessary to support current or future litigation. What data? A very, very small percentage of what exists, typically less than 1 percent. Why then keep all these tapes? Because it has been next to impossible to separate the useless data from what legal requires.
Sometime down the road, if not already, specific data from backup tapes will be requested by legal. Some corporate legal teams have proactively issued a mandate to not touch tapes; others have been forced to do so. Either way, stricter regulations are forcing the issue. The June 2009 California Electronic Discovery Act, for example, declares all electronically stored information should be accessible and requires it to be produced. In January 2010 Judge Scheindlin, the judge on the groundbreaking Zubulake v. UBS Warburg case, issued an opinion where she denied the use of the burdensome argument, called out the defendant as grossly negligent, and issued sanctions against UBS Warburg for not collecting data from backup tapes to support the case. The courts are ruling more frequently against firms that do not produce data, including tape data, in a timely manner. Many cases exist today where fines have been imposed against the botched collection of historical files and email. Will your company be next?
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Source: sys-con.com
By: Jim McGann
Friday, October 29, 2010
Thursday, October 28, 2010
Ethics of Advising Clients to Make Social Networks Private
Once upon a time, a legal ethics professor told a great story on the first day of class. As a young lawyer, he represented a woman in a personal injury case who had suffered a serious injury as a result of a car accident. At trial, she hobbled to the witness stand on crutches. She testified, tearfully, about the great pain she endured each day from walking even the shortest of distances. She testified how the accident had truly changed her life. After less than 30 minutes on the stand, the jury was practically in tears. The professor left the courthouse that day confident that when his client finished her testimony on the following day, victory would be assured.
The next morning, before appearing in court, the professor went to exercise at the Santa Monica stairs off Adelaide drive. And of course, he arrived to find his client there. Running. Smiling. Without crutches. Happy as a clam. Maybe even thinking about the perjurious testimony she would give later that morning with the professor's help. (This professor waited until the end of the semester to tell his class what he did. Don't worry, I will tell you at the end of this article.)
A similar (although far less dramatic) ethical problem has arisen with the advent of social networking sites like Facebook and MySpace. The question is: What do you do if you discover something potentially harmful to your case on the public portion of your client's social networking web page? Can you advise your client to change his or her privacy settings to make that information invisible to the public?
The genesis for this question comes from Romano v. Steelcase Inc.. Although the case has not yet been decided, a few weeks ago the court ordered that the defendant be given access to "plaintiff's current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information upon the grounds that plaintiff has placed certain information on these social networking sites which are believed to be inconsistent with her claims in this action concerning the extent and nature of her injuries, especially her claims for loss of enjoyment of life."
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Source: law.com
By: Dan Nabel
The next morning, before appearing in court, the professor went to exercise at the Santa Monica stairs off Adelaide drive. And of course, he arrived to find his client there. Running. Smiling. Without crutches. Happy as a clam. Maybe even thinking about the perjurious testimony she would give later that morning with the professor's help. (This professor waited until the end of the semester to tell his class what he did. Don't worry, I will tell you at the end of this article.)
A similar (although far less dramatic) ethical problem has arisen with the advent of social networking sites like Facebook and MySpace. The question is: What do you do if you discover something potentially harmful to your case on the public portion of your client's social networking web page? Can you advise your client to change his or her privacy settings to make that information invisible to the public?
The genesis for this question comes from Romano v. Steelcase Inc.. Although the case has not yet been decided, a few weeks ago the court ordered that the defendant be given access to "plaintiff's current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information upon the grounds that plaintiff has placed certain information on these social networking sites which are believed to be inconsistent with her claims in this action concerning the extent and nature of her injuries, especially her claims for loss of enjoyment of life."
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Source: law.com
By: Dan Nabel
Guest article:Why Outsourcing E-discovery should be part of your business strategy
Outsourcing e-discovery and information management services is no longer something businesses can ignore. E-discovery and information management services are rapidly becoming critical, highly-discussed topics in board meetings across the globe. Developing a strategy for outsourcing them is a key to the success of today’s modern, Internet-enabled enterprises.
As the world begins to see more and more bogus tort claims, frivolous lawsuits, and increasing amounts of civil litigation in general, the process of discovery, or the process of obtaining documents, interrogations, and other evidence from opposing parties before trial, during such litigation proceedings becomes increasingly cumbersome and costly to obtain. The discovery process was difficult to begin with before the Internet-era; but now with the introduction of massive amounts of computer-based data such as emails, instant messages, and other intangible data stored in electronic format the discovery process becomes even more difficult to complete. This new form of discovery, known as http://ledjit.com/, is not just more complicated than its traditional predecessor due to the existence of larger amounts of data in formats far less tangible than paper.
The e-discovery process is further hindered due to a larger array of personnel involved in the process of discovering relevant, electronically-based data. Lawyers and forensic investigators, who are unfamiliar with the technological aspects of creating, maintaining, preserving, and deleting electronically-based data, must cooperate during the e-discovery process with IT professionals (IT managers, database administrators, network administrators, etc.), all of whom are generally unfamiliar with the law. This clash often results in delays, misunderstandings, or, even worse, data corruption or even outright data loss.
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Source: legallyours.blogspot.com
By: Rahul Jindal
As the world begins to see more and more bogus tort claims, frivolous lawsuits, and increasing amounts of civil litigation in general, the process of discovery, or the process of obtaining documents, interrogations, and other evidence from opposing parties before trial, during such litigation proceedings becomes increasingly cumbersome and costly to obtain. The discovery process was difficult to begin with before the Internet-era; but now with the introduction of massive amounts of computer-based data such as emails, instant messages, and other intangible data stored in electronic format the discovery process becomes even more difficult to complete. This new form of discovery, known as http://ledjit.com/, is not just more complicated than its traditional predecessor due to the existence of larger amounts of data in formats far less tangible than paper.
The e-discovery process is further hindered due to a larger array of personnel involved in the process of discovering relevant, electronically-based data. Lawyers and forensic investigators, who are unfamiliar with the technological aspects of creating, maintaining, preserving, and deleting electronically-based data, must cooperate during the e-discovery process with IT professionals (IT managers, database administrators, network administrators, etc.), all of whom are generally unfamiliar with the law. This clash often results in delays, misunderstandings, or, even worse, data corruption or even outright data loss.
To Continue Reading: Click Here
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Source: legallyours.blogspot.com
By: Rahul Jindal
Wednesday, October 27, 2010
Tales From the Grimm Teacher: Discovery Misconduct Can Land You in the Dungeon
We've heard the horror stories of e-discovery. We've read about default judgments, adverse jury instructions, monetary penalties and orders to pay the other side's attorney fees. But we've never heard about jail time.
Until now.
Addressing "the single most egregious" case of discovery misconduct that he has ever seen in his "nearly fourteen years on the bench," Chief U.S. Magistrate Judge Paul W. Grimm not only recommended that the plaintiff win the case, but also found that the defendants' intentional destruction of relevant electronic data rose to the level of civil contempt.
Also See: FULL Expert Archive
Moreover, he found the misconduct to be worthy of a two-year prison term if the defendant did not pay the attorney's fees and costs to which the plaintiff would be entitled as a prevailing party. Victor Stanley, Inc. v. Creative Pipe, Inc. (D. Md. Sept. 9, 2010). That's interesting reading, even for non-lawyers.
The Victor Stanley defendants displayed appalling chutzpah, destroying e-mails and running programs like "Disk Cleanup," "Easy Cleaner" and "CCleaner" to get rid of damning information.
But their dishonesty was the least of it: The Victor Stanley ruling also includes a recounting of the defendants' ludicrous inability to delete the information they were trying to delete (prompting such references as the "gang that couldn't spoliate straight"). As for confidentiality, here they demonstrated really breathtaking ineptitude, returning drives chock-full of relevant information to Office Max.
These aren't the only reasons you should read the Victor Stanley opinion. You should also read it because it contains a thoughtful and well-written discussion of the disorganized state of the law that relates to a litigant's duty to preserve electronically stored information and the types of conduct that warrant discovery sanctions.
To Continue Reading: Click Here
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Source: law.com
By: Geoffrey Vance
Until now.
Addressing "the single most egregious" case of discovery misconduct that he has ever seen in his "nearly fourteen years on the bench," Chief U.S. Magistrate Judge Paul W. Grimm not only recommended that the plaintiff win the case, but also found that the defendants' intentional destruction of relevant electronic data rose to the level of civil contempt.
Also See: FULL Expert Archive
Moreover, he found the misconduct to be worthy of a two-year prison term if the defendant did not pay the attorney's fees and costs to which the plaintiff would be entitled as a prevailing party. Victor Stanley, Inc. v. Creative Pipe, Inc. (D. Md. Sept. 9, 2010). That's interesting reading, even for non-lawyers.
The Victor Stanley defendants displayed appalling chutzpah, destroying e-mails and running programs like "Disk Cleanup," "Easy Cleaner" and "CCleaner" to get rid of damning information.
But their dishonesty was the least of it: The Victor Stanley ruling also includes a recounting of the defendants' ludicrous inability to delete the information they were trying to delete (prompting such references as the "gang that couldn't spoliate straight"). As for confidentiality, here they demonstrated really breathtaking ineptitude, returning drives chock-full of relevant information to Office Max.
These aren't the only reasons you should read the Victor Stanley opinion. You should also read it because it contains a thoughtful and well-written discussion of the disorganized state of the law that relates to a litigant's duty to preserve electronically stored information and the types of conduct that warrant discovery sanctions.
To Continue Reading: Click Here
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Source: law.com
By: Geoffrey Vance
Is Social Networking Disclosing Your Trade Secret Customer Lists?
It was inevitable. First came social networks, then came the lawsuits: In the e-discovery context, in impeachment situations (Ledbetter v Wal-Mart Stores Inc.(06-cv-01958-WYD-MJW) (D Colo April 21, 2009); Mackelprang v. Fidelity Nat’l Title Agency of Nevada, Inc. (D. Nev. 2007); and Beye v. Horizon Blue Cross Blue Shield (D. N.J. 2006)), in the tort context (Wolfe v. Fayetteville, Arkansas School, 600 F.Supp.2d 1011 (W.D. Arkansas 2009)), as to how much privacy settings matter, on passwords and access, and this list represents merely the proverbial tip of the issues iceberg.
One issue still bobbing below the surface, as it appears there are no fully tried cases on the matter as of this writing, is disclosure of trade secrets, such as a client/customer list, through use of social media and social networking.
The Uniform Trade Secrets Act (“UTSA”) has served as a model for the enacted Trade Secret Acts of 46 states and the District of Columbia. Massachusetts, New Jersey, New York, and Texas have not enacted a UTSA-model act – although the legislatures of Massachusetts, New York and New Jersey each introduced UTSA-based legislation in 2010. Under the UTSA a "trade secret" is defined as:
“information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” (emphasis added).
See also Trade Secrets: A State-by-State Survey, Third Ed., with 2010 Cumulative Supplement; 18 U.S.C. 1839 (defining trade secrets for purposes of the Economic Espionage Act of 1996, which makes theft or misappropriation of a trade secret to benefit a foreign power or related to a product that is placed in interstate or foreign commerce a federal crime).
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Source: infolawgroup.com
By: Richard L. Santalesa
One issue still bobbing below the surface, as it appears there are no fully tried cases on the matter as of this writing, is disclosure of trade secrets, such as a client/customer list, through use of social media and social networking.
The Uniform Trade Secrets Act (“UTSA”) has served as a model for the enacted Trade Secret Acts of 46 states and the District of Columbia. Massachusetts, New Jersey, New York, and Texas have not enacted a UTSA-model act – although the legislatures of Massachusetts, New York and New Jersey each introduced UTSA-based legislation in 2010. Under the UTSA a "trade secret" is defined as:
“information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” (emphasis added).
See also Trade Secrets: A State-by-State Survey, Third Ed., with 2010 Cumulative Supplement; 18 U.S.C. 1839 (defining trade secrets for purposes of the Economic Espionage Act of 1996, which makes theft or misappropriation of a trade secret to benefit a foreign power or related to a product that is placed in interstate or foreign commerce a federal crime).
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Source: infolawgroup.com
By: Richard L. Santalesa
Feds To Access Email From Cloud
The General Services Administration plans to offer federal agencies access to cloud-based email as a service via multiple commercial vendors, the agency announced in a notice Friday.
According to the notice, the agency will issue a request for quotation for SaaS email services by the end of March 2011 but will probably do so sooner, as the notice says the current plan is to issue the RFQ by the end of the calendar year. It remains unclear when the offerings will become available to federal agencies.
GSA considers this to be a pilot approach or prototype to show how e-mail in the cloud can work for government agencies and to rate the industry's interest level in offering email in the cloud, Dave McClure, GSA's associate administrator of citizen services and innovative technologies, said in an interview. "We want to make sure we have viable solutions that meet the security requirements first, and then we can offer it up on a government-wide basis," McClure said.
However, the services will eventually end up on the federal government's cloud computing storefront Website, Apps.gov. Specifically, the forthcoming RFQ will result in the award of multiple blanket purchase agreements and offerings of email, email migration services and email integration services.
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Source: Informationweek
By: J. Nicholas Hoover
According to the notice, the agency will issue a request for quotation for SaaS email services by the end of March 2011 but will probably do so sooner, as the notice says the current plan is to issue the RFQ by the end of the calendar year. It remains unclear when the offerings will become available to federal agencies.
GSA considers this to be a pilot approach or prototype to show how e-mail in the cloud can work for government agencies and to rate the industry's interest level in offering email in the cloud, Dave McClure, GSA's associate administrator of citizen services and innovative technologies, said in an interview. "We want to make sure we have viable solutions that meet the security requirements first, and then we can offer it up on a government-wide basis," McClure said.
However, the services will eventually end up on the federal government's cloud computing storefront Website, Apps.gov. Specifically, the forthcoming RFQ will result in the award of multiple blanket purchase agreements and offerings of email, email migration services and email integration services.
To Continue Reading: Click Here
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Source: Informationweek
By: J. Nicholas Hoover
Tuesday, October 26, 2010
Governance, Risk Management and Compliance (GRC) and the Cloud
Can traditional GRC practices adapt to the cloud computing environment?
As we become more technology dependent, more so in today's "cloud"-driven environment, IT security needs to evolve from the traditional sense of digital security.
We should see the advent and acceptance of a more holistic, flexible and adaptive model of security that focuses more on managing information security, people and processes in a natural evolution from the traditional model of implementation, monitoring and updating.
According to Teubner and Feller [1] "Governance is understood as securing a responsible corporate management, having its roots in value-based management."
With regard to Risk Management, Marshall Krantz said it best:
"Faced with threats from all quarters - recession and credit crunch, heated global competition, continuing Sarbanes-Oxley pressures - companies are making intensive risk management a top priority "[2]
We can also assert that Compliance constraints aim to ensure that an enterprise satisfies all pertinent legal reporting responsibilities and regulatory transparency demands.
With technologies evolving as rapidly as they are, combined with complexities caused by:
1. The constant drumbeat of global integration
To Continue Reading: Click Here
---------------------------------------------
Source: sys-con.com
By: Jon Shende
As we become more technology dependent, more so in today's "cloud"-driven environment, IT security needs to evolve from the traditional sense of digital security.
We should see the advent and acceptance of a more holistic, flexible and adaptive model of security that focuses more on managing information security, people and processes in a natural evolution from the traditional model of implementation, monitoring and updating.
According to Teubner and Feller [1] "Governance is understood as securing a responsible corporate management, having its roots in value-based management."
With regard to Risk Management, Marshall Krantz said it best:
"Faced with threats from all quarters - recession and credit crunch, heated global competition, continuing Sarbanes-Oxley pressures - companies are making intensive risk management a top priority "[2]
We can also assert that Compliance constraints aim to ensure that an enterprise satisfies all pertinent legal reporting responsibilities and regulatory transparency demands.
With technologies evolving as rapidly as they are, combined with complexities caused by:
1. The constant drumbeat of global integration
To Continue Reading: Click Here
---------------------------------------------
Source: sys-con.com
By: Jon Shende
Law Firms Feel Pressure From New Breed of Competitors
The legal industry is falling apart. Not in the sense pundits meant when they gave that diagnosis in 2008 as firms were hit with the harsh reality of the recession.
Rather, the industry is moving away from a monolithic provider of legal services -- the law firm -- to a fragmented service platform where the competition isn't just a broadening array of law firms, but legal process outsourcers and other non-law firm legal service providers as well. "Law firms are really being circled by these things," consultancy Adam Smith Esq. partner Janet Stanton said.
Firms have to decide where they want to compete and how, and what fits in their business model, she said.
Not only are LPOs and other firms that are adapting their business models a source of increased competition for law firms, Edge International consultant Jordan Furlong said, but so too are clients who are increasingly bringing more work in-house.
"The overall marketplace for legal services is fracturing," Furlong said. "It's unbundling and specialists are emerging. Legal work will go to the provider best designed for that particular work in terms of personnel systems and mindset."
By "mindset," he means firms that focus on doing only the high-end, bet-the-company work and those that do more of the commodity work.
"Law firms are just going to have to decide what kind of work they want to compete for," Furlong said. "Law firms can't be both the bet-the-company law firm and the commodity law firm. I don't think that's sustainable anymore."
Both Furlong and Stanton said there will be a trend toward boutique firms on one end and large, global firms on the other with little in the middle.
The pressures from LPOs are real, they said. Law departments simply have to find ways to get what they need done for less money and they are slowly starting to realize that the quality isn't lost when using an LPO, Furlong said. Both Furlong and Stanton pointed to the increased hiring by many LPOs of seasoned, high-quality attorneys to do this work.
To Continue Reading: Click Here
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Source: Law.com
By: Gina Passarella
Rather, the industry is moving away from a monolithic provider of legal services -- the law firm -- to a fragmented service platform where the competition isn't just a broadening array of law firms, but legal process outsourcers and other non-law firm legal service providers as well. "Law firms are really being circled by these things," consultancy Adam Smith Esq. partner Janet Stanton said.
Firms have to decide where they want to compete and how, and what fits in their business model, she said.
Not only are LPOs and other firms that are adapting their business models a source of increased competition for law firms, Edge International consultant Jordan Furlong said, but so too are clients who are increasingly bringing more work in-house.
"The overall marketplace for legal services is fracturing," Furlong said. "It's unbundling and specialists are emerging. Legal work will go to the provider best designed for that particular work in terms of personnel systems and mindset."
By "mindset," he means firms that focus on doing only the high-end, bet-the-company work and those that do more of the commodity work.
"Law firms are just going to have to decide what kind of work they want to compete for," Furlong said. "Law firms can't be both the bet-the-company law firm and the commodity law firm. I don't think that's sustainable anymore."
Both Furlong and Stanton said there will be a trend toward boutique firms on one end and large, global firms on the other with little in the middle.
The pressures from LPOs are real, they said. Law departments simply have to find ways to get what they need done for less money and they are slowly starting to realize that the quality isn't lost when using an LPO, Furlong said. Both Furlong and Stanton pointed to the increased hiring by many LPOs of seasoned, high-quality attorneys to do this work.
To Continue Reading: Click Here
---------------------------------------------
Source: Law.com
By: Gina Passarella
Monday, October 25, 2010
Cloud users should not ignore geography says Forrester
IaaS clouds do not solve latency problems says Forrester in a new report
The notion that distance doesn't matter when it comes to cloud computing is a misguided one according to new research from Forrester. Ignoring geographic issues may be "perilous" for corporate customers warned the company in a new report, Infrastructure-As-A-Service (IaaS) Clouds Are Local And So Are Their Implications
And security remains a key inhibitor for companies, with 50 percent of the Forrester survey respondents citing this as their reason to adopt cloud computing as a business strategy, just ahead of the 43 percent who said that the technology was too immature.
The report, written by James Staten and Onica King, warns that IaaS clouds do not "inherently provide geographic locality, nor do they solve performance latency. End user performance will only be high for users who have geographic proximity to the cloud data centre or who are directly resident on the networks that are interconnected at this data centre.
To Continue Reading: Click Here
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Source: news.idg.no
By: Maxwell Cooter
The notion that distance doesn't matter when it comes to cloud computing is a misguided one according to new research from Forrester. Ignoring geographic issues may be "perilous" for corporate customers warned the company in a new report, Infrastructure-As-A-Service (IaaS) Clouds Are Local And So Are Their Implications
And security remains a key inhibitor for companies, with 50 percent of the Forrester survey respondents citing this as their reason to adopt cloud computing as a business strategy, just ahead of the 43 percent who said that the technology was too immature.
The report, written by James Staten and Onica King, warns that IaaS clouds do not "inherently provide geographic locality, nor do they solve performance latency. End user performance will only be high for users who have geographic proximity to the cloud data centre or who are directly resident on the networks that are interconnected at this data centre.
To Continue Reading: Click Here
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Source: news.idg.no
By: Maxwell Cooter
Clawbacks: Trick or Treat?
Are clawback agreements and orders dangerous? Or are they a haven of safety? Should they be embraced as the sweet candy of privilege protection, or feared as opening a new bag of tricks?
Some love the claw. They try to get an agreement and order whenever they are in federal court and have large e-discovery productions. They have studied the new rules and are confident that clawbacks give added protection to privileged documents. It is relatively simple and inexpensive.
Other lawyers are still deeply suspicious of clawbacks. They fear them, mainly because they do not understand them. They are new, unknown, and strange. There is little case-law on what they mean and how they should be used.
A few others fear the claw, not out of ignorance, but out of of close familiarity and concern about what the claw might become. They fear that a clawback order could force them into the dreaded quick-peek, force them to produce without adequate review. They fear the claw could lead to a Dementor’s kiss, an embrace where secrets are drained from the corporate soul.
To Continue Reading: Click Here
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Source: e-discoveryteam.com
By: Ralph Losey
Some love the claw. They try to get an agreement and order whenever they are in federal court and have large e-discovery productions. They have studied the new rules and are confident that clawbacks give added protection to privileged documents. It is relatively simple and inexpensive.
Other lawyers are still deeply suspicious of clawbacks. They fear them, mainly because they do not understand them. They are new, unknown, and strange. There is little case-law on what they mean and how they should be used.
A few others fear the claw, not out of ignorance, but out of of close familiarity and concern about what the claw might become. They fear that a clawback order could force them into the dreaded quick-peek, force them to produce without adequate review. They fear the claw could lead to a Dementor’s kiss, an embrace where secrets are drained from the corporate soul.
To Continue Reading: Click Here
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Source: e-discoveryteam.com
By: Ralph Losey
Lawyers.com Survey: Privacy Concerns Inconsistent with Actual Behaviors on Social Networking Sites
Most Americans have privacy concerns, yet underestimate consequences of revealing too much personal information on social networks
A new national survey reveals half of Americans who use social networking sites have seen people divulge too much personal information, yet more than a quarter of Americans (28 percent) who use these sites admit that they rarely think about what could happen if they share too much personal information online.
Additionally, more than four in ten Americans (44 percent) are concerned that the personal information they share online is being used against them, and more than one in five (21 percent) Americans who use social networking sites believe that their personal information has been accessed by people who take advantage of weak privacy settings on social networking sites.
The 2010 Lawyers.com Social Networking Survey, as well as legal tips and resources on the risks associated with the use of social media, are available at Lawyers.com -- the leading legal website for consumers and small business owners. Conducted by TNS Global, the survey was commissioned by LexisNexis to better understand Americans' attitudes and behaviors toward sharing personal information on social networks.
To Continue Reading: Click Here
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Source: marketwatch.com
A new national survey reveals half of Americans who use social networking sites have seen people divulge too much personal information, yet more than a quarter of Americans (28 percent) who use these sites admit that they rarely think about what could happen if they share too much personal information online.
Additionally, more than four in ten Americans (44 percent) are concerned that the personal information they share online is being used against them, and more than one in five (21 percent) Americans who use social networking sites believe that their personal information has been accessed by people who take advantage of weak privacy settings on social networking sites.
The 2010 Lawyers.com Social Networking Survey, as well as legal tips and resources on the risks associated with the use of social media, are available at Lawyers.com -- the leading legal website for consumers and small business owners. Conducted by TNS Global, the survey was commissioned by LexisNexis to better understand Americans' attitudes and behaviors toward sharing personal information on social networks.
To Continue Reading: Click Here
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Source: marketwatch.com
Sunday, October 24, 2010
Every email and website to be stored
Every email, phone call and website visit is to be recorded and stored after the Coalition Government revived controversial Big Brother snooping plans.
It will allow security services and the police to spy on the activities of every Briton who uses a phone or the internet.
Moves to make every communications provider store details for at least a year will be unveiled later this year sparking fresh fears over a return of the surveillance state.
The plans were shelved by the Labour Government last December but the Home Office is now ready to revive them.
It comes despite the Coalition Agreement promised to "end the storage of internet and email records without good reason".
Any suggestion of a central "super database" has been ruled out but the plans are expected to involve service providers storing all users details for a set period of time.
To Continue Reading: Click Here
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Source telegraph.co.uk
By: Tom Whitehead
It will allow security services and the police to spy on the activities of every Briton who uses a phone or the internet.
Moves to make every communications provider store details for at least a year will be unveiled later this year sparking fresh fears over a return of the surveillance state.
The plans were shelved by the Labour Government last December but the Home Office is now ready to revive them.
It comes despite the Coalition Agreement promised to "end the storage of internet and email records without good reason".
Any suggestion of a central "super database" has been ruled out but the plans are expected to involve service providers storing all users details for a set period of time.
To Continue Reading: Click Here
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Source telegraph.co.uk
By: Tom Whitehead
Friday, October 22, 2010
Law Firms Staff Experts to Manage EDD
Three years ago, Littler Mendelson president Marko Mrkonich met with 11 of his partners to discuss hiring plans for a novel position: national e-discovery counsel -- an expert who could help the firm's attorneys and clients navigate the increasingly complex process of e-discovery.
Most partners at the meeting liked the idea, but senior litigator Kevin Lilly had some reservations. "I was skeptical," says Lilly. "I wasn't sure if he'd add to the firm's bottom line; I didn't know if we needed him."
Despite Lilly's misgivings, Littler hired litigator Paul Weiner from Buchanan Ingersoll & Rooney as its new e-discovery counsel. And within a month, Lilly had turned to Weiner for his advice. A client with a very complicated IT system had been hit with a putative wage-and-hour class action suit and needed help with preservation strategy. "I'm a convert," says Lilly. "Paul's been a huge success."
Like Littler, many law firms have taken at least some new steps to grapple with the fast-changing world of e-discovery. Since 2006, when amendments to the Federal Rules of Civil Procedure placed greater responsibility on lawyers to preserve and produce electronically stored data, there's been a boom in the number of e-discovery practice groups or task forces. According to a recent survey by The Cowen Group, an e-discovery staffing and recruiting firm, 87 Am Law 200 firms have an e-discovery practice group or task force and 16 have full-time e-discovery partners.
To Continue Reading: Click Here
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Source: law.com
By: Irene Plagianos
Most partners at the meeting liked the idea, but senior litigator Kevin Lilly had some reservations. "I was skeptical," says Lilly. "I wasn't sure if he'd add to the firm's bottom line; I didn't know if we needed him."
Despite Lilly's misgivings, Littler hired litigator Paul Weiner from Buchanan Ingersoll & Rooney as its new e-discovery counsel. And within a month, Lilly had turned to Weiner for his advice. A client with a very complicated IT system had been hit with a putative wage-and-hour class action suit and needed help with preservation strategy. "I'm a convert," says Lilly. "Paul's been a huge success."
Like Littler, many law firms have taken at least some new steps to grapple with the fast-changing world of e-discovery. Since 2006, when amendments to the Federal Rules of Civil Procedure placed greater responsibility on lawyers to preserve and produce electronically stored data, there's been a boom in the number of e-discovery practice groups or task forces. According to a recent survey by The Cowen Group, an e-discovery staffing and recruiting firm, 87 Am Law 200 firms have an e-discovery practice group or task force and 16 have full-time e-discovery partners.
To Continue Reading: Click Here
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Source: law.com
By: Irene Plagianos
Q&A with Kevin Gordon: Sources limited for ESI discovery
Q: Oklahoma's E-discovery laws go into effect Nov. 1. What is E-discovery?
A: Courts have long required parties in litigation provide the opposing side with documents or information related to a lawsuit through a process referred to as "discovery." E-discovery is a term used to describe the extension of this production to electronically stored information (ESI), including e-mails, text messages, social networking data, audio recordings of phone calls and voice messages, and call logs.
Q: How have Oklahoma's laws regarding E-discovery changed?
A: The Legislature amended Oklahoma's Civil Procedure Code earlier this year to explicitly state ESI is subject to discovery in state courts. The amendments impose some limitations on the extent of such discovery by providing a party does not have to produce ESI from sources not reasonably accessible due to the undue burden or cost of retrieving information from them.
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Source: newsok.com
A: Courts have long required parties in litigation provide the opposing side with documents or information related to a lawsuit through a process referred to as "discovery." E-discovery is a term used to describe the extension of this production to electronically stored information (ESI), including e-mails, text messages, social networking data, audio recordings of phone calls and voice messages, and call logs.
Q: How have Oklahoma's laws regarding E-discovery changed?
A: The Legislature amended Oklahoma's Civil Procedure Code earlier this year to explicitly state ESI is subject to discovery in state courts. The amendments impose some limitations on the extent of such discovery by providing a party does not have to produce ESI from sources not reasonably accessible due to the undue burden or cost of retrieving information from them.
To Continue Reading: Click Here
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Source: newsok.com
Thursday, October 21, 2010
Court Orders Production of Plaintiff's User Names and Passwords for Social Network Accounts
McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010)
In this personal injury case, defendant Hummingbird Speedway, Inc. sought access to plaintiff’s social network accounts and requested production of his user names, log-in names, and passwords. Plaintiff objected, arguing that the information was confidential. Upon defendants’ Motion to Compel, the court found the requested information was not confidential or subject to the protection of any evidentiary privilege and ordered its production to defendants’ attorneys within 15 days and that plaintiff should not take steps to delete or alter the existing information on his social network accounts.
Plaintiff was allegedly injured after being rear-ended during a cool-down lap following a stock care race in the summer of 2007. In the course of the ensuing litigation, defendant Hummingbird Speedway, Inc. requested production of plaintiff’s user names, log-in names, and passwords for any social network accounts. Plaintiff objected arguing that the information was confidential. After viewing the public portion of plaintiff’s account, which included comments about a fishing trip and attending the Daytona 500 in Florida, defendants filed a Motion to Compel.
Reasoning that plaintiff was “essentially asking the Court to recognize a privilege for [social network] communications,” the court first established the broad scope of discovery in Pennsylvania and the limited application of evidentiary privileges, noting that “even in the arena of testimony, where the evidence will be publically divulged, the courts sanction the application of privilege, ‘only to the very limited extent that [it] has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.”
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Source: ediscoverylaw.com
In this personal injury case, defendant Hummingbird Speedway, Inc. sought access to plaintiff’s social network accounts and requested production of his user names, log-in names, and passwords. Plaintiff objected, arguing that the information was confidential. Upon defendants’ Motion to Compel, the court found the requested information was not confidential or subject to the protection of any evidentiary privilege and ordered its production to defendants’ attorneys within 15 days and that plaintiff should not take steps to delete or alter the existing information on his social network accounts.
Plaintiff was allegedly injured after being rear-ended during a cool-down lap following a stock care race in the summer of 2007. In the course of the ensuing litigation, defendant Hummingbird Speedway, Inc. requested production of plaintiff’s user names, log-in names, and passwords for any social network accounts. Plaintiff objected arguing that the information was confidential. After viewing the public portion of plaintiff’s account, which included comments about a fishing trip and attending the Daytona 500 in Florida, defendants filed a Motion to Compel.
Reasoning that plaintiff was “essentially asking the Court to recognize a privilege for [social network] communications,” the court first established the broad scope of discovery in Pennsylvania and the limited application of evidentiary privileges, noting that “even in the arena of testimony, where the evidence will be publically divulged, the courts sanction the application of privilege, ‘only to the very limited extent that [it] has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.”
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Source: ediscoverylaw.com
Federal E-Discovery Rules: a Work in Progress
It's been four years since the Federal Rules of Civil Procedure were amended to cover electronic information. Many practitioners and judges now say the changes didn't go far enough. A May conference at Duke University School of Law produced new recommendations -- in particular, a revision of the duty to preserve electronic information -- that the Advisory Committee on Rules of Civil Procedure will take up this fall.
The 2006 changes to the FRCP, which added "electronically stored information" as a category of discoverable material, required parties to pay early attention to electronic discovery by including sources of electronic data in their initial disclosures and by addressing e-discovery issues in the first meetings between parties. The 2006 rules also provide some protections, excusing parties from producing e-data that's not reasonably accessible because of undue burden or cost, and carving out a safe harbor provision for electronically stored information lost from routine computer operations.
Did the rule changes help clients and lawyers to grapple with the e-data explosion? Absolutely, says Littler Mendelson e-discovery partner Paul Weiner. They gave litigants tools to address problems such as the volume and dynamic nature of electronic information. But not all practitioners share Weiner's confidence in the current rules.
"There's a frustration from people who don't have the right tools and processes to manage the information and narrow it down," says Mary Mack, corporate technology counsel at the e-discovery service provider Fios. She says the addition of the broad category of "electronically stored information" to the federal rules "blew the doors off what was considered to be open for discovery -- and left attorneys to deal with it." The term has invited overbroad requests, she says.
The consensus from the 2010 Civil Litigation Conference at Duke was for incremental rather than radical change. Many participants called for more judicial management of e-discovery issues, faster rulings, more education for the bar and the bench, and a brighter line around the safe harbor for the inadvertent loss of electronic information, according to Mack, who attended the conference. There was widespread endorsement of the set of principles adopted by the 7th Circuit in its pilot e-discovery program.
Thomas Allman, a former general counsel of BASF Corporation who now co-chairs The Sedona Conference working group on e-discovery, says that although only a low percentage of cases lead to sanctions, fear causes parties to take unnecessary steps. "Your typical outside lawyer advises their clients to err on the side of overdoing things," Allman says. "Instead of just preserving electronic information for five people, you preserve for 55 people."
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Source: law.com
By: Terry Baynes
The 2006 changes to the FRCP, which added "electronically stored information" as a category of discoverable material, required parties to pay early attention to electronic discovery by including sources of electronic data in their initial disclosures and by addressing e-discovery issues in the first meetings between parties. The 2006 rules also provide some protections, excusing parties from producing e-data that's not reasonably accessible because of undue burden or cost, and carving out a safe harbor provision for electronically stored information lost from routine computer operations.
Did the rule changes help clients and lawyers to grapple with the e-data explosion? Absolutely, says Littler Mendelson e-discovery partner Paul Weiner. They gave litigants tools to address problems such as the volume and dynamic nature of electronic information. But not all practitioners share Weiner's confidence in the current rules.
"There's a frustration from people who don't have the right tools and processes to manage the information and narrow it down," says Mary Mack, corporate technology counsel at the e-discovery service provider Fios. She says the addition of the broad category of "electronically stored information" to the federal rules "blew the doors off what was considered to be open for discovery -- and left attorneys to deal with it." The term has invited overbroad requests, she says.
The consensus from the 2010 Civil Litigation Conference at Duke was for incremental rather than radical change. Many participants called for more judicial management of e-discovery issues, faster rulings, more education for the bar and the bench, and a brighter line around the safe harbor for the inadvertent loss of electronic information, according to Mack, who attended the conference. There was widespread endorsement of the set of principles adopted by the 7th Circuit in its pilot e-discovery program.
Thomas Allman, a former general counsel of BASF Corporation who now co-chairs The Sedona Conference working group on e-discovery, says that although only a low percentage of cases lead to sanctions, fear causes parties to take unnecessary steps. "Your typical outside lawyer advises their clients to err on the side of overdoing things," Allman says. "Instead of just preserving electronic information for five people, you preserve for 55 people."
To Continue Reading: Click Here
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Source: law.com
By: Terry Baynes
New litigation report hints at permanent changes to legal industry
The recession will have permanent effects on the way that business is conducted in the legal industry, say 50% of US lawyers. In that group, around half think that there will be a huge increase in alternative fee arrangements (AFAs), while a quarter are convinced that tighter cost controls will prevail even after the recession has passed.
The findings were published in international law firm Fulbright & Jaworski’s seventh annual ‘Litigation Trends Report’, which collates survey results from 275 senior corporate counsel in the US and 128 in the UK. While only 25% of the UK respondents think that the economic crisis will have game-changing effects on legal business, it emerged that UK companies are twice as likely as their US counterparts to use AFAs for 50% of their litigation billings.
If the findings bear themselves out in reality, there is likely to be a rise in work for legal services outsourcing (LSO) companies that specialise in areas such as e-discovery/document review, intellectual property (IP) and contracts.
Asked about the areas in which they aimed to increase spending over the next 12 months, the counsel indicated an impending surge towards e-discovery. While 16% of Fulbright & Jaworski’s 2009 survey group said they would boost spending in that field, 28% of this year’s respondents are poised to take this course of action.
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Source: cpaglobal.com
The findings were published in international law firm Fulbright & Jaworski’s seventh annual ‘Litigation Trends Report’, which collates survey results from 275 senior corporate counsel in the US and 128 in the UK. While only 25% of the UK respondents think that the economic crisis will have game-changing effects on legal business, it emerged that UK companies are twice as likely as their US counterparts to use AFAs for 50% of their litigation billings.
If the findings bear themselves out in reality, there is likely to be a rise in work for legal services outsourcing (LSO) companies that specialise in areas such as e-discovery/document review, intellectual property (IP) and contracts.
Asked about the areas in which they aimed to increase spending over the next 12 months, the counsel indicated an impending surge towards e-discovery. While 16% of Fulbright & Jaworski’s 2009 survey group said they would boost spending in that field, 28% of this year’s respondents are poised to take this course of action.
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Source: cpaglobal.com
Wednesday, October 20, 2010
Process Makes Perfect: Some Guidance on Mastering Early Case Assessment
Early Case Assessment (ECA) is the e-discovery solution most in demand, according to the 2009 Socha-Gelbmann Electronic Discovery Report (Socha-Gelbmann, 2009), and with good reason.
ECA is the litigation-related effort with the highest return on your investment. Frugal general counsel who mandate an intelligent investment in ECA reap significant benefits in favorable outcomes and cost savings.
There are many benefits and misconceptions about ECA. The benefits are overwhelming, but an understanding of them is needed in order to avoid falling victim to the misconceptions.
A LexisNexis online survey conducted between Jan. 28, 2007, and Feb. 23, 2007, by Cogent asked 341 practicing litigators at mid-sized (20-75 attorneys) and large (76+ attorneys) law firms across the U.S. a series of 40 questions about their early case assessment and analysis practices, the perceived value of those practices and outcomes they ascribe to early case assessment and analysis. Based on their answers, we can report that the benefits of early case assessment include:
• Successful outcomes — attorneys responded that, on average, performing early case assessment results in a favorable outcome in 76 percent of cases
• Strategic planning — 87 percent of respondents said early case assessment is beneficial for determining the best way to proceed with a case
• Reducing expenses — conducting early case assessment enables attorneys to reduce the litigation expenses in 50 percent of their cases on average
• Managing budgets — More than half of attorneys surveyed (57 percent) find early case assessment assists in their ability to prepare a more accurate litigation budget
Savvy litigators shouldn't be put off by the misconception that ECA is all about electronic evidence or that they need some clairvoyant ECA software. ECA is a human process. It is litigation fact-research of the most traditional kind, and for all but a small portion of the work related to Electronically Stored Information (ESI), it is a paper process.
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Source: law.com
By: Babs Deacon and Jeff Fehrman
ECA is the litigation-related effort with the highest return on your investment. Frugal general counsel who mandate an intelligent investment in ECA reap significant benefits in favorable outcomes and cost savings.
There are many benefits and misconceptions about ECA. The benefits are overwhelming, but an understanding of them is needed in order to avoid falling victim to the misconceptions.
A LexisNexis online survey conducted between Jan. 28, 2007, and Feb. 23, 2007, by Cogent asked 341 practicing litigators at mid-sized (20-75 attorneys) and large (76+ attorneys) law firms across the U.S. a series of 40 questions about their early case assessment and analysis practices, the perceived value of those practices and outcomes they ascribe to early case assessment and analysis. Based on their answers, we can report that the benefits of early case assessment include:
• Successful outcomes — attorneys responded that, on average, performing early case assessment results in a favorable outcome in 76 percent of cases
• Strategic planning — 87 percent of respondents said early case assessment is beneficial for determining the best way to proceed with a case
• Reducing expenses — conducting early case assessment enables attorneys to reduce the litigation expenses in 50 percent of their cases on average
• Managing budgets — More than half of attorneys surveyed (57 percent) find early case assessment assists in their ability to prepare a more accurate litigation budget
Savvy litigators shouldn't be put off by the misconception that ECA is all about electronic evidence or that they need some clairvoyant ECA software. ECA is a human process. It is litigation fact-research of the most traditional kind, and for all but a small portion of the work related to Electronically Stored Information (ESI), it is a paper process.
To Continue Reading: Click Here
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Source: law.com
By: Babs Deacon and Jeff Fehrman
Cloud computing a windfall for law firms
The concept of cloud computing is takingcorporations by storm, and law firms are seeing the silver lining.
Sydney based law firm Truman Hoyle has been invited to help form an Asia Pacific working party that will provide policy advice regarding how legal and regulatory harmonisation and risk assessment could smooth the way for organisations looking to harness cloud computing.
Cloud computing is a term used to describe away of providing computing capacity in a utility form, Truman Hoyle explained. Users pay for what they use, when they use it. Besides clear economic benefits,there are environmental advantages to be reaped also, the firm said.
However, some organisations harbour lingering concerns about the practice as the computers, software and data which make upthe cloud service are often located overseas, which raises a number of issues regarding privacy and data sovereignty.
There is growing awareness that improved understanding of the issues, coupled with legislative and regulatory harmonisation in both APEC and OECD nations would deliver increased certaintyfor industry and reduce many of the hurdles for organisations considering migrating their computing to the cloud, the firm said today
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Source: thenewlawyer.com.au
By: The New Lawyer
Sydney based law firm Truman Hoyle has been invited to help form an Asia Pacific working party that will provide policy advice regarding how legal and regulatory harmonisation and risk assessment could smooth the way for organisations looking to harness cloud computing.
Cloud computing is a term used to describe away of providing computing capacity in a utility form, Truman Hoyle explained. Users pay for what they use, when they use it. Besides clear economic benefits,there are environmental advantages to be reaped also, the firm said.
However, some organisations harbour lingering concerns about the practice as the computers, software and data which make upthe cloud service are often located overseas, which raises a number of issues regarding privacy and data sovereignty.
There is growing awareness that improved understanding of the issues, coupled with legislative and regulatory harmonisation in both APEC and OECD nations would deliver increased certaintyfor industry and reduce many of the hurdles for organisations considering migrating their computing to the cloud, the firm said today
To Continue Reading: Click Here
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Source: thenewlawyer.com.au
By: The New Lawyer
New Rules for Employees' Mobile Device Privacy
The recent Supreme Court decision in the case City of Ontario v. Quon provides guidance on how CIOs must approach data privacy when managing company-provided mobile devices.
The case arose from the monitoring of employee communications by the Ontario, Calif., police department on cell phones it provided. The employees-police officers-used department-provided cell phones for work, and also allegedly for personal use. The police department had a policy of monitoring email and other forms of communications-just as many private-sector employers do-and banned personal use of the systems. The policy did not explicitly cover text messaging, however.
After issuing the policy, officials held meetings where they reportedly said that text messages were not allowed under the no-personal-use policy. However, there was evidence of an informal policy not to monitor the text messages, establishing the conditions that resulted in a lawsuit by police officers who charged their privacy was violated when the city obtained copies of their texts.
Mixed Messages from Managers
The City of Ontario had negotiated a wireless service package with a vendor, Arch Wireless, that included a certain number of text messages that officials thought would be enough to cover the work-related needs of the officers. Managers within the department apparently told employees that if they sent more texts than the package allowed, there would be no questions asked as long as the employee paid for the overage.
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Source: networkworld.com
By: Matt Karlyn and Peter Mclaughlin
The case arose from the monitoring of employee communications by the Ontario, Calif., police department on cell phones it provided. The employees-police officers-used department-provided cell phones for work, and also allegedly for personal use. The police department had a policy of monitoring email and other forms of communications-just as many private-sector employers do-and banned personal use of the systems. The policy did not explicitly cover text messaging, however.
After issuing the policy, officials held meetings where they reportedly said that text messages were not allowed under the no-personal-use policy. However, there was evidence of an informal policy not to monitor the text messages, establishing the conditions that resulted in a lawsuit by police officers who charged their privacy was violated when the city obtained copies of their texts.
Mixed Messages from Managers
The City of Ontario had negotiated a wireless service package with a vendor, Arch Wireless, that included a certain number of text messages that officials thought would be enough to cover the work-related needs of the officers. Managers within the department apparently told employees that if they sent more texts than the package allowed, there would be no questions asked as long as the employee paid for the overage.
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Source: networkworld.com
By: Matt Karlyn and Peter Mclaughlin
Cloud Computing: 5 Things No One Will Tell You
A few months ago, I was hired to produce an array of case studies for a planned book on cloud computing. In the weeks since, I've interviewed companies throughout Europe and the U.S. on their cloud strategies, and although I can't get into any of the specifics, some of the general themes I uncovered could help IT execs who are preparing for a move into the cloud.
Mind you, most of the companies I spoke with are large enterprises, an indication that cloud computing is maturing into a viable alternative to traditional corporate IT. These companies have been turning to the cloud for all sorts of reasons, and employing a variety of strategies to accomplish the transition.
Let's face it--at this point, the business benefits of the cloud are no longer questioned. Cloud computing in its various forms delivers well-documented gains in business agility, reduction in deployment costs, and improved user satisfaction. But what are some of the things we haven't been reading about the cloud?
1) Fears related to security in the cloud are greatly exaggerated. This isn't to say that security-conscious enterprises shouldn't do their due diligence about any cloud provider being considered. But the overwhelming majority of IT execs I've been talking to agree that the top cloud providers devote way more money and attention to security than pretty much any corporate IT department.
2) The real fears should be on the legal front. The bottom line here is this: There is way too much legal ambiguity when it comes to conducting business in the cloud. Laws few and far between to protect cloud customers and hold cloud vendors responsible when issues arise, and IT execs are right to want to know where the possibility of legal exposure lurks.
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Source: blogs.cioinsight.com
By: Tony Kontzer
Mind you, most of the companies I spoke with are large enterprises, an indication that cloud computing is maturing into a viable alternative to traditional corporate IT. These companies have been turning to the cloud for all sorts of reasons, and employing a variety of strategies to accomplish the transition.
Let's face it--at this point, the business benefits of the cloud are no longer questioned. Cloud computing in its various forms delivers well-documented gains in business agility, reduction in deployment costs, and improved user satisfaction. But what are some of the things we haven't been reading about the cloud?
1) Fears related to security in the cloud are greatly exaggerated. This isn't to say that security-conscious enterprises shouldn't do their due diligence about any cloud provider being considered. But the overwhelming majority of IT execs I've been talking to agree that the top cloud providers devote way more money and attention to security than pretty much any corporate IT department.
2) The real fears should be on the legal front. The bottom line here is this: There is way too much legal ambiguity when it comes to conducting business in the cloud. Laws few and far between to protect cloud customers and hold cloud vendors responsible when issues arise, and IT execs are right to want to know where the possibility of legal exposure lurks.
To Continue Reading: Click Here
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Source: blogs.cioinsight.com
By: Tony Kontzer
Tuesday, October 19, 2010
Government e-Discovery Tactics Broadened
A federal appeals court reversed a landmark data-privacy ruling it issued last year, which had restored broad powers for computer search and seizure by government agents.
In a highly unusual move, the California-based 9th Circuit Court of Appeals retreated from a series of protocols and restrictions it issued last year in U.S. v. Comprehensive Drug-Testing because the Obama Administration asked the court to reconsider. The original decision spelled out tight controls on what methods government agents could use to review and retain electronic information seized during a criminal investigation; the government claimed those rules had brought investigations to a standstill.
The case is an offshoot of the federal government’s criminal case against the Bay Area Laboratory Co-Operative, more notoriously known as BALCO—a case that started as a probe of steroid abuse among professional baseball players and has since spawned all manner of secondary legal headaches.
In 2002, government agents in the BALCO probe executed a search warrant for the records of 10 baseball players. Comprehensive Drug Testing is an independent company used by Major League Baseball to administer drug testing on its athletes and retain the records. In the course of executing the warrant, agents also obtained confidential medical records of hundreds of other players, and used that data to get more search warrants. Government lawyers argued that they should be allowed to retain and use information not included in their original search warrant because it came into “plain view.”
The 9th Circuit ruled against that theory in August 2009. To drive home its point, it stated five criteria that investigators’ searches had to meet, including segregation of data (ideally done by a third party), destruction of irrelevant data, and several other points governing how a federal magistrate should oversee the search.
Following the decision, however, the Obama Administration—led by then-solicitor general, now Supreme Court justice Elena Kagan—urged the court to rehear and reverse its decision, arguing that the guidelines had grounded criminal investigations to a “complete halt,” and have “delayed or impeded” investigations all over the West Coast. Kagan noted the unprecedented nature of such a request (the 9th Circuit has never granted reconsideration before, and the executive branch has never asked for one), but stressed that, “the broad issues unnecessarily addressed in the [court’s] opinion are of surpassing importance and compel that extraordinary action.”
To Continue Reading: Click Here
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Source: complianceweek.com
By: Jaclyn Jaeger
In a highly unusual move, the California-based 9th Circuit Court of Appeals retreated from a series of protocols and restrictions it issued last year in U.S. v. Comprehensive Drug-Testing because the Obama Administration asked the court to reconsider. The original decision spelled out tight controls on what methods government agents could use to review and retain electronic information seized during a criminal investigation; the government claimed those rules had brought investigations to a standstill.
The case is an offshoot of the federal government’s criminal case against the Bay Area Laboratory Co-Operative, more notoriously known as BALCO—a case that started as a probe of steroid abuse among professional baseball players and has since spawned all manner of secondary legal headaches.
In 2002, government agents in the BALCO probe executed a search warrant for the records of 10 baseball players. Comprehensive Drug Testing is an independent company used by Major League Baseball to administer drug testing on its athletes and retain the records. In the course of executing the warrant, agents also obtained confidential medical records of hundreds of other players, and used that data to get more search warrants. Government lawyers argued that they should be allowed to retain and use information not included in their original search warrant because it came into “plain view.”
The 9th Circuit ruled against that theory in August 2009. To drive home its point, it stated five criteria that investigators’ searches had to meet, including segregation of data (ideally done by a third party), destruction of irrelevant data, and several other points governing how a federal magistrate should oversee the search.
Following the decision, however, the Obama Administration—led by then-solicitor general, now Supreme Court justice Elena Kagan—urged the court to rehear and reverse its decision, arguing that the guidelines had grounded criminal investigations to a “complete halt,” and have “delayed or impeded” investigations all over the West Coast. Kagan noted the unprecedented nature of such a request (the 9th Circuit has never granted reconsideration before, and the executive branch has never asked for one), but stressed that, “the broad issues unnecessarily addressed in the [court’s] opinion are of surpassing importance and compel that extraordinary action.”
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Source: complianceweek.com
By: Jaclyn Jaeger
Monday, October 18, 2010
Atlanta Eagle attorneys allege city withholding, destroying key evidence in federal lawsuit
Attorneys representing the Atlanta Eagle in a federal civil suit against the city of Atlanta and numerous Atlanta Police Department officers say the city is deliberately hiding information and even destroying evidence from as they seek details about the botched raid on the gay bar last year.
In court documents filed Oct. 6, the attorneys for the plaintiffs — Dan Grossman as well as attorneys from Lambda Legal and the Southern Center for Human Rights — allege, “Throughout this litigation the Defendants and their counsel have acted as if the rules, the law, and even the orders of this Court simply do not apply to them: They have responded late to most discovery requests; failed to respond at all to others; … failed to preserve, search for, or produce responsive items as required by law; failed to obey clear and unambiguous orders of this Court; and rather than produce evidence pursuant to this Court’s Order, they destroyed it.”
The attorneys for the plaintiffs are asking the court to order the city’s legal department to follow the court’s order to turn over all evidence or face severe sanctions.
“Given Defendants’ refusal to obey the clear orders issued by this Court, Plaintiffs ask the Court to hold Defendants and their counsel in civil contempt and order them imprisoned, but give them the opportunity to purge the contempt and avoid ever being jailed simply by complying with the Court’s orders within a reasonable period of time,” according to the 55-page motion.
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Source: thegavoice.com
By: Dyana Bagby
In court documents filed Oct. 6, the attorneys for the plaintiffs — Dan Grossman as well as attorneys from Lambda Legal and the Southern Center for Human Rights — allege, “Throughout this litigation the Defendants and their counsel have acted as if the rules, the law, and even the orders of this Court simply do not apply to them: They have responded late to most discovery requests; failed to respond at all to others; … failed to preserve, search for, or produce responsive items as required by law; failed to obey clear and unambiguous orders of this Court; and rather than produce evidence pursuant to this Court’s Order, they destroyed it.”
The attorneys for the plaintiffs are asking the court to order the city’s legal department to follow the court’s order to turn over all evidence or face severe sanctions.
“Given Defendants’ refusal to obey the clear orders issued by this Court, Plaintiffs ask the Court to hold Defendants and their counsel in civil contempt and order them imprisoned, but give them the opportunity to purge the contempt and avoid ever being jailed simply by complying with the Court’s orders within a reasonable period of time,” according to the 55-page motion.
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Source: thegavoice.com
By: Dyana Bagby
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How the U.N. collected terabytes of war crimes evidence from around the globe
War crimes -- brutal genocide, mass executions, ethnic cleansing, torture -- have spurred international efforts by the United Nations to investigate and convict those deemed responsible, wherever they have occurred. And according to those involved in prosecuting war crimes in once war-torn places such as the former Yugoslavia, Cambodia and Rwanda, modern technology related to e-discovery and multi-lingual translation is playing a critical role in the ongoing process to find justice for victims.
"The challenge is, we work in several languages," says Gonzalo de Cesare, information officer at the Council of the European Union, and a legal expert in records management who has been involved in the U.N. war crimes tribunals related to the former Yugoslavia, Rwanda and Cambodia, where investigations and prosecutions into war-related atrocities, including genocide, still proceed. "When I worked in Cambodia, it was not only different languages, but different scripts."
To get evidence to find and prosecute war criminals, legal teams under U.N. tribunals have travelled the world to amass the evidence they needed to try and pinpoint those responsible for horrific brutalities in war-torn parts of the globe, such as the estimated 800,000 individuals killed in Rwanda in the mid-1990s.
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Source: networkworld.com
By: Ellen Messmer
War crimes -- brutal genocide, mass executions, ethnic cleansing, torture -- have spurred international efforts by the United Nations to investigate and convict those deemed responsible, wherever they have occurred. And according to those involved in prosecuting war crimes in once war-torn places such as the former Yugoslavia, Cambodia and Rwanda, modern technology related to e-discovery and multi-lingual translation is playing a critical role in the ongoing process to find justice for victims.
"The challenge is, we work in several languages," says Gonzalo de Cesare, information officer at the Council of the European Union, and a legal expert in records management who has been involved in the U.N. war crimes tribunals related to the former Yugoslavia, Rwanda and Cambodia, where investigations and prosecutions into war-related atrocities, including genocide, still proceed. "When I worked in Cambodia, it was not only different languages, but different scripts."
To get evidence to find and prosecute war criminals, legal teams under U.N. tribunals have travelled the world to amass the evidence they needed to try and pinpoint those responsible for horrific brutalities in war-torn parts of the globe, such as the estimated 800,000 individuals killed in Rwanda in the mid-1990s.
To Continue Reading: Click Here
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Source: networkworld.com
By: Ellen Messmer
Metadata is Subject to Disclosure Pursuant to Washington's Public Records Act
O’Neill v. City of Shoreline, 2010 WL 3911347 (Wash. Oct. 7, 2010)
In this case of first impression, and only the second of its kind in the country, the Supreme Court of Washington held that metadata is subject to disclosure pursuant to Washington’s Public Records Act (“PRA”).
On September 14, 2006, Diane Hettick, a private citizen, sent an email to Lisa Thwing, a private citizen, containing criticism of the Shoreline City Council (“the Council”). Thwing forwarded that email to herself and then to Shoreline Deputy Mayor Maggie Fimia and others using the blind carbon copy function. As a result, only Thwing’s name appeared as a recipient to the email. As outlined in the dissent to this case, the email to Fimia was unsolicited and was received “at home on her personal computer.” At a public meeting of the Council, Fimia referred to the email and erroneously identified Beth O’Neill as the author. Ms. O’Neill immediately denied being the author and made an oral request for the email, to which Fimia readily agreed. After returning home, Fimia forwarded the email to her personal address, removing the “to” and “from” lines identifying Thwing, and then forwarded that email to City of Shoreline (“the City”) staff. The email was produced to O’Neill in hard copy. Unsatisfied, O’Neill requested all information relating to the email, including information regarding senders and recipients. The original email was then produced in hard copy. Still unsatisfied, O’Neill requested the attendant metadata. Unfortunately, by that time the original email had apparently been inadvertently deleted, thus rendering the requested information unavailable. Despite the subsequent receipt of yet another version of the email and the metadata extracted from the computer of one of the other, original recipients of the email from Thwing, O’Neill filed suit alleging a violation of the Public Records Act. The trial court found in favor of the City. On appeal, the Court of Appeals held that metadata was subject to disclosure and, more specifically, that the metadata associated with Thwing’s original email to Fimia was subject to disclosure and reversed the trial court. Upon the City’s and Fimia’s appeal, the case went before the Supreme Court.
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Source: ediscoverylaw.com
In this case of first impression, and only the second of its kind in the country, the Supreme Court of Washington held that metadata is subject to disclosure pursuant to Washington’s Public Records Act (“PRA”).
On September 14, 2006, Diane Hettick, a private citizen, sent an email to Lisa Thwing, a private citizen, containing criticism of the Shoreline City Council (“the Council”). Thwing forwarded that email to herself and then to Shoreline Deputy Mayor Maggie Fimia and others using the blind carbon copy function. As a result, only Thwing’s name appeared as a recipient to the email. As outlined in the dissent to this case, the email to Fimia was unsolicited and was received “at home on her personal computer.” At a public meeting of the Council, Fimia referred to the email and erroneously identified Beth O’Neill as the author. Ms. O’Neill immediately denied being the author and made an oral request for the email, to which Fimia readily agreed. After returning home, Fimia forwarded the email to her personal address, removing the “to” and “from” lines identifying Thwing, and then forwarded that email to City of Shoreline (“the City”) staff. The email was produced to O’Neill in hard copy. Unsatisfied, O’Neill requested all information relating to the email, including information regarding senders and recipients. The original email was then produced in hard copy. Still unsatisfied, O’Neill requested the attendant metadata. Unfortunately, by that time the original email had apparently been inadvertently deleted, thus rendering the requested information unavailable. Despite the subsequent receipt of yet another version of the email and the metadata extracted from the computer of one of the other, original recipients of the email from Thwing, O’Neill filed suit alleging a violation of the Public Records Act. The trial court found in favor of the City. On appeal, the Court of Appeals held that metadata was subject to disclosure and, more specifically, that the metadata associated with Thwing’s original email to Fimia was subject to disclosure and reversed the trial court. Upon the City’s and Fimia’s appeal, the case went before the Supreme Court.
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Source: ediscoverylaw.com
10 Tips for Effective Litigation Case Management
The past decade has ushered in significant new challenges in litigation case management. These include: the explosion in electronic discovery, the increasing importance of cross-border cooperation in litigation and investigations, and the expectation that counsel will keep abreast of, and communicate to their clients, changes in relevant legal rules and precedent on a virtually real-time basis.
These challenges have been accelerated by the global financial crisis, which has led clients to become more comfortable asking for, and coming to expect, services and fee arrangements tailored to their unique needs and goals. We are in an era of increasing competition and increasingly sophisticated legal consumers. The goal must be maximizing client value without sacrificing quality service. In the end, after all, the business of law really is all about the client and achieving its objectives.
The purpose of this article is to offer 10 big-picture tips to help litigators manage their cases to achieve not only the best legal outcomes for their clients, but also the best possible relationships with their clients.
1. Begin by asking how will the case end? Too often, after a case is filed, litigators do exactly what they have been trained to do: litigate full steam ahead. Instead, at the outset of every matter, effective case management demands that the end game be plotted first, in coordination with the client, with strategy and a work plan tailored to meet that end game.
Not every case will or should result in a trial: some should settle early, some cases should be resolved by dispositive motion (either pre- or post-discovery), and some should be tried. Determining up front how a case should end (while also recognizing that circumstances can change) will drive, among other things, staffing decisions, posture with opposing counsel, and resources devoted to developing the facts and/or potentially applicable legal arguments.
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Source: law.com
By: William M. McGuinness, Nick Cherryman and David B. Hennes
These challenges have been accelerated by the global financial crisis, which has led clients to become more comfortable asking for, and coming to expect, services and fee arrangements tailored to their unique needs and goals. We are in an era of increasing competition and increasingly sophisticated legal consumers. The goal must be maximizing client value without sacrificing quality service. In the end, after all, the business of law really is all about the client and achieving its objectives.
The purpose of this article is to offer 10 big-picture tips to help litigators manage their cases to achieve not only the best legal outcomes for their clients, but also the best possible relationships with their clients.
1. Begin by asking how will the case end? Too often, after a case is filed, litigators do exactly what they have been trained to do: litigate full steam ahead. Instead, at the outset of every matter, effective case management demands that the end game be plotted first, in coordination with the client, with strategy and a work plan tailored to meet that end game.
Not every case will or should result in a trial: some should settle early, some cases should be resolved by dispositive motion (either pre- or post-discovery), and some should be tried. Determining up front how a case should end (while also recognizing that circumstances can change) will drive, among other things, staffing decisions, posture with opposing counsel, and resources devoted to developing the facts and/or potentially applicable legal arguments.
To Continue Reading: Click Here
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Source: law.com
By: William M. McGuinness, Nick Cherryman and David B. Hennes
United States: Social Media in Civil Litigation
Social media is here to stay. You've heard the statistics: If Facebook were a country, it would be the third largest in the world, approaching 600 million users. Twitter users post 90 million "tweets" per day. What exploded from college dorm rooms is not just for teenagers and college students anymore. Social networking use among Internet users ages 50 and older nearly doubled from 2009 to 2010. The fastest growing demographic of social-media users are those over age 55. And social media is not just limited to Facebook, Twitter, YouTube, MySpace and LinkedIn. There are also hundreds of sites popular outside the U.S. such as hi5, RenRen and Orkut.
The impact of social media cannot be ignored. It is influencing not just how we communicate, but how lawyers litigate. But as is often the case, technological innovation outpaced the law, and for some time there has been a lack of guidance on the discoverability and use of social-media content in civil litigation. Recently, however, a growing number of court decisions and ethics opinions have addressed this issue. Below, we discuss some ways to use social media in litigation and, perhaps the bigger challenge, how to get ahold of it in the first place.
Social Media as Evidence
When it comes to the courtroom, social media is not just being used in family and criminal litigation. Its usage in commercial, intellectual property, employment, products liability and personal-injury cases is quickly growing. Courts and litigants across the country are increasingly relying on evidence secured from social-networking sites. Magistrates have offered to "friend" parties for the purpose of reviewing evidence in camera. All sorts of evidence discoverable through social media are easy to imagine. For example, evidence of actual confusion in a trademark case, or evidence of reputation in a libel case. It will likely not be long before a "SuperPoke" will form the basis of a sexual-harassment claim. (SuperPoke, for the uninitiated, is a Facebook application in which a user can send messages to their friends. Some more provocative "pokes" allow a user to "spank," "shower with" and "fling a thong at" somebody.)
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Source: mondaq.com
By: Joel Patrick Schroeder & Leita Walker
The impact of social media cannot be ignored. It is influencing not just how we communicate, but how lawyers litigate. But as is often the case, technological innovation outpaced the law, and for some time there has been a lack of guidance on the discoverability and use of social-media content in civil litigation. Recently, however, a growing number of court decisions and ethics opinions have addressed this issue. Below, we discuss some ways to use social media in litigation and, perhaps the bigger challenge, how to get ahold of it in the first place.
Social Media as Evidence
When it comes to the courtroom, social media is not just being used in family and criminal litigation. Its usage in commercial, intellectual property, employment, products liability and personal-injury cases is quickly growing. Courts and litigants across the country are increasingly relying on evidence secured from social-networking sites. Magistrates have offered to "friend" parties for the purpose of reviewing evidence in camera. All sorts of evidence discoverable through social media are easy to imagine. For example, evidence of actual confusion in a trademark case, or evidence of reputation in a libel case. It will likely not be long before a "SuperPoke" will form the basis of a sexual-harassment claim. (SuperPoke, for the uninitiated, is a Facebook application in which a user can send messages to their friends. Some more provocative "pokes" allow a user to "spank," "shower with" and "fling a thong at" somebody.)
To Continue Reading: Click Here
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Source: mondaq.com
By: Joel Patrick Schroeder & Leita Walker
How to tame the social network at work
What you don't know -- or refuse to learn -- about social networking could undermine your business
They're a productivity sink and a bandwidth suck. They're a vector for malware and a gift for corporate spies. They're a data spill just waiting to happen. And like it or not, they're already inside your enterprise.
Meet the Social Network. No, not that movie about Mark Zuckerberg -- the real social network, from Facebook and MySpace to Twitter and Flickr, used by your coworkers and colleagues every single day, whether they're officially allowed to or not.
[ Find out how to assemble an IT special ops team in "A-Teams of IT: How to build a crack strike force." For a humorous take on the tech industry's shenanigans, subscribe to Robert X. Cringely's Notes from the Underground newsletter. ]
But social networking inside the enterprise is not only inevitable, it's essential. Used correctly, social media can help your company solve problems, burnish its public image, recruit top talent, and generate ideas. Implemented poorly -- or worse, ignored -- and it can create a world of pain.
To Continue Reading: Click Here
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Source: news.idg.no
By: Dan Tynan
They're a productivity sink and a bandwidth suck. They're a vector for malware and a gift for corporate spies. They're a data spill just waiting to happen. And like it or not, they're already inside your enterprise.
Meet the Social Network. No, not that movie about Mark Zuckerberg -- the real social network, from Facebook and MySpace to Twitter and Flickr, used by your coworkers and colleagues every single day, whether they're officially allowed to or not.
[ Find out how to assemble an IT special ops team in "A-Teams of IT: How to build a crack strike force." For a humorous take on the tech industry's shenanigans, subscribe to Robert X. Cringely's Notes from the Underground newsletter. ]
But social networking inside the enterprise is not only inevitable, it's essential. Used correctly, social media can help your company solve problems, burnish its public image, recruit top talent, and generate ideas. Implemented poorly -- or worse, ignored -- and it can create a world of pain.
To Continue Reading: Click Here
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Source: news.idg.no
By: Dan Tynan
Friday, October 15, 2010
The attorney-work product doctrine takes a hit in Pennsylvania
The Pennsylvania Superior Court recently confirmed that attorneys appearing in Pennsylvania state court must always be wary that their communications with testifying experts could wind up in the hands of their adversaries. In the case of Barrick v. Holy Spirit Hospital, No 1856 MDA 2009, 2010 WL 3584461 (Pa. Super. September 16, 2010), Pennsylvania’s intermediate appellate court held that communications between an attorney and a testifying expert are not protected from discovery by the attorney work-product doctrine.
The issue in Barrick began when the plaintiff’s testifying expert refused to turn over written communications with the plaintiff’s lawyer in response to a subpoena. Defendants filed a motion to enforce the subpoena, arguing that the communications were relevant and discoverable. Plaintiff opposed the motion, arguing that the communications contained privileged attorney work-product in the form of “‘legal theories, trial strategy, and ‘tactics as to how the [expert] opinions...will be framed for the purposes of negotiation and trial.’” Barrick, 2010 WL 3584461 at *3. The trial court ruled in favor of defendants and ordered production, expressly fashioning a “bright line” rule that all attorney correspondence with a testifying expert is discoverable. See December 15, 2009 opinion by Judge Hess of the Court of Common Pleas of Cumberland County. Plaintiff immediately appealed.
On appeal, the Superior Court recognized that the issue presented a conflict between two rules of Pennsylvania civil procedure – Pa.R.C.P. 4003.3, which prohibits discovery of materials commonly referred to as attorney work-product, and Pa.R.C.P. 4003.5, which permits discovery of the facts and opinions underlying a testifying expert’s conclusions. Barrick, 2010 WL 3584461 at *4. Noting that the attorney work-product privilege “is not sacrosanct,” the Superior Court held that the “attorney work-product doctrine must yield” to the expert discovery rule. Id. at *5. The court reasoned that the defendants were entitled to discover information that would enable them to ascertain the extent to which the expert witness’ opinions were influenced by counsel. Id. Although the Superior Court arguably fell just short of fashioning a bright-line rule that all attorney-expert correspondence is discoverable, the Superior Court agreed with the trial court that an in camera inspection “would be a waste of judicial resources,” given its holding that the expert discovery rule trumps the attorney work-product privilege. Id. at 6.
To Continue Reading: Click Here
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Source: DLA Piper
By: Brian M. Robinson & Jayne Anderson Risk
The issue in Barrick began when the plaintiff’s testifying expert refused to turn over written communications with the plaintiff’s lawyer in response to a subpoena. Defendants filed a motion to enforce the subpoena, arguing that the communications were relevant and discoverable. Plaintiff opposed the motion, arguing that the communications contained privileged attorney work-product in the form of “‘legal theories, trial strategy, and ‘tactics as to how the [expert] opinions...will be framed for the purposes of negotiation and trial.’” Barrick, 2010 WL 3584461 at *3. The trial court ruled in favor of defendants and ordered production, expressly fashioning a “bright line” rule that all attorney correspondence with a testifying expert is discoverable. See December 15, 2009 opinion by Judge Hess of the Court of Common Pleas of Cumberland County. Plaintiff immediately appealed.
On appeal, the Superior Court recognized that the issue presented a conflict between two rules of Pennsylvania civil procedure – Pa.R.C.P. 4003.3, which prohibits discovery of materials commonly referred to as attorney work-product, and Pa.R.C.P. 4003.5, which permits discovery of the facts and opinions underlying a testifying expert’s conclusions. Barrick, 2010 WL 3584461 at *4. Noting that the attorney work-product privilege “is not sacrosanct,” the Superior Court held that the “attorney work-product doctrine must yield” to the expert discovery rule. Id. at *5. The court reasoned that the defendants were entitled to discover information that would enable them to ascertain the extent to which the expert witness’ opinions were influenced by counsel. Id. Although the Superior Court arguably fell just short of fashioning a bright-line rule that all attorney-expert correspondence is discoverable, the Superior Court agreed with the trial court that an in camera inspection “would be a waste of judicial resources,” given its holding that the expert discovery rule trumps the attorney work-product privilege. Id. at 6.
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Source: DLA Piper
By: Brian M. Robinson & Jayne Anderson Risk
Court Finds Data Not Reasonably Accessible, Orders Phased Approach to Discovery, and Declines to Shift the Cost of Production
Barrera v. Boughton, 2010 WL 3926070 (D. Conn. Sept. 30, 2010)
Despite diligent efforts, the parties were unable to reach agreement regarding the appropriate scope of a search for responsive information. Plaintiffs proposed 40 custodians, 80 search terms, and a timeframe of nearly seven years. Defendants sought a phased approach and proposed limiting the initial search to three custodians, with plaintiffs to bear the cost. Defendants also objected to the temporal scope of discovery. Citing Rule 26(b)(2)(B), the court found the information sought “not reasonably accessible” and reduced the scope of the search, but denied defendants’ motion to shift costs.
Plaintiffs moved to compel the production of electronically stored information (“ESI”) stored on defendants’ server, using their proposed parameters. Defendants objected that the proposal was unduly burdensome and presented the declarations of two IT experts opining that the cost of the proposed search (not including attorney review) would be approximately $60,000. Accordingly, defendants proposed to significantly reduce the scope of the search, and to shift their costs.
The court’s analysis focused on Rule 26(b)(2)(B) which precludes the obligation to produce information shown to be “not reasonably accessible because of undue burden or cost.” Upon such a showing, the requesting party may still obtain discovery by showing good cause, considering the limitations of Rule 26(b)(2)(C), the rule of proportionality.
The court found that defendants met their burden of showing the information requested was not reasonably accessible and that plaintiffs had not met their burden of showing good cause to compel production despite such a finding. Further, the court was persuaded that a phased approach to discovery was appropriate. Accordingly, the court ordered defendants to search the ESI of three custodians, using the search terms proposed by plaintiffs, for a reduced time period of approximately three years.
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Source: ediscoverylaw.com
Despite diligent efforts, the parties were unable to reach agreement regarding the appropriate scope of a search for responsive information. Plaintiffs proposed 40 custodians, 80 search terms, and a timeframe of nearly seven years. Defendants sought a phased approach and proposed limiting the initial search to three custodians, with plaintiffs to bear the cost. Defendants also objected to the temporal scope of discovery. Citing Rule 26(b)(2)(B), the court found the information sought “not reasonably accessible” and reduced the scope of the search, but denied defendants’ motion to shift costs.
Plaintiffs moved to compel the production of electronically stored information (“ESI”) stored on defendants’ server, using their proposed parameters. Defendants objected that the proposal was unduly burdensome and presented the declarations of two IT experts opining that the cost of the proposed search (not including attorney review) would be approximately $60,000. Accordingly, defendants proposed to significantly reduce the scope of the search, and to shift their costs.
The court’s analysis focused on Rule 26(b)(2)(B) which precludes the obligation to produce information shown to be “not reasonably accessible because of undue burden or cost.” Upon such a showing, the requesting party may still obtain discovery by showing good cause, considering the limitations of Rule 26(b)(2)(C), the rule of proportionality.
The court found that defendants met their burden of showing the information requested was not reasonably accessible and that plaintiffs had not met their burden of showing good cause to compel production despite such a finding. Further, the court was persuaded that a phased approach to discovery was appropriate. Accordingly, the court ordered defendants to search the ESI of three custodians, using the search terms proposed by plaintiffs, for a reduced time period of approximately three years.
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Source: ediscoverylaw.com
Interest in Records Management Rises, Email Still Badly Managed
Recently, we took a look at records management in SharePoint in which we cited research from AIIM that showed spending on records management is set for a major increase. That research has now been published and shows that while records management is a major concern for enterprises, the real bad boy in records management is email management.
The first thing that stands out is that recent events like the BP oil spill, the banking crisis and high profile government email leaks have focused executive-level attention on records management.
The second thing that strikes is that one third of organizations have no records management policy at all. Of the two thirds that do, many are struggling to define a policy on emails — whether they should be kept, destroyed or saved.
Spending On RM Rises
Based on 650 responses to questionnaires sent to business people not involved in records management in August, the findings are published in the report E-Discovery and ERM: How is records management performing in the new spotlight?
There were a lot of positives to be taken from the responses, not least of which is that the priority given to records management over the past two year has increased in 80% of companies, with a corresponding planned increase in spending on records management software in over half those organizations.
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Source: cmswire.com
By: David Roe
The first thing that stands out is that recent events like the BP oil spill, the banking crisis and high profile government email leaks have focused executive-level attention on records management.
The second thing that strikes is that one third of organizations have no records management policy at all. Of the two thirds that do, many are struggling to define a policy on emails — whether they should be kept, destroyed or saved.
Spending On RM Rises
Based on 650 responses to questionnaires sent to business people not involved in records management in August, the findings are published in the report E-Discovery and ERM: How is records management performing in the new spotlight?
There were a lot of positives to be taken from the responses, not least of which is that the priority given to records management over the past two year has increased in 80% of companies, with a corresponding planned increase in spending on records management software in over half those organizations.
To Continue Reading: Click Here
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Source: cmswire.com
By: David Roe
Large Corporations Still Behind on Data Governance
Survey warns of losses and risk from poor communication, antiquated organization
October 14, 2010 – Less than one-fourth of corporations in the Global 1000 can fulfill their data retention and disposal objectives, leading to wasteful spending, legal risks and possible theft, according to findings in a new survey.
The Compliance, Governance and Oversight Council, in collaboration with the Electronic Discovery Reference Model, queried legal, IT and records maintenance leaders at companies in a wide range of industries on their information governance practices. The report stated that 98 percent of companies rated defensible disposal and retention of data as a key governance objective, though currently only 22 percent of those companies can fully handle that task.
Primary obstacles cited in the survey were disconnects between agencies or departments dealing with data, and a massive and expensive legacy systems drag on content management costs.
While 85 percent of companies agree that consistent collaboration is critical in data governance, leaders in IT, litigation and records largely pointed the blame for data governance on each other, the survey found. And, of organizations with information oversight committees in place, less than 17 percent surveyed stated they felt that all of the correct stakeholders are involved.
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Source: information-management.com
By: Justin Kern
October 14, 2010 – Less than one-fourth of corporations in the Global 1000 can fulfill their data retention and disposal objectives, leading to wasteful spending, legal risks and possible theft, according to findings in a new survey.
The Compliance, Governance and Oversight Council, in collaboration with the Electronic Discovery Reference Model, queried legal, IT and records maintenance leaders at companies in a wide range of industries on their information governance practices. The report stated that 98 percent of companies rated defensible disposal and retention of data as a key governance objective, though currently only 22 percent of those companies can fully handle that task.
Primary obstacles cited in the survey were disconnects between agencies or departments dealing with data, and a massive and expensive legacy systems drag on content management costs.
While 85 percent of companies agree that consistent collaboration is critical in data governance, leaders in IT, litigation and records largely pointed the blame for data governance on each other, the survey found. And, of organizations with information oversight committees in place, less than 17 percent surveyed stated they felt that all of the correct stakeholders are involved.
To Continue Reading: Click Here
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Source: information-management.com
By: Justin Kern
Thursday, October 14, 2010
SharePoint and E-Discovery Challenges
Since its launch in 2001, Microsoft’s SharePoint application has become many things to many people and organizations. For some, it’s a simple collaboration or data management tool. For others, it’s a sophisticated development platform for everything from internal dashboards to transactional websites. Numerous case studies available on the Web showcase how companies have used SharePoint to improve worker productivity, strengthen client relationships and help grow businesses.
As the innovative use cases and benefits expand, so does its adoption. In a recently released report, “SharePoint - Strategies and Experiences,” the Association for Information and Image Management (AIIM) polled its community of enterprise content management professionals and found that 61 percent of member organizations have implemented, or are in the process of implementing, some version of the SharePoint application (including SharePoint 2003, Windows SharePoint Server and Microsoft Office SharePoint Server).
The same report finds that “the majority of deployments have been initiated without any formal business plan or justification being prepared. The inevitable result is a lack of clarity and planning as to where it will be used, and how it sits with other systems.” The report goes on to find that for 23 percent of respondents, all of their office staff access SharePoint, and this is set to double in the next 12 months. In addition, “Forty-four percent of respondents have rolled out SharePoint across 10 or more geographical sites, with 14 percent covering over 100 geographical sites.”
To Continue Reading: Click Here
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Source: information-management.com
By: Larry Briggi
As the innovative use cases and benefits expand, so does its adoption. In a recently released report, “SharePoint - Strategies and Experiences,” the Association for Information and Image Management (AIIM) polled its community of enterprise content management professionals and found that 61 percent of member organizations have implemented, or are in the process of implementing, some version of the SharePoint application (including SharePoint 2003, Windows SharePoint Server and Microsoft Office SharePoint Server).
The same report finds that “the majority of deployments have been initiated without any formal business plan or justification being prepared. The inevitable result is a lack of clarity and planning as to where it will be used, and how it sits with other systems.” The report goes on to find that for 23 percent of respondents, all of their office staff access SharePoint, and this is set to double in the next 12 months. In addition, “Forty-four percent of respondents have rolled out SharePoint across 10 or more geographical sites, with 14 percent covering over 100 geographical sites.”
To Continue Reading: Click Here
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Source: information-management.com
By: Larry Briggi
Wednesday, October 13, 2010
Panel Urges Caution on Sanctions for Failure to Preserve Data
A panel of state and federal judges has voiced concern about the differing standards for the pre-litigation preservation of electronic records by state and federal judges sitting within the 2nd Circuit.
A limited number of federal trial courts favor hard-and-fast rules that mandate sanctions for the failure to preserve electronic documents, according to the report issued by the New York State-Federal Judicial Council.[FOOTNOTE 1]
By contrast, the report notes, many state judges, prefer to apply "a simple reasonableness standard" and to weigh the imposition of sanctions for destruction of evidence on "a case-by-case basis."
After comparing case law in New York and federal courts, the report found that there are potential inconsistencies between state and federal law governing the pre-litigation duty to preserve electronically shared information that could result in inconsistencies in sanctions for the breach of that duty.
"It seems that those inconsistences may lead to different outcomes for litigants depending on whether the lawsuit is in federal or State court. As such, a potential litigant's conduct may, in fact, be treated differently in State and federal court," the report said.
The advisory panel suggests that courts in the two systems could limit confusion by exercising "judicial self-restraint and mutual respect" and by establishing procedures to impose one or the other system's law governing preservation of electronic information.
To Continue Reading: Click Here
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Source: law.com
By: Daniel Wise
A limited number of federal trial courts favor hard-and-fast rules that mandate sanctions for the failure to preserve electronic documents, according to the report issued by the New York State-Federal Judicial Council.[FOOTNOTE 1]
By contrast, the report notes, many state judges, prefer to apply "a simple reasonableness standard" and to weigh the imposition of sanctions for destruction of evidence on "a case-by-case basis."
After comparing case law in New York and federal courts, the report found that there are potential inconsistencies between state and federal law governing the pre-litigation duty to preserve electronically shared information that could result in inconsistencies in sanctions for the breach of that duty.
"It seems that those inconsistences may lead to different outcomes for litigants depending on whether the lawsuit is in federal or State court. As such, a potential litigant's conduct may, in fact, be treated differently in State and federal court," the report said.
The advisory panel suggests that courts in the two systems could limit confusion by exercising "judicial self-restraint and mutual respect" and by establishing procedures to impose one or the other system's law governing preservation of electronic information.
To Continue Reading: Click Here
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Source: law.com
By: Daniel Wise
Tuesday, October 12, 2010
Do you know? Ten tips for effective litigation holds
The purpose of a litigation hold is to stop the destruction of potentially relevant or discoverable documents and information pursuant to a retention policy or otherwise. With the advent of electronic discovery, it is incumbent upon litigants to employ litigation holds as soon as claim or potential claim is reasonably clear. Otherwise, relevant documents might be destroyed, leading to sanctions such as adverse inferences, dismissal of claims, or default judgments. In other words, failing to implement a litigation hold is a quick way focus your case away from the law and the facts and on to discovery issues.
The following is a list of 10 practical tips for implementing a meaningful litigation hold during active or pending litigation:
1.Describe the pending claim.
2.Identify the recipient of the hold letter as someone who may have personal knowledge regarding the matter, or who may be in possession of or have access to information or documents potentially relevant to the matter.
3.Order the suspension of any deletion, overwriting, or any other destruction of electronic information relevant to the matter that is under the recipient’s control. This task will be much more daunting for an IT manager than an individual employee’s work station.
4.Broadly define the scope of covered information to include all documents, records or data of every kind residing or recorded (intentionally or unintentionally) in any medium or location other than within a person’s memory: paper, magnetic tape, photographs, maps, diagrams, applications, databases, microfilm, microfiche, emails, intranet, instant messages, blogs, voicemails, metadata, and any other electronic means of communication that are created, stored or received on the company’s computers or network systems or any other devices (phones, PDAs, applications or storage devices) or systems capable of storing electronic information.
5.Instruct that the recipient search all information for anything relevant or potentially relevant to the claim. Emails and other electronic information should be segregated in a PC or Outlook folder, and all paper documents in a hard file.
To Continue Reading: Click Here
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Source: Ohio Lawyer's Blog
By: Jon Hyman
The following is a list of 10 practical tips for implementing a meaningful litigation hold during active or pending litigation:
1.Describe the pending claim.
2.Identify the recipient of the hold letter as someone who may have personal knowledge regarding the matter, or who may be in possession of or have access to information or documents potentially relevant to the matter.
3.Order the suspension of any deletion, overwriting, or any other destruction of electronic information relevant to the matter that is under the recipient’s control. This task will be much more daunting for an IT manager than an individual employee’s work station.
4.Broadly define the scope of covered information to include all documents, records or data of every kind residing or recorded (intentionally or unintentionally) in any medium or location other than within a person’s memory: paper, magnetic tape, photographs, maps, diagrams, applications, databases, microfilm, microfiche, emails, intranet, instant messages, blogs, voicemails, metadata, and any other electronic means of communication that are created, stored or received on the company’s computers or network systems or any other devices (phones, PDAs, applications or storage devices) or systems capable of storing electronic information.
5.Instruct that the recipient search all information for anything relevant or potentially relevant to the claim. Emails and other electronic information should be segregated in a PC or Outlook folder, and all paper documents in a hard file.
To Continue Reading: Click Here
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Source: Ohio Lawyer's Blog
By: Jon Hyman
Death of the Billable Hour or the Rise of Discounts?
Are companies witnessing the death of the billable hour ... or the rise of discounted hourly rates?
In what could be more good news for in-house legal departments, a recent ALM survey showed a spike in the use of alternative billing arrangements last year. The "Law Department Metrics Benchmarking Survey, 2010 Edition" reports that 72.8 percent of fees paid to outside counsel in 2009 were based on billing arrangements other than standard hourly rates or the billable hour.
The results contain data collected from 114 companies in the spring of 2010. Of the participating organizations, 64 percent had annual revenue of more than $1 billion, and 49 percent had more than 5,000 employees.
Thirty-three percent of law departments surveyed reported noticing an increase in the frequency that outside firms have offered alternative billing arrangements over the last six months.
The results seem to show an increased willingness by law firms to diverge from the traditional billable hour compared to last year's survey, when law departments reported that just 66.1 percent of their billed fees were based on alternative arrangements.
But are firms really offering more fixed-fee arrangements, or just more discounted hourly rates -- perhaps hoping that when the economy rebounds there will be a return to business as usual?
"There could be simply more [firms] using discounted rates," said Rees Morrison, president of Rees Morrison Associates -- a Princeton, N.J.-based law department consulting service.
Indeed, according to the results of the ALM survey, law departments reported that discounted hourly rates accounted for 77.8 percent of their alternative billing arrangements last year, followed in popularity by fixed, flat or capped fees.
To Continue Reading: Click Here
-----------------------------------------------
Source: Law.com
By: Shannon Green
In what could be more good news for in-house legal departments, a recent ALM survey showed a spike in the use of alternative billing arrangements last year. The "Law Department Metrics Benchmarking Survey, 2010 Edition" reports that 72.8 percent of fees paid to outside counsel in 2009 were based on billing arrangements other than standard hourly rates or the billable hour.
The results contain data collected from 114 companies in the spring of 2010. Of the participating organizations, 64 percent had annual revenue of more than $1 billion, and 49 percent had more than 5,000 employees.
Thirty-three percent of law departments surveyed reported noticing an increase in the frequency that outside firms have offered alternative billing arrangements over the last six months.
The results seem to show an increased willingness by law firms to diverge from the traditional billable hour compared to last year's survey, when law departments reported that just 66.1 percent of their billed fees were based on alternative arrangements.
But are firms really offering more fixed-fee arrangements, or just more discounted hourly rates -- perhaps hoping that when the economy rebounds there will be a return to business as usual?
"There could be simply more [firms] using discounted rates," said Rees Morrison, president of Rees Morrison Associates -- a Princeton, N.J.-based law department consulting service.
Indeed, according to the results of the ALM survey, law departments reported that discounted hourly rates accounted for 77.8 percent of their alternative billing arrangements last year, followed in popularity by fixed, flat or capped fees.
To Continue Reading: Click Here
-----------------------------------------------
Source: Law.com
By: Shannon Green
Recent Corporate Disasters Resurrect Records Management Interest
A third of organisations still have no systems in place to manage and record their electronic documentsIn the light of recent events such as the BP oil spill, the Toyota recalls, the banking crisis and high profile government email leaks, senior managers in 57% of organisations have become more conscious of the business risks of poor information management and records keeping, according to a recent survey by AIIM (Association for Information and Image Management). The priority given to records management has increased over the last two years in over 80% of organisations, and this is reflected in a planned increase in records management spend in over half of the organisations surveyed.
John Mancini, President of AIIM, comments, “When the lawsuits and compensation claims kick in, companies are totally reliant on their communications records, and these days, almost all of those records are electronic. A third of organisations still have no systems in place to manage and record their electronic documents, and even those that do are struggling with their policies on emails. Opinion is equally split between three approaches: delete everything, keep everything and keep only the important things – which presents its own challenge of selection policy.”
The AIIM survey found that 34% of respondents have been affected by the lack of complete electronic information in a court case or a potential court case, and 24% have had situations where undeleted records, held beyond their retention period, have influenced the strength of a court case – weakening it more often than not. Unnecessary review of undeleted content during the discovery process was cited as a major legal cost factor.
To Continue Reading: Click Here
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Source: sourcewire.com
John Mancini, President of AIIM, comments, “When the lawsuits and compensation claims kick in, companies are totally reliant on their communications records, and these days, almost all of those records are electronic. A third of organisations still have no systems in place to manage and record their electronic documents, and even those that do are struggling with their policies on emails. Opinion is equally split between three approaches: delete everything, keep everything and keep only the important things – which presents its own challenge of selection policy.”
The AIIM survey found that 34% of respondents have been affected by the lack of complete electronic information in a court case or a potential court case, and 24% have had situations where undeleted records, held beyond their retention period, have influenced the strength of a court case – weakening it more often than not. Unnecessary review of undeleted content during the discovery process was cited as a major legal cost factor.
To Continue Reading: Click Here
-------------------------------------------
Source: sourcewire.com
Ruling Proves to Be Primer on E-Discovery Enforcement
Judge Paul Grimm's recent opinion both a road map and commentary on spoliation, sanctions
A federal judge's most recent opinion in an ongoing matter provides remarkable insight into several issues that arise frequently in e-discovery.
Magistrate Judge Paul Grimm's lengthy opinion in Victor Stanley Inc. v. Creative Pipe Inc., filed Sept. 9, is worth the read if only for its review and distillation of the case law regarding spoliation and remedies. But the opinion is newsworthy because it sets out a harsh remedy for the defendant whom he found had destroyed evidence, lied to the court and dragged out proceedings -- civil contempt, with the defendant facing severe costs and fines or a two-year prison sentence if he fails to pay that fine.
The court's focus upon and analysis of the costs -- in time, money, effort, and expertise -- of spoliation and dilatory tactics to the justice system is both spot on and timely. The lessons drawn from the reality underlying the court's analysis, however, are discouraging.
Victor Stanley's 2006 complaint alleged that Creative Pipe and its president, Mark Pappas, downloaded Victor Stanley design drawings and specifications from its website using the pseudonym "Fred Bass" and used those drawings improperly in competition with Victor Stanley. The complaint alleged copyright, patent, and unfair competition violations.
During four years of discovery, Pappas, in the court's words, "engaged in a cat and mouse game to hide harmful ESI from production during discovery, repeatedly trying to stall or prevent VSI from discovering evidence that he improperly accessed or used VSI's website or drawings."
To Continue Reading: Click Here
-------------------------------------------
Source: law.com
By: Leonard Deutchman
A federal judge's most recent opinion in an ongoing matter provides remarkable insight into several issues that arise frequently in e-discovery.
Magistrate Judge Paul Grimm's lengthy opinion in Victor Stanley Inc. v. Creative Pipe Inc., filed Sept. 9, is worth the read if only for its review and distillation of the case law regarding spoliation and remedies. But the opinion is newsworthy because it sets out a harsh remedy for the defendant whom he found had destroyed evidence, lied to the court and dragged out proceedings -- civil contempt, with the defendant facing severe costs and fines or a two-year prison sentence if he fails to pay that fine.
The court's focus upon and analysis of the costs -- in time, money, effort, and expertise -- of spoliation and dilatory tactics to the justice system is both spot on and timely. The lessons drawn from the reality underlying the court's analysis, however, are discouraging.
Victor Stanley's 2006 complaint alleged that Creative Pipe and its president, Mark Pappas, downloaded Victor Stanley design drawings and specifications from its website using the pseudonym "Fred Bass" and used those drawings improperly in competition with Victor Stanley. The complaint alleged copyright, patent, and unfair competition violations.
During four years of discovery, Pappas, in the court's words, "engaged in a cat and mouse game to hide harmful ESI from production during discovery, repeatedly trying to stall or prevent VSI from discovering evidence that he improperly accessed or used VSI's website or drawings."
To Continue Reading: Click Here
-------------------------------------------
Source: law.com
By: Leonard Deutchman
Monday, October 11, 2010
Privacy revisions present risk for offshore clouds
Extra diligence required.
Changes to privacy legislation under consideration by the Federal Government should pose serious concerns for businesses embracing cloud computing, according to a leading intellectual property lawyer.
A revised Privacy Principle 8, released in an exposure draft [PDF] [see page 17] in June 2010, creates new requirements for organisations outsourcing data that identifies Australian citizens to offshore data centres.
Specifically, Privacy Principle 8 requires that any organisation storing information that identifies Australian citizens in overseas data centres must ensure that the organisation hosting that data offers the same protections as what is stated in Australia's Privacy Principles.
Mark Vincent, partner at Truman Hoyle and one of the nation's foremost legal experts on cloud computing, told iTnews that organisations would be wise to conduct due diligence before outsourcing to foreign cloud computing platforms.
The world's largest cloud computing platforms - which include Amazon's EC2, Microsoft's Azure and Salesforce.com - do not host data in Australia but in Asian business centres such as Singapore.
The revised Privacy Principles won't be debated until mid-2011. But if passed, these laws could have serious repercussions for customers hosting data offshore.
"If an Australian company puts its consumer data - its private data - into the cloud, it has to make sure that the company it [hosts] it with has adequate safeguards with the equivalent of Australian Privacy Principles in place," Vincent said.
"If it doesn't take those steps to make sure this company is going to look after the data in the same way, and there is a breach, the Australian company under the exposure draft will be liable for the breach," Vincent said. "That's a new development that goes a lot further than existing Privacy Principles."
To Continue Reading: Click Here
-------------------------------------------
Source: itnews.com.au
By: Brett Winterford
Changes to privacy legislation under consideration by the Federal Government should pose serious concerns for businesses embracing cloud computing, according to a leading intellectual property lawyer.
A revised Privacy Principle 8, released in an exposure draft [PDF] [see page 17] in June 2010, creates new requirements for organisations outsourcing data that identifies Australian citizens to offshore data centres.
Specifically, Privacy Principle 8 requires that any organisation storing information that identifies Australian citizens in overseas data centres must ensure that the organisation hosting that data offers the same protections as what is stated in Australia's Privacy Principles.
Mark Vincent, partner at Truman Hoyle and one of the nation's foremost legal experts on cloud computing, told iTnews that organisations would be wise to conduct due diligence before outsourcing to foreign cloud computing platforms.
The world's largest cloud computing platforms - which include Amazon's EC2, Microsoft's Azure and Salesforce.com - do not host data in Australia but in Asian business centres such as Singapore.
The revised Privacy Principles won't be debated until mid-2011. But if passed, these laws could have serious repercussions for customers hosting data offshore.
"If an Australian company puts its consumer data - its private data - into the cloud, it has to make sure that the company it [hosts] it with has adequate safeguards with the equivalent of Australian Privacy Principles in place," Vincent said.
"If it doesn't take those steps to make sure this company is going to look after the data in the same way, and there is a breach, the Australian company under the exposure draft will be liable for the breach," Vincent said. "That's a new development that goes a lot further than existing Privacy Principles."
To Continue Reading: Click Here
-------------------------------------------
Source: itnews.com.au
By: Brett Winterford
Sunday, October 10, 2010
What is Wrong, or Right, with e-Discovery in America?
What is wrong with e-discovery in America is that too few lawyers know how to do it well, and too few care to learn. Of course, this means the glass is also half-full and that e-discovery is a new and growing field with great opportunities, especially for young tech-savvy lawyers.
Technology is Destroying Our System of Justice
The unprecedented advances in technology of the past few decades have unleashed a flood of information. The vast quantities of ESI have made it extremely difficult for litigants to find relevant evidence. The few gems of information that are important to a legal dispute are buried in a mountain of irrelevant, or marginally relevant information. This explosion in the quantity of potentially relevant documents has made it extremely difficult for all but a few highly trained specialists to find the key documents without breaking the bank. The truth may be out there, but if nobody can afford to find it, what good does it do?
Technology is Saving Our System of Justice
There is now more information available than at any time in history, including information essential to the resolution of legal disputes. This abundance of information makes it much more difficult for a litigant to lie and rewrite history so as to win a law suit. The few gems of information that are important to a legal dispute may be buried, but they exist, and can be found to help justice be done. There are trained specialists capable of finding these key documents in an efficient and economical manner. The truth is out there and can be found
To Continue Reading: Click Here
-------------------------------------------
Source: e-discoveryteam.com
By: Ralph Losey
Technology is Destroying Our System of Justice
The unprecedented advances in technology of the past few decades have unleashed a flood of information. The vast quantities of ESI have made it extremely difficult for litigants to find relevant evidence. The few gems of information that are important to a legal dispute are buried in a mountain of irrelevant, or marginally relevant information. This explosion in the quantity of potentially relevant documents has made it extremely difficult for all but a few highly trained specialists to find the key documents without breaking the bank. The truth may be out there, but if nobody can afford to find it, what good does it do?
Technology is Saving Our System of Justice
There is now more information available than at any time in history, including information essential to the resolution of legal disputes. This abundance of information makes it much more difficult for a litigant to lie and rewrite history so as to win a law suit. The few gems of information that are important to a legal dispute may be buried, but they exist, and can be found to help justice be done. There are trained specialists capable of finding these key documents in an efficient and economical manner. The truth is out there and can be found
To Continue Reading: Click Here
-------------------------------------------
Source: e-discoveryteam.com
By: Ralph Losey
Saturday, October 09, 2010
Social media archiving meets e-mail archiving in new partnership
Arkovi developer BMRW & Associates Inc. and MessageWatcher LLC have formed a strategic partnership that together can provide financial advisers with a comprehensive archiving service that covers both their e-mail and social media needs.
Social media archiving service Arkovi was launched into public beta back in November of 2009 (read this post for a basic understanding of how the online service works).
The Arkovi platform encompasses Facebook personal and fan pages, LinkedIn, Twitter as well as RSS integration for blogs, blog comments, social bookmarking, YouTube activity and other social networks and web searches.
Blane Warrene, chief executive and co-founder of BMRW and I exchanged e-mails on what the new partnership means.
Between them the organizations bring together compliance and archiving expertise from not only financial services but the legal and healthcare sectors as well.
In a nutshell the integration between the platforms of the two offerings allows customers to have combined access to Arkovi's aggregation and archiving capabilities (for capturing their social media content) and the MessageWatcher e-mail compliance and surveillance system with its dashboard for reviewing, reporting and retrieval of both types of data.
To Continue Reading: Click Here
-------------------------------------------
Source: investmentnews.com
By: Davis D. Janowski
Social media archiving service Arkovi was launched into public beta back in November of 2009 (read this post for a basic understanding of how the online service works).
The Arkovi platform encompasses Facebook personal and fan pages, LinkedIn, Twitter as well as RSS integration for blogs, blog comments, social bookmarking, YouTube activity and other social networks and web searches.
Blane Warrene, chief executive and co-founder of BMRW and I exchanged e-mails on what the new partnership means.
Between them the organizations bring together compliance and archiving expertise from not only financial services but the legal and healthcare sectors as well.
In a nutshell the integration between the platforms of the two offerings allows customers to have combined access to Arkovi's aggregation and archiving capabilities (for capturing their social media content) and the MessageWatcher e-mail compliance and surveillance system with its dashboard for reviewing, reporting and retrieval of both types of data.
To Continue Reading: Click Here
-------------------------------------------
Source: investmentnews.com
By: Davis D. Janowski
Shouldering the Burden of Data Dumping
In an ongoing employment dispute, the plaintiffs asked for discovery of selected data from two laptops, but instead received millions of digital documents, which the defense described as "everything" possibly related to the matter. The plaintiffs counsel, Charles Stillman, founder of Stillman, Friedman & Shechtman in New York, did what he could to manage this sudden influx of data, including soliciting estimates from discovery experts regarding what it would cost to comb the data.
Stillman says that the estimates he reviewed would have been prohibitively expensive for an employment matter worth less than $10 million. But he was very lucky. His clients happened to be computer experts and, using their own software, concluded that opposing counsel had not actually produced the requested files within the mountain of documents delivered. The court agreed, and sanctioned the defendant Sandisk $150,000 in Harkabi v. Sandisk Corp. "We simply could not have afforded to pay for the kind of investigation my clients were able to do for themselves," says Stillman. "They were able to build their own tool to look at the data, something that would have cost too much if we'd had to pay for it."
Stillman doesn't believe the Sandisk sanctions were the result of a deliberate strategy by the defense to obscure facts. But he says that in even a multimillion dollar case such as his, high volumes of data can quickly overwhelm any legal team. And dumping high volumes of data in discovery is a common problem in litigation, say experienced lawyers. "This is a real and growing problem, and only a few big corporate clients even have the resources to deal with this issue," says George Paul, partner at Lewis and Roca in Pheonix and co-chair of the American Bar Association's Electronic Discovery and Digital Evidence Committee. "Unfortunately, in a lot of cases, it's very easy to be overrun by data."
To Continue Reading: Click Here
-------------------------------------------
Source: law.com
By: Jason Krause
Stillman says that the estimates he reviewed would have been prohibitively expensive for an employment matter worth less than $10 million. But he was very lucky. His clients happened to be computer experts and, using their own software, concluded that opposing counsel had not actually produced the requested files within the mountain of documents delivered. The court agreed, and sanctioned the defendant Sandisk $150,000 in Harkabi v. Sandisk Corp. "We simply could not have afforded to pay for the kind of investigation my clients were able to do for themselves," says Stillman. "They were able to build their own tool to look at the data, something that would have cost too much if we'd had to pay for it."
Stillman doesn't believe the Sandisk sanctions were the result of a deliberate strategy by the defense to obscure facts. But he says that in even a multimillion dollar case such as his, high volumes of data can quickly overwhelm any legal team. And dumping high volumes of data in discovery is a common problem in litigation, say experienced lawyers. "This is a real and growing problem, and only a few big corporate clients even have the resources to deal with this issue," says George Paul, partner at Lewis and Roca in Pheonix and co-chair of the American Bar Association's Electronic Discovery and Digital Evidence Committee. "Unfortunately, in a lot of cases, it's very easy to be overrun by data."
To Continue Reading: Click Here
-------------------------------------------
Source: law.com
By: Jason Krause
Friday, October 08, 2010
Why banks are wary of public clouds
Banks have traditionally kept close control of their IT, supporting large in-house teams and, until recently, building their own datacentres. However, this is set to change as banks look closely at the opportunities and cost savings offered by cloud computing technologies.
Banks are reluctant to adopt public cloud technologies where computing resources are made available, usually on shared infrastructure, to multiple customers and accessed via the internet. But by contrast, there is growing interest in using private clouds (here computing resources are provided exclusively to the bank over a private network, rather than over the internet, and from behind the bank's firewall.
IT security
This is the number one concern of bank IT executives. Banks are reluctant to hand over control of business-critical functions to anyone, let alone public cloud providers.
Public cloud providers have identified this concern and both they and industry bodies such as the Cloud Security Alliance have sought to demonstrate a commitment to cloud security - in particular, through promoting their compliance with recognised security standards for outsourcing.
To Continue Reading: Click Here
-------------------------------------------
Source: computerweekly.com
By: Martin Hayward
Banks are reluctant to adopt public cloud technologies where computing resources are made available, usually on shared infrastructure, to multiple customers and accessed via the internet. But by contrast, there is growing interest in using private clouds (here computing resources are provided exclusively to the bank over a private network, rather than over the internet, and from behind the bank's firewall.
IT security
This is the number one concern of bank IT executives. Banks are reluctant to hand over control of business-critical functions to anyone, let alone public cloud providers.
Public cloud providers have identified this concern and both they and industry bodies such as the Cloud Security Alliance have sought to demonstrate a commitment to cloud security - in particular, through promoting their compliance with recognised security standards for outsourcing.
To Continue Reading: Click Here
-------------------------------------------
Source: computerweekly.com
By: Martin Hayward
The Value of Enterprise Search
Many CTOs are looking for ways to add value to their data sets, especially since the amount of data stored is growing exponentially, and the cost of storing that data grows as well.
Some have turned to big data analytics solutions such as Hadoop, while others have looked at data mining and other technologies to bring value to cost of archiving data. Yet there is still room to leverage the business value of data – in the form of enterprise search.
Of course, enterprise search has been around for some time. It has generally followed the Web search paradigm, where internal Web pages are indexed and added to a search index. As a matter of fact, companies such as Google have introduced enterprise search appliances to give that “Google-like” experience to the retrieval of data inside the firewall. Nevertheless, it has been hard to determine the value of such solutions.
Traditional enterprise search engines all suffer from the same problem: the inability to filter out the irrelevant from the relevant. In other words, users are bombarded by results, which often have little meaning for the task at hand. What’s more, the searches are often limited to Web-only content. More often than not, enterprise search would fall by the wayside as the information lost its relevance.
To Continue Reading: Click Here
-------------------------------------------
Source: ctoedge.com
By: Frank Ohlhorst
Some have turned to big data analytics solutions such as Hadoop, while others have looked at data mining and other technologies to bring value to cost of archiving data. Yet there is still room to leverage the business value of data – in the form of enterprise search.
Of course, enterprise search has been around for some time. It has generally followed the Web search paradigm, where internal Web pages are indexed and added to a search index. As a matter of fact, companies such as Google have introduced enterprise search appliances to give that “Google-like” experience to the retrieval of data inside the firewall. Nevertheless, it has been hard to determine the value of such solutions.
Traditional enterprise search engines all suffer from the same problem: the inability to filter out the irrelevant from the relevant. In other words, users are bombarded by results, which often have little meaning for the task at hand. What’s more, the searches are often limited to Web-only content. More often than not, enterprise search would fall by the wayside as the information lost its relevance.
To Continue Reading: Click Here
-------------------------------------------
Source: ctoedge.com
By: Frank Ohlhorst
The Price of Discovery in New York Courts
'Requester pays' rule may not be ironclad, but lawyers should take advantage of it whenever possible
Under New York law, litigants bear the burden of financing their own lawsuits, and parties seeking discovery of documents assume the costs associated with the opposition's production.[FOOTNOTE 1] Nonetheless, parties rarely or too infrequently seek reimbursement of significant e-discovery costs.
Attribute this, perhaps, to e-discovery anxiety, oversight or even an inability to navigate the process. This situation is also likely a result of corporate defendants' experience in federal court, where costs are typically borne by the responding party.
However, "the concerns prompting allocation of production costs in federal court are not implicated in [New York] state court" because "[u]nlike a party seeking electronic discovery in federal court, a state court litigant has a strong incentive to formulate its discovery requests in a manner as minimally burdensome as possible, since the litigant will bear the costs of production." T.A. Ahern Contractors Corp. v. Dormitory Auth., 875 N.Y.S.2d 862, 868 (Sup. Ct. 2009).
At this point in the evolution of e-discovery-centric litigation, counsel should be prepared to use electronic discovery as a strategic device. In addition to saving clients' money, cost allocation under New York law can be used as leverage against your opponents and to beat back overreaching discovery demands.
Practitioners should strongly consider highlighting e-discovery issues as a focal point at the initial stages of litigation (or even pre-litigation), so they are prepared to seize opportunities at the initial discovery conference and to demand payment of reimbursable costs with accompanying documentation at the time of production. Rule 8(b), for example, of the Rules of Practice for the Commercial Division of the New York Supreme Courts is geared toward such forward thinking.
The rule requires that prior to the preliminary conference, counsel for all parties confer concerning anticipated e-discovery issues, including to address the "anticipated cost of data recovery and proposed initial allocation of such costs." Rule 8(b)(iv).[FOOTNOTE 2] This rule arises from statewide amendments to the Uniform Rules of the New York Trial Courts concerning preliminary conferences, providing that the court may establish "the method and scope of any electronic discovery" at the preliminary conference, including the "anticipated cost of data recovery and proposed initial allocation of such cost." N.Y. Comp. Codes R. & Regs. tit. 22, §202.12(c)(3)(f) (2009).
To Continue Reading: Click Here
-------------------------------------------
Source: Law.com
By: Michael C. Miller, Evan Glassman and Anthony Onorato
Under New York law, litigants bear the burden of financing their own lawsuits, and parties seeking discovery of documents assume the costs associated with the opposition's production.[FOOTNOTE 1] Nonetheless, parties rarely or too infrequently seek reimbursement of significant e-discovery costs.
Attribute this, perhaps, to e-discovery anxiety, oversight or even an inability to navigate the process. This situation is also likely a result of corporate defendants' experience in federal court, where costs are typically borne by the responding party.
However, "the concerns prompting allocation of production costs in federal court are not implicated in [New York] state court" because "[u]nlike a party seeking electronic discovery in federal court, a state court litigant has a strong incentive to formulate its discovery requests in a manner as minimally burdensome as possible, since the litigant will bear the costs of production." T.A. Ahern Contractors Corp. v. Dormitory Auth., 875 N.Y.S.2d 862, 868 (Sup. Ct. 2009).
At this point in the evolution of e-discovery-centric litigation, counsel should be prepared to use electronic discovery as a strategic device. In addition to saving clients' money, cost allocation under New York law can be used as leverage against your opponents and to beat back overreaching discovery demands.
Practitioners should strongly consider highlighting e-discovery issues as a focal point at the initial stages of litigation (or even pre-litigation), so they are prepared to seize opportunities at the initial discovery conference and to demand payment of reimbursable costs with accompanying documentation at the time of production. Rule 8(b), for example, of the Rules of Practice for the Commercial Division of the New York Supreme Courts is geared toward such forward thinking.
The rule requires that prior to the preliminary conference, counsel for all parties confer concerning anticipated e-discovery issues, including to address the "anticipated cost of data recovery and proposed initial allocation of such costs." Rule 8(b)(iv).[FOOTNOTE 2] This rule arises from statewide amendments to the Uniform Rules of the New York Trial Courts concerning preliminary conferences, providing that the court may establish "the method and scope of any electronic discovery" at the preliminary conference, including the "anticipated cost of data recovery and proposed initial allocation of such cost." N.Y. Comp. Codes R. & Regs. tit. 22, §202.12(c)(3)(f) (2009).
To Continue Reading: Click Here
-------------------------------------------
Source: Law.com
By: Michael C. Miller, Evan Glassman and Anthony Onorato
Thursday, October 07, 2010
Vetting electronic files can boost cost of litigation
Information technology advancements have made business a lot more efficient and now that need for better efficiency is reaching into the courthouse and forging closer ties between corporate litigants and their law firms.
That's because North American courts are starting to mandate that companies engaged in litigation provide electronic disclosure of documents. It can be extremely time consuming and ultimately very costly for a company and its law firm to sort through all of the requisite electronic documents to determine what is relevant to a case.
So law firms across Canada that assist large corporate clients with litigation are focusing on ways to reduce the time and ultimately the cost of vetting electronic materials relevant to the case, fuelling a renewed partnership between corporate counsel and private firm lawyers.
"One of the biggest costs right now is related to managing the massive volumes of electronic documents involved in litigation," acknowledged Melanie Schweizer, senior counsel at Bell Canada's Toronto office. "As a client, we're really looking for firms to deliver value to us and we're scrutinizing things a lot more closely to ensure that the file is run as cost-effectively as possible," she said. "Gone are the days when in-house counsel will send a file to an outside counsel and let them do whatever they need to do to make the litigation work."
To Continue Reading: Click Here
------------------------------------------
Source: vancouversun.com
By: Daryl-Lynn Carlson
That's because North American courts are starting to mandate that companies engaged in litigation provide electronic disclosure of documents. It can be extremely time consuming and ultimately very costly for a company and its law firm to sort through all of the requisite electronic documents to determine what is relevant to a case.
So law firms across Canada that assist large corporate clients with litigation are focusing on ways to reduce the time and ultimately the cost of vetting electronic materials relevant to the case, fuelling a renewed partnership between corporate counsel and private firm lawyers.
"One of the biggest costs right now is related to managing the massive volumes of electronic documents involved in litigation," acknowledged Melanie Schweizer, senior counsel at Bell Canada's Toronto office. "As a client, we're really looking for firms to deliver value to us and we're scrutinizing things a lot more closely to ensure that the file is run as cost-effectively as possible," she said. "Gone are the days when in-house counsel will send a file to an outside counsel and let them do whatever they need to do to make the litigation work."
To Continue Reading: Click Here
------------------------------------------
Source: vancouversun.com
By: Daryl-Lynn Carlson
USIS Survey of Government Leaders Reveals e-Discovery Trends
FALLS CHURCH, Va.--(BUSINESS WIRE)-- USIS, an Altegrity company, today released the results of a survey it conducted among government leaders from the federal e-Discovery community at the Digital Government Institute’s Federal e-Discovery Symposium held in late August 2010. Key findings published in the report on the survey, Federal e-Discovery Trends, include:
•The chief information officer increasingly is joining the chief counsel in setting e-Discovery strategy.
•Information management, data collection, and producing discoverable results in a timely manner are major concerns.
•More than one-third of respondents said the preservation and collection stage of electronic data discovery (EDD) needs the most improvement.
•Organizations that place a strong emphasis on the EDD process and strategy tend to have better e-Discovery processes.
•Among respondents whose organizations do not place an emphasis on the EDD process, not a single one reported being satisfied with their e-Discovery process.
“This survey reinforces how important it is to have good information management practices in place for the e-Discovery program and the burden it can place on a team when those practices simply aren’t there,” notes Michael Santelli, President of USIS’ Information Management Division (LABAT). He continues, “Being proactive about managing data can also save money. It is not uncommon to hear that the cost of one litigation would have paid for the technology and services to better manage the data.”
To Continue Reading: Click Here
------------------------------------------
Source: Businesswire
•The chief information officer increasingly is joining the chief counsel in setting e-Discovery strategy.
•Information management, data collection, and producing discoverable results in a timely manner are major concerns.
•More than one-third of respondents said the preservation and collection stage of electronic data discovery (EDD) needs the most improvement.
•Organizations that place a strong emphasis on the EDD process and strategy tend to have better e-Discovery processes.
•Among respondents whose organizations do not place an emphasis on the EDD process, not a single one reported being satisfied with their e-Discovery process.
“This survey reinforces how important it is to have good information management practices in place for the e-Discovery program and the burden it can place on a team when those practices simply aren’t there,” notes Michael Santelli, President of USIS’ Information Management Division (LABAT). He continues, “Being proactive about managing data can also save money. It is not uncommon to hear that the cost of one litigation would have paid for the technology and services to better manage the data.”
To Continue Reading: Click Here
------------------------------------------
Source: Businesswire
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