The Carmel Valley eDiscovery Retreat | July 17-20, 2011

The Carmel Valley eDiscovery Retreat will be a premier resource for industry practitioners who wish to focus on the complexities and practicalities of eDiscovery. Whether you’re new to eDiscovery, or want to increase your existing expertise, the retreat will allow you to explore this critical topic with established industry leaders and your peers - all in one of the most stunningly beautiful areas of the United States, Carmel, California. Earn CLE credit hours while you get away from the hustle and bustle of the daily grind in one of California’s most pristine destinations.

The Carmel Valley eDiscovery Retreat will offer participants opportunities to interact personally with industry experts in a collegial atmosphere. The retreat has been developed with an emphasis on breakout sessions and workshops, tailored to the needs of attendees. Your entire team can participate and explore the latest issues affecting the industry, and develop strategic directions.

To give you a taste of what's in store, here's a short list of confirmed speakers:

• Hon. James Smith (Ret). – JAMS ADR
• George Socha, Owner – Socha Consulting LLC
• Browning Marean, Senior Counsel – DLA Piper
• Diane Barry, Dir. of Discovery Strategy & Management - ilsTEAM
• Laura Zubulake, Consultant
• Martha Dawson, Partner – K&L Gates LLP
• Bill Hamilton, Partner – Quarles & Brady LLP
• Robert Owen, Partner – Fulbright & Jaworski
• Gareth Evans, Partner – Gibson, Dunn & Crutcher
• Patrick Mullin, Partner – Jackson Lewis
• Eric Sinrod, Partner – Duane Morris LLP
• Greg Buckles, Consultant – Reason-eD, LLC
• Troy Dunham, Sr. eDiscovery Mgr. – Cooley LLP
• Ruth Hauswirth, Dir. of Litigation & eDiscovery Services – Cooley LLP
• Trent Livingston, Sr. Partner, Founder – Geekly Group, LLC
• John Isaza, Partner – Howett Isaza Law Group LLP
• Christine Garber, eDiscovery Mgr. – Allergan
• Wendy Curtis, eDiscovery of Counsel – Orrick LLP
• Vincent Catanzaro, Sr. Counsel & Global Discovery Mgr – DuPont Legal
• Julie Lewis, President, CEO & Founder – Digital Mountain
• Rebecca Arnold, Records & Information Mgmt Advisor – Devon Energy

With its spectacular setting, a full agenda of formal and informal learning, scheduled social events, and family-friendly amenities, you won’t want to miss the Carmel Valley eDiscovery Retreat. We invite you to explore our website, contact us with questions, and get involved in the eDiscovery community today.

Please visit www.carmelvalleyediscoveryretreat.com to learn more.

Cloud Computing: eDiscovery and the Cloud Don’t Mix Well — At Least Not Yet

eDiscovery and Cloud Computing are a bit like oil and water, at least just yet in these early days of the cloud.

The cost efficiencies and time savings that Cloud-based services provide make it seem like the choice to move to the cloud is a no-brainer. Survey after survey show what makes it seem like everyone is jumping aboard the Cloud. But does it make sense for you and your business?

Much of the answer to that question depends on the kind of data that you are hosting and the value of that data to your organization. A recent article on CIO Update highlights a number of problems/headaches with remotely hosting data that can show up the day that an eDiscovery request hits your desk.

1. A response to an eDiscovery request typically must outline the locations of stored data. Cloud systems, in their incredible efficiency may have cached your dataon multiple servers located in multiple global locations. Your retention schedule may have said that something is deleted, but your cloud provider may have kept a backup copy of it somewhere. This issue of not knowing where your data and data copies/backups physically reside is at the root of a number of problems.

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Source: Formtek Blog
By: Dick Weisinger

IT administrators are increasingly challenged with securing mobile data

As organizations continue to grow in size, IT administrators are increasingly challenged with securing mobile data and complex IT environments – citing data loss, user management, lost or stolen equipment, and employees connecting to untrusted wireless Internet access as top concerns.

According to a Check Point global survey, IT security administrators anticipate a significant increase in the number of users connecting to their network in the next year, with 54% citing specific growth in the number of remote users.

The survey of over 220 IT security administrators around the world, revealed that 64% of organizations are concerned the growth in remote users will result in exposure to sensitive data. Yet, as the mobile workforce has been steadily growing, 70% of respondents admit they do not use data encryption to secure their business laptops, and 87% of organizations do not encrypt USB or portable media devices.

This leaves a majority of businesses potentially vulnerable to unauthorized network access from lost or stolen devices. However, anticipating continued growth of the mobile workforce, 52% of organizations reported they have VPN clients on their portable PCs and intend to deploy disk encryption (23%), encrypted USBs (20%) and DLP (17%) in the coming year.

In addition, 54% of businesses are planning to migrate to Microsoft Windows 7 within the next two years. In effect, businesses are looking to unify endpoint security and make sure new systems are updated with the latest protections.

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Source: securitypark.co.uk

The Big Secret of Social Media

Although I have a blog and accounts with Twitter, Facebook, LinkedIn, and even Plaxo, I am not a big “rah rah” social media cheerleader for the sake of being one. There is much about social media that is overhyped, which is probably why I liked G.M. Filisko’s article in the January edition of the ABA Journal, “Social Media or Snake Oil: Does Social Media Measure Up to the Hype?” I saw many parallels in it in terms of how I have used social media and thought it offered some honest advice.

After the jump, I will point out a few things that have helped me along the way with social media — and reveal its biggest “not-so-secret” secret….

1. Social Media’s Big Secret

The big secret with social media is that it’s not easy. In fact, it can be hard work. One needs to build an online audience, find or write entertaining content, link to others, and most of all keep at it. There is no magic formula. You can’t just sign on to Twitter or start a Facebook page and expect to turn into Adrian Dayton, although I’m sure many of us would if we could

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Source: abovethelaw.com
By: Gabe Acevedo

Reinventing Review in Electronic Discovery

In a recent workshop that I attended, I had the privilege of sharing thoughts on the latest electronic discovery trends with other experts in the market. Especially interesting to me was discussing the provocatively titled paper, The Demise of Linear Review by Bennett Borden of Williams Mullen. The paper, citing several factual data from various studies, as well as drawing parallel to other similar anachronisms of the past, makes excellent arguments for rethinking how legal review is performed in e-discovery.

When linear review is mentioned, the first mental picture one conjures up is boredom. It has generally been associated with a mental state that is a result of repetitive and monotonous tasks, with very little variation. To get a sense for how bad this can affect performance, one only needs to draw upon several studies of boredom at the workplace, especially in jobs such as mechanical assembly of the 1920s and the telephone switchboard operators of the 1950s. In fact, the Pentagon sponsored study, Implications for the design of jobs with variable requirements, from Navy Personnel Research and Development Center, presents an excellent treatise on contributors for workplace fatigue, stress, monotony, and distorted perception of time. This is best illustrated in their paper:

Mechanical assembly, inspection and monitoring, and continuous manual control arethe principal kinds of tasks most frequently studied by researchers investigating the relationship between performance and presumed boredom. On the most repetitive tasks,degradation of performance has typically been found within 30 minutes (Fox & Embry, 1975; Saito, Kishida, Endo, & Saito, 1972). The early studies of the British Industrial Fatigue Board (Wyatt & Fraser, 1929) concluded that the worker’s experience of boredom could be identified by a characteristic output curve on mechanical assembly jobs. The magnitude of boredom was inversely related to output and was usually marked by a sharp decrement in the middle of a work period.

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Source: eDiscovery 2.0
By: Venkat Rangan

The Do's and Don'ts of Cloud Contracts

Cloud computing is the storage of data on remote computer servers and the sharing and transmittal of such information by way of the internet.

Use of the cloud enables both businesses and casual users to maintain as much or as little electronic data as they wish on a third party's mainframes without the need for or the expense of having to buy and maintain their own hardware systems.

The cloud's economic benefits are clear. Still, clouds can be a legal minefield for companies and their counsel. Data breaches, hosting of illegal content, and inaccessibility of critical business information are just a few examples of turbulent situations cloud users can face.

Given the risks and potential rewards of the cloud, all in-house counsel need to consider the following guidelines before entering into a cloud provider contract.

EVALUATE YOUR BUSINESS NEEDS BEFORE NEGOTIATING A CLOUD

It is critical to identify your business needs to successfully negotiate an appropriate cloud computing contract. First, consider whether the contract should be tailored, as opposed to being a standard boilerplate form. If you want to have routine, non-sensitive data serviced, it often makes sense to accept a standard, less onerous form of agreement, provided the indemnities and protections are appropriate.

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Source: law.com
By: Rick Bortnick and Nicole Moody

So you want to be a computer forensics expert

Forensics, or forensic science, is the application of scientific methods to resolve or shed light on legal issues. It has a number of subdivisions; forensic medicine involves the examination of the human body (living or dead) for purposes of answering legal questions or gathering evidence for a criminal or civil action. Forensic accounting involves the examination of financial records for the same purpose. And computer forensics, as the name indicates, involves the examination of computer systems and data for legal purposes.

A forensic pathologist is a medical doctor first, who then specializes in pathology, with forensics being a subspecialty. Similarly, a forensic accountant has a broad education in general accounting principles before focusing on the legal field. Ideally, then, a computer forensics expert will be trained in computer science before specializing in forensics. However, in the real world there has been deviation from this pattern. The computer field is much less regulated than medicine or accounting, and one doesn’t have to be licensed or meet any particular educational standards in order to hang out a shingle as a “computer expert.” Many are self-taught or learned their skills through on-the-job training. And many of those working in computer forensics were initially trained in law enforcement - police officers or general evidence technicians who developed an interest in digital evidence. Others were IT professionals or IT security personnel (with or without formal training) who became interested in the evidentiary nature of digital data.

The point? There are many different starting points for becoming a computer forensics expert.

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Source: blogs.techrepublic.com
By: Deb Shinder

What lies ahead: Data

Tim O'Reilly on the calculus of data, predictive analytics, and why mobile sensors are central to his thinking about the future.

Are companies catching on to the importance of data?

Tim O'Reilly: For a long time, data was a secret hiding in plain sight. It became clear to me quite a while ago that it was the key to competitive advantage in the Internet era. That was one of the points in my Web 2.0 paper back in 2005. It's pretty clear that everybody knows about it now. There are "chief data scientists" at companies like LinkedIn and Bit.ly. Data and algorithms are at the heart of what so many companies are doing, and that's just going to accelerate.

There's more data every day, and we're going to see creative applications that use data in new ways. Take Square, for example. It's a payment company that's hoping to do some degree-of-risk mitigation via social network analysis. Will that really work? Who knows? Even Google is struggling with the limits of algorithmic curation.

There was a story in the New York Times recently about a guy who figured out that getting lots of negative comments led to a high Page Rank. That raises new questions. Google doesn't like to do manual intervention, so they're saying to themselves, "How can we correct this algorithmically?" [Note: Google responded with an algorithmic solution.]

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Source: radar.oreilly.com
By: Mac Slocum

Cyber Law School in e-Discovery is Now Open!

Law School Quality Training for Everyone, Everywhere, Anytime.

The e-Discovery Team Online Electronic Discovery Law training program is now open. Click Here for the full story and to enroll. No payment required, just registration.

Already an expert in e-discovery law? Then tell your friends, colleagues, and clients about the program.

Study at you own time, your own place, your own pace. You take this basic level law course whenever you want, for as long as you want.

Who can attend? We admit everyone, anywhere in the world: lawyers, judges, law professors, law students, graduate students in all fields, paralegals, engineers, lit-support experts, records managers, project managers, information technologists and scientists, vendors, and e-discovery professionals or would be professionals of all kinds.

In addition to providing the right information at the right place – cyberspace – the course includes creative study exercises, interaction with experts, testing, and we will certify your successful completion of the program. A diploma from this course will have to be earned and will mean something. We are also applying for CLE credits with a number of state Bar Associations.

So snap out of the cool Zen do-nothing philosophy like Jeff Bridges (playing Kevin Flynn) does in the new TRON Legacy movie. Take action in The Grid, click here and enroll now. It could open you up to a whole new world.

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Source: e-discoveryteam.com
By: Ralph Losey

Court Orders Sharing of Non-Party's Discovery Costs, Cites Lack of "Spirit of Cooperation or Efficiency" as "Controlling Factor"

DeGeer v. Gillis, 2010 WL 5096563 (N.D. Ill. Dec. 8, 2010)

Defendants and non-party Huron Consulting Services, LLC could not agree on the proper course of discovery. After protracted communications consisting of accusations and demands, defendants sought to compel Huron to conduct additional searches for responsive ESI. The court found that some additional searching was warranted and ordered counsel to meet and confer in person to establish the proper scope. Citing the parties’ failure to cooperate as a “controlling factor” as to cost-shifting, the court ordered the parties to split the costs, with one exception.

Defendants subpoenaed Huron seeking information relevant to ongoing litigation. Huron complied, in part, but refused, for example, to restore certain back up tapes without cost-shifting and repeatedly declined to share the details of its searching with defendants. Defendants, for their part, refused to provide Huron with search terms, despite repeated requests. The details of the dispute are rather protracted. Suffice it to say, even after Huron provided defendants with a general description of its database and search terms (pursuant to court order), no agreement could be reached regarding the proper scope of discovery and judcial intervention became necessary.

Following its acknowledgement that non-parties are to be protected from unduly burdensome discovery, and highlighting the need for cooperation and early attention to e-discovery issues (attention which was lacking in this case), the court found that additional searching was warranted. The court then turned its attention to the question of cost-shifting and found that some cost-shifting was appropriate:

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Source: ediscoverylaw.com

Reducing Social Media Risks

In the mad dash to acquire tens of thousands of online friends for their brands, many companies are not pausing to consider the potential risks.

With Facebook membership now past the half-billion mark and Americans spending nearly a quarter of their time online, business has gotten into the act. Companies plan to spend nearly double the percentage of their current marketing budget on social media over the next year, according to a 2010 study by the American Marketing Association and Duke University. In just a few years, social media networking has gone from something employees did on the sly to an official communications medium championed by marketing and human resources departments.

It’s easy to see why everyone is “friending” social media. Organizations are seeing increased brand recognition, customer satisfaction and sales revenues. It is now easy to get customer feedback—often within minutes of a news announcement or product launch. And monitoring what your competition and customers are doing and saying has never been easier. Another benefit of sites such as LinkedIn and Plaxo is the ability to reach potential and former employees.

But in the mad dash to acquire tens of thousands of online friends for their brands, many companies are not pausing to consider the potential risks. Since social media tools are new to many organizations and do not require additional IT infrastructure, they may be introduced to the enterprise by a business unit, marketing team or individual employees, bypassing the normal safeguards and risk assessment provided by the IT, HR and legal departments.

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Source: baselinemag.com
By: Robert Stroud

Social Media Policy Development

Organizations need to develop a clearly written, firmly communicated policy concerning all electronic communications.

Social media tools such as blogs, microblogs like Twitter, video, and social networking sites such as LinkedIn and Facebook represent an emerging collaborative environment for customers and employee engagement. But organizations that use these tools must begin—or expand—their conversations with employees about keeping confidential information private.

The 2009 Electronic Business Communication Policies & Procedures survey from the American Manage-ment Association (AMA) and The ePolicy Institute underscores the issues involved. According to the survey of employees at 586 companies, 14 percent of employees admitted e-mailing confidential information, and another 14 percent said that outsiders have seen “eyes-only” corporate e-mail. Even worse, 6 percent have used e-mail to transmit confidential customer data.

Similarly, a 2009 Proofpoint survey of 220 e-mail decision-makers at large companies found that 34 percent reported that a loss of sensitive information had affected business. The same study found that 13 percent had investigated troublesome Twitter usage, and 15 percent had disciplined employees for unauthorized posting of videos on YouTube and similar sites.

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Source: baselinemag.com
By: Nick Wreden

Searching Through Backup Tapes? No Sweat

Backup tapes have been used for decades in the corporate environment for business continuity or disaster recovery. Individual tapes typically contained a snapshot of the company's documents and e-mails for a particular day that gave information technology departments peace of mind in knowing that their data were available in the event of a natural or man-made disaster. But over time, older tapes simply accumulated in storage and were all but forgotten until needed for an audit or, more recently, litigation.

At that point, when the tapes became part of the discovery process, they struck fear into the hearts of legal professionals. Who could know what was on the tape, since it was truly "everything," without a comprehensive search capability? And information technology personnel were equally fearful about restoring tapes, especially those created with older backup systems, which would require a simulation of the legacy tape environment that had probably been replaced long ago. For these reasons, backup tapes acquired the reputation for being somewhat of a Pandora's box when it came to discovery -- nobody wanted to open them for fear of what might be inside.

Difficulties in retrieving large amounts of data from tapes when large amounts of data are involved, ranging from the relatively high costs to the often laborious data-restoration process, historically have made this popular storage medium a less than ideal choice for the long-term archiving and retrieval of business-critical information. Slow deduplicating and short lifespan of backup formats have also contributed to the perception of tape being undesirable and very expensive for discovery purposes.

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Source: law.com
By: Tom O'Connor

A Breach in Your e-Policy Approach

In today's digital workplace, e-policies that touch the worlds of e-mail, the Internet, social networks and the like are commonplace. But do employees really understand what they should and shouldn't be doing?

A recent study by Clearswift, a Reading, U.K.-headquartered information-security firm, suggests the answer may often be "no."

In the study of roughly 2,000 office workers, nearly three-quarters (74 percent) of the respondents said they feel "confident" that they understand their company's Internet and e-mail policies. But when asked about the e-policy training they've received, more than one-third (38 percent) said they hadn't received any IT-security training since joining their companies.

"If you put these figures in the context of technologies such as social media and Web 2.0, these figures are pretty alarming," says Andrew Wyatt, chief operating officer for Clearswift. "The pace in which technology moves forward means you can't conduct training every three or four years. You need to do it on a more regular basis, at least every 12 months."

Other experts say the training should be even more frequent.

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Source: hreonline.com
By: David Shadovitz

3 Legal Issues to Consider When Going to the Cloud

WikiLeaks surfaced legal issues that that are good to consider about cloud computing in general. Like anything else in business, cloud computing poses its own set of legal issues that customers are required to consider before signing with a service.

The blog Digital Inspiration reviews some legal questions to ask. It's a good introduction to thinking about the the legal issues that cloud computing customers will face.

Do You Know Where Your Data is Located?
If you turn to cloud computing, you need to have some idea about the policies the provider maintains for where it stores your data. The place where that data is being stored raises questions about the legal governance of the information.

If a dispute arises, there may be complications if you are in a different country or in two different states.

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Source: readwriteweb.com
By: Alex Williams

How to Keep the Cloud From Bursting in Litigation

For companies turning to the internet for online business services, it is becoming increasingly important to manage electronically stored information. In this economic climate, large and small businesses alike are moving to the internet for services previously provided in-house in an effort to streamline internal technology operations and reduce labor costs. Online business services, commonly referred to as "cloud computing," promise significant cost reductions, potentially saving a company as much as 50 percent in information technology labor expenses.

However, cloud computing is not without its downside. It adds complexity and risk to a company's ability to monitor data that it maintains with third parties. That risk is significantly enhanced when a business faces litigation. In-house and outside counsel, charged with fulfilling discovery obligations under the Federal Rules of Civil Procedure, face particular challenges because they have a duty to stay on top of electronic information that has made its way onto the "cloud."

Under the Federal Rules and case law, counsel have an obligation to become sufficiently familiar with their client's ESI to comply with discovery duties to identify, preserve, and produce relevant information. Cloud computing poses three basic challenges. The first is to become fully familiar with the information transmitted to cloud-based service companies and the manner in which it is stored. The second is to understand the kind of access and control the company has to that information. The third challenge is to understand the cloud vendor's data-retention and destruction practices and policies, as well as backup procedures.

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Source: law.com
By: Fernando A. Bohorquez Jr. and Alberto Rodriguez

Replead for Participation and Another Case Showing the Need for Better Education

Once again I call upon experts in the field who hear this message to email me about participation in a new online mass collaborative attempt to rescue the legal profession from the throes of e-discovery confusion.

If you are an e-discovery educator, expert, or vendor, and think you might be interested in collaboration, please contact me now. Although I do not need firm commitments right away, and you will be under no particular deadline to produce, I would like to have a sense of who is interested in participating in the next three to six months. The program will begin soon, but you can join in at your own schedule. As I said last week:

I am ready to start the adventure, but I tarry a tad longer to invite other e-discovery educators to begin the journey with me. … All e-discovery vendors, and non-profit groups too, are invited to contact me now, today, this week, this weekend by email to learn more about the project and how you can collaborate. … If you have information, products, services, or special skills that might help remove the blinders of science from the eyes of lady justice, that might help the profession to meet the challenges of e-discovery, and you have the capacity to put together a high quality teaching program to transmit this knowledge, this wisdom, then contact me at Ralph.Losey@gmail.com. I’ll spell out the details of what I plan to do and how you can contribute. Together we can help make next year’s Kroll Report different.

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Source: e-discoveryteam.com
By: Ralph Losey

Enterprise 2.0 and Social Media Coming to ERP

There is a movement taking place in the IT industry that is really driven by major consumer technology vendors including Apple, Google and Facebook. What these three companies do is really starting to set the tone for what people expect from a software application. The expectations of a software application may have historically centered around its ability to solve business problems or to enable specific types of transactions or management processes. Today, the software application is expected to let users communicate and interact with each other the way that they can on Facebook. Organic and guided search as found on Google is also expected, as is the intuitive usability of the iPad.

In fact, employees and managers of most any business are already communicating with each other through various Web 2.0 technologies — the problem being that all of this communication is taking place outside the bounds of formal and secure IT systems.

While some business software companies work to integrate their offerings directly with online tools like Twitter or Facebook, the real business benefits will come from enterprise resources planning (ERP) and other enterprise software that mimics the functionality of these popular online tools. This serves to improve internal communication and pull company business currently taking place outside of ERP systems back into the enterprise.

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Source: cio.com
By: David Andersson

Twitter: Still Misunderstood by Law Firms

According to the Pew Research Center, 8 percent of Internet users in the U.S. are using Twitter. While 8 percent may seem a small number, it represents a substantial population. More important than the size, though, is the influence wielded by that 8 percent. Every major media outlet has reporters and bloggers using Twitter to share information and to find sources. You can see for yourself at muckrack.com — an aggregator of Twitter conversations by reporters from every beat.

Most law firms get that Twitter is important, but they don't really grasp why it is important. To jump on the bandwagon, they have a opened a firm Twitter account that broadcasts everything created by the firm. "Check out our Superlawers!" "Check out our new offices!" "Look who just made Partner!" Twitter is being used to brag and broadcast. Other firms aren't even doing that much. Take Cravath, Swaine & Moore; Latham & Watkins; and Skadden, Arps, Slate, Meagher & Flom — they have Twitter accounts but have never shared a single tweet. I'm not sure which is worse: mega-firms not using Twitter, or using Twitter in an ineffective way.

Here are six ways in which lawyers and law firms could more fully take advantage of Twitter.

TWITTER AS A REAL-TIME RESEARCH TOOL

The networks broadcast the news every night. CNN.com has updates every few minutes. Twitter beats them all. Using http://search.twitter.com, you can instantly discover what is being said, blogged or reported about breaking news. Whether it's the latest news on Wikileaks, Brett Favre or the U.S. Supreme Court, Twitter searches can provide you with instant news but also with an unfiltered collection of thoughts, expressions and ideas about the latest news topics.

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Source: law.com
By: Adrian Dayton

Human-Assisted Computer Search in EDD

Not too long ago, there was an almost evangelical fervor that search technology could solve the problems of discovery within large volumes of electronic records for litigation. Legal technology startups bragged that their learning machines, clustering technology, or concept search technology could find a smoking gun e-mail out of millions of documents.

But as the profession wrestles with the challenge of searching electronic records, it has become clear that exotic technology alone is not the solution. "Computer algorithms are getting better, but they will never get the same results as when there is a person in the loop or human intervention is part of the search process," says Dan Brassil, manager of Linguistic Technology with H5 Technologies. "The question is where the humans fit into the picture."

For several years now, the Text Retrieval Conference Legal Track has tested different types of computer searches to create industry best practices for searching electronic records in litigation. Starting last year, the project added a new investigation into the role of human researchers in improving the search results from computers, called the Interactive Task.

Researchers in the TREC project are discovering there are roles that are best provided by machines and those done by human beings. "We use humans to do what they are very good at, which is to make nuanced judgments in specific cases," says Brassil. "But they are not so good at judgments across a lot of documents. People get tired, allow inferences to creep in, and you never know what a person will say in terms of consistency. That's where machines come in."

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Source: law.com
By: Jason Krause

Warrant Needed to Get Your E-Mail, Appeals Court Says

The government must obtain a court warrant to require internet service providers to turn over stored e-mail to the authorities, a federal appeals court ruled Tuesday.

The decision by the 6th U.S. Circuit Court of Appeals was the first time an appellate court said Americans had that Fourth Amendment protection.

“The government may not compel a commercial ISP to turn over the contents of a subscriber’s e-mails without first obtaining a warrant based on probable cause” (.pdf), the appeals court ruled. The decision — one stop short of the Supreme Court — covers Kentucky, Michigan, Ohio and Tennessee.

Kevin Bankston, a privacy attorney with the Electronic Frontier Foundation, applauded the decision.

“I expect e-mail providers across the country will comply with this,” he said in a telephone interview.

The legal brouhaha centered on Steven Warshak, founder of an Ohio herbal-supplement company that marketed male-enhancement tablets. As part of a fraud investigation, the government obtained thousands of his e-mails from his ISP without a warrant.

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Source: Wired
By: David Kravets

Twitter: Still misunderstood by law firms

According to the Pew Research Center, 8% of Internet users in the United States are using Twitter. While 8% may seem a small number, it represents a substantial population. More important than the size, though, is the influence wielded by that 8%. Every major media outlet has reporters and bloggers using Twitter to share information and to find sources. You can see for yourself at muckrack.com — an aggregator of Twitter conversations by reporters from every beat.

Most law firms get that Twitter is important, but they don't really grasp why it is important. To jump on the bandwagon, they have a opened a firm Twitter account that broadcasts everything created by the firm. "Check out our Superlawers!" "Check out our new offices!" "Look who just made Partner!" Twitter is being used to brag and broadcast. Other firms aren't even doing that much. Take Cravath, Swaine & Moore; Latham & Watkins; and Skadden, Arps, Slate, Meagher & Flom — they have Twitter accounts but have never shared a single tweet. I'm not sure which is worse: mega-firms not using Twitter, or using Twitter in an ineffective way.

Here are six ways in which lawyers and law firms could more fully take advantage of Twitter.

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Source: The National Law Journal
By: Adrian Dayton

Maximize Lifecycle Management

Know What You Have, What Needs To Be Saved & What You Can Purge

The amount of data a company stores can quickly get out of hand, with virtual machines, videos, sound files, and document files mushrooming to occupy the available space. Although the cost of storage continues to drop, the danger is that the low price makes buying additional storage the easy decision, but not necessarily the right one.

Even with the falling price of storage media, the cost is higher to the enterprise, because the more storage an enterprise has, the more risk there is from e-discovery and regulatory compliance, the longer searches take, and the more costly it is for data centers to delete the data in the future. Storage lifecycle management is critical to make the most efficient use of current resources and will forestall the need, at least temporarily, to add additional storage. Data experts recommend the following tips to enhance the lifecycle management of storage.

Implement A Storage Strategy

“You have to determine how long you keep information and how long you keep it at a high level,” says Dan Leary, vice president of marketing for Nimble Storage (www.nimblestorage.com). “Keeping data on disks or even tapes is prohibitively expensive. . . . You should get rid of data aggressively.”

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Source: processor.com
By: Phil Britt

Delete Button for the Internet: Tool Removes Personal Info From Google, Facebook

Remember the 1995 movie The Net--when Sandra Bullock frightened audiences with the prospect of having your identity deleted in cyberspace? How times have changed. With the rise of third-party cookies and ads that watch your online behavior, removing embarrassing personal information from the Internet has almost become a holy grail of digital life. Bullock's situation seems almost desirable in retrospect.

Recognizing the growing call for privacy, Cambridge, MA-based online privacy company Abine today launched DeleteMe, a "delete button for the Internet." Rather than tracking down that ancient Friendster password on your own, users can pay Abine between $10 to $100 (depending on how complicated their history is) to remove photos, blog posts, videos, and search results, delete old accounts, and stop companies from selling private data to advertisers.

The process is not entirely automated. Abine staffers will do much of the leg work, taking advantage of privacy regulations and firing off emails and faxes to unresponsive networks.

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Source: Fast Company
By: Austin Carr

What Makes Search So Tough?

As we look toward 2011, one of the top projects on many of our clients’ agendas is enterprise search. Candidly, search capabilities have been available for many years, and nearly every organization we consult for has one or more systems in place for search. So why the renewed interest?

Well, for the most part, users are not happy with their existing search capabilities. Top of their complaint list: having to execute a search in multiple systems when they are not exactly sure where the content they’re looking for may reside. Looking for last year’s budget? First, check email, then the network drive, then SharePoint, etc. Then give up and call someone you know is a pack-rat and well organized and ask them for the file.

When we frame the problem for customers, we break “search” into three critical elements: User Experience, Information Organization, and Technology.

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Source: ERM Community (AIIM)
By: James Watson

Consumer Cloud Is Killing Enterprise Cloud

Richard Stallman's recent characertization of the impending Google Chrome OS as "careless computing" brings the careless use of the term "cloud computing" into sharp relief. Stallman says that the term "is devoid of substantive meaning," and thereby prone to uses that are less than un-evil.

I agree with his sentiment but would argue that the opposite is true: there is too much substantive meaning in the term "cloud computing." It is an umbrella term that covers everything from free email and Facebook to software applications delivered from the sky to the very serious business of enterprise-grade resource consolidation and provisioning. The end result of this: Consumer Cloud is killing Enterprise Cloud.

A Scrutable Term
Cloud computing is the first non-inscrutable IT term I can remember. It doesn't conjure up the sheer geekiness of SOA, Ajax, object-oriented programming, the Java/Javascript confusion, the PHP/Perl/Python triplets, RAID, SATA, LANs, or even the minor shoptalk inherent in terms like USB or Flash drive.

"The Internet is the Cloud, and Cloud Computing comes from the Internet" is all you have to say. Your average 6-year-old or Senator can understand it. You might even be able to teach it to goldfish or Dogs Watching TV.

Therein lies the problem. It's mildly annoying when the term is appropriated by every technology company on the planet to mean precisely what that company has been doing for years. For example, I was talking to a software CEO the other night whose company really does offer Cloud Computing, and asked him about his recent appearance at a Cloud event in Asia. "I was really annoyed by many of my fellow presenters, who just use the term 'Cloud Computing' to describe whatever it is they do," he said.

Well, we should be used to that now, whether we're being sold the old Lotus Notes as new cloud computing, or a big local data center as "cloud in a box," or dumbed-down, decades old desktop apps as Office365.

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Source: sys-con.com
By: Roger Strukhoff

WikiLeaks scandal leads to questions about internet security

In light of the WikiLeaks scandal it is clear that information is like water, how do you make sure your information stays secure?

The recent round of leaks from Wikileaks proves, yet again, that in an age of cloud computing, yousendit, dropboxes and USB drives smaller than a postage stamps nothing stays secret for long.

But is business big and small doomed to be big brother with its employees so it can stay protected or should we just sit back and take this as a sign to just not be evil?

It's an interesting quandary - no company sets out to be evil or secretive but the nature of business and research is that people look for competitive edges over others.

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Source: businessrevieweurope.eu
By: A. Phillips

Email gets the same rights as postal mail

US GOVERNMENT AGENCIES might need a search warrant before seizing and searching emails after a US appeals court ruled that emails have the same Fourth Amendment rights as other forms of private communications.

The Sixth Circuit Court of Appeals ruling on US v. Warshack came to what is being called a landmark decision following briefs filed by civil liberties groups including the Electronic Frontier Foundation (EFF). In the briefs, the court was urged that the seizure of email without a warrant represented a violation of the Fourth Amendment rights that apply to postal mail and telephone calls.

From the court's ruling it seems that common sense has prevailed. The court wrote, "It follows that email requires strong protection under the Fourth Amendment, otherwise the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve." It concluded that any search of emails would constitute a Fourth Amendment search, which requires a valid search warrant.

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Source: theinquirer.net
By: Lawrence Latif

Court Orders Production of Backup Tapes Pursuant to Order of Non-Waiver Under Rule 502(d)

Radian Asset Assurance, Inc. v. Coll. of the Christian Bros. of New Mexico, 2010 WL 4928866 (D.N.M. Oct. 22, 2010)

Plaintiff opposed the court’s proposal to order defendant’s production of backup tapes pursuant to an order of non-waiver and argued that defendant should have to search and produce its own electronically stored information (“ESI”) and that the burden and cost of doing so should not be shifted to plaintiff. Rejecting the notion that such an order amounted to cost-shifting and upon finding the ESI “not reasonably accessible,” the court ordered the tapes’ production pursuant to an order under Rule 502(d).*

In the course of discovery, disagreement arose regarding the production of ESI on backup tapes. The court proposed production of the tapes subject to an order under Rule 502(d) which would preserve defendant’s claims of privilege. Plaintiff objected, arguing that the defendant “should be required to search its own ESI and produce discoverable materials -- just as [plaintiff] did -- and that the burden and cost of doing so should not be shifted.” Specifically, plaintiff argued that “(i) the College should bear its own cost of production; (ii) the College has not met its burden of showing that producing the [ESI on backup tapes] would create an undue burden; (iii) producing the [backup tapes] violates rule 34(b)(2)(E) of the Federal Rules of Civil Procedure; (iv) producing all the [backup tapes] amounts to an impermissible "data dump"; and (v) rule 502 is not a cost-shifting tool.”

The court addressed each of plaintiff’s arguments in turn and ultimately rejected each. Responding to plaintiff’s argument that such an order constituted cost-shifting, the court reasoned that it did not, because defendant would bear the cost of producing the backup tapes and must produce all of its ESI. The court recognized that by ordering defendant to turn over the tapes unreviewed, it was “in effect forcing [Plaintiff] to bear the costs of that review if it wants certain data,” but reasoned that “[s]uch a protective order is not . . . a traditional cost-shifting order.”

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Source: ediscoverylaw.com

Google's ChromeOS means losing control of data, warns GNU founder Richard Stallman

New cloud computing OS released by Google is plan to push people into 'careless computing', warns free software advocate

Google's new cloud computing ChromeOS looks like a plan "to push people into careless computing" by forcing them to store their data in the cloud rather than on machines directly under their control, warns Richard Stallman, founder of the Free Software Foundation and creator of the operating system GNU.

Two years ago Stallman, a computing veteran who is a strong advocate of free software via his Free Software Foundation, warned that making extensive use of cloud computing was "worse than stupidity" because it meant a loss of control of data.

Now he says he is increasingly concerned about the release by Google of its ChromeOS operating system, which is based on GNU/Linux and designed to store the minimum possible data locally. Instead it relies on a data connection to link to Google's "cloud" of servers, which are at unknown locations, to store documents and other information.

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Source: guardian.co.uk
By: Charles Arthur

Court Enforces Agreement to Delete Defendants' Confidential Materials Despite Cost

Oxxford Info. Tech., Ltd. v. Novantas, LLC, 910 N.Y.S.2d 77 (N.Y. App. Div. 2010)

In this case, the parties stipulated to a Confidentiality Order requiring that business information exchanged during the course of discovery would be returned or destroyed at the end of litigation. Relying on the agreement, defendants provided access to “their core business secrets.” When the case settled, plaintiff’s counsel discovered that defendants’ information had been backed up to “numerous back-up tapes” on their law firm’s computer system. Plaintiff then sought to modify the confidentiality agreement to allow the firm to retain the information “subject to proposed safeguards designed to protect the confidentiality of the information” in light of the cost of deleting the information from the tapes. The motion was denied and plaintiff appealed.

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Source: eDiscoverylaw.com

Legal Project Management - The Next New Area for Paralegals to Conquer?

It seems that suddenly, law firms have woken to the fact that the corporate world has a whole new technique out there to manage projects. Simply called Project Management, the area is booming. And, as always, the legal field tends to be the last to get in on the bandwagon. But for argument's sake, let's just say it arrived.

Legal Project Management by Steven B. Levy (DayPack Books), is a study in how to manage your case, control costs, meet schedules, manage risks, and maintain sanity. It's a process by which you can take control of your project. Prior to the concept of Legal Project Management, there were no standardized methods to manage a case. However, Project Management, in and of itself, has been around for years in the corporate arena.

Here is a great way for paralegals to pick up yet another useful skill and turn it into a top job. Project Managers are team leaders who can size up a case, establish a budget for doing so, create the work flow chart and see the project through to the end.

Levy's book gives you the tools to approach the job. Since this emerging field offers a powerful new approach to managing a case, it is not an alien discipline, full of jargon and process overhead. Rather, it's designed for the specific world of legal professionals. It respects the way attorneys and paralegal work, enhancing their success by playing to their strengths.

The book is easy to read dispersed throughout with quotes from Shakespeare. While Levy attempts to explain why those quotes are in the book, it remains a mystery exactly why although it does lend for interesting reading. Levy explains budgeting, analysis,work flow, execution information radiators, metrics and learning. It's a whole new world out there in terms of what happens when that new case comes in over the transom.

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Source: The Estrin Report
By: Chere Estrin

Amazon’s WikiLeaks Response Threatens Cloud Computing

Amazon’s removal of WikiLeaks from its servers threatens the future of cloud computing and jeopardizes the huge potential growth of its adoption, according to a leading industry figure.

Dr. Joseph Reger, Chief Technology Officer for Fujitsu Technology Solutions, said that Amazon’s reaction shows the need for an industry-wide approach to service level agreements and codes of practice:

“The provider simply cut off cloud services for WikiLeaks—that is, its server capacity, which made WikiLeaks inaccessible on the internet.

Amazon’s reason: WikiLeaks violated its terms and conditions. This is bad news for the new IT paradigm of cloud computing. If a provider can terminate its service that easily, then it is doing exactly what skeptics expect, putting the security and availability of cloud services into question.

Amazon may be able to prove its accusation—but it still leaves a bad taste. Where will this lead? Should providers of cloud services constantly review whether any of their customers are pursuing an unpopular or immoral activity and continually make value judgments as to whether they are willing to continue the service?

Many potential customers for cloud computing services will, I fear, have been paying attention and will now be forced to reconsider whether they can afford to make their IT that dependent on a third party. Cloud-computing’s reputation has been damaged. For IT, this is the real tragedy.”

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Source: blogs.wsj.com
By: Ben Rooney

Cloud computing and smart phones - Has your business updated its IT policy?

In brief - Smart devices and IT policy

The increasing proliferation of smart devices poses a new security risk for businesses. To deal with this risk, you may need to update your company's IT policy and ensure that it is implemented.

Use of smart devices in business

Most businesses are offering either Blackberrys, iPhones or tablets such as iPads to employees, either as part of the employee's remuneration package, a subsidised employee plan or simply by allowing employees to access their work email accounts via the device. These developments create concerns for the integrity, security and confidentiality of business IT systems in their use by both current and exiting employees. A particular vulnerability is also created when employees upgrade their smart devices.

In addition to email access, the burgeoning market for information sychronisation and sharing applications for smart devices, such as Dropbox, Instapaper, Evernote and Quickoffice Mobile Suite, has further changed our notions of where the boundaries of the office lie and what is required for effective and secure document management.

Security of your IT system and network

At a user level, this comes back to the use of effective passwords. You must implement a strong password system for any device or network access and require your employees to change the password every quarter as a minimum. A strong password is one which contains a combination of numbers, upper and lower case letters and special characters like # or $.

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Source: mondaq.com
By: Naomi Messenger

Safely storing confidential customer data in the cloud

Two major legal and technological changes that have taken place in the past several years are now colliding. First, with the rise of social networking and other trends, governments at every level are passing tougher laws that protect the privacy and security of personal data. Second, the decreasing costs of computer storage and bandwidth make it feasible for the first time for businesses of all sizes to outsource storage of their customers' personal and financial data to the "cloud."

These two changes — a patchwork of new privacy and data security laws and the rapid rise of cloud computing — mean that businesses face different data storage risks. Businesses therefore should understand, both from a legal and technological perspective, how to use cloud computing safely to store personal data about their customers.

Some privacy and data security laws have been in place for years. For instance, HIPAA regulates the privacy and security of medical information, the Graham-Leach-Bliley Act controls how financial institutions must safeguard customer data, and the European Union's privacy directives regulate how personal data of European citizens —now the customers of most any internet-based business — may be treated.

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Source: bizlex.com
By: Will Montague and Todd Gieseler

Information Risk in the Wikileaks Era

The recent revelations about Wikileaks shine a new light on the challenges faced by the financial services industry in controlling information risks.

The recent revelations about Wikileaks and its release of 250,000 confidential State Department diplomatic cables shines a new light on the challenges faced by the financial services industry in controlling information risks. Growth in digital universe is already well documented, and recentreseach and analysis that I've participated in one form or another suggest the potential problems are getting more difficult to solve, not less. For instance...

The not-so-recent focus on information governance has generated a renewed interest in records management, the records management profession, and the value of records management to the organization. The role is being redefined in business to be a strategic resource to the CEO as organizations look to better understand, measure, and manage the unprecedented growth in electronic information and the complexities inherent in determining what information to trust, to keep, to secure, to connect, and of course, to discard.

The recognition of the records manager as key component of information governance, and the focus of information governance as a business enabler, are long overdue. Today, one of the most critical asset to any organization is its business information and records. Organizations are struggling to use huge volumes of information to produce better business outcomes. At the same time, the number of high-profile examples of data mismanagement is growing (the Wikileaks leak just one of the most recent), making the need for proper oversight and use of information key to success. A few data points:

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Source: cio.com
By: Michael Versace

Database.com – Why? How? What?

Why?

Developers are moving to the cloud because users expect their applications to be available from multiple devices – not just a PC or Mac – but a myriad new computers that come in the shapes of tablets, smart phones, and purpose-built devices. Users want be able to access their data from home, work, and on the road; CIOs want this data to be secure and manageable, the databases to be reliable and available; and developers want to be able to build more applications without having to worry about installing software, tuning the database, or worrying about scale.

Developers today are faced with some false choices – they can choose a database that was built for the on-premise world and is hosted in a “blue” cloud replicating the architecture and the pains of on-premise; or, they can choose a database that’s built for the cloud but lacks basic features like the ability to have a schema e.g., key value cloud databases. Moreover, users don’t just want a data store – they want to be able to search this data, report on this data, and have a model for securely sharing this data with the right people.

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Source: Enterprise Irregulars
By: Anshu Sharma

The legal considerations of cloud computing

I work for a law firm, in a sector of the economy that is often regarded as stuffy and old fashioned. Sometimes this stereotype is justified, but it's a misconception to think that all law firms are stuck in the technological dark ages.
Field Fisher Waterhouse is about to use cloud computing to improve the way it delivers IT services to lawyers. But in addition to the usual technical issues, there are some legal aspects that require careful consideration.

The legal industry handles highly confidential information on behalf of clients, and the time-critical nature of the business requires extremely high service levels. Over the years the firm has developed a set of specialised applications to help to achieve this.

There is a wide spectrum of 'cloud' solutions available, from pure software-as-a-service (SaaS), delivering software applications to your desktop, to infrastructure-as-a-service (IaaS), providing a hardware platform in the cloud from which to deliver your own applications. Both are cloud solutions because they are externally managed, rapidly scalable solutions with the service provider taking the responsibility for providing the service.

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Source: computerweekly.com
By: Paul Heywood

Social media: best practices for public companies in Canada – Part One

There are many different ways to connect and communicate with shareholders: press releases, SEDAR filings, earnings calls, road shows, the list goes on. Recently, public companies have been utilizing social media sites such as Twitter, Facebook and blogs to communicate information to the public about their business and operations.

Social media continues to be a bit like the Wild West: it is a place of opportunity, but should be entered with caution. The key is to remember that the same rules apply to social media that apply to all corporate disclosure.

The purpose of this bulletin is to discuss the use of social media as a news dissemination tool and shareholder communication means while operating within the securities regulatory framework.

Benefits of Social Media

A study published by the Ross School of Business at the University of Michigan in July 2010 entitled "The Impact of Managerial Dissemination of Firm Disclosure" (the "Ross Study") suggests that social media can help companies overcome a lack of media and analyst coverage while improving liquidity for their stock. With investors wanting real-time access to information as it happens, companies can benefit from harnessing the power of social media to connect with their current and potential investors.

Traditional news sources are limited as to the amount of information they can adequately provide to the public, and therefore tend to focus on larger, more visible companies. Social media, such as Twitter, can be utilized at minimal cost to overcome the dissemination constraints of the news services.

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Source: lexology.com
By: Fasken Martineau DuMoulin LLP and Caroline E. Clapham

Where email archiving is headed in 2011

Where's email archiving headed in 2011? LiveOffice, a provider of software-as-a-service (SaaS) email archiving, email compliance and email continuity solutions has set out its view with its top 10 predictions for email archiving in 2011. The list, which was compiled from conversations with industry analysts, LiveOffice clients and a review of current research, points to several emerging trends -- some focused on end-user needs and others related to the growing importance of cloud-based email platforms.

"Over the past few years, email archiving has gone beyond solely meeting compliance and legal discovery requirements and transformed itself into a tool that can provide enterprises with a variety of other benefits, including more effective mailbox management, enhanced end-user productivity and fully integrated data loss protection," said Brian Babineau, senior consulting analyst at Enterprise Strategy Group (ESG). "As IT departments are asked to do more with less, archiving solutions are proving to be an essential part of the overall equation for maximizing resources and offloading some of the messaging management burden."

LiveOffice sees ten key developments coming in email archiving.

1. Demand from end users to access their email archives as Unlimited Mailboxes: Email archiving is quickly becoming a valuable tool for enhancing end user productivity. With users spending an average of 15--30 minutes a day managing their inboxes (in an effort to stay within tightly regulated mailbox quotas), precious time is being wasted that could be re-focused on revenue-enhancing activities. Many of these users are asking for direct access to their archived messages, without IT intervention. Therefore, archiving solutions that empower end users to restore lost emails themselves--even things they may have deleted from their desktop, laptop, BlackBerry or Windows Phone 7 device--are in high demand. This trend makes archiving vendors that are able to provide unlimited storage and retention for a flat, monthly price per user an attractive option for IT departments operating on tight budgets.

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Source: echanneline.com
By: Mark Cox

HOW TO: Define a Social Media Strategy for Enterprise

The Social Media for Business Leaders Series is supported by The Awareness Social Marketing Hub, an enterprise-grade application for marketers who manage multiple social channels. Learn more here.

Much has been written about social media strategy for small business. It’s a personal medium, and a few employees engaging directly with customers on Twitter() and Facebook() can be a natural extension of a small biz web presence.

But things can get complicated when you extrapolate engagement over the multiple departments, offices, and countries of a large corporation. Do you centralize your social message with a few managed accounts, or do you empower every employee to be a social representative of your brand? How do you manage the hundreds, if not thousands of daily mentions and messages directed at a global company while still keeping it conversational? We spoke with the architects of some leading social media enterprise strategies for their takes on this evolving field.

For many large brands, each product they sell could be considered a “sub-brand” in itself. People don’t seek out General Mills cereal, they just like Cheerios. This kind of fragmentation offers several marketing advantages, according to David Witt, the senior manager of social engagement at General Mills, “but it can be challenging to develop meaningful social capabilities for each [brand], while also providing synergistic platforms for the whole.”

Witt says General Mills provides corporate-wide services like training, guidelines and listening tools, but allows each brand to develop an approach that suits its needs.

While similar segmentation exists for entertainment properties, the overarching brand presence is usually stronger, and the social marketing should be tempered accordingly.

“It’s important to remember that customers still see it as one cohesive brand, even if the reality is a dozen different products managed by different people,” said Matt Gibbs, manager of social media and audience development at Playboy. “Whether it’s Playboy magazine, Playboy.com, Playboy TV, Playboy Radio, Playboy’s Miss Social, or any of our other products, to fans it’s one in the same. Wherever the social media touch point is, Playboy must be consistent.”

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Source: mashable.com
By: Matt Silverman

Top 7 Legal Things to Know about Cloud, SaaS and eDiscovery

Editor's Note: EMC markets solutions aimed at solving the problems presented by ediscovery and legal holds on electronic information. Our goal in publishing this article is to provide information you may find useful and thought-provoking. It is not intended as an endorsement of EMC products, services or technology.

Cloud computing -- or computing as a utility-- has captured the interest of IT departments and bottom-line focused executives everywhere. Proponents of the cloud compare it to the shift in electrical power generation at the turn of the century, where companies had to generate their own electric power to run factories. Power generation was not a core skill, so outages were common and facilities had to be over-built (and then re-built) to meet peak requirements.

Leveraging expertise and economies of scale, electric companies soon emerged and began delivering on-demand electricity at an unmatched cost point and service level. Similarly, cloud proponents argue, the cloud/SaaS model delivers IT services economically and on-demand.

Yet the cloud is not without its detractors. As interest in the cloud has turned into actual initiatives, real issues and problems have emerged to inject some real-world requirements and temper some of the initial enthusiasm. And one of the key parties involved in raising and addressing these issues is legal counsel.

Share Articles Digg del.icio.us Newsvine Facebook Google LinkedIn MySpace Reddit Slashdot StumbleUpon Technorati Twitter Windows Live YahooBuzz FriendFeed A common reaction is often to ask why legal is getting involved in technology decisions. Put simply, moving data to the cloud is not simply a technology decision, and the stakes around legal and compliance issues are very high.

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Source: cioupdate.com
By: David Morris & James Shook

Year in Review: Kroll Ontrack 2010 Discovery Trend Data Reveals Organizations Struggle with Preservation, Production and General Discovery Protocols

Kroll Ontrack, the leading provider of information management, data recovery, and legal technology products and services, today announced its analysis of the reported electronic discovery opinions and five notable discovery themes in 2010. Among the dominant topics reoccurring in the 2010 judicial opinions were the pervasive struggle companies and practitioners continue to have with proper preservation techniques, the continued growth in intolerance by the judiciary for discovery failures and the renewed call for cooperation amongst counsel.

From Jan. 1, 2010 to Oct. 31, 2010, Kroll Ontrack summarized 84 of the most significant e-discovery cases. The number of discovery-related opinions continues to increase exponentially. These 84 opinions represent the trends demonstrated in jurisdictions across the nation. The breakdown of the major issues involved in these cases is as follows:

• 39 percent of cases addressed sanctions
◦ 49 percent of sanctions involved preservation and spoliation issues
◦ 27 percent of sanctions involved production disputes
◦ 24 percent of sanctions involved withholding discovery and other abuses
• 18 percent of cases addressed various production considerations
• 17 percent of cases addressed various procedural issues (such as searching protocol and cooperation)
• 11 percent of cases addressed privilege considerations and waivers

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Source: businesswire.com

Facebook Messages Won't Replace Traditional E-Mail, Poll Says

Facebook Messages isn't likely to replace users' e-mail accounts, according to a poll conducted by the Wall Street Journal. Still, analysts believe it will have an impact.

More than 62 percent of over 3,680 participants in a recent online poll said they wouldn't use Facebook Messages as their primary e-mail service.

Some 17 percent of respondents in the poll, conducted by the Wall Street Journal, said they would use Messages as their main e-mail, while 20 percent said they weren't sure.

Facebook Messages launched Nov. 15 to funnel e-mail, instant messaging and SMS text messages to one @facebook.com e-mail alias so that users can manage their communications through a single inbox.

The model, as envisioned by Facebook CEO Mark Zuckerberg, eschews e-mail's traditional address entry, subject lines, carbon copies and blind carbon copies for a simpler, faster messaging model.

Some view the service as a threat to Google's Gmail, Yahoo Mail and Microsoft Live Hotmail, and perhaps even as a replacement for Microsoft Outlook or IBM Lotus Notes in some cases of business use.

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Source: eweek.com
By: Clint Bouton

The cloud, copyright, hosting and the law

Does it really matter where your data is held?

When Mr Justice Floyd decided the other week that copyright infringement happens in the country the material in question is hosted in, it was tempting to think that he might have opened up a huge legal loophole.

After all, with Cloud computing allowing content to be hosted anywhere in the world, wouldn’t this give free rein to anyone who wanted to put bootleg movies online without fear of being sued?

Well, no. What His Lordship ruled upon was a rather more subtle and limited issue and it’s true to say that his decision strictly only affects one case. But it could still influence other decisions as the law grapples with the consequences of being able to easily put material online in far-off countries, and I’d argue that although Mr Justice Floyd was on the right general lines, he could have gone further in interpreting the law so as to avoid possible future confusion in such cases.

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Source: computerworlduk.com
By: Simon Bradshaw

The Risks of Cloud: Lessons from Wikileaks

Considering cloud computing? As well as any technical factors, make sure a Terms of Service issue doesn't put you out of business.

It used to take a bailiff and a man with an axe for the door, but the cloud makes it so much easier. If I told you that your entire business infrastructure could be taken offline by a government employee, or even a commercial provider, without judicial review, useful explanation or workable recourse, perhaps because a politician has philosophical issues with your activities, would that worry you? Yet it seems that the most popular brands on the market for cloud computing and web services place you at that risk if you follow the trend to cloud hosting for business infrastructure.

I commented on Friday about the weakness that responses to Wikileaks have exposed in cloud computing, whatever your view of Wikileaks itself. While there are strong incentives to host critical infrastructure in the cloud or using web services, we saw last week both Amazon Web Services and PayPal - flagship brands in cloud computing and web commercial services respectively - suddenly toss customers off their services without judicial review, useful explanation or workable recourse. I'm sure they breached none of their own (voluminous) agreements. We saw other, less well-known companies (Tableau, EveryDNS) follow suit too, and even a Swiss bank finding a handy loophole. We also saw the US Department of Homeland Security start to seize domain names - this time at least by sending a court order to Verisign, albeit sealed, but without useful explanation or workable recourse. I sense we will see more of this happening.

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Source: blogs.computerworld.co.uk
By: Simon Phipps

RAND Report Explores Conflict Between European Data Privacy Laws and E-Discovery Requests

FTI Technology LLC, the e-discovery business segment of global advisory firm FTI Consulting, Inc. (NYSE: FCN), today announced the availability of a RAND Europe report entitled "E-Discovery and Legal Frameworks Governing Privacy and Data Protection in European Countries." The complimentary report, which is available for download at the FTI Technology site, provides guidance on a common challenge for multinational organizations: preserving EU citizens' right to privacy versus the duty to produce relevant emails and documents for legal or regulatory investigations.

"Whether for the Foreign Corrupt Practices Act (FCPA), the UK Bribery Act or a multinational legal matter, many corporations struggle with how to collect and produce relevant information in a safe and defensible manner," said Joe Looby, senior managing director practicing in the FTI Technology business segment. "While multinational e-discovery is complex, this RAND Europe report shows that there are reasonable processes that legal teams can follow."

Incorporating guidelines from the European Directive's Article 29 Working Party, the Sedona Conference, as well as national data privacy experts from five European countries, the RAND report is a practical review of data privacy requirements and processes that will help corporations and law firms legally collect, process, review and transfer data for litigation, regulatory requests or investigations in line with European values. For those involved with multinational e-discovery, the report includes a checklist of recommended actions, as well as an appendix of country-specific requirements for France, Germany, Spain, Switzerland and the United Kingdom.

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Source: prnewswire.com

All atwitter about social media tools

Social media, two years ago, was a relatively misunderstood tool.

Yes, there were early adopters who became pros. Most others took the tools in slowly, one at a time. Since then not only has social media become a way of life, but it’s the new communication tool for this era.

According to Leen Rao of the tech blog TechCrunch, Twitter has added 30 million new users in the past two months and now has 175 million users. That means 370,000 users per day are added.

Facebook has soared from 145 percent from 2009 to 2010. LinkedIn is also growing at a rapid rate. Social media has gone from a pastime to religion, to the preferred method of communication for individuals, marketers, groups and companies.

According to two Bay State firms - Sonian (www.sonian.com) and DexRex (www.dexrex.com) - social media is increasingly becoming a source of information. No, it’s not being used by companies to monitor you big-brother style, but it is being recorded for future use in the event of a lawsuit. Yes, that’s correct: It is being recorded.

Ooh. Ouch. That’s almost "Halloween" scary.

And, according to recent statistics, 44 percent of all social media users are still putting too much information about themselves online, and 100 percent of all information that is being used in conjunction with a corporate setting is - like all other forms of online communication - discoverable.

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Source: milforddailynews.com
By: Julia Tanen

Keyword searches not good enough for e-discovery, experts say

Lawyers are using old search technologies that don't find all of the relevant documents

Document dump." "Unsearchable morass." That's how Ontario Superior Court Justice Cary Boswell described the nearly 23 million pages of electronic records handed over by the prosecution in an ongoing criminal fraud case of three former Nortel Networks executives.

During a hearing last December, defense lawyers argued that the sheer amount of material provided on a hard drive -- the equivalent of 8,000 to 10,000 boxes of paper -- was so "staggering" and disorganized that it couldn't be effectively searched for information that might help the defendants.

In a ruling afterward, the judge agreed, ordering the prosecution to "re-disclose" any relevant material in a more organized fashion.

That case offers an example of the challenges legal professionals face with e-discovery. And those difficulties are compounded by the fact that typical computer searches don't find all of the relevant information in a data dump. For example, tests by the Text Retrieval Conference (TREC), an international workshop that assesses various information retrieval approaches, show that Boolean keyword searches locate only 22% to 57% of the total number of relevant documents.

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Source: computerworld.com
By: Cindy Waxer

GSA switch to cloud-based e-mail sparks security debate

The General Services Administration's Wednesday announcement that it will become the first federal agency to move to a cloud-based e-mail system has prompted security and legal concerns from at least one observer.

"I don't think [the move to the cloud is] inherently good, or bad," said Larry Allen, president of the consultancy Allen Federal Business Partners. But "there are some questions about it that make it uncertain."

Allen said he is worried that security was not GSA's top priority when issuing Unisys Corp. a $6.7 million, five-year task order under the Alliant governmentwide acquisition contract. Unisys is partnering with Google, Tempus Nova and Acumen Solutions to implement the transition. The new e-mail system will run on the Google Apps for Government platform.

Cloud computing is a method of paying for and accessing information technology on demand and online through third parties, rather than via agency servers. Part of the concern over GSA's move is data could be hosted on servers in foreign countries, where the United States would have less control.

Depending on the specific location, housing data on foreign-based severs could be a violation of U.S. law, Allen said. Under the 1979 Trade Agreements Act, the government may conduct business only with countries that are signatory to a trade agreement, or part of the World Trade Organization government procurement agreement, according to Allen. India, for example, is not on that list, he added.

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Source: nextgov.com
By: Brian Kalish

Geist: Location matters up in the cloud

The Wikileaks disclosure of hundreds of U.S. diplomatic cables dominated news coverage last week as governments struggled to respond to public disclosure of sensitive, secret information. One of the most noteworthy developments was Amazon’s decision to abruptly stop hosting the Wikileaks site hours after U.S. Senator Joe Lieberman exerted political pressure on the company to do so.

Amazon is best known for its e-commerce site, yet it is also one of the world’s leading cloud computing providers, offering instant website hosting to thousands of companies and websites. In recent years, the combination of massive computer server farms in remote locations and high speed networks have enabled cloud computing to emerge as a critical mechanism for offering online services and delivering Internet content.

After Amazon pulled the plug, Wikileaks quickly shifted to a European host, demonstrating how easily sites can shift from one cloud provider to another. Although it seems counter-intuitive to consider the physical location of cloud computing equipment when discussing services that by their very definition operate across borders in the “cloud”, the Wikileaks-Amazon incident provided an important reminder that location matters when it comes to cloud computing.

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Source: thestar.com
By: Michael Geist

A Strategy to Sample All the ESI You Need

I was re-reading the EDRM section on "validation of results" when it hit me. Most of us have been so busy mining the mountain of data that we receive from our opponents in discovery that we have been missing the other mountain of data available to us, the one we didn't ask for. You know the saying: if you don't ask, you won't receive. So I'm talking about the ESI you didn't ask for and didn't get.

I had been reading the last paragraph of the EDRM Search Guide, Section 9.5. You know the one: "Sampling and Quality Control Methodology for Searches."

Sampling. There's a word that most attorneys don't grasp; that is, unless they had a statistics class (and remember some of it) or pay close attention to the results of political polls, when the sample size is usually about 900 to 1,200 randomly selected individuals. Amazingly enough, poll results appear to be good estimates of the vote for whole counties, states, or the entire nation. The size of the sample matters, but the size of the population doesn't. I will spare you the math.

The word "sample" is in the Federal Rules of Civil Procedure. It was added when the rules were amended to provide for the discovery of electronically stored information. It shows up in the rules governing requests to produce documents: A party may request to inspect, copy, test, or sample electronically stored information. Rule 34(a)(1). In case law preceding the amendment to Rule 34, sampling was used in the context of statistical sampling of backup tapes to see if they contained potentially relevant information. See Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 324 (S.D.N.Y. 2003).

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Source: law.com
By: Nick Brestoff

With WikiLeaks, Amazon shows its power over customers

Don't mistake cloud providers for the Swiss; they aren't neutral

Amazon is a prominent company in the U.S. Its cloud servers host the U.S. government's Recovery.gov stimulus spending Web site, and it is competing for even more federal business. It also spent about $1.5 million this year on lobbying in Washington, according to OpenSecrets.org.

So when U.S. Sen. Joseph Lieberman (Ind.-Conn.), chairman of the Homeland Security and Governmental Affairs Committee, called Amazon officials this week to complain about the company's decision to host WikiLeaks on its cloud servers, Amazon quickly pulled the plug .

Managing Network Bandwidth to Maximize Performance: Download nowWikiLeaks, which earlier this week made public a huge collection of confidential U.S. State Department diplomatic cables, had moved to Amazon's service on Monday after it was hit with aggressive denial-of-service (DoS) attacks. The DoS attacks took the site offline for several hours on Monday and hammered it again on Tuesday .

After the Amazon move, a Swedish firm, Bahnhof Internet AB, in Uppsala, began hosting the WikiLeaks site.

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Source: computerworld.com
By: Patrick Thibodeau

Unlock Backup Data Enables Five Best Practices

Simplified access is the core component of any data center consolidation. Corporations everywhere feel stuck with their current backup software provider. Data assets that are routinely archived onto tape are locked away by proprietary software only to become available if restored. Restoration is not complex, but as tapes age and backup environments evolve, the data becomes more difficult, time consuming, and expensive to access.

As a result, data assets that reside on tape are locked away, and corporations are at the mercy of the original backup environment when they need to bring the content back online. This was not an issue until corporate legal, compliance, and records-management teams became aware of the liability associated with undiscovered legacy data on tape. These teams are charged with protecting the company from legal problems and with managing liability. Historical data—data that is locked away on tape—is critical to their processes. Using this knowledge is now a priority for any organization that is dealing with litigation or that is concerned with state and federal regulations.

Unlocking Tape Data

New technology is now available that unlocks data on backup tape. Tape data can now be searched and extracted without the need for the original backup environment. Easy access to legacy tape data enables your organization can take advantage of the content and apply your corporate records or legal policy to the data to ensure good corporate governance as well as to streamline your data center. Unlocking legacy tape data enables to following important best practices:

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Source: datacenterjournal.com
By: Jim McGann