It is pretty unusual for a Magistrate Judge to openly disagree with a District Court Judge in their own court, but that is exactly what Magistrate Judge James Francis has done in Orbit One Communications, Inc. v. Numerex Corp., 2010 WL 4615547 (S.D.N.Y., Oct. 26, 2010). He has suggested that verbal hold notices may be appropriate, maybe even better than written hold notices in some circumstances. In so doing he rejects a key holding in Judge Shira Scheindlin’s landmark opinion, Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F.Supp.2d 456, 465 (S.D.N.Y.2010). Perhaps Judge Scheindlin has heard more people lie under oath about what they said and did in the past than Judge Francis. I don’t know. But I do know that writings, by which I of course include ESI, have a good way of keeping witnesses honest. I understand why Judge Scheindlin wanted to provide some specific guidance and bright lines as to what is required in preservation.
Judge Francis’ does not like a rule requiring that preservation notices always be in writing. His argument on this issue in Orbit One is wrapped in strange dicta. The issue of oral versus written notice does not appear to have even been raised in the case . Here are Judge Francis’ words:
Nor are sanctions warranted by a mere showing that a party’s preservation efforts were inadequate. … But, depending upon the circumstances of an individual case, the failure to abide by such standards does not necessarily constitute negligence, and certainly does not warrant sanctions if no relevant information is lost. For instance, in a small enterprise, issuing a written litigation hold may not only be unnecessary, but it could be counterproductive, since such a hold would likely be more general and less tailored to individual records custodians than oral directives could be. Indeed, under some circumstances, a formal litigation hold may not be necessary at all. (emphasis added)
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Source: e-discoveryteam.com
By: Ralph Losey
Tuesday, November 30, 2010
District Court Declines to Order Incarceration for Defendant's Bad Faith Spoliation but Orders Monetary Sanction of $337,796.37
Victor Stanley, Inc. v. Creative Pipe, Inc. ("Victor Stanley II")
As previously summarized on this blog, defendant Mark Pappas, President of Creative Pipe, Inc., was ordered to “be imprisoned for a period not to exceed two (2) years, unless and until he [paid] to Plaintiff the attorney’s fees and costs that will be awarded…” as a sanction for willful, bad faith discovery violations which the Magistrate Judge ruled would be treated as contempt of the Court. On defendants’ appeal, the District Court Judge declined to adopt the Magistrate Judge’s order regarding incarceration:
[T]he court does not find it appropriate to Order Defendant Pappas incarcerated for future possible failure to comply with his obligation to make payment of an amount to be determined in the course of further proceedings. Certainly, if Defendant Pappas should fail to comply with a specific payment order, the Court may issue an order requiring him to show cause why he should not be held in civil contempt for failure to comply wit that payment order. Also, under appropriate circumstances, criminal contempt proceedings might be considered.
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Source: ediscoverylaw.com
As previously summarized on this blog, defendant Mark Pappas, President of Creative Pipe, Inc., was ordered to “be imprisoned for a period not to exceed two (2) years, unless and until he [paid] to Plaintiff the attorney’s fees and costs that will be awarded…” as a sanction for willful, bad faith discovery violations which the Magistrate Judge ruled would be treated as contempt of the Court. On defendants’ appeal, the District Court Judge declined to adopt the Magistrate Judge’s order regarding incarceration:
[T]he court does not find it appropriate to Order Defendant Pappas incarcerated for future possible failure to comply with his obligation to make payment of an amount to be determined in the course of further proceedings. Certainly, if Defendant Pappas should fail to comply with a specific payment order, the Court may issue an order requiring him to show cause why he should not be held in civil contempt for failure to comply wit that payment order. Also, under appropriate circumstances, criminal contempt proceedings might be considered.
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Source: ediscoverylaw.com
Top 10 privacy issues for 2011
The prevalence of mobile devices with personally identifiable location-based information and the increasing use of social media are top concerns for 2011.
With more personal information available on the Internet, in everyday consumer applications and stored in corporate databases, risks to consumers and companies will only grow in the next year.
addition, increasing regulations and new laws will force many organizations in 2011 to review their handling of private information and implement new programs to minimize their risks. To deal with these increasing threats and obligations, more organizations will create stronger privacy policies and turn to encryption, web filtering and secure managed file transfer.
Proofpoint predicts the following trends will dominate privacy discussions in 2011:
1. The privacy and confidentiality of location-based information will become a major concern for both consumers and corporations. With the rise in mobile GPS information, companies will have to protect both personally identifiable information (PII) of employees, customers and partners, and also create new policies for handling location-based information. Not only will real-time information about location be a vulnerability, but companies will have access to information about where people (or their devices) spend much of their time.
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Source: Help Net Security
With more personal information available on the Internet, in everyday consumer applications and stored in corporate databases, risks to consumers and companies will only grow in the next year.
addition, increasing regulations and new laws will force many organizations in 2011 to review their handling of private information and implement new programs to minimize their risks. To deal with these increasing threats and obligations, more organizations will create stronger privacy policies and turn to encryption, web filtering and secure managed file transfer.
Proofpoint predicts the following trends will dominate privacy discussions in 2011:
1. The privacy and confidentiality of location-based information will become a major concern for both consumers and corporations. With the rise in mobile GPS information, companies will have to protect both personally identifiable information (PII) of employees, customers and partners, and also create new policies for handling location-based information. Not only will real-time information about location be a vulnerability, but companies will have access to information about where people (or their devices) spend much of their time.
To Continue Reading: Click Here
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Source: Help Net Security
IT and eDiscovery Collections
The Legal department still rules the eDiscovery roost. However, there are critical aspects of eDiscovery that are well outside Legal’s area of expertise and solidly in IT’s camp. For example, Legal identifies keyword search parameters and the collection parameters, but the average extent of their expertise is shooting off emails to IT and data custodians. This worked fine when eDiscovery was less demanding and when data stores were smaller, but today these methods are dangerously inaccurate.
Knowing they need to do something, Legal may contract with service providers or law firms to do their collections. This approach usually consists of IT copying backup tapes onto transportable media and shipping it off to the service provider. Another alternative is to establish an archiving service with a remote service provider who provides eDiscovery collections on the hosted collection.
These aren’t bad alternatives, but they have drawbacks. First, hiring an outside company to do collections is an expensive proposition. Service providers cannot waltz into enterprise data centers and start to collect data; they need to be highly vetted and highly qualified – and this translates into highly expensive. Second, remote hosting with eDiscovery services can be very attractive for searching long-term archives. But it does not help when collecting from a plethora of locations where data is stored: backup tapes, archive systems, servers, laptops, workstations, SharePoint, Documentum, and more.
Given these considerations, the collections process is showing signs of moving away from service providers and coming in-house. There are several factors controlling this movement including:
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Source: enterprisestorageforum.com
By: Christine Taylor
Knowing they need to do something, Legal may contract with service providers or law firms to do their collections. This approach usually consists of IT copying backup tapes onto transportable media and shipping it off to the service provider. Another alternative is to establish an archiving service with a remote service provider who provides eDiscovery collections on the hosted collection.
These aren’t bad alternatives, but they have drawbacks. First, hiring an outside company to do collections is an expensive proposition. Service providers cannot waltz into enterprise data centers and start to collect data; they need to be highly vetted and highly qualified – and this translates into highly expensive. Second, remote hosting with eDiscovery services can be very attractive for searching long-term archives. But it does not help when collecting from a plethora of locations where data is stored: backup tapes, archive systems, servers, laptops, workstations, SharePoint, Documentum, and more.
Given these considerations, the collections process is showing signs of moving away from service providers and coming in-house. There are several factors controlling this movement including:
To Continue Reading: Click Here
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Source: enterprisestorageforum.com
By: Christine Taylor
Google Targeted by EU Antitrust Probe
The European Commission is investigating allegations that Google has abused its dominant position in online search to promote its other services, such as price comparators, the Commission announced Tuesday.
The investigation will also look into alleged abuse of exclusivity clauses that discourage sites carrying advertisements served by Google from also carrying advertisements served by its rivals.
PC manufacturers and software developers will also be questioned to see whether they were pressured by Google to make its search service the default in their products, the Commission said.
Complaints from other search service providers sparked the investigation, it said.
The companies told the Commission that Google treated their services unfavorably in its unpaid and sponsored search results. They also alleged that Google gave its own services preferential placement, the Commission said.
The Commission is particularly concerned that Google may have lowered the ranking in its search results of rival providers of services such as price comparators, in order to promote similar services of its own.
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Source: pcworld.com
By: Peter Sayer
The investigation will also look into alleged abuse of exclusivity clauses that discourage sites carrying advertisements served by Google from also carrying advertisements served by its rivals.
PC manufacturers and software developers will also be questioned to see whether they were pressured by Google to make its search service the default in their products, the Commission said.
Complaints from other search service providers sparked the investigation, it said.
The companies told the Commission that Google treated their services unfavorably in its unpaid and sponsored search results. They also alleged that Google gave its own services preferential placement, the Commission said.
The Commission is particularly concerned that Google may have lowered the ranking in its search results of rival providers of services such as price comparators, in order to promote similar services of its own.
To Continue Reading: Click Here
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Source: pcworld.com
By: Peter Sayer
Data Danger Lurking in Public Cloud Contracts
Providers Protect Themselves - Your Data, Not So Much
Last month, in an article titled, Tiny Company Solves Giant Problem in Cloud-Based Document Management, I wrote about CloudPointe and their unique approach to addressing the perils of cloud-based document management. I looked at how nearly all cloud services that handle documents, media files, and other forms of data suffer from a common weakness: they force customers to entrust their data assets to the cloud service provider and in so doing take on several big, largely unacknowledged risks.
If my article were not enough to draw sufficient attention to this issue, there is an exhaustive new study out that should give enormous pause to organizations considering or already using public cloud services, especially for storing data and documents. The research was conducted by The Centre for Commercial Law Studies at Queen Mary, University of London and it examines the "Ts&Cs" in the service agreements from a who's who of cloud service providers, from Akamai to Zoho.
The survey covers many different aspects of the agreements, including things like jurisdiction, fair use, arbitration, etc., and it finds many troubling details and patterns that lead the authors to conclude:
"The main lesson to be drawn from the Cloud Legal Project's survey is that customers should review the Terms and Conditions of a Cloud service carefully before signing up to it."
Even after signing cloud services agreements, though, the survey shows that, to be as safe as possible, customers should review them again and again. In the words of one of the researchers,
To Continue Reading: Click Here
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Source: sys-con.com
By: Tim Negris
Last month, in an article titled, Tiny Company Solves Giant Problem in Cloud-Based Document Management, I wrote about CloudPointe and their unique approach to addressing the perils of cloud-based document management. I looked at how nearly all cloud services that handle documents, media files, and other forms of data suffer from a common weakness: they force customers to entrust their data assets to the cloud service provider and in so doing take on several big, largely unacknowledged risks.
If my article were not enough to draw sufficient attention to this issue, there is an exhaustive new study out that should give enormous pause to organizations considering or already using public cloud services, especially for storing data and documents. The research was conducted by The Centre for Commercial Law Studies at Queen Mary, University of London and it examines the "Ts&Cs" in the service agreements from a who's who of cloud service providers, from Akamai to Zoho.
The survey covers many different aspects of the agreements, including things like jurisdiction, fair use, arbitration, etc., and it finds many troubling details and patterns that lead the authors to conclude:
"The main lesson to be drawn from the Cloud Legal Project's survey is that customers should review the Terms and Conditions of a Cloud service carefully before signing up to it."
Even after signing cloud services agreements, though, the survey shows that, to be as safe as possible, customers should review them again and again. In the words of one of the researchers,
To Continue Reading: Click Here
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Source: sys-con.com
By: Tim Negris
Monday, November 29, 2010
9 Key Points to Negotiate in a SaaS Agreement
So you’ve decided to go with Software-as-a-Service (SaaS). It’s easy to implement, easy to use and has a friendly subscription pricing model. You’re psyched.
Then comes the contract.
While SaaS has simplified enterprise software in many ways, you will still need to review, negotiate and execute a fairly complex contract when subscribing to an “enterprise-class” system. In this post, we will walk you through the nine most important things to consider when negotiating your SaaS agreement.
1. Pricing and Discounts
By pricing software as a utility service, SaaS vendors have simplified software licensing considerably. Most SaaS pricing is based on a subscription – monthly or annual payments for using the system during that period. The subscription pricing is typically based on one simple metric (e.g. users, records, projects) that roughly ties subscription fees to the value of the system. Finally, SaaS vendors tend to publish their pricing openly.
Even with this simplicity and transparency, there is still a need to be vigilant as a buyer. For one, don’t assume that straightforward published pricing means there isn’t room for some negotiation. Many SaaS vendors will discount up to 20% to win your business. The bigger the deal, the bigger the discount. Moreover, if the vendor’s pricing metric doesn’t fit with your business model, you might be able to negotiate custom pricing. Of course, you’ll have to make a cogent argument that the standard metric fails to balance price paid and value received.
To Continue Reading Visit, ERP Software Advice at 9 Key Points to Negotiate in a SaaS Agreement
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By: Derek Singleton
Then comes the contract.
While SaaS has simplified enterprise software in many ways, you will still need to review, negotiate and execute a fairly complex contract when subscribing to an “enterprise-class” system. In this post, we will walk you through the nine most important things to consider when negotiating your SaaS agreement.
1. Pricing and Discounts
By pricing software as a utility service, SaaS vendors have simplified software licensing considerably. Most SaaS pricing is based on a subscription – monthly or annual payments for using the system during that period. The subscription pricing is typically based on one simple metric (e.g. users, records, projects) that roughly ties subscription fees to the value of the system. Finally, SaaS vendors tend to publish their pricing openly.
Even with this simplicity and transparency, there is still a need to be vigilant as a buyer. For one, don’t assume that straightforward published pricing means there isn’t room for some negotiation. Many SaaS vendors will discount up to 20% to win your business. The bigger the deal, the bigger the discount. Moreover, if the vendor’s pricing metric doesn’t fit with your business model, you might be able to negotiate custom pricing. Of course, you’ll have to make a cogent argument that the standard metric fails to balance price paid and value received.
To Continue Reading Visit, ERP Software Advice at 9 Key Points to Negotiate in a SaaS Agreement
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By: Derek Singleton
1 in 5 UK workers spend 32 days a year managing email
Star, a provider of on-demand computing and communication services to UK businesses, today released results from an independent survey, revealing that 1 in 5 British workers use up a total of 32 working days a year managing their email. The 2010 Star Email Survey also reveals that 57% of workers experience issues or are unable to retrieve an email that is three months old. More than 1,000 UK workers responded to the survey, which was commissioned by Star to gauge attitudes towards email management in the workplace, and follows estimates that the typical corporate user sends and receives some 110 email messages a day.*
The 2010 Star Email Survey discovered that 19% of employees spend up to an hour each day managing emails, with a further 20% spending more than an hour each day, which is the equivalent of 32.5 working days per year. **
When asked about the systems they use to manage their inboxes, many workers admitted that they had no rules or filing systems in place to organise messages. The survey found that 42% of workers prefer to keep all emails in their main inboxes, without creating rules or folders. 11% of respondents admitted that they have created dedicated folders but do not often use them, whilst only a small proportion, 6%, had created automated rules to store their emails.
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Source: Your Story
By: Neondrum
The 2010 Star Email Survey discovered that 19% of employees spend up to an hour each day managing emails, with a further 20% spending more than an hour each day, which is the equivalent of 32.5 working days per year. **
When asked about the systems they use to manage their inboxes, many workers admitted that they had no rules or filing systems in place to organise messages. The survey found that 42% of workers prefer to keep all emails in their main inboxes, without creating rules or folders. 11% of respondents admitted that they have created dedicated folders but do not often use them, whilst only a small proportion, 6%, had created automated rules to store their emails.
To Continue Reading: Click Here
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Source: Your Story
By: Neondrum
Why is Litigation Support Software Important for Your Law Firm?
The 2007 Sedona Conference authors noted that manual review was the gold standard by which all searches should be measured. They also added, "Human review of documents in discovery is expensive, time consuming, and error-prone. There is growing consensus that the application of linguistic and mathematic-based content analysis, embodied in new forms of search and retrieval technologies, tools, techniques and process in support of the review function can effectively reduce litigation cost, time, and error rates." And with highly functional electronic data discovery delivered by the litigation support group at your law firm you can enable effective early case assessments.
How Can Litigation Discovery Help Your Law Firm?
Law firms often struggle to cater to increased litigation demands, especially when they still employ older processes and tools. The fear of potential court sanctions and unfavorable court judgments still looms large. The panacea to this is an effective e-discovery process. An effective e discovery solution will help your firm manage large amounts of data and documents easily. It provides an easy and effective way to organize relevant information for your specific case. Now your firm can unlock potentially important electronically stored information (ESI) within minutes, saving valuable time. It simplifies your work and increases productivity. An effective litigation discovery solution can help streamline your e-discovery lifecycle. Finding a single, easy-to-use application that reduces the time, cost and complexity of e-discovery is what your firm needs.
To Continue Reading: Click Here
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Source: Associated Content
By: Martin Well
How Can Litigation Discovery Help Your Law Firm?
Law firms often struggle to cater to increased litigation demands, especially when they still employ older processes and tools. The fear of potential court sanctions and unfavorable court judgments still looms large. The panacea to this is an effective e-discovery process. An effective e discovery solution will help your firm manage large amounts of data and documents easily. It provides an easy and effective way to organize relevant information for your specific case. Now your firm can unlock potentially important electronically stored information (ESI) within minutes, saving valuable time. It simplifies your work and increases productivity. An effective litigation discovery solution can help streamline your e-discovery lifecycle. Finding a single, easy-to-use application that reduces the time, cost and complexity of e-discovery is what your firm needs.
To Continue Reading: Click Here
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Source: Associated Content
By: Martin Well
Friday, November 26, 2010
How to Keep ESI at Bay in E-Discovery
For Atlanta-based SunTrust Banks, e-discovery can be overwhelming. Securities and Exchange Commission and Financial Industry Regulatory Authority regulations demand six-year records for licensed brokers. "People have an average of 30,000 e-mails per year per person," says deputy general counsel Brian Edwards.
Over the last five years, that has meant as many as 1.5 million documents for a single matter. Throwing $150-$300-per-hour law firm associates at the mess, for privilege and responsiveness review, is too expensive. "Without a tool that would let you do it faster ... you could get 50-100 document decisions per hour per person," Edwards says. That's 3,000 documents for one person's 40-hour week: "Then do the math for 900,000."
Being in a nonregulated industry doesn't make data problems go away. People use e-mail and texting. Storage is cheap, so companies begin to keep everything. There are databases everywhere. Even photocopiers have hard drives inside of them. The files themselves have become larger, with voice mail and high-resolution images and video. Once, e-discovery involving dozens of gigabytes would have been considered large. Now cases rise into hundreds and even thousands of terabytes. When the numbers get big, so do costs.
Technology can help, but what works in smaller matters can unravel at higher volumes. Companies must prevent unnecessary data from being stored in the first place, use smart sampling methods to analyze material, employ specialized software, and learn to work closely with IT departments to handle the flood of information without breaking the budget.
To Continue Reading: Click Here
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Source: law.com
By: Erik Sherman
Over the last five years, that has meant as many as 1.5 million documents for a single matter. Throwing $150-$300-per-hour law firm associates at the mess, for privilege and responsiveness review, is too expensive. "Without a tool that would let you do it faster ... you could get 50-100 document decisions per hour per person," Edwards says. That's 3,000 documents for one person's 40-hour week: "Then do the math for 900,000."
Being in a nonregulated industry doesn't make data problems go away. People use e-mail and texting. Storage is cheap, so companies begin to keep everything. There are databases everywhere. Even photocopiers have hard drives inside of them. The files themselves have become larger, with voice mail and high-resolution images and video. Once, e-discovery involving dozens of gigabytes would have been considered large. Now cases rise into hundreds and even thousands of terabytes. When the numbers get big, so do costs.
Technology can help, but what works in smaller matters can unravel at higher volumes. Companies must prevent unnecessary data from being stored in the first place, use smart sampling methods to analyze material, employ specialized software, and learn to work closely with IT departments to handle the flood of information without breaking the budget.
To Continue Reading: Click Here
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Source: law.com
By: Erik Sherman
When a Breach of Contract Is Evidence of Computer Fraud
The U.S. Department of Justice has brought a Computer Fraud and Abuse Act prosecution in New Jersey against the owners and operators of Wiseguy Tickets, an online ticket seller for concerts and sports events. A critical element in proving most violations of the CFAA, the federal computer crime statute, is that the defendant's access to the computer (interpreted broadly to include a website) that is the object of the criminal activity was "without authorization or exceeds authorized access." 18 U.S.C. §1030. The defendants are charged with unauthorized access to the websites of online ticket vendors such as Ticketmaster and Telecharge for violating the OTVs' website terms of service that prohibit the purchasing of tickets in large amounts for resale to the public.
The district court hearing the case recently denied the defendants' motion to dismiss the indictment on the ground that it seeks "to criminalize what otherwise would be a breach of contract action for violating the terms of service for ticket sales on" these OTVs. U.S. v. Lowson, No. 10-114 (D.N.J. Oct. 12, 2010). The defendants argued that, "under the government's theory, a teenager hypothetically could be prosecuted under the CFAA for violating the age requirement restrictions in the terms of service when using a search engine like Google." Id., slip op. at 10.
The notion that this prosecution is seeking to criminalize a breach of contract will be examined in light of established court decisions interpreting the CFAA and its implications for website owners whose legal remedy is not limited to reporting violations to the authorities for criminal prosecution. Website owners are also entitled under the statute to bring a civil action for damages and injunctive relief. 18 U.S.C. §1030(g).
The contract upon which the defendants premised their motion to dismiss was the requirement on the OTVs' websites that all internet customers had "to accept" the rules in the terms of service "before buying Event tickets." Indictment ¶ 1(f). These terms of service were designed "[t]o ensure fair access to Event tickets" to the general public. Thus, the OTVs "generally limited the number of seats that an online purchaser could obtain per event" and "prohibited the purchase of Event tickets on their website for commercial re-sale (i.e. purchase by ticket brokers)." Id.
To Continue Reading: Click Here
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Source: law.com
By: Nick Ackerman
The district court hearing the case recently denied the defendants' motion to dismiss the indictment on the ground that it seeks "to criminalize what otherwise would be a breach of contract action for violating the terms of service for ticket sales on" these OTVs. U.S. v. Lowson, No. 10-114 (D.N.J. Oct. 12, 2010). The defendants argued that, "under the government's theory, a teenager hypothetically could be prosecuted under the CFAA for violating the age requirement restrictions in the terms of service when using a search engine like Google." Id., slip op. at 10.
The notion that this prosecution is seeking to criminalize a breach of contract will be examined in light of established court decisions interpreting the CFAA and its implications for website owners whose legal remedy is not limited to reporting violations to the authorities for criminal prosecution. Website owners are also entitled under the statute to bring a civil action for damages and injunctive relief. 18 U.S.C. §1030(g).
The contract upon which the defendants premised their motion to dismiss was the requirement on the OTVs' websites that all internet customers had "to accept" the rules in the terms of service "before buying Event tickets." Indictment ¶ 1(f). These terms of service were designed "[t]o ensure fair access to Event tickets" to the general public. Thus, the OTVs "generally limited the number of seats that an online purchaser could obtain per event" and "prohibited the purchase of Event tickets on their website for commercial re-sale (i.e. purchase by ticket brokers)." Id.
To Continue Reading: Click Here
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Source: law.com
By: Nick Ackerman
EC calls for tighter cloud computing security
Safety of personal data is paramount, says Neelie Kroes
Cloud computing should be embraced across Europe, but needs an increased focus on security and data protection, according to the European Commission.
Neelie Kroes, vice president for the Digital Agenda, said that putting personal data in the cloud is a leap of faith for most people, and that it is down to regulators and member states to make sure that citizens can trust in the security of such services.
"Cloud computing is more than a technical challenge. By putting our personal data on remote servers we risk losing control over that data. The protection of personal data is a fundamental right in the EU, and this demands several actions," she said.
To Continue Reading: Click Here
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Source: v3.co.uk
By: David Neal
Cloud computing should be embraced across Europe, but needs an increased focus on security and data protection, according to the European Commission.
Neelie Kroes, vice president for the Digital Agenda, said that putting personal data in the cloud is a leap of faith for most people, and that it is down to regulators and member states to make sure that citizens can trust in the security of such services.
"Cloud computing is more than a technical challenge. By putting our personal data on remote servers we risk losing control over that data. The protection of personal data is a fundamental right in the EU, and this demands several actions," she said.
To Continue Reading: Click Here
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Source: v3.co.uk
By: David Neal
Using Software to Sift Digital Records
Looking to Pare Litigation Costs, Firms Use Technology to Find Relevant Electronic Documents in Legal Discovery Process
Companies in litigation pay lawyers handsome sums to pore over their vast archives of emails, documents and other electronic records. The goal of this sleuthing is to identify which records contain information relevant to a lawsuit.
The process, termed electronic discovery, has grown into one of the costliest, and most nettlesome, aspects of litigation. Large companies expect to spend about $1.3 billion, or 7.1% of their litigation spending, on it this year, according to BTI Consulting Group Inc. That is up from 5.2% five years ago, said BTI, which surveys lawyers at the 1000 biggest companies.
"In the old days, someone might keep notes on a piece of paper and then throw it away," said Richard Baer, general counsel of Qwest Communications International Inc. "Now, data is captured, so there is a lot more information to go through."
Mr. Baer said the telecom company is currently reviewing about three terabytes of data, which equals hundreds of millions of pages, in various cases.
To Continue Reading: Click Here
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Source: Wall Street Journal
By: Nathan Koppel
Companies in litigation pay lawyers handsome sums to pore over their vast archives of emails, documents and other electronic records. The goal of this sleuthing is to identify which records contain information relevant to a lawsuit.
The process, termed electronic discovery, has grown into one of the costliest, and most nettlesome, aspects of litigation. Large companies expect to spend about $1.3 billion, or 7.1% of their litigation spending, on it this year, according to BTI Consulting Group Inc. That is up from 5.2% five years ago, said BTI, which surveys lawyers at the 1000 biggest companies.
"In the old days, someone might keep notes on a piece of paper and then throw it away," said Richard Baer, general counsel of Qwest Communications International Inc. "Now, data is captured, so there is a lot more information to go through."
Mr. Baer said the telecom company is currently reviewing about three terabytes of data, which equals hundreds of millions of pages, in various cases.
To Continue Reading: Click Here
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Source: Wall Street Journal
By: Nathan Koppel
Wednesday, November 24, 2010
Are Hash Values Unique Digital Fingerprints?
Suppose we're in trial circa 1999. We offer a key document marked as Defendants' 123. Our opponent looks it over. "Objection," she cries. "That document is not Defendants' 123; this is Defendants' 123." And then she produces a different document.
Confusion reigns. How can there be two different documents with the same Bates number? The court's reaction is easy to predict: Move on and figure it out, if you can, during a break.
Fast-forward to 2006. By then, many attorneys were aware of the Zubulake v. UBS Warburg opinions. They were filed in 2003 and 2004. By December 1, 2006, the Federal Rules of Civil Procedure had been amended to account for ESI. And in that year, we "created, captured and replicated enough digital information to fill all of the books ever created in the world, 3 million times," as noted by The Sedona Conference Commentary on ESI Evidence & Admissibility (p. 17).
In this ESI-dominated world, what is the computer-based version of the Bates stamp?
In June of 2007, attorney Ralph Losey penned an article, at 12 Journal of Technology Law & Policy 1, with a title that said it all: "Hash: The New Bates Stamp."
What is "hash"? Losey asked that same question. He kiddingly said it wasn't food or an illegal substance. Seriously, he said, "hash" is a mathematical process that generates a unique alphanumeric value to identify the total combination of all the data that makes up a computer file, a group of files, or even an entire hard drive.
Note that word "unique."
To Continue Reading: Click Here
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Source: law.com
By: Nick Brestoff
Confusion reigns. How can there be two different documents with the same Bates number? The court's reaction is easy to predict: Move on and figure it out, if you can, during a break.
Fast-forward to 2006. By then, many attorneys were aware of the Zubulake v. UBS Warburg opinions. They were filed in 2003 and 2004. By December 1, 2006, the Federal Rules of Civil Procedure had been amended to account for ESI. And in that year, we "created, captured and replicated enough digital information to fill all of the books ever created in the world, 3 million times," as noted by The Sedona Conference Commentary on ESI Evidence & Admissibility (p. 17).
In this ESI-dominated world, what is the computer-based version of the Bates stamp?
In June of 2007, attorney Ralph Losey penned an article, at 12 Journal of Technology Law & Policy 1, with a title that said it all: "Hash: The New Bates Stamp."
What is "hash"? Losey asked that same question. He kiddingly said it wasn't food or an illegal substance. Seriously, he said, "hash" is a mathematical process that generates a unique alphanumeric value to identify the total combination of all the data that makes up a computer file, a group of files, or even an entire hard drive.
Note that word "unique."
To Continue Reading: Click Here
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Source: law.com
By: Nick Brestoff
Legal And Regulatory Challenges For Cloud Computing In India
Cloud computing is a buzz word these days. Many cloud computing service providers are over enthusiastic and are ready to grasp the share of cloud computing business in India. Even from the governmental circles positive reports regarding cloud computing has come. However, not everything is as easy and comfortable as is portrayed by governmental officers or cloud computing service providers.
Realising that there would be enormous opportunities coupled with many problems and obstacles, partnerships and tie ups are being entered into by software and hardware vendors all over the world, especially in the Asian region. Already an Asian Cloud Computing Association has been formed to meet the challenges of cloud computing in Asia.
The bigger question now is whether cloud computing would be successful in Asia in general and India in particular? Techno legal experts have opined against such use of cloud computing in India due to inherent weaknesses of Indian cyber laws, privacy and data protection laws and defective e-governance and ICT policies in India.
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Source: Techno Legal News And Views Journalists
By: Catherine Fernandes
Realising that there would be enormous opportunities coupled with many problems and obstacles, partnerships and tie ups are being entered into by software and hardware vendors all over the world, especially in the Asian region. Already an Asian Cloud Computing Association has been formed to meet the challenges of cloud computing in Asia.
The bigger question now is whether cloud computing would be successful in Asia in general and India in particular? Techno legal experts have opined against such use of cloud computing in India due to inherent weaknesses of Indian cyber laws, privacy and data protection laws and defective e-governance and ICT policies in India.
To Continue Reading: Click Here
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Source: Techno Legal News And Views Journalists
By: Catherine Fernandes
How to manage social media usage in the enterprise.
Social media has made its mark on modern business, and I think it is safe to say that social media isn't going away anytime soon. Over time, employees have become more technically savvy and they have become hooked into social media as well. Mobile devices have overtaken PCs as the preferred method to interact with social media services. This presents a two-fold problem for companies seeking to maintain some semblance of order in a world where the end user now has many options to circumvent traditional IT controls.
The core issue revolves around private company data and how to protect it. Private information can include anything from legal documents to trade secrets that are key to a company's success. How do you protect this information when there are so many avenues opening up through which it can pass? It was hard enough to manage sensitive data when IT had almost total control of desktop PCs and laptops, but with the proliferation of mobile phones, tablets (like the iPad) and other mobile devices, this task has become just about impossible.
The social media world hasn't made this task any easier as it is data that they are after. The more user data they can pull in, the more money they can make. Most social media services are opening up all sorts of ways to import and share content. Many social media services have also been very sly about telling users exactly what it is they are sharing and with whom. Their privacy policies are horrendous and mostly allow them to get away with the equivalent of digital murder. Privacy defaults are usually set to gather and expose as much user data as possible. Some of that data could very well be your private company information. The worst part of all of this is that most of these scenarios take place outside of the company's control.
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Source: sys-con.com
By: Ernest de Leon
The core issue revolves around private company data and how to protect it. Private information can include anything from legal documents to trade secrets that are key to a company's success. How do you protect this information when there are so many avenues opening up through which it can pass? It was hard enough to manage sensitive data when IT had almost total control of desktop PCs and laptops, but with the proliferation of mobile phones, tablets (like the iPad) and other mobile devices, this task has become just about impossible.
The social media world hasn't made this task any easier as it is data that they are after. The more user data they can pull in, the more money they can make. Most social media services are opening up all sorts of ways to import and share content. Many social media services have also been very sly about telling users exactly what it is they are sharing and with whom. Their privacy policies are horrendous and mostly allow them to get away with the equivalent of digital murder. Privacy defaults are usually set to gather and expose as much user data as possible. Some of that data could very well be your private company information. The worst part of all of this is that most of these scenarios take place outside of the company's control.
To Continue Reading: Click Here
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Source: sys-con.com
By: Ernest de Leon
The Impact of the Cloud on Digital Forensics - Part 1
Digital Forensics is not an elephant, it is a process and not just one process, but a group of tasks and processes in investigation. Examiners now perform targeted examinations using forensic tools and databases of known files, selecting specific files and data types for review while ignoring files of irrelevant type and content. Despite the application of sophisticated tools, the forensic process still relies on the examiner's knowledge of the technical aspects of the specimen and understanding of the case and the law - Mark Pollitt.
As has been established from articles by various authors including myself, this re-branded model of computing now called cloud computing proposes benefits that can improve productivity, harness high-speed systems which can manage large data sets as well as systems implementations, and could have a net positive impact on the operational budget (scaling,elasticity) of some small and midsized enterprises.
Of course there is the possibility that a private cloud for a small enterprise may not warrant its cost, in comparision to that of harnessing the benefits of a public cloud offering.
For a larger enterprise with say multiple and/or international locations, a private cloud infrastructure can provide an added cost benefit that whilst not as cheap as a public cloud offering, would offset that cost variance in terms of the risk profile of systems being moved into a private cloud e.g. critical databases, transactional and/or processing systems as well as potential compliance concerns.
If however an enterprise chooses to utilize a public cloud offering there will be the added complications for information security, in terms of procedural and legal standpoints. This leads us to the point that, with a public cloud system; we no longer have the traditional defined security perimeter.
To Continue Reading: Click Here
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Source: Sys-Con
By: Jon Shende
As has been established from articles by various authors including myself, this re-branded model of computing now called cloud computing proposes benefits that can improve productivity, harness high-speed systems which can manage large data sets as well as systems implementations, and could have a net positive impact on the operational budget (scaling,elasticity) of some small and midsized enterprises.
Of course there is the possibility that a private cloud for a small enterprise may not warrant its cost, in comparision to that of harnessing the benefits of a public cloud offering.
For a larger enterprise with say multiple and/or international locations, a private cloud infrastructure can provide an added cost benefit that whilst not as cheap as a public cloud offering, would offset that cost variance in terms of the risk profile of systems being moved into a private cloud e.g. critical databases, transactional and/or processing systems as well as potential compliance concerns.
If however an enterprise chooses to utilize a public cloud offering there will be the added complications for information security, in terms of procedural and legal standpoints. This leads us to the point that, with a public cloud system; we no longer have the traditional defined security perimeter.
To Continue Reading: Click Here
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Source: Sys-Con
By: Jon Shende
Tuesday, November 23, 2010
Predictive Coding Still Not Ready for Prime Time
A recent survey conducted by Barry Murphy of the E-Discovery Journal indicated that predictive coding, while a tantalizing new technology, isn’t ready for prime time yet. While certainly not the definitive word on the topic, the results appear directionally accurate with 71 % of the respondents saying that predictive coding was either not defensible or it was “too early to tell.” Barry ultimately wasn’t too stunned:“I suppose I shouldn’t be surprised; the legal industry is slow to change (and for good reason – it makes sense to proceed with caution when going into unchartered territory). … Yes, the surprise quickly wore off and I can understand why most believe that predictive coding is not defensible. It hasn’t seen the battle test of case law and there’s nothing like precedence to make the legal community feel more comfortable about certain practices.”
I’ve blogged (several times) on what I then called automated review technologies and concluded that ”an automated, review-less methodology will only make sense in a relatively rare set of circumstances” citing seven factors that need to align for this approach to make sense. I concur with Barry that predictive coding will inevitably become commonplace and that the adoption “will occur slowly.” So, what’s the holdup?
Anne Kershaw & Joseph Howie attempt to divine the reasons for the slow adoption in a recent article entitled “Will the legal community accept ‘predictive coding?” pointing out that the most mentioned reason, “was uncertainty or fear about whether judges will accept predictive coding.”
So, what’s a forward thinking legal practitioner to do? First, it makes sense to carve out scenarios that may make the risk/reward calculation palatable. Next, it probably makes sense to not put all the eggs in one basket. In the Kershaw/Howie piece, they note the warts on the traditional review process and how that can be compared to predictive coding: “To be comfortable that predictive coding technology satisfies the legal standards for document review (reasonableness), counsel undeniably will need to understand how the results are tested and verified. However, litigants should take comfort in knowing that if the same statistical rigor were applied to traditional linear review, it would often fail.”
To Continue Reading: Click Here
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Source: eDiscovery 2.0
By: Dean Gonsowski
I’ve blogged (several times) on what I then called automated review technologies and concluded that ”an automated, review-less methodology will only make sense in a relatively rare set of circumstances” citing seven factors that need to align for this approach to make sense. I concur with Barry that predictive coding will inevitably become commonplace and that the adoption “will occur slowly.” So, what’s the holdup?
Anne Kershaw & Joseph Howie attempt to divine the reasons for the slow adoption in a recent article entitled “Will the legal community accept ‘predictive coding?” pointing out that the most mentioned reason, “was uncertainty or fear about whether judges will accept predictive coding.”
So, what’s a forward thinking legal practitioner to do? First, it makes sense to carve out scenarios that may make the risk/reward calculation palatable. Next, it probably makes sense to not put all the eggs in one basket. In the Kershaw/Howie piece, they note the warts on the traditional review process and how that can be compared to predictive coding: “To be comfortable that predictive coding technology satisfies the legal standards for document review (reasonableness), counsel undeniably will need to understand how the results are tested and verified. However, litigants should take comfort in knowing that if the same statistical rigor were applied to traditional linear review, it would often fail.”
To Continue Reading: Click Here
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Source: eDiscovery 2.0
By: Dean Gonsowski
Welcome To Our Rockin’ Priv Party On Categorical Privilege Logs
Guest Blog by Shannon Capone Kirk, E-Discovery Counsel at Ropes & Gray and Adjunct Professor of E-Discovery Law at Suffolk Law School; Emily Cobb, Discovery Attorney at Ropes & Gray; and Matthew Gens, Associate at Ropes & Gray. See columnists’ disclaimer at end.
It’s a bottomless well
It’s a little overkill
It’s the end of a dragon’s tail
That’s whipping around our heels
But we don’t bow
We make no deals
If we go down, we go
Down on our own shield
-Jakob Dylan, Down On Our Own Shield, on Women & Country (Sony 2010).
Come on in – Welcome to our Rockin’ Priv Party
The last time I wrote an article for Ralph, I mercilessly used Bob Dylan’s Brownsville Girl as a call to arms for more art in discovery, more finesse, and a move away from boilerplate document requests. Now, I reference his son, Jakob Dylan. It’s strange how the master’s son, a master in his own right, has also written a lovely song about discovery. Ok, perhaps the song is really about lost love or something more existential than civil litigation, but still, when I hear the verses above I also hear the angst of lawyers everywhere toiling over unending, document-by-document privilege logs, those bottomless wells, that unnecessary overkill, a dragon’s tail whipping around our heels and tired heads. Oh, the mindless dredge. And do we bow or make deals to limit our suffering? No, we do not bow nor make any deals. We go down, we go down on our own shields, our mouths full of stale coffee, our eyes red from electronic review, our keyboards full of crumbs. We need to control that dragon’s whipping tail.
Some of us do try. I’ll introduce my colleague and co-author, Emily Cobb, Discovery Attorney, who tries almost everyday to tame a dragon—those scaly, angry, hot-breathed, fire-breathing, never-ending privilege logs. Across a variety of cases, the arguments used to calm this beast have been the same, the volume of ESI is too great, the burden to log individual documents too large, there are better ways, technological advances even, that allow us to short-circuit the drudgery of a 30,000 plus line excel spreadsheet. Most of us who try these arguments, however, usually fall upon these usual and predictable refrains from our adversaries:
To Continue Reading: Click Here
------------------------------------------------
Source: e-discoveryteam.com
By: Shannon Capone Kirk
It’s a bottomless well
It’s a little overkill
It’s the end of a dragon’s tail
That’s whipping around our heels
But we don’t bow
We make no deals
If we go down, we go
Down on our own shield
-Jakob Dylan, Down On Our Own Shield, on Women & Country (Sony 2010).
Come on in – Welcome to our Rockin’ Priv Party
The last time I wrote an article for Ralph, I mercilessly used Bob Dylan’s Brownsville Girl as a call to arms for more art in discovery, more finesse, and a move away from boilerplate document requests. Now, I reference his son, Jakob Dylan. It’s strange how the master’s son, a master in his own right, has also written a lovely song about discovery. Ok, perhaps the song is really about lost love or something more existential than civil litigation, but still, when I hear the verses above I also hear the angst of lawyers everywhere toiling over unending, document-by-document privilege logs, those bottomless wells, that unnecessary overkill, a dragon’s tail whipping around our heels and tired heads. Oh, the mindless dredge. And do we bow or make deals to limit our suffering? No, we do not bow nor make any deals. We go down, we go down on our own shields, our mouths full of stale coffee, our eyes red from electronic review, our keyboards full of crumbs. We need to control that dragon’s whipping tail.
Some of us do try. I’ll introduce my colleague and co-author, Emily Cobb, Discovery Attorney, who tries almost everyday to tame a dragon—those scaly, angry, hot-breathed, fire-breathing, never-ending privilege logs. Across a variety of cases, the arguments used to calm this beast have been the same, the volume of ESI is too great, the burden to log individual documents too large, there are better ways, technological advances even, that allow us to short-circuit the drudgery of a 30,000 plus line excel spreadsheet. Most of us who try these arguments, however, usually fall upon these usual and predictable refrains from our adversaries:
To Continue Reading: Click Here
------------------------------------------------
Source: e-discoveryteam.com
By: Shannon Capone Kirk
Security for large-company cloud providers
Your firm has over $1 billion in revenues and you're considering outsourcing a portion of your IT infrastructure to a cloud vendor. What questions related to security should you address before you deploy? Greg Machler explains.
I'm a CIO or CSO of a corporation that has yearly revenues of $1 billion or more. What are the security concerns that I have before I'm willing to deploy my IT infrastructure into a cloud? Let's flesh out the following security issues: What belongs in the cloud? How should sensitive data be protected? How are encryption upgrades addressed? How do I limit access to sensitive data? And how will critical systems metadata (data describing data) be tracked?
Let's assume that each corporation has a variety of firewall segments and corresponding network equipment within the cloud-computing vendor's cloud. Each segment will have a variety of applications it supports. Because other companies may be in the same cloud, they may share the same firewall segment and network components, the same database, virtualized operating system, and virtualized storage. (Related: Small clouds: Security selection criteria)
First, let's look at some realistic security constraints about the cloud vendor. It may be difficult to deploy all a corporation's infrastructure within the cloud because of a lack of standardization within the businesses' current IT applications. For example, one of the clients I worked for had a mainframe solution that was integrated with a web service. The web service interfaced with a POS (point of sale) system and communicated with the mainframe using a proprietary port over TCP/IP. The mainframe received and stored sensitive credit information. For this solution, all of the POS solution, web service, and TCP/IP communication could be put in the cloud. But, the mainframe's application, proprietary storage infrastructure, and encryption techniques make it hard to put it into the cloud. The mainframe application could be potentially ported but would likely require a difficult rewrite. It would not be wise to do this without performing a ROI (return on investment) review.
A second concern is access to sensitive data. How is sensitive data stored in the cloud? SAN (storage area network) subsystems stripe data over many drives in the storage array. Do I want to stripe encrypted data over the entire array of disks? My concern is that corruption in a database, file system, or a disk or solid state drive may spread to other applications sharing data (virtualized) within the same subsystem. So I want a method to isolate the encrypted data in the database, file system, or on disk. The bounding of data will limit the effects if corruption occurs.
Thirdly, how is the encryption algorithm for the stored data going to be updated? Encrypted data that is stored within various databases and file systems will need to be upgraded because as processor speeds increase it is easier to hack data. So this data will need to be unencrypted with the older encryption algorithm and re-encrypted with a new algorithm. Because of the newer algorithm, the newly encrypted data may take up a larger footprint in the database or file system. This also needs monitoring.
To Continue Reading: Click Here
--------------------------------------------
Source: CSO Magazine
By Gregory Machler
I'm a CIO or CSO of a corporation that has yearly revenues of $1 billion or more. What are the security concerns that I have before I'm willing to deploy my IT infrastructure into a cloud? Let's flesh out the following security issues: What belongs in the cloud? How should sensitive data be protected? How are encryption upgrades addressed? How do I limit access to sensitive data? And how will critical systems metadata (data describing data) be tracked?
Let's assume that each corporation has a variety of firewall segments and corresponding network equipment within the cloud-computing vendor's cloud. Each segment will have a variety of applications it supports. Because other companies may be in the same cloud, they may share the same firewall segment and network components, the same database, virtualized operating system, and virtualized storage. (Related: Small clouds: Security selection criteria)
First, let's look at some realistic security constraints about the cloud vendor. It may be difficult to deploy all a corporation's infrastructure within the cloud because of a lack of standardization within the businesses' current IT applications. For example, one of the clients I worked for had a mainframe solution that was integrated with a web service. The web service interfaced with a POS (point of sale) system and communicated with the mainframe using a proprietary port over TCP/IP. The mainframe received and stored sensitive credit information. For this solution, all of the POS solution, web service, and TCP/IP communication could be put in the cloud. But, the mainframe's application, proprietary storage infrastructure, and encryption techniques make it hard to put it into the cloud. The mainframe application could be potentially ported but would likely require a difficult rewrite. It would not be wise to do this without performing a ROI (return on investment) review.
A second concern is access to sensitive data. How is sensitive data stored in the cloud? SAN (storage area network) subsystems stripe data over many drives in the storage array. Do I want to stripe encrypted data over the entire array of disks? My concern is that corruption in a database, file system, or a disk or solid state drive may spread to other applications sharing data (virtualized) within the same subsystem. So I want a method to isolate the encrypted data in the database, file system, or on disk. The bounding of data will limit the effects if corruption occurs.
Thirdly, how is the encryption algorithm for the stored data going to be updated? Encrypted data that is stored within various databases and file systems will need to be upgraded because as processor speeds increase it is easier to hack data. So this data will need to be unencrypted with the older encryption algorithm and re-encrypted with a new algorithm. Because of the newer algorithm, the newly encrypted data may take up a larger footprint in the database or file system. This also needs monitoring.
To Continue Reading: Click Here
--------------------------------------------
Source: CSO Magazine
By Gregory Machler
Cloud security is dependent on the law
I am a true believer in the disruptive value of cloud computing, especially the long term drive towards so-called "public cloud" services. As I've noted frequently of late, the economics are just too compelling, and the issues around security and the law will eventually be addressed.
However, lately there has been some interesting claims of the superiority of public clouds over privately managed forms of IT, including private cloud environments. The latest is a statement from Gartner analyst Andrew Walls, pointing out that enterprises simply assume self-managed computing environments are more secure than shared public services:
"When you go to the private cloud they start thinking, 'this is just my standard old data centre, I just have the standard operational issues, there's been no real change in what we do', and this is a big problem because what this tells us is the data centre managers are not looking at the actual impact on the security program that the virtualisation induces."
"They see public cloud as being a little bit more risky therefore they won't go with it. Now the reality is, from my own experience in talking to security organisations and data centre managers around the world is that in many of these cases, you're far safer in the public cloud than you are on your own equipment."
So, Walls seems to be saying that many (most?) IT organizations don't understand how virtualization changes "security," much less cloud, and therefore those organizations would be better off putting their infrastructure in the hands of a public cloud provider. That, to me, is a generalization so broad it's likely useless. There are way too many variables in the equation to make a blanket statement for the applications at any one company, much less for an entire industry.
To Continue Reading: Click Here
------------------------------------------------
Source: C-Net
By: James Urquhart
However, lately there has been some interesting claims of the superiority of public clouds over privately managed forms of IT, including private cloud environments. The latest is a statement from Gartner analyst Andrew Walls, pointing out that enterprises simply assume self-managed computing environments are more secure than shared public services:
"When you go to the private cloud they start thinking, 'this is just my standard old data centre, I just have the standard operational issues, there's been no real change in what we do', and this is a big problem because what this tells us is the data centre managers are not looking at the actual impact on the security program that the virtualisation induces."
"They see public cloud as being a little bit more risky therefore they won't go with it. Now the reality is, from my own experience in talking to security organisations and data centre managers around the world is that in many of these cases, you're far safer in the public cloud than you are on your own equipment."
So, Walls seems to be saying that many (most?) IT organizations don't understand how virtualization changes "security," much less cloud, and therefore those organizations would be better off putting their infrastructure in the hands of a public cloud provider. That, to me, is a generalization so broad it's likely useless. There are way too many variables in the equation to make a blanket statement for the applications at any one company, much less for an entire industry.
To Continue Reading: Click Here
------------------------------------------------
Source: C-Net
By: James Urquhart
Monday, November 22, 2010
Viral ‘Top 10’ E-mail at PWC Shows Need for Work Boundaries Training, Labor Lawyer Says
News last week that some male employees of PricewaterhouseCoopers had participated in an e-mail "top 10" ratings scheme concerning the attractiveness of new female hires in the accounting firm's Dublin office, was followed by perhaps more surprising news this week:
Although upset that the e-mail, which contained a number of headshot photos of young women workers, has gone viral and become an international media event, the new PWC female employees don't intend to sue, reports Irish Central.
"It is horrible for the women but everyone thinks it has been blown out of proportion," says an unidentified source within PWC, contending that such behavior isn't unheard-of at other businesses, including law firms, throughout the world. Likewise, while "unacceptable and childish," the e-mail shouldn't be a firing offense, the source contends.
"We are taking this matter extremely seriously and are launching a full investigation," Carmel O'Connor, who serves as PWC human resources partner, said last week. "We will take all necessary steps and actions in line with our firms polices and procedures."
Such behavior does occur elsewhere, even at law firms, agrees Michael Maslanka, an employment attorney in Texas who isn't involved in the PWC matter. And the recent incident there, he says, emphasizes the need for workplace training about office etiquette.
To Continue Reading: Click Here
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Source: ABA Journal
By: Martha Neil
Although upset that the e-mail, which contained a number of headshot photos of young women workers, has gone viral and become an international media event, the new PWC female employees don't intend to sue, reports Irish Central.
"It is horrible for the women but everyone thinks it has been blown out of proportion," says an unidentified source within PWC, contending that such behavior isn't unheard-of at other businesses, including law firms, throughout the world. Likewise, while "unacceptable and childish," the e-mail shouldn't be a firing offense, the source contends.
"We are taking this matter extremely seriously and are launching a full investigation," Carmel O'Connor, who serves as PWC human resources partner, said last week. "We will take all necessary steps and actions in line with our firms polices and procedures."
Such behavior does occur elsewhere, even at law firms, agrees Michael Maslanka, an employment attorney in Texas who isn't involved in the PWC matter. And the recent incident there, he says, emphasizes the need for workplace training about office etiquette.
To Continue Reading: Click Here
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Source: ABA Journal
By: Martha Neil
Defining Early Case Assessment Applications
Every 18 to 24 months, IDC surveys the IT executives (from the most litigious industries), who are involved in their organization's eDiscovery and compliance programs, on the business trends and technology priorities impacting these projects. The IDC survey notes that the average volume of electronically stored information (ESI) collected per matter continues to rise. In the 2010 survey, 37% of the respondents reported an average collection volume of at least 2.5TB in 2009, that's a 19-point increase from the prior year's panel.
The 7th Fulbright & Jaworski Litigation Trends Survey was released in Early October. This annual report canvasses the General Counsel of corporations in the United States and the U.K. on the developments influencing the costs, technology investments and priorities, and drivers around litigation and regulatory investigations. This year's results note that after reporting declines in litigation filings in 2006 and 2007, suits started to rise in 2008 and 2009. This upward trajectory continued in 2010, with more than a quarter of the panel indicating expectations of increases in disputes in the next 12 months.
The combination of increasing litigation volumes, rising ESI collection volumes per matter, and budget constraints are underpinning an interest in early case assessment applications (ECA). Majority in the technology vendor community are hyping up ECA as the magic bullet that would contain runaway eDiscovery costs. As a result, there is a lot of confusion between ECA as a technology product, and ECA as a process, especially as more and more vendors slap-on the ECA marketing sticker on their applications.
IDC offers the following advice for individuals who suddenly find themselves responsible for creating the shortlist and for selecting the technology solutions supporting their organization's eDiscovery and compliance programs:
First of all, keep in mind that eDiscovery is a non-linear, iterative, highly complex process chain. The efficacy and efficiency of an organization's eDiscovery program is dependent on the state of its information management, compliance, storage and archiving, and information security practices. Think of these activities as critical nodes in the information supply chain. There are many interrelated and dynamic moving parts. eDiscovery requires the integration of technical processes and the migration of data across multiple applications, within and across the corporate firewalls. It is nearly impossible for one application to handle the entire eDiscovery alone. The Electronic Discovery Reference Model (EDRM.net) provides a good starting point for understanding the critical activities and core capabilities to execute one's eDiscovery obligations.
To Continue Reading: Click Here
------------------------------------------
Source: idc-insights-community.com
By: Vivian Tero
The 7th Fulbright & Jaworski Litigation Trends Survey was released in Early October. This annual report canvasses the General Counsel of corporations in the United States and the U.K. on the developments influencing the costs, technology investments and priorities, and drivers around litigation and regulatory investigations. This year's results note that after reporting declines in litigation filings in 2006 and 2007, suits started to rise in 2008 and 2009. This upward trajectory continued in 2010, with more than a quarter of the panel indicating expectations of increases in disputes in the next 12 months.
The combination of increasing litigation volumes, rising ESI collection volumes per matter, and budget constraints are underpinning an interest in early case assessment applications (ECA). Majority in the technology vendor community are hyping up ECA as the magic bullet that would contain runaway eDiscovery costs. As a result, there is a lot of confusion between ECA as a technology product, and ECA as a process, especially as more and more vendors slap-on the ECA marketing sticker on their applications.
IDC offers the following advice for individuals who suddenly find themselves responsible for creating the shortlist and for selecting the technology solutions supporting their organization's eDiscovery and compliance programs:
First of all, keep in mind that eDiscovery is a non-linear, iterative, highly complex process chain. The efficacy and efficiency of an organization's eDiscovery program is dependent on the state of its information management, compliance, storage and archiving, and information security practices. Think of these activities as critical nodes in the information supply chain. There are many interrelated and dynamic moving parts. eDiscovery requires the integration of technical processes and the migration of data across multiple applications, within and across the corporate firewalls. It is nearly impossible for one application to handle the entire eDiscovery alone. The Electronic Discovery Reference Model (EDRM.net) provides a good starting point for understanding the critical activities and core capabilities to execute one's eDiscovery obligations.
To Continue Reading: Click Here
------------------------------------------
Source: idc-insights-community.com
By: Vivian Tero
Discovery a digital dilemma in the terabyte age
Australian Law Reform Commission searches for answers.
The Australian Law Reform Commission has released a consultation paper on the discovery of documents for Federal Court cases, highlighting the complexities of litigation in the age of the terabyte.
Among the issues raised in the consultation paper is “the impact of technology on the discovery of documents”.
Concerns have been raised about how electronic searches for ‘smoking gun’ documents during discovery are causing considerable strain on both the legal community and the resources of IT departments of the corporations involved in such litigation.
Electronic discovery generally takes two forms. A court may order that documents be produced in electronic format, in which case the party provides the other parties with documents in a useable, searchable electronic format; or documents are exchanged in the electronic format in which the documents are ordinarily maintained.
In the era of what has been termed “mega-litigation”, a number of judges have voiced their concerns about the disproportionate expense and scale of discovery.
To Continue Reading: Click Here
------------------------------------------
Source: itnews.com.au
By: Leanne O'Donnell
The Australian Law Reform Commission has released a consultation paper on the discovery of documents for Federal Court cases, highlighting the complexities of litigation in the age of the terabyte.
Among the issues raised in the consultation paper is “the impact of technology on the discovery of documents”.
Concerns have been raised about how electronic searches for ‘smoking gun’ documents during discovery are causing considerable strain on both the legal community and the resources of IT departments of the corporations involved in such litigation.
Electronic discovery generally takes two forms. A court may order that documents be produced in electronic format, in which case the party provides the other parties with documents in a useable, searchable electronic format; or documents are exchanged in the electronic format in which the documents are ordinarily maintained.
In the era of what has been termed “mega-litigation”, a number of judges have voiced their concerns about the disproportionate expense and scale of discovery.
To Continue Reading: Click Here
------------------------------------------
Source: itnews.com.au
By: Leanne O'Donnell
Proportionality in construction cases
One of the hottest legal principles emerging across Canada is proportionality — where each case is dealt proportionately to the nature of the subject matter involved, the case’s jurisprudential value, and the proceeding’s complexity. In Ontario, for example, the simplified procedure rule embodies proportionality as a practical limit when litigating cases of lower monetary amounts. Recent changes to the Ontario Rules of Civil Procedure and the B.C. Civil Rules, and proportionality under simplified or ordinary procedure, affect the litigation of construction disputes.
Under the rule changes in Ontario, litigants must determine whether to bring their construction claims under either small claims, simplified or ordinary procedure. There are different procedures for actions under the Construction Lien Act. For non-lien actions, the formal changes to Ontario Regulation 626/00 and the Rules of Civil Procedure, which became effective Jan. 1, have raised the monetary limits for small claims court from $10,000 to $25,000, and in Superior Court under Rule 76 Simplified Procedure from $50,000 to $100,000 (excluding interest and costs). In practice, Ontario courts have also encouraged the use of simplified or equivalent procedure in suitable cases for claims involving more than $100,000.
In Ontario, the rules now embrace proportionality for all types of procedure as part of a growing trend to simplify matters and make litigation more cost-effective. Under Rule 1.04(1.1), proportionality has been used to limit demands for extensive documentary production or oral discovery, including requests for e-discovery that are disproportionate to the monetary amounts at issue. Rule 29.1 now requires a discovery plan upon request, and the Canada Sedona Principles for E-discovery (January 2008) apply to proportionately limit electronic discovery and avoid excessive costs resulting from the production of high volumes of information. These limits are useful in construction cases, which are notorious for large volumes of documentation.
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Source: lawyersweekly.ca
By: Albert Wallrap
Under the rule changes in Ontario, litigants must determine whether to bring their construction claims under either small claims, simplified or ordinary procedure. There are different procedures for actions under the Construction Lien Act. For non-lien actions, the formal changes to Ontario Regulation 626/00 and the Rules of Civil Procedure, which became effective Jan. 1, have raised the monetary limits for small claims court from $10,000 to $25,000, and in Superior Court under Rule 76 Simplified Procedure from $50,000 to $100,000 (excluding interest and costs). In practice, Ontario courts have also encouraged the use of simplified or equivalent procedure in suitable cases for claims involving more than $100,000.
In Ontario, the rules now embrace proportionality for all types of procedure as part of a growing trend to simplify matters and make litigation more cost-effective. Under Rule 1.04(1.1), proportionality has been used to limit demands for extensive documentary production or oral discovery, including requests for e-discovery that are disproportionate to the monetary amounts at issue. Rule 29.1 now requires a discovery plan upon request, and the Canada Sedona Principles for E-discovery (January 2008) apply to proportionately limit electronic discovery and avoid excessive costs resulting from the production of high volumes of information. These limits are useful in construction cases, which are notorious for large volumes of documentation.
To Continue Reading: Click Here
------------------------------------------
Source: lawyersweekly.ca
By: Albert Wallrap
Sunday, November 21, 2010
Ruling the World of Information Management and Electronic Discovery
If you’re anything like Dr. Evil, Tears for Fears, or Napoleon, ruling the world is at or near the top of your to-do list, and part of ruling the world is having as omniscient a knowledge as possible of what’s going on, in order to better control it. Ruling the world has also long been the dream of many software vendors, who want to own and understand all the information in an enterprise in order to, um, provide maximum value to their customers… oh, and also to lock them in to a single underlying platform that allows them to control as much of the organization’s information management decisions as possible.
In some cases, these dual interests are aligned. However, in e-discovery, it’s not so clear. Over the last couple of years, many vendors have pushed a notion of “index everything” or so-called “proactive” e-discovery, in which you have instant access to all the information in your enterprise, in real-time, from which to drive your e-discovery process. But is this feasible? Or even desirable?
The Myth of the Silver Bullet
It can be tempting for IT to turn to an enterprise search solution that can index all data sources – laptops, desktops, file servers, SharePoint servers, databases, email archives, content management systems – and enable e-discovery across the entire enterprise in an instant. The reality is that while such a solution may work for enterprise search in small and medium-sized companies with a finite scope of data, the level of complexity in scale and defensibility of operations makes this simply not an achievable approach for e-discovery at most large enterprises. As Anne Kershaw and Joe Howie of the Electronic Discovery Institute noted in their just-published Judges’ Guide to Cost-Effective E-Discovery:
To Continue Reading: Click Here
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Source: eDiscovery 2.0
By: Kurt Leafstrand
In some cases, these dual interests are aligned. However, in e-discovery, it’s not so clear. Over the last couple of years, many vendors have pushed a notion of “index everything” or so-called “proactive” e-discovery, in which you have instant access to all the information in your enterprise, in real-time, from which to drive your e-discovery process. But is this feasible? Or even desirable?
The Myth of the Silver Bullet
It can be tempting for IT to turn to an enterprise search solution that can index all data sources – laptops, desktops, file servers, SharePoint servers, databases, email archives, content management systems – and enable e-discovery across the entire enterprise in an instant. The reality is that while such a solution may work for enterprise search in small and medium-sized companies with a finite scope of data, the level of complexity in scale and defensibility of operations makes this simply not an achievable approach for e-discovery at most large enterprises. As Anne Kershaw and Joe Howie of the Electronic Discovery Institute noted in their just-published Judges’ Guide to Cost-Effective E-Discovery:
To Continue Reading: Click Here
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Source: eDiscovery 2.0
By: Kurt Leafstrand
Friday, November 19, 2010
Finding No Duty To Preserve, Court Denies Motion for Sanctions
Huggins v. Prince George’s Cnty, 2010 WL 4484180 (D. Md. Nov. 9, 2010)
In this litigation arising from a dispute between plaintiff, a landowner, and the County regarding the plaintiff’s use of her land, the court found that the defendant was not subject to sanctions for the destruction of a former employee’s email pursuant to County policy where no duty to preserve existed at the time of their destruction.
Plaintiff operated an automobile wholesaling facility on her property. In October 2002, the Department of Environmental Resources cited plaintiff alleging that she was conducting certain activities without a permit. Efforts to resolve the violations ensued. In September 2004 plaintiff filed a Maryland Public Information Act (MPIA) lawsuit against the County. In July 2006, that lawsuit settled. The settlement agreement expressly stated that plaintiff did not waive the right to file future actions unrelated to the MPIA issues. Meanwhile, her permitting and use dispute with the County continued and her property was eventually padlocked. In March 2007 plaintiff filed suit alleging violations of her substantive due process rights, among other things.
In the course of discovery, plaintiff sought production of emails and a paper file from Alfonso Cornish, Deputy Chief Administrative Officer for Governmental Operations and Environmental Services, Office of the County Executive. The County informed her that Cornish was no longer with the County and that his email account had been deleted from the archives on or about September 16, 2007 in accordance with County policy. Likewise the requested paper file could not be located. Plaintiff’s motion for sanctions was denied by the Magistrate Judge but the County was fined $2000 “as a reprimand for their time-wasting behavior” where the County was “not forthcoming about the status of the emails but was not guilty of spoliation.” Plaintiff objected and sought to modify the order.
To Continue Reading: Click Here
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Source: ediscoverylaw.com
In this litigation arising from a dispute between plaintiff, a landowner, and the County regarding the plaintiff’s use of her land, the court found that the defendant was not subject to sanctions for the destruction of a former employee’s email pursuant to County policy where no duty to preserve existed at the time of their destruction.
Plaintiff operated an automobile wholesaling facility on her property. In October 2002, the Department of Environmental Resources cited plaintiff alleging that she was conducting certain activities without a permit. Efforts to resolve the violations ensued. In September 2004 plaintiff filed a Maryland Public Information Act (MPIA) lawsuit against the County. In July 2006, that lawsuit settled. The settlement agreement expressly stated that plaintiff did not waive the right to file future actions unrelated to the MPIA issues. Meanwhile, her permitting and use dispute with the County continued and her property was eventually padlocked. In March 2007 plaintiff filed suit alleging violations of her substantive due process rights, among other things.
In the course of discovery, plaintiff sought production of emails and a paper file from Alfonso Cornish, Deputy Chief Administrative Officer for Governmental Operations and Environmental Services, Office of the County Executive. The County informed her that Cornish was no longer with the County and that his email account had been deleted from the archives on or about September 16, 2007 in accordance with County policy. Likewise the requested paper file could not be located. Plaintiff’s motion for sanctions was denied by the Magistrate Judge but the County was fined $2000 “as a reprimand for their time-wasting behavior” where the County was “not forthcoming about the status of the emails but was not guilty of spoliation.” Plaintiff objected and sought to modify the order.
To Continue Reading: Click Here
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Source: ediscoverylaw.com
Debt Collectors Using Facebook and Social Media Must Follow the Law
The Internet and social networking have opened doors to connecting people in ways never before imagined.
Social networking sites like Facebook, MySpace and LinkedIn can be venues for locating individuals not found through phone directories and other resources. "Debt collectors can use these tools to try to locate consumers who owe debts, but they cannot harass consumers and must comply with the Fair Debt Collection Practices Act (FDCPA) and state laws or be held accountable for their actions," said ACA International General Counsel and Vice President of Legal and Government Affairs Valerie Hayes.
The FDCPA outlines that when trying to locate a consumer by any method, including through social networking sites, debt collectors cannot disclose to a third party that a person owes a debt. Nor can the debt collector make any false, deceptive or misleading representations on those sites in an effort to collect a debt from a consumer.
"Consumers do have important rights when working with a debt collector, which is why we created AskDoctorDebt.com as a valuable consumer-focused educational resource on debt
To Continue Reading: Click Here
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Source: PR Newswire
Social networking sites like Facebook, MySpace and LinkedIn can be venues for locating individuals not found through phone directories and other resources. "Debt collectors can use these tools to try to locate consumers who owe debts, but they cannot harass consumers and must comply with the Fair Debt Collection Practices Act (FDCPA) and state laws or be held accountable for their actions," said ACA International General Counsel and Vice President of Legal and Government Affairs Valerie Hayes.
The FDCPA outlines that when trying to locate a consumer by any method, including through social networking sites, debt collectors cannot disclose to a third party that a person owes a debt. Nor can the debt collector make any false, deceptive or misleading representations on those sites in an effort to collect a debt from a consumer.
"Consumers do have important rights when working with a debt collector, which is why we created AskDoctorDebt.com as a valuable consumer-focused educational resource on debt
To Continue Reading: Click Here
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Source: PR Newswire
Managing Export-Controlled Data In The Cloud
As IT pros evaluate cloud computing services, they must be aware of federal regulations that restrict where certain data gets stored, or potentially face serious penalties.
Companies evaluating cloud computing must consider the regulatory compliance implications of this new approach to computing. One area of concern is whether any of your company’s data is controlled under U.S. export control rules, including whether use of cloud services could lead to the disclosure of controlled technical data without the required export authorization.
It is important to consider export control implications of IT decisions early in the process because U.S. export control rules have a strict liability standard, meaning that a violation occurs whether the unauthorized disclosure was accidental, negligent, or intentional. Individuals, as well as companies, may be held responsible for export violations. The penalties for non-compliance are severe, ranging from $250,000 to $1,000,000 per violation. Individuals could face up to 20 years imprisonment.
To Continue Reading: Click Here
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Source: Information Week
By: Marsha McIntyre
Companies evaluating cloud computing must consider the regulatory compliance implications of this new approach to computing. One area of concern is whether any of your company’s data is controlled under U.S. export control rules, including whether use of cloud services could lead to the disclosure of controlled technical data without the required export authorization.
It is important to consider export control implications of IT decisions early in the process because U.S. export control rules have a strict liability standard, meaning that a violation occurs whether the unauthorized disclosure was accidental, negligent, or intentional. Individuals, as well as companies, may be held responsible for export violations. The penalties for non-compliance are severe, ranging from $250,000 to $1,000,000 per violation. Individuals could face up to 20 years imprisonment.
To Continue Reading: Click Here
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Source: Information Week
By: Marsha McIntyre
Early Evidence Assessment and Strategies for Search, Retrieval and Review from Georgetown Law Advanced E-Discovery Institute
Integreon is a sponsor of the Georgetown Law Advanced E-Discovery Institute, widely recognized as the leading educational conference for electronic data discovery (EDD). This is a live blog post of the session Early Evidence Assessment and Strategies for Search, Retrieval and Review. The panelists are Laura M. Kibbe, Vincent M. Catanzaro, Sherry B. Harris, Thomas M. Mueller, Steven W. Teppler, with Ms. Kibbe moderating.
This panel will focus on early case assessment (ECA). ECA is not a fire drill or something you do once. It’s an ongoing process that must be done by lawyers. It can happen ‘way in advance’ of a law suit being filed.
So what is ECA? It’s not something you buy, it’s something you do. It’s what you do as a lawyer to decide case strategy, to understand the matter, to assess the facts, to determine if the case is strong. From an in-house perspective, it can be a strategic case assessment because it is not always done just early on. It’s planning for a case (e.g., determining resources and time lines and budgets).
E-discovery is not necessarily the most important or first thing in ECA. To begin, you need to look at facts, jurisdiction, business issues. The first step of ECA is to determine the risk factors - that will drive how much you invest and your approach to discovery.
ECA can start very early in life cycle for businesses. For example, a pharma company might start ECA as a new drug goes into the first stage of clinical trial, well before it even is on the market. Another panelist says this can be very dangerous because it may create an obligation to preserve too much data.
To Continue Reading: Click Here
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Source: Integreon
Check Out: Process Makes Perfect: Some Guidance on Mastering Early Case Assessment
This panel will focus on early case assessment (ECA). ECA is not a fire drill or something you do once. It’s an ongoing process that must be done by lawyers. It can happen ‘way in advance’ of a law suit being filed.
So what is ECA? It’s not something you buy, it’s something you do. It’s what you do as a lawyer to decide case strategy, to understand the matter, to assess the facts, to determine if the case is strong. From an in-house perspective, it can be a strategic case assessment because it is not always done just early on. It’s planning for a case (e.g., determining resources and time lines and budgets).
E-discovery is not necessarily the most important or first thing in ECA. To begin, you need to look at facts, jurisdiction, business issues. The first step of ECA is to determine the risk factors - that will drive how much you invest and your approach to discovery.
ECA can start very early in life cycle for businesses. For example, a pharma company might start ECA as a new drug goes into the first stage of clinical trial, well before it even is on the market. Another panelist says this can be very dangerous because it may create an obligation to preserve too much data.
To Continue Reading: Click Here
------------------------------------------
Source: Integreon
Check Out: Process Makes Perfect: Some Guidance on Mastering Early Case Assessment
Erin Negley: Legal issues show Facebook getting out of hand
Thanks to Facebook, I've seen pictures of a friend's newborn baby, learned that an old co-worker is on crutches and followed along with my cousin's experiments with a meat smoker.
Yes, there's much, much more to life than status updates, but Facebook does help you keep in touch.
But can Facebook get you fired?
The National Labor Relations Board recently said a company illegally fired an employee after she criticized her boss on the social media website.
The employee, an emergency medical technician, was angry at her boss and wrote about him on Facebook. Then some of her co-workers chimed in and complained about him.
The company, American Medical Response of Connecticut, said the employee was let go after multiple, serious complaints about her behavior - not because of online comments.
To Continue Reading: Click Here
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Source: readingeagle.com
By: Erin Negley
Yes, there's much, much more to life than status updates, but Facebook does help you keep in touch.
But can Facebook get you fired?
The National Labor Relations Board recently said a company illegally fired an employee after she criticized her boss on the social media website.
The employee, an emergency medical technician, was angry at her boss and wrote about him on Facebook. Then some of her co-workers chimed in and complained about him.
The company, American Medical Response of Connecticut, said the employee was let go after multiple, serious complaints about her behavior - not because of online comments.
To Continue Reading: Click Here
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Source: readingeagle.com
By: Erin Negley
UK cloud providers have the advantage over the US, for now
UK cloud providers currently have an edge over their counterparts in the US, according to several speakers at Computing's IT Leader Forum earlier this week.
Alistair Maughan, partner at law firm Morrison & Foerster, explained that it was the requirement of having to adhere to the US Patriot Act that was putting US providers on the back foot.
In the aftermath of the September 11 attacks, US authorities introduced the Patriot Act as part of anti-terrorism legislation. It allows the US government to retrieve data stored on US soil without the need to inform the owner of the data.
“I worked on a case where the UK government was unknowingly sharing data with US authorities, which was allowed because of the Patriot Act,” added Maughan
To Continue Reading: Click Here
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Source: computing.co.uk
By: Derek du Preez
Alistair Maughan, partner at law firm Morrison & Foerster, explained that it was the requirement of having to adhere to the US Patriot Act that was putting US providers on the back foot.
In the aftermath of the September 11 attacks, US authorities introduced the Patriot Act as part of anti-terrorism legislation. It allows the US government to retrieve data stored on US soil without the need to inform the owner of the data.
“I worked on a case where the UK government was unknowingly sharing data with US authorities, which was allowed because of the Patriot Act,” added Maughan
To Continue Reading: Click Here
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Source: computing.co.uk
By: Derek du Preez
Georgetown Law EDD Institute Is a Litigator's Dream
The morning sessions of the Georgetown Advanced E-Discovery Institute were an e-discovery litigator's dream: non-stop insight from the nation's top jurists who are literally writing the rules books for e-discovery.
The morning keynote was presented by Chicago's James Holderman, the self-proclaimed "chief cheerleader" of the 7th Circuit's pilot project trying to reform electronic data discovery protocols. (His actual title is Chief Judge of the U.S. District Court for the Northern District of Illinois.) Observing the number of computers, BlackBerrys, and iPads in use in the capacity crowd at the Ritz-Carlton, Pentagon City in Arlington, Va., Holderman told the audience to "think about the amount of electronically stored information being created right now," and cautioned that some of that data would end up in litigation.
Holderman cited U.S. Supreme Court Chief Justice John Roberts' observation that "the federal courts are becoming more and more incapable of serving as forums to resolve disputes," but said he disagrees that e-discovery "is becoming a big problem." Holderman says his 18-month old pilot project is working in Chicagoland. "I can begin to see the change in e-discovery."
To Continue Reading: Click Here
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Source: law.com
By: Monica Bay
The morning keynote was presented by Chicago's James Holderman, the self-proclaimed "chief cheerleader" of the 7th Circuit's pilot project trying to reform electronic data discovery protocols. (His actual title is Chief Judge of the U.S. District Court for the Northern District of Illinois.) Observing the number of computers, BlackBerrys, and iPads in use in the capacity crowd at the Ritz-Carlton, Pentagon City in Arlington, Va., Holderman told the audience to "think about the amount of electronically stored information being created right now," and cautioned that some of that data would end up in litigation.
Holderman cited U.S. Supreme Court Chief Justice John Roberts' observation that "the federal courts are becoming more and more incapable of serving as forums to resolve disputes," but said he disagrees that e-discovery "is becoming a big problem." Holderman says his 18-month old pilot project is working in Chicagoland. "I can begin to see the change in e-discovery."
To Continue Reading: Click Here
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Source: law.com
By: Monica Bay
E-Discovery Case Law Update from Georgetown Law Advanced E-Discovery Institute
Integreon is a sponsor of the Georgetown Law Advanced E-Discovery Institute, widely recognized as the leading educational conference for electronic data discovery (EDD). This is a live blog post of the session, E-Discovery Case Law Update. The moderator is Kenneth J. Withers and panelists are Hon. John M. Facciola, Hon. Nan R. Nolan, Hon. Andrew J. Peck, Hon. James M. Rosenbaum (Ret.), Hon. Lee H. Rosenthal, and Hon. Shira A. Scheindlin.
ORDER OF SEATING Rosenbaum, Nolan, Scheindlein, Rosenthal, Peck, Facciola
The biggest 2010 issue is sanctions. Historically, there have not been many sanctions cases. That changed in 2010, but the number of cases where sanctions were actually imposed is still fairly small. Since there is a separate session on sanctions, we won’t discuss in detail for this panel. Sanctions cases often involve issues of preservation. So we will start with preservations.
Preservation of Electronically Stored Information (ESI)
Pension Committee case. Securites law case with 96 plaintiffs, filed in 2004, against a bankrupt hedge fund and its managers. Discovery was stayed for a long time; venue changed to NYC. During the stay, 13 players are alleged to have failed to preserve data or to execute proper search. Seven were found to be negligent. Six were found to be grossly negligent (e.g., no effort whatsoever to collect key ESI, failure to suspend automatic data deletion, and submitting false or misleading statements to the court).
Judge Rosenbaum on Pension Committee: In the 2nd Circuit, you are subject to sanctions for mere negligence in discovery. It’s the only circuit with this standard. The ‘law of e-discovery’ is being formed by district judges and their magistrates (rather than by circuit courts or by legislatures). Lesson: learn to preserve; the obligation to preserve is reciprocal.
To Continue Reading: Click Here
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Source: Integreon.com
By: Ron Friedmann
ORDER OF SEATING Rosenbaum, Nolan, Scheindlein, Rosenthal, Peck, Facciola
The biggest 2010 issue is sanctions. Historically, there have not been many sanctions cases. That changed in 2010, but the number of cases where sanctions were actually imposed is still fairly small. Since there is a separate session on sanctions, we won’t discuss in detail for this panel. Sanctions cases often involve issues of preservation. So we will start with preservations.
Preservation of Electronically Stored Information (ESI)
Pension Committee case. Securites law case with 96 plaintiffs, filed in 2004, against a bankrupt hedge fund and its managers. Discovery was stayed for a long time; venue changed to NYC. During the stay, 13 players are alleged to have failed to preserve data or to execute proper search. Seven were found to be negligent. Six were found to be grossly negligent (e.g., no effort whatsoever to collect key ESI, failure to suspend automatic data deletion, and submitting false or misleading statements to the court).
Judge Rosenbaum on Pension Committee: In the 2nd Circuit, you are subject to sanctions for mere negligence in discovery. It’s the only circuit with this standard. The ‘law of e-discovery’ is being formed by district judges and their magistrates (rather than by circuit courts or by legislatures). Lesson: learn to preserve; the obligation to preserve is reciprocal.
To Continue Reading: Click Here
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Source: Integreon.com
By: Ron Friedmann
Thursday, November 18, 2010
E-Discovery Crashes the Computer Forensics Show
On Nov. 1 and 2, Fort Mason in San Francisco housed a high-profile group of presenters at the Computer Forensics Show. The show's purpose was to introduce the latest advancements in the forensics marketplace. A broad range of topics was discussed, such as e-discovery cost management, project budgeting, managing the technical aspects of document reviews, and corporate counsel's perspective of e-discovery; however, two topics stood out at providing cutting-edge trends in the legal industry.
The first presentation was "Avoiding E-Discovery Landmines" by Eric J. Sinrod of Duane Morris in San Francisco. Its general purpose was to provide a comprehensive overview of how failing to effectively respond to electronic discovery can lead to severe monetary sanctions and adverse case results. According to Sinrod, in light of the aftermath of the changes to Federal Rules of Civil Procedure, Rules 16(b) and 26(f), parties are having a difficult time reaching consensus with the required "meet and confer" process as it relates to e-discovery. Failure to adhere to production obligations can lead to serious sanctions, sometimes in the millions of dollars. Moreover, with the broadening of the definition of the terms "documents" and "data compilations," parties are also having to agree on how to produce such items as voice mail messages, social networking communications, instant messages, blogs, backup tapes, etc., which can be very costly.
To combat these changes, Sinrod offered several strategies that companies can implement to reduce their exposure while complying with the federal rules. The first is implementing strong retention policies and executing them. Under FRCP 37(f), a company will not ordinarily be sanctioned for deleting e-mails if it is done as part of a "routine, good faith, operation." Thus, if companies create and execute short-term retention policies they can reduce the likelihood of having to produce outdated e-mails and other electronically stored information. However, if a "litigation hold" is put in place, or the company is aware of potential litigation and purposely continues to purge or delete ESI, a firm retention policy may not protect it from charges of spoliation and sanctions.
To Continue Reading: Click Here
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Source: Law.com
By: Kevin L. Nichols
The first presentation was "Avoiding E-Discovery Landmines" by Eric J. Sinrod of Duane Morris in San Francisco. Its general purpose was to provide a comprehensive overview of how failing to effectively respond to electronic discovery can lead to severe monetary sanctions and adverse case results. According to Sinrod, in light of the aftermath of the changes to Federal Rules of Civil Procedure, Rules 16(b) and 26(f), parties are having a difficult time reaching consensus with the required "meet and confer" process as it relates to e-discovery. Failure to adhere to production obligations can lead to serious sanctions, sometimes in the millions of dollars. Moreover, with the broadening of the definition of the terms "documents" and "data compilations," parties are also having to agree on how to produce such items as voice mail messages, social networking communications, instant messages, blogs, backup tapes, etc., which can be very costly.
To combat these changes, Sinrod offered several strategies that companies can implement to reduce their exposure while complying with the federal rules. The first is implementing strong retention policies and executing them. Under FRCP 37(f), a company will not ordinarily be sanctioned for deleting e-mails if it is done as part of a "routine, good faith, operation." Thus, if companies create and execute short-term retention policies they can reduce the likelihood of having to produce outdated e-mails and other electronically stored information. However, if a "litigation hold" is put in place, or the company is aware of potential litigation and purposely continues to purge or delete ESI, a firm retention policy may not protect it from charges of spoliation and sanctions.
To Continue Reading: Click Here
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Source: Law.com
By: Kevin L. Nichols
Wednesday, November 17, 2010
Are Law Firms Morphing Into Managers of Legal Providers?
Between new players looking to provide legal services and pushback from clients over paying for routine work, law firms potentially have less to do.
In response, some firms have looked to retool their business models, adjust the roles they play for their clients and, in some instances, get out of certain businesses altogether. For many firms, staying ahead of the curve will mean recognizing these challenges and figuring out creative ways to adapt, consultants say.
"Underestimating your opposition is a really bad idea," Edge International consultant Jordan Furlong said.
Furlong recently heard a general counsel say that her job is not to produce or deliver services to her clients but to manage solutions -- a role law firms would be served well by if they chose to embrace the concept, he said.
Firms should think of themselves as the managers of solutions and recognize they will do some of the work and send some out to other providers, he said.
"Smart firms will say they still want to manage the process and sit at the client's right hand," Furlong said, adding however, that they need to realize there are some things the firm is good at and other things a legal process outsourcer may better handle.
The real battleground for law firms in the near future will be over who will serve as the quarterback, or the solutions manager, Furlong said.
Law firms in the United Kingdom seem to have been the early adopters of this model. Furlong pointed to Lovells, now Hogan Lovells since its merger with U.S.-based Hogan & Hartson. Lovells had gone out to find regional firms to do certain work at a lesser charge while Lovells would serve as the guarantor of the smaller firm's quality and liability.
To Continue Reading: Click Here
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Source: Law.com
By: Gina Passarella
In response, some firms have looked to retool their business models, adjust the roles they play for their clients and, in some instances, get out of certain businesses altogether. For many firms, staying ahead of the curve will mean recognizing these challenges and figuring out creative ways to adapt, consultants say.
"Underestimating your opposition is a really bad idea," Edge International consultant Jordan Furlong said.
Furlong recently heard a general counsel say that her job is not to produce or deliver services to her clients but to manage solutions -- a role law firms would be served well by if they chose to embrace the concept, he said.
Firms should think of themselves as the managers of solutions and recognize they will do some of the work and send some out to other providers, he said.
"Smart firms will say they still want to manage the process and sit at the client's right hand," Furlong said, adding however, that they need to realize there are some things the firm is good at and other things a legal process outsourcer may better handle.
The real battleground for law firms in the near future will be over who will serve as the quarterback, or the solutions manager, Furlong said.
Law firms in the United Kingdom seem to have been the early adopters of this model. Furlong pointed to Lovells, now Hogan Lovells since its merger with U.S.-based Hogan & Hartson. Lovells had gone out to find regional firms to do certain work at a lesser charge while Lovells would serve as the guarantor of the smaller firm's quality and liability.
To Continue Reading: Click Here
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Source: Law.com
By: Gina Passarella
Latest Litigator Hazard: Client Posting While Intoxicated
Amidst all the recent sound a fury over electronic discovery, don’t forget that Facebook as a matter of policy resists most efforts to obtain information about the clients it serves.
As the American Lawyer points out in the most recent bite at the social media apple, courts have ruled that the federal Stored Communications Act shields parties from disclosure of their private material – although other courts have come to different conclusions.
Judges in Indiana and most recently, New York, have honored discovery subpoenas for not only the public side of a personal injury lawsuit plaintiff’s Facebook account, but also its non-public side and historical material associated with it.
To Continue Reading: Click Here
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Source: Law Forward
As the American Lawyer points out in the most recent bite at the social media apple, courts have ruled that the federal Stored Communications Act shields parties from disclosure of their private material – although other courts have come to different conclusions.
Judges in Indiana and most recently, New York, have honored discovery subpoenas for not only the public side of a personal injury lawsuit plaintiff’s Facebook account, but also its non-public side and historical material associated with it.
To Continue Reading: Click Here
---------------------------------------------
Source: Law Forward
ABA on Collision Course With New Technology
In 1999, the American Bar Association issued Formal Opinion 99-413 in which it stated, "A lawyer may transmit information relating to the representation of a client by unencrypted e-mail sent over the internet without violating the Model Rules of Professional Conduct (1998) because the mode of transmission affords a reasonable expectation of privacy from a technological and legal standpoint. The same privacy accorded U.S. and commercial mail, land-line telephonic transmissions, and facsimiles applies to internet e-mail. A lawyer should consult with the client and follow her instructions, however, as to the mode of transmitting highly sensitive information relating to the client's representation."
This opinion, along with similar statements by state ethics bodies, have encouraged attorneys to heavily rely on e-mail to communicate with clients about confidential matters. Even where attorneys or clients might prefer to use encryption, this ethical conclusion has reduced the incentive for doing so. Given how difficult it can be to implement reliable, universal encryption across platforms in use by both lawyers and their clients (for example, making sure an encrypted e-mail message can be read and responded to either at the attorney's desk or on her smartphone without a problem, or managing public and private key databases for two-way encryption), this has been somewhat of a relief for practitioners and their IT colleagues alike.
More recently, technological evolution and troubling decisions from courts denying or questioning privilege protection for some unencrypted attorney-client e-mails (as with the Scott v. Beth Israel case in New York, Stengart v. Loving Care in New Jersey, and others) have reopened the question of whether e-mail must be encrypted to be reliably privileged.
At the same time, a new expansion of third-party cloud computing resources (for remote storage, smartphone backup, application use, and virtual law office function) has increased the number of parties who may have access to attorney communications and work product, often without a written confidentiality agreement to require nondisclosure.
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Source: law.com
By: Jonathan Ezor
This opinion, along with similar statements by state ethics bodies, have encouraged attorneys to heavily rely on e-mail to communicate with clients about confidential matters. Even where attorneys or clients might prefer to use encryption, this ethical conclusion has reduced the incentive for doing so. Given how difficult it can be to implement reliable, universal encryption across platforms in use by both lawyers and their clients (for example, making sure an encrypted e-mail message can be read and responded to either at the attorney's desk or on her smartphone without a problem, or managing public and private key databases for two-way encryption), this has been somewhat of a relief for practitioners and their IT colleagues alike.
More recently, technological evolution and troubling decisions from courts denying or questioning privilege protection for some unencrypted attorney-client e-mails (as with the Scott v. Beth Israel case in New York, Stengart v. Loving Care in New Jersey, and others) have reopened the question of whether e-mail must be encrypted to be reliably privileged.
At the same time, a new expansion of third-party cloud computing resources (for remote storage, smartphone backup, application use, and virtual law office function) has increased the number of parties who may have access to attorney communications and work product, often without a written confidentiality agreement to require nondisclosure.
To Continue Reading: Click Here
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Source: law.com
By: Jonathan Ezor
2011 predictions for cloud computing, virtualization and identity federation
Quest Software, Inc. has unveiled 11 technology predictions for 2011 based on the results of a survey conducted at The Experts Conference (TEC) US, hosted earlier this year by Quest. Survey results were analyzed by Quest experts to extract key insights and compelling trends. Based on analysis of this year's TEC conference survey responses from in-the-trenches IT practitioners, as well as historical perspective gleaned from conducting annual surveys, Quest offers the following 11 predictions about key technology trends and practices.
1. Corporate IT will ascend to the cloud
Adoption in cloud computing has lagged behind media buzz, but survey results indicate growth in cloud deployments is likely to accelerate in the coming year.
2. But, half won't commit for five years
While genuine interest in the cloud is growing, nearly 40 percent of respondents indicated their organizations had no plans to use cloud services. As a result, the adoption curve for cloud computing will not follow the bell curve typical of most new technologies. After an initial surge of adoption, growth will slow until remaining companies see proof of success from early adopters. Once a critical mass of users establishes success, competitive pressures will force the remaining companies to adopt cloud services.
3. Cloud platform supremacy: the battle intensifies
Only three percent of respondents selected a primary cloud platform, with selections evenly split between Microsoft Azure Services Platform, Google App Engine and Amazon Web Services, indicating the competition for market dominance is still wide open and likely will intensify.
4. New support teams emerge to lasso the cloud
The survey found the first signs of organizational change with the emergence of new administrative teams dedicated to supporting cloud services. Leading-edge companies recognize that provisioning and support of cloud services will be fundamentally different than current application delivery models.
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Source: continuitycentral.com
1. Corporate IT will ascend to the cloud
Adoption in cloud computing has lagged behind media buzz, but survey results indicate growth in cloud deployments is likely to accelerate in the coming year.
2. But, half won't commit for five years
While genuine interest in the cloud is growing, nearly 40 percent of respondents indicated their organizations had no plans to use cloud services. As a result, the adoption curve for cloud computing will not follow the bell curve typical of most new technologies. After an initial surge of adoption, growth will slow until remaining companies see proof of success from early adopters. Once a critical mass of users establishes success, competitive pressures will force the remaining companies to adopt cloud services.
3. Cloud platform supremacy: the battle intensifies
Only three percent of respondents selected a primary cloud platform, with selections evenly split between Microsoft Azure Services Platform, Google App Engine and Amazon Web Services, indicating the competition for market dominance is still wide open and likely will intensify.
4. New support teams emerge to lasso the cloud
The survey found the first signs of organizational change with the emergence of new administrative teams dedicated to supporting cloud services. Leading-edge companies recognize that provisioning and support of cloud services will be fundamentally different than current application delivery models.
To Continue Reading: Click Here
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Source: continuitycentral.com
Critical Considerations and Advantages of Automating Collections in E-Discovery
When it comes to e-discovery projects, the debate about how to improve the Identification and Collection steps are often at the forefront. Why so? There are several factors – the gap between legal and IT, the desire to cut costs by using manual processes, and just not being aware of the risks involved. My colleague Dean Gonsowski’s recent post Manual Collections of ESI in Electronic Discovery Come under Fire discusses manual collections at lengthand what counsel needs to supplement it. The alternative is obviously to enable automated collections, which organizations may balk at, citing large technology and IT costs. In this post, I would like to examine the critical considerations and advantages of automating the collection process within an enterprise.
It is generally the case that with automation, you achieve a certain level of repeatability and quality control, which leads to better management of risks. In Ford Motor Co. v. Edgewood Properties Inc., 257 F.R.D. 418 (D.N.J. 2009), the opinion suggests that manual collections are permissible. However, is that a wise decision, considering the exposure that offered the plaintiffs in the case? A counter point is the Judge Shira Scheindlin’s Zubulake Revisited, Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of America Sec. opinion that certain plaintiffs’ collection efforts warranted a sanction for spoliation of evidence because, among other defects, the plaintiffs relied solely on their employees to search and select what they believed to be responsive information without adequate attorney direction and supervision.
So, what are the critical elements and advantages of automating the collection process within an enterprise? Most important is closing the gap between legal and IT teams that are involved in the matter. The legal team is often involved at the start of an e-discovery project and hasthe insight into possible custodians who are potentialtargets of ESI collections. However, they have very little visibility into the information assets that actually belong to the named custodians. A key step in automation is identifying the custodians and their ESI. This is where legal teams and IT teams need to collaborate. Once this is completed, you now have the need to specify collection parameters and apply them methodically for all custodians in the context of a matter.
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Source: eDiscovery 2.0
By: Venkat Rangan
It is generally the case that with automation, you achieve a certain level of repeatability and quality control, which leads to better management of risks. In Ford Motor Co. v. Edgewood Properties Inc., 257 F.R.D. 418 (D.N.J. 2009), the opinion suggests that manual collections are permissible. However, is that a wise decision, considering the exposure that offered the plaintiffs in the case? A counter point is the Judge Shira Scheindlin’s Zubulake Revisited, Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of America Sec. opinion that certain plaintiffs’ collection efforts warranted a sanction for spoliation of evidence because, among other defects, the plaintiffs relied solely on their employees to search and select what they believed to be responsive information without adequate attorney direction and supervision.
So, what are the critical elements and advantages of automating the collection process within an enterprise? Most important is closing the gap between legal and IT teams that are involved in the matter. The legal team is often involved at the start of an e-discovery project and hasthe insight into possible custodians who are potentialtargets of ESI collections. However, they have very little visibility into the information assets that actually belong to the named custodians. A key step in automation is identifying the custodians and their ESI. This is where legal teams and IT teams need to collaborate. Once this is completed, you now have the need to specify collection parameters and apply them methodically for all custodians in the context of a matter.
To Continue Reading: Click Here
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Source: eDiscovery 2.0
By: Venkat Rangan
Tuesday, November 16, 2010
Preservation: E-Discovery's Oft-Overlooked Price Driver
The costs associated with the discovery of electronically stored information continue to increase at unknown rates. While much of the discussion regarding costs centers on those associated with accessing, reviewing, and producing ESI, an oft-overlooked but (in many cases) significant driver of the high price of discovery are the costs associated with preserving it.
Such costs can start to accrue even before a complaint is filed; and, depending on the types of systems and data involved, the costs of preservation can mount quite quickly. This is particularly true for types of ESI that are not normally subject to long-term retention and that are not easy to preserve in a manner that will withstand attack from a knowledgeable adversary.
EXISTING NEW YORK, FEDERAL FRAMEWORK
A report to the Chief Judge and Chief Administrative Judge of the New York state courts noted earlier this year that cost-shifting was the subject of "conflicting trial court decisions" and was a "'confusing' or 'unsettled' area of law in urgent need of clarification."[FOOTNOTE 1]
Unlike the federal system, a number of courts have held that New York operates under the principle that "parties seeking discovery of documents assume the costs associated with the opposition's production."[FOOTNOTE 2] Given the paucity of case law, however, it is far from clear whether this principle extends to costs incurred in connection with the preservation of ESI.
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Source: law.com
By: Michael B. de Leeuw and Eric A. Hirsch
Such costs can start to accrue even before a complaint is filed; and, depending on the types of systems and data involved, the costs of preservation can mount quite quickly. This is particularly true for types of ESI that are not normally subject to long-term retention and that are not easy to preserve in a manner that will withstand attack from a knowledgeable adversary.
EXISTING NEW YORK, FEDERAL FRAMEWORK
A report to the Chief Judge and Chief Administrative Judge of the New York state courts noted earlier this year that cost-shifting was the subject of "conflicting trial court decisions" and was a "'confusing' or 'unsettled' area of law in urgent need of clarification."[FOOTNOTE 1]
Unlike the federal system, a number of courts have held that New York operates under the principle that "parties seeking discovery of documents assume the costs associated with the opposition's production."[FOOTNOTE 2] Given the paucity of case law, however, it is far from clear whether this principle extends to costs incurred in connection with the preservation of ESI.
To Continue Reading: Click Here
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Source: law.com
By: Michael B. de Leeuw and Eric A. Hirsch
Monday, November 15, 2010
A State Court Judge’s View on e-Discovery (Part Two)
If the discovery needed is “x”, do not ask for 2x or 3x, hoping the judge will give you at least x. Avoid the temptation to ask for more than is needed to guard against the judge “splitting the baby.” As a mediator before I became a judge, I repeatedly witnessed the dance of offers and counter-offers posed by the parties that led magically to a number somewhere between the opening demand and the opening offer some hours or days later. Representations to a judge are a totally different matter. As a judge, I expected lawyers to truthfully present their position, not posture toward a result. It is dishonest and unethical to ask for 2x when x is just and proper. In electronic discovery, it can have unintended adverse consequences, excessive cost and data dumping being two of them. However, the most costly unintended consequence is losing the trust of the judge and opposing counsel when the truth becomes evident. The same applies to opposing a request. Do not advocate producing x when only 2x will provide full discovery. The truth tends to surface as the case progresses, and judges constantly assess and learn which counsel to trust. Earn and keep the judge’s trust.
In a contested hearing, the judge will expect that there may be two honestly held opposing positions on scope of discovery from which the judge must choose or in the alternative create some compromise. What a state court judge may not have is a good feel for the burden of excessive discovery and proportionality. Judges may need to be educated on staged discovery, sampling, and cost-shifting as methods for keeping costs in line. Proportionality, while a feature of Florida discovery jurisprudence, has not been frequently encountered, and until the concept is experienced more often, the propensity may be to ensure that the requesting party gets everything needed to make their case.
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Source: e-discoveryteam.com
By: Judge Ralph Artigliere
In a contested hearing, the judge will expect that there may be two honestly held opposing positions on scope of discovery from which the judge must choose or in the alternative create some compromise. What a state court judge may not have is a good feel for the burden of excessive discovery and proportionality. Judges may need to be educated on staged discovery, sampling, and cost-shifting as methods for keeping costs in line. Proportionality, while a feature of Florida discovery jurisprudence, has not been frequently encountered, and until the concept is experienced more often, the propensity may be to ensure that the requesting party gets everything needed to make their case.
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Source: e-discoveryteam.com
By: Judge Ralph Artigliere
Clearwell Systems Announces Top Five Predictions for Electronic Discovery in 2011
Automating collection techniques, applying proportionality, and addressing social media and cloud computing challenges take precedence in 2011
MOUNTAIN VIEW, Calif. — November 15, 2010 — Clearwell Systems, Inc., a leader in intelligent e–discovery, today announced its top five predictions for e-discovery in 2011. Based on insights gathered from legal industry thought-leaders, ongoing cases, and emerging trends at enterprise and law firm customers, Clearwell anticipates significant priorities in the year ahead to be a greater focus on automating forensically sound data collection techniques and applying proportionality as additional ways to control e-discovery costs. With the proliferation of social media and cloud computing, an increased emphasis on discovery for data outside the firewall is also expected.
Clearwell’s Top Five Electronic Discovery Predictions for 2011 include:
1.Changes in Data Collection Best Practices: In 2011, manual, forensic “imaging” will continue to take a backseat to more automated, forensically sound data collection techniques. Forensic (bit for bit) images have long been the gold standard for the legally defensible collection of electronically stored information (ESI) in response to legal proceedings. However, while forensic imaging will continue to be important in a number of discrete situations (fraud, misappropriation of trade secrets cases, criminal matters, etc.), it will largely be seen as overkill in most electronic discovery cases. Since imaging is both time consuming and highly manual, savvy organizations will increasingly use automated, forensically sound collection tools to perform targeted collections.
2.Proportionality Becomes Reality: Burgeoning data volumes, as seen in multi-terabyte (versus gigabyte) cases, means that the legal community will continue to search for ways to prevent electronic discovery costs from exceeding legal exposure and attorneys’ fees. Groups like the Sedona Conference will continue to push for better clarification within the legal community surrounding “proportionality” in order to keep the electronic discovery “tail” from wagging the litigation “dog.”
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Source: clearwellsystems.com
MOUNTAIN VIEW, Calif. — November 15, 2010 — Clearwell Systems, Inc., a leader in intelligent e–discovery, today announced its top five predictions for e-discovery in 2011. Based on insights gathered from legal industry thought-leaders, ongoing cases, and emerging trends at enterprise and law firm customers, Clearwell anticipates significant priorities in the year ahead to be a greater focus on automating forensically sound data collection techniques and applying proportionality as additional ways to control e-discovery costs. With the proliferation of social media and cloud computing, an increased emphasis on discovery for data outside the firewall is also expected.
Clearwell’s Top Five Electronic Discovery Predictions for 2011 include:
1.Changes in Data Collection Best Practices: In 2011, manual, forensic “imaging” will continue to take a backseat to more automated, forensically sound data collection techniques. Forensic (bit for bit) images have long been the gold standard for the legally defensible collection of electronically stored information (ESI) in response to legal proceedings. However, while forensic imaging will continue to be important in a number of discrete situations (fraud, misappropriation of trade secrets cases, criminal matters, etc.), it will largely be seen as overkill in most electronic discovery cases. Since imaging is both time consuming and highly manual, savvy organizations will increasingly use automated, forensically sound collection tools to perform targeted collections.
2.Proportionality Becomes Reality: Burgeoning data volumes, as seen in multi-terabyte (versus gigabyte) cases, means that the legal community will continue to search for ways to prevent electronic discovery costs from exceeding legal exposure and attorneys’ fees. Groups like the Sedona Conference will continue to push for better clarification within the legal community surrounding “proportionality” in order to keep the electronic discovery “tail” from wagging the litigation “dog.”
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Source: clearwellsystems.com
A Little Less Privacy, a Bit More Security
The European Union has announced that it will overhaul its data protection rules in 2011. Later this month, the U.S. Federal Trade Commission and Commerce Department will release their own reports on online privacy. Meanwhile, as part of the much-hyped efforts to prepare for “cyberwar,” the U.S. National Security Agency is strengthening ties with organizations like Google and its efforts to mine social networking sites like Facebook.
The dynamic is a familiar one. As usual, privacy will lose.
In recent years, the battleground of privacy has been dominated by fights over warrantless electronic surveillance in the United States and closed-circuit television( CCTV ) in Britain. The coming months will see further debates over data mining, DNA databases and biometric identification.
There will be protests and lawsuits, editorials and elections resisting these attacks on privacy. The battles are worthy, but the war will be lost. Efforts to prevent governments from collecting such information are doomed to failure because modern threats increasingly require that governments collect the information; because governments are increasingly able to collect it; and because citizens increasingly accept that they will collect it.
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Source: The New York Times
By: Simon Chesterman
The dynamic is a familiar one. As usual, privacy will lose.
In recent years, the battleground of privacy has been dominated by fights over warrantless electronic surveillance in the United States and closed-circuit television( CCTV ) in Britain. The coming months will see further debates over data mining, DNA databases and biometric identification.
There will be protests and lawsuits, editorials and elections resisting these attacks on privacy. The battles are worthy, but the war will be lost. Efforts to prevent governments from collecting such information are doomed to failure because modern threats increasingly require that governments collect the information; because governments are increasingly able to collect it; and because citizens increasingly accept that they will collect it.
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Source: The New York Times
By: Simon Chesterman
Once you hit send, privacy is gone
The e-mail was clearly misguided in its interpretation of intellectual-property rights and the Internet. It was also dismissive, unapologetic, and, if made public, potentially far more embarrassing to sender than recipient.
If? Try when.
A recent testy e-mail from Cooks Source managing editor Judith Griggs to freelance writer and blogger Monica Gaudio read, in part, “you should be happy we didn’t just ‘lift’ your whole article and put someone else’s name on it!’’ Gaudio posted the e-mail online, and it went viral. When it did, one question about Griggs’s judgment eclipsed all others: How could anyone assume a communication like that would remain private?
With minor variations, the same could be asked of others making news recently with their private-made-public communications, ones that quickly spread to social-media websites like Facebook and Twitter, to gossip sites like Gawker and Deadspin, and to mainstream media sites like Poynter Online — to the chagrin of those who composed them.
Tucker Carlson, who edits The Daily Caller, a political-journalism website, posed as suspended MSNBC host Keith Olbermann in e-mails to a Philadelphia columnist last week, then claimed he did not expect that his prank e-mails would be published.
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Source: boston.com
By: Joseph P. Kahn
If? Try when.
A recent testy e-mail from Cooks Source managing editor Judith Griggs to freelance writer and blogger Monica Gaudio read, in part, “you should be happy we didn’t just ‘lift’ your whole article and put someone else’s name on it!’’ Gaudio posted the e-mail online, and it went viral. When it did, one question about Griggs’s judgment eclipsed all others: How could anyone assume a communication like that would remain private?
With minor variations, the same could be asked of others making news recently with their private-made-public communications, ones that quickly spread to social-media websites like Facebook and Twitter, to gossip sites like Gawker and Deadspin, and to mainstream media sites like Poynter Online — to the chagrin of those who composed them.
Tucker Carlson, who edits The Daily Caller, a political-journalism website, posed as suspended MSNBC host Keith Olbermann in e-mails to a Philadelphia columnist last week, then claimed he did not expect that his prank e-mails would be published.
To Continue Reading: Click Here
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Source: boston.com
By: Joseph P. Kahn
Eight questions CIOs should ask on cloud security
Cloud computing disrupts an organization's style of working by altering business processes, information flows and, above all, the control over IT systems exerted by individual departments.
The adoption of cloud-based services affects the level of control that an organization has on data security within the cloud.
The shift toward cloud services is more than just a shift in technology. It fundamentally alters the way business and IT systems function.
But while there are many security concerns, there are also equal benefits.
Organizations considering a shift to cloud computing should clearly understand the security tradeoffs in the selection of cloud architectures, deployment models and ownership structures.
Here are top eight security questions each CIO should ask while using cloud-based services.
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Source: scmagazineus.com
By: Lucius Lobo
The adoption of cloud-based services affects the level of control that an organization has on data security within the cloud.
The shift toward cloud services is more than just a shift in technology. It fundamentally alters the way business and IT systems function.
But while there are many security concerns, there are also equal benefits.
Organizations considering a shift to cloud computing should clearly understand the security tradeoffs in the selection of cloud architectures, deployment models and ownership structures.
Here are top eight security questions each CIO should ask while using cloud-based services.
To Continue Reading: Click Here
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Source: scmagazineus.com
By: Lucius Lobo
Friday, November 12, 2010
The Instant Messaging Challenge in the Enterprise
One of the common threads in the organizations that I’ve worked with in the last decade or so is a near ubiquitous use of instant messaging, usually AOL’s IM client. Regardless of the publisher, the entire staff seemed to be on AIM, and it proved to be a useful means of asking a quick question or sending out an urgent message. IM was also useful to figure out if someone was in the office before you spent a couple of hours trying to track them down on the phone.
The value of instant messaging isn’t lost on corporations of all sizes, but in many companies you can’t just download a copy of AIM and start using it. Even assuming you have the ability to install software on your computer or smartphone, you have to do it in a way that meets the approval of the IT department. That approval should only come if your instant messaging doesn’t create a security or compliance hole. Chances are, if it’s a widely available free IM client, it does.
Fortunately for the companies that need them, there are corporate versions of IM clients. One of the best known is Microsoft’s Office Communicator. But Communicator shares a problem with most of the other corporate IM solutions – it requires a specific environment to work, in this case, Microsoft Windows. This may be fine if every device on your network is a Windows device, but what happens if you have an iPhone or a BlackBerry? Basically, you’re out of luck, just as you are if you’re using Linux or a Mac.
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Source: CTO Edge
By: Wayne Rash
The value of instant messaging isn’t lost on corporations of all sizes, but in many companies you can’t just download a copy of AIM and start using it. Even assuming you have the ability to install software on your computer or smartphone, you have to do it in a way that meets the approval of the IT department. That approval should only come if your instant messaging doesn’t create a security or compliance hole. Chances are, if it’s a widely available free IM client, it does.
Fortunately for the companies that need them, there are corporate versions of IM clients. One of the best known is Microsoft’s Office Communicator. But Communicator shares a problem with most of the other corporate IM solutions – it requires a specific environment to work, in this case, Microsoft Windows. This may be fine if every device on your network is a Windows device, but what happens if you have an iPhone or a BlackBerry? Basically, you’re out of luck, just as you are if you’re using Linux or a Mac.
To Continue Reading: Click Here
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Source: CTO Edge
By: Wayne Rash
Fulbright Litigation Survey Calls Out Need for More Proportionality/Rules Changes
Fulbright & Jaworski recently issued its “7th Annual Litigation Trends Survey Report” and there were several interesting trends worth noting. Not surprisingly, the general pace of litigation is forecast to increase upwards, relatively unabated, with more than 25% of respondents expecting their companies’ disputes to increase in the next 12 months.
Beyond this trend it’s clear that there’s also groundswell of support for a movement towards more e-discovery proportionality. While also a big topic at Sedona’s annual conference (and discussed in the recent Moody case), a whopping 79% of US respondents think the “US Rules of Civil Procedure should be modified in some way to limit e-discovery in civil cases.” While I haven’t heard of any specific proposals for a rules amendment, it’s clear that folks aren’t happy with the status quo, particularly with the increasing discovery burden facing enterprises dealing with unilateral disputes. This discontent is likely tied to the fact that costs continue to escalate, with the survey indicating that more than 40% of the largest US companies (over $1B in Revenue) plan to “increase their spending on e-discovery in the next 12 months.”
Finally, the survey also focused on an area that’s getting an increasing level of scrutiny. Fulbright asked “when preserving potentially relevant information in litigation or an investigation, what methods do you use most frequently for preserving electronically stored information?” Leading the pack, with 55% of vote, was “rely on individual custodians to identify and preserve their own information.” Custodian based collections have been discussed recently as being under fire in blogs and other recent cases such as Pension Committee and Ford Motor Co. v. Edgewood Properties Inc. The notion is that under- or un-supervised collection methodologies are dangerous because it’s relatively easy to paint the custodians at issue as either being motivated to hide responsive data or relatively unconcerned with compliance. Nevertheless, it’s clear that (as of now) custodian-based collections are still somewhat “reasonable” given that more than 50% of the populous collects data this way
To Continue Reading: Click Here
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Source: e-Discovery 2.0
By: Dean Gonsowski
Beyond this trend it’s clear that there’s also groundswell of support for a movement towards more e-discovery proportionality. While also a big topic at Sedona’s annual conference (and discussed in the recent Moody case), a whopping 79% of US respondents think the “US Rules of Civil Procedure should be modified in some way to limit e-discovery in civil cases.” While I haven’t heard of any specific proposals for a rules amendment, it’s clear that folks aren’t happy with the status quo, particularly with the increasing discovery burden facing enterprises dealing with unilateral disputes. This discontent is likely tied to the fact that costs continue to escalate, with the survey indicating that more than 40% of the largest US companies (over $1B in Revenue) plan to “increase their spending on e-discovery in the next 12 months.”
Finally, the survey also focused on an area that’s getting an increasing level of scrutiny. Fulbright asked “when preserving potentially relevant information in litigation or an investigation, what methods do you use most frequently for preserving electronically stored information?” Leading the pack, with 55% of vote, was “rely on individual custodians to identify and preserve their own information.” Custodian based collections have been discussed recently as being under fire in blogs and other recent cases such as Pension Committee and Ford Motor Co. v. Edgewood Properties Inc. The notion is that under- or un-supervised collection methodologies are dangerous because it’s relatively easy to paint the custodians at issue as either being motivated to hide responsive data or relatively unconcerned with compliance. Nevertheless, it’s clear that (as of now) custodian-based collections are still somewhat “reasonable” given that more than 50% of the populous collects data this way
To Continue Reading: Click Here
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Source: e-Discovery 2.0
By: Dean Gonsowski
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