Social Media Monitoring on Gov't Steroids: Anything might come back to bite you

Although OSINT (open-source intelligence) has been around for a very long time, people continue to over-share photos, info, everything on social media which I believe lowers a reasonable expectation of privacy for society as a whole. Social media is not private; it's fair game. And all the feds have jumped on the social media data-mining bandwagon. The FBI wants a data-mining social media app , but InformationWeek pointed out that the CIA, DHS, and "the Intelligence Advanced Research Projects Agency (IARPA)--also are interested in mining the Web for picking up clues about public opinion or world events for use in their respective missions."

To be fair, it is publicly available info, long used by wise social engineers, yet it's a bit unnerving to ponder your 'dissent' could be misconstrued and dumped into a government database such the massive DHS database of secret watchlists. It's not new since even back in 2010, the ACLU reported that spying on free speech was nearly at Cold War levels. Also in 2010, the EFF warned that Big Brother wants to be your friend on social media. The data gobbling, spying and e-hoarding is at epidemic levels. Just this week, in DHS Napolitano's speech to the press, she said, "Think of it this way--if we have to look for a needle in a haystack, it makes sense to use all of the information we have about the pieces of hay to make the haystack smaller."

Sophos Naked Security called social media "the ultimate career squasher." According to a Microsoft survey, plenty of people suffer negative consequences like losing a job or health insurance after posting unwisely. Yet even if you are very private and very careful, a "friend" (perhaps frenemy) might take something privately shared with them and re-share it on social media. Let's say you don't post pictures, or if you do that you strip out the geo-tagged data first, don't tweet, Google+ or otherwise tell 'the world' what is happening offline or about your life. So if you are not trolling and not doing anything illegal, do you think your comments on websites don't matter? Well Homeland Security must think those comments are important, as seen in records from EPIC's FOIA request. As part of a $11 million contract with General Dynamics, DHS said "to monitor public social communications on the Internet. The records list the websites that will be monitored, including the comments sections of [The New York Times, The Los Angeles Times, the Huffington Post, the Drudge Report, Wired, and ABC News.]" With the data hoarding that happens, you never know when that comment might come back to bite you.

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Source: networkworld.com

By: Ms. Smith

Microsoft's John Frank Examines E-Discovery's Impact on Global Ethics

Global corporate ethics are a largely untapped major market for e-discovery technology, Microsoft Deputy General Counsel John Frank said in his keynote speech, the first at this year's LegalTech New York.

It was a local government official's request for a bribe that inspired a Tunisian fruit cart owner to set himself afire last year, leading to the still active Arab Spring of people's revolutions, and yet there remain many Western companies, such as Alcatel-Lucent and Siemens, that have been caught engaging in overseas bribery as a course of business, Frank observed.

"A repressive regime can control a limited number of western journalists, but having everybody out on the street corner with a smartphone can change the regime," Frank noted. "The business practices of international companies too often support the same corrupt governments and the same corrupt business practices [that] people protested."

Technology has helped. The U.S. government issued just $2.1 million in bribery fines in 2002, but that figure ballooned to $4 billion by 2011, Frank said.

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Source: law.com
By: Evan Koblentz

True Grit: Four Models to Rein in E-Discovery Costs

Scrapping for e-discovery clients, firms seek the right mix of people, processes, and technology. Today's top law firms and their corporate clients are struggling to find the right combination of people, processes, technology — and facilities — to effectively control the quality and costs of electronic data discovery. The risks are acutely visible for those who stumble: not just court-ordered sanctions, but lost data, cases, clients, profits, and reputations. So how can major firms speed up the processes, hire the right personnel, meet ethical obligations to protect client confidentiality, cooperate with opposing counsel, maintain proportionality (i.e., not spend more on EDD than appropriate for the potential exposure of a case) — yet quickly find and process appropriate data? There's no "one size fits all" single answer, but four models seem to be developing as loose frames:

• Many firms — including Littler Mendelson; Fenwick West; Winston & Strawn; and K&L Gates — have established dedicated e-discovery practice groups, to keep most EDD functions inside their walls. Typically, these teams include both partners and associates, and often include staff and/or contract attorneys who primarily handle document review. Many have document review facilities in their offices or nearby. In some cases, these firms market themselves to other law firms, offering to serve as e-discovery counsel.

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Source: law.com
By: Robyn Weisman & Monica Bay 

NLRB warns employers about broad social media policies

A new report from the National Labor Relations Board National Labor Relations Board Latest from The Business Journals Hispanics United plan may lead to expanded servicesSmall firms also can be NLRB targetsNLRB recess appointments bad news for business Follow this company says essentially that employers should not craft overly broad social media policies that infringe on employee activities already protected by federal labor laws.

And disciplining workers for violating such overly broad policies is unlawful, the NLRB says.

The report serves as a guide for lawyers, managers and human resources professionals contending with this new so-called legal landmine that is social media.

For example, even including a line in an employee handbook such as “Employees should not make disparaging remarks about the company, their supervisor, etc. on social media websites, blogs or any other form of electronic media” does not necessarily insulate employers from possible labor law violations if they decide to discipline workers based on that policy.

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Source: bizjournals.com
By: Linda Chiem

Are E.U. and Google Data Policies the Future of Online Privacy?

It’s been a big week for data privacy. First Google announced its new privacy policy, which will sync user information across all company products, including search results. Then the European Union announced a proposed overhaul of its data protection law. And next, the Federal Trade Commission and the U.S. Department of Commerce are expected to unveil their own communiqués on U.S. privacy policy. (And in case it’s not already on your calendar, Thursday was also Data Privacy Day!)

What does this sudden explosion in attention to data privacy mean for companies?

“I think the first takeaway is just how consequential and pervasive the issue of privacy, information security, and regulation of data protection are to business, commerce, and international trade,” says Alan Charles Raul, a partner at Sidley Austin in Washington, D.C., and global coordinator of the firm’s privacy, data security, and information law practice.

Part of the wave of new policies is just about keeping up with the forward momentum of the digital age. The E.U. had not revised its data protection policy since 1995. For its part, Google—as the Wall Street Journal noted—is increasingly in competition with Facebook for market leadership in leveraging personal data of users.

Because of the global interconnectedness of many online enterprises, a data-policy change in Europe or at Google’s California headquarters should not be viewed too narrowly. If a company in the U.S. is offering services to individuals in the E.U., for instance, it is likely this new proposal would apply to how they handle their overseas customers’ data, Raul says.

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Source: law.com
By: Catherine Dunn

Data Privacy Day: Social media 'private' data is fair game for e-discovery in court

This Saturday, Jan. 28, is Data Privacy Day and it would be a great time to ponder our cyberculture, how much you share online and how well you manage your online reputation. In an increasingly connected world, everything people do online, from emailing, texting, uploading photos, making purchases online, to clicking the "like" and "retweet" buttons on favorite web pages, all contribute to their online reputation. In honor of Data Privacy Day, Microsoft released new data from a survey of 5,000 people whose online behaviors and attitudes vary widely and how their actions impact their overall online profiles and reputations. With respondents from the U.S., Canada, Germany, Ireland and Spain, the research shows that while 91% of people have done something to manage their overall online profile at some point, a smaller percentage, 67%, feel in control of their online reputation, and fewer than half, 44%, actively think about the long-term consequences of their online activities. 14% of people believe they have been negatively impacted by the online activities of others, even unintentionally so. Of those, 21% believed it led to being fired from a job, 16% being refused health care, 16% being turned down for a job, and 15% being turned down for a mortgage.

Microsoft Trustworthy Computing made a great infographic which you can see in full here. Tips to help maintain a positive online reputation can be found here.

"Your online reputation is shaped by your interactions in the online world and spans the disparate and varied data about you, whether created and posted by you or others. This information can have a lasting presence online, and can affect your life in many ways - from maintaining friendships, to helping you keep or land a new job," said Brendon Lynch, chief privacy officer, Microsoft Corp. "Our research reinforces that people want a range of privacy options. Microsoft is committed to offering meaningful choices and helping to ensure that people have the tools to make informed choices online to better manage their privacy and online reputations."

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Source: networkworld.com
By: Ms. Smith

Revealed: The FBI Wants to Monitor Social Media

The FBI is looking to develop a web application that can monitor social networks, including Facebook and Twitter, in order to gain better real-time intelligence about current or potential future security threats or situations.

This plan was inadvertently revealed by the FBI’s Strategic Information and Operations Center (SOIC) in a market research request for a “Social Media Application.”

The eagle-eyed New Scientist picked up on the request, which aims to “determine the capabilities of the IT industry to provide a social media application.”

Government agencies like the FBI are usually reluctant to openly discuss how social networks are used as an intelligence tool.

In the Request for Information document, the FBI lays out the requirements for the application that it is seeking to build. In the background portion of the document, the SIOC writes:

The FBI has conducted market research and determined that a geospatial alert and analysis mapping application is the best known solution for attaining and disseminating real time open source intelligence and improving the FBI’s overall situational awareness.

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Source: mashable.com

By: Christina Warren

Opinion: Eliminating human error from data loss risk

In a world adopting workforce mobility and flexibility more and more, we have to accept that sensitive data is going to be carried on portable devices, and take steps to secure it. Unfortunately, too many organisations are failing to do this.

Google the words “data loss” and you will be inundated with results referring to portable devices containing sensitive information that have been lost or stolen. For example, it was reported back in July that the Department of Health alone had lost more than 300 laptops and 400 mobile phones since 1997.

Although an outright ban on storing business data on portable devices would be impractical in today’s mobile environment, the Information Commissioner’s Office (ICO) is right to crack down on offenders. All organisations must ensure that any portable device containing sensitive information is carefully transported and, more importantly, properly encrypted. The policies, procedures and responsibilities need to be in place and understood, and appropriate encryption applied religiously.

But even for heavyweight encryption, there is still a risk the data can be accessed by a determined and resourceful third party. So when the information stored on portable devices is either particularly sensitive or particularly voluminous, as is likely to be the case with backup tapes, is encryption alone really enough?

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Source: computing.co.uk
By: Eoin Blacklock

Is Keeping Legacy Data More Trouble Than It's Worth?

Legacy data (backup tapes, file shares, personal storage tables, and other storage media) when kept indefinitely has no value or purpose. But it can create expensive havoc and costs that can be avoided if the data is properly managed—and destroyed when business and legal retention requirements expire.

Even ignoring electronic data discovery costs, the cumulative infrastructure and operational costs of hoarding data and data media are enormous. Many organizations have hundreds of thousands of unneeded tapes and terabytes of electronic files that have not been looked at in years, incurring significant backup, maintenance, and storage costs.

Business executives and lawyers worry that the data might contain information that is subject to a legal hold or be relevant to some existing or future litigation—and that its destruction could be second-guessed by adversaries and courts, resulting in spoliation sanctions. So it's not surprising that so many are reluctant to say, "Throw it out."

Yet saving everything is not an insurance policy—any comfort derived is illusory. In fact, keeping everything to avoid being subject to sanctions actually increases risks.

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Source: law.com
By: Anne Kershaw 

The Social Media Rubik’s Cube: FINRA Solved it First, Are Non-Regulated Industries Next?

It’s no surprise that the first industry to be heavily regulated regarding social media use was the financial services industry. The predominant factor that drove regulators to address the viral qualities of social media was the fiduciary nature of investing that accompanies securities, coupled with the potential detrimental financial impact these offerings could have on investors.

Although there is no explicit language in FINRA’s Regulatory Notices 10-06 (January 2010) or 11-30 (August 2011) requiring archival, the record keeping component of the notices necessitate social media archiving in most cases due to the sheer volume of data produced on social media sites. Melanie Kalemba, Vice President of Business Development at SocialWare in Austin, Texas states:

“Our clients in the financial industry have led the way, they have paved the road for other industries, making social media usage less daunting. Best practices for monitoring third-party content, record keeping responsibilities, and compliance programs are available and developed for other industries to learn from. The template is made.”

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Source: eDiscovery 2.0
By: Allison Walton

Megaupload Closure Forces Cloud Storage Questions

In the wake of Megaupload, security experts warn businesses that rely on cyberlockers to include service loss in their disaster and continuity planning.

Can cloud-based file-storage services be relied on for business use?

The FBI's takedown of cyberlocker site Megaupload last week sparked an international outcry from disenfranchised users, who had relied on the site for legitimate purposes. Many users have been left wondering: will their file-sharing website be next?

Some leading file-sharing sites have been suggesting otherwise. Notably, Tom Langridge, corporate communications director at Houston-based MediaFire, said on the company's blog that the company's premium services "are based on a user's ability to upload data and pay to distribute it," and said uploads for non-premium users were limited to 200MB per file. "We caution new users to read our terms of service carefully and understand that MediaFire takes violations of our terms of service very seriously," he said.

Similarly, Derek Labian, MediaFire's CEO, told Venturebeat, "We don't have a business built on copyright infringement," and if Google searches do turn up copyrighted files on MediaFire, that's Google's issue for indexing those files. In addition, he said, MediaFire maintains a "good relationship" with various government agencies, and has a program in place to comply with takedown requests by copyright holders, as is required by the Digital Millennium Copyright Act (DMCA).

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Source: informationweek.com
By: Matthew J. Schwartz 

Preparing for eDiscovery in Outsourcing Contracts

Parties to litigation are typically required to identify, preserve, retrieve, review and produce electronically stored information (ESI) within their control that is potentially responsive to the matter. The time frames for fulfilling these discovery requirements are often short, and courts have shown little patience for companies that fail to meet their discovery obligations. An excuse that “the data is on an outsourcing provider’s systems” will likely fall on deaf ears as courts continue to issue discovery sanctions for noncompliance that range from negligence to willful misconduct.

These sanctions can include monetary fines, adverse inference instructions, dismissal of the suit or default judgment or, sometimes, a combination of penalties. For example, in Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497 (D. Md. 2010), a federal court in Maryland found that the defendant had engaged in a willful bad faith discovery violation, including the failure to implement a litigation hold, attempted and actual deletion of ESI and misrepresentations regarding the completeness of discovery. The court recommended a default judgment and a permanent injunction as to plaintiff’s copyright claim. It also ordered monetary sanctions and that the president of Creative Pipe be jailed for not more than two years unless and until the award of attorneys’ fees and costs was paid.

To protect themselves, companies need systematic, reasonable and defensible electronic discovery and records management programs designed to comply with discovery obligations. These programs can reduce the need to conduct costly or inefficient fact-gathering in response to discovery requests and provide defenses to claims of improper destruction, or spoliation, of evidence. Further, having an effective and updated records management policy, program and retention schedule will enhance a company’s efforts to achieve proper data management—a key factor in minimizing discovery costs and mitigating the risk of sanctions.

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Source: mayerbrown.com
By: Shawna M. Doran, Kim A. Leffert, and Brad L. Peterson

Pricing: The Small Case E-Discovery Dilemma

Major vendors aren't interested in small profit cases, but web-based technology options are emerging In 2010, e-discovery consultant Craig Ball wrote a fascinating article in Law Technology News called "E-Discovery for Everybody."

The article came to be known as the "EDna Challenge" because in it, Ball posited a solo practitioner named Edna with an e-discovery budget of $1,000 and asked how she could possibly perform any e-discovery on that amount. The problem as Ball defined it was simple:

"The vast majority of cases filed, developed, and tried in the United States are not multi-million dollar dustups between big companies. The evidence in modest cases is digital, too. Solo and small firm counsel like Edna need affordable, user-friendly tools designed for desktop e-discovery -- tools that preserve metadata, offer efficient workflow, and ably handle the common file formats that account for nearly all of the ESI seen in day-to-day litigation."

With the high number of electronic data discovery vendors and the seemingly endless number of EDD conferences, webinars, seminars, and online training venues, you might think the challenge has been met. But those offerings are almost always packed, evidence that lawyers are not yet confident on how to handle EDD.

Why? Call it the "small case dilemma." While it is not automatically true that small cases require different tools for managing EDD, the fact is that small cases often mean small technology budgets. Unless your practice is sufficiently mixed with big budget cases so you already have a full complement of litigation support tools to use, you probably don't have the necessary technology to handle anything but the smallest e-discovery matter. And the small budget means you can't engage an outside consultant or vendor. But help may be on the way, from new web-based e-discovery options.

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Source: law.com
By: Tom O'Connor

Google user data to be merged across all sites under contentious plan

New privacy policy means Google could log browsing habits on YouTube or Google+ to sell targeted ads in Gmail or search

Google is under fire for plans to collect data on individual users across all of its websites and merge the information into a single profile that can be used to alter the person's search results and target them with advertising and services.

Users will have no way to opt out of being tracked across the board when the search company unifies its privacy policy and terms of service for all its online offerings, including search, Gmail and Google+. The move is being criticised by privacy advocates and could attract greater scrutiny from anti-trust regulators.

"If you're signed in, we may combine information you've provided from one service with information from other services," Google's director of privacy, product and engineering, Alma Whitten, wrote in a blogpost.

After the new policy comes into effect, user information from most Google products – such as YouTube, Gmail, Google Maps, Google+ and Android mobile – will be treated as a single trove of data, which the company could use for targeted advertising or other revenue-raising purposes.

An article in the Washington Post raised concerns about details of people's private meetings, health, politics and finances becoming part of their digital dossier kept by Google. Confidential discussions via Gmail of a meeting location might be transferred to Google Maps without the user's consent, for example.

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Source: guardian.co.uk
By: Staff

Failure to Produce Originals Could be Spoliation in Third Circuit

Bull v. United Parcel Service, Inc., --- F.3d ---, 2012 WL 10932 (3d Cir. Jan. 4, 2012)

In this case, the appellate court concluded that “producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information,” but found that in the present case, the District Court abused its discretion in finding that spoliation had occurred and in imposing a sanction of dismissal with prejudice.

The plaintiff in this case failed to produce two original notes from her doctor (but did produce copies during discovery). During trial, when plaintiff’s counsel attempted to introduce a copy of one of the notes, defendant objected on the basis of best evidence. In the sidebar that followed and in subsequent questioning of the plaintiff by the court, it became clear that there was some confusion between plaintiff and counsel as to the existence of the originals. Ultimately, plaintiff indicated that the original note “should be” at her home and the there was no reason she did not search for it previously. This contradicted her attorney’s representation that the plaintiff had been asked for the originals and reported that she could not find them. Accordingly, the District Court declared a mistrial and invited the defendant to file a motion for sanctions. Plaintiff produced the original doctor’s notes to the court five days later. Thereafter, upon consideration of defendant’s motion for sanctions, the District Court invoked its inherent authority and ordered the case dismissed with prejudice. Plaintiff appealed.

The appellate court’s analysis was lengthy and detailed. Summarizing broadly, the appellate court first concluded “that–theoretically—producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information.” The court further concluded, however, that the District Court abused its discretion “in ruling that, within its spoliation analysis, Bull intentionally withheld the original documents from UPS.” A showing of bad faith/intentionality is required to establish spoliation in the Third Circuit. The appellate court’s finding was based in large part upon its determination that the record lacked a factual foundation to support the premise that plaintiff actually knew that the defendant wanted the originals.

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Source: ediscoverylaw.com

Predictive Coding Gaining Acceptance As A Defensible eDiscovery Tool

The Editor interviews Warwick Sharp, Vice President, Marketing and Business Development, Equivio

Editor: Please provide our readers with some background on yourself and Equivio.

Sharp: I learned the software business at Amdocs, the global telecom billing giant, where I served as vice president of product marketing. By the time I left Amdocs to found Equivio, the company had grown from 400 to 10,000 employees. This was a very intensive learning experience.

I have had the good fortune to be a co-founder of Equivio – a unique opportunity to build a company from scratch, with close friends, and work with a fantastic team of talented and creative software technologists. We established Equivio in 2004, focusing on analytical software for eDiscovery. Our first product was near-duplicate detection, and this was followed by email threading and predictive coding.

We recently launched Zoom, an eDiscovery platform for predictive coding and analytics. With Zoom, we have taken our proven analytical applications, loaded them onto an integrated web platform, and then added a whole set of new functionality, such as data import, text extract, metadata analysis, early case assessment and language detection.

Editor: Do you find more resistance to technology in the legal market than in other markets in which you have been active?

Sharp: That was probably the case until about 2008, when everything changed. Until then, the litigation industry was suffering from acute “billable hour myopia,” but this pathology has cleared up over the past few years. The litigation industry is focusing much more on providing value for money and ensuring customer loyalty.

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Source: metrocorpcounsel.com

Employers, Employees and Social Media: What people in the workplace should know

Employee discontent has the means to extend far beyond the office since the advent of social media. More and more, employers are facing the need to regulate social media chatter.

"Whereas historically employees contained their comments and gripes about employers and supervisors to the water cooler, now they have a huge platform where they can exploit their gripes," said Jana Bradley, a partner with Heyl, Royster, Voelker & Allen law firm. "They have a new platform to voice their opinions."

Bradley presented a program about employer monitoring and restriction of employees' social media use Thursday at St. Mary's Hospital in Streator. She addressed area business owners about the legal ramifications and consequences of social media regulation.

"You have to step back and think about whether you will regulate this as a business. There are benefits and consequences," she said.

The business benefits of social media regulation are protecting the company's reputation. Employers do not want employees illuminating the business in negative light to hundreds of social media followers.

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Source: mywebtimes.com
By: Julie Stroebel

2012: Year of the Dragon – and Predictive Coding. Will the eDiscovery Landscape Be Forever Changed?

2012 is the Year of the Dragon – which is fitting, since no other Chinese Zodiac sign represents the promise, challenge, and evolution of predictive coding technology more than the Dragon. The few who have embraced predictive coding technology exemplify symbolic traits of the Dragon that include being unafraid of challenges and willing to take risks. In the legal profession, taking risks typically isn’t in a lawyer’s DNA, which might explain why predictive coding technology has seen lackluster adoption among lawyers despite the hype. This blog explores the promise of predictive coding technology, why predictive coding has not been widely adopted in eDiscovery, and explains why 2012 is likely to be remembered as the year of predictive coding.

What is predictive coding?

Predictive coding refers to machine learning technology that can be used to automatically predict how documents should be classified based on limited human input. In litigation, predictive coding technology can be used to rank and then “code” or “tag” electronic documents based on criteria such as “relevance” and “privilege” so organizations can reduce the amount of time and money spent on traditional page by page attorney document review during discovery.

Generally, the technology works by prioritizing the most important documents for review by ranking them. In addition to helping attorneys find important documents faster, some believe that this prioritization and ranking of documents could even eliminate the need to review documents with the lowest rankings in certain situations. Additionally, since computers don’t get tired or day dream, many believe computers can even predict document relevance better than their human counterparts.

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Source: eDiscovery 2.0
By: Matthew Nelson

The Story Behind Delaware's Default E-Discovery Standard

Delaware is known as "The First State" because it was the first to ratify the U.S. Constitution in 1787. In that same trailblazing spirit, the U.S. District Court for the District of Delaware has been at the forefront of electronic discovery innovation. LTN's article "Delaware's Default E-Discovery Developments," reported the Delaware federal court's adoption of its December 8, 2011, "Default Standard for Discovery, Including Discovery of Electronically Stored Information ('ESI')," which traces its lineage back more than seven years.

The Delaware federal court first published a default electronic discovery standard in 2004, during the Precambrian e-discovery epoch. For perspective, U.S. District Judge Shira A. Scheindlin, of the Southern District of New York, issued her Zubulake V opinion in July 20, 2004. The proposed amendments to the Federal Rules of Civil Procedure to address electronically stored information were published for comment in August 2004, and it was not until December 2006 that the FRCP ESI amendments took effect. Additionally, federal courts in Arkansas, Kansas, New Jersey, and Wyoming had made changes to their local rules to address some electronic discovery issues in 2003 and 2004. An Ad Hoc Committee for Electronic Discovery, appointed by U.S. District Court Judge Sue L. Robinson (Delaware), developed the first 2004 Standard. She appointed another committee to update the standard. Some of the original 2004 committee members remained and served on the 2011 committee. I spoke with a number of the 2011 committee members to get a picture of the deliberations that led to the latest standard. What emerged is a sense of pioneering judicial leadership and a bar that contributed considerable effort to the project.

The 16-member committee, which developed the 2011 standard, included Robinson, Magistrate Judge Mary Pat Thynge, 10 law firm representatives, three in-house counsel, and one representative from the U.S. Attorney's office. The composition of the new committee differs in one significant respect from the original: its three corporate counsel representatives.

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Source: law.com
By: Mark Michels 

Reduce Over-Preservation: One Of Many Uses Of Technology

The Editor interviews Howard Sklar, Senior Counsel, Recommind Inc.

Editor: As we enter 2012, what should law firms and corporations be looking out for?

Sklar: There are going to be several drivers of both corporate and law firm action, and certainly one of the larger ones – and one which remains a driving issue from 2011 – is the volume of information being produced.

Editor: How does that relate to over-preservation?

Sklar: When people think about the data explosion, they tend to think in static terms – they visualize a vast warehouse filled with electronic data. A better analogy might be that of an ever-expanding pipeline throwing new data into a pool. We have an unwieldy amount of information coming in every single day that threatens to overwhelm us, and this pipeline isn’t feeding into an empty pool – it’s feeding into a pool that is already overflowing.

This means that we have to address over-preservation from the standpoint of both handling incoming data as well as remediating old data. Uncontrolled data is both an information risk issue and an information governance issue.

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Source: Metropolitan Corporate Counsel

Human Element Critical to Computer-Aided E-Discovery

It wasn't long ago that Thomson Reuters' Westlaw Next initiative reminded me that the human element in computer-aided legal research is the key to accomplishing client goals. As with legal research, humans are the bellwethers and heavyweights in computer-aided e-discovery, despite the relentless buzz around predictive coding, technology-assisted review, and even attorney-less review -- buzz that implies computers will replace humans in e-discovery tasks, from collection to review. As the Big Data for e-discovery keeps getting bigger, humans are key in managing discovery in litigation and responsible for delivering results to clients, not computers and technology.

If computers can beat chess and Jeopardy champions, then they will soon take over other aspects of our lives from driving cars, such as in Nevada, to reviewing documents in litigation. Although my reasoning is invalid, it's important to note that Nevada opened its highways to robot (computer-driven) vehicles, not its urban areas. To date, the New York and Boston metropolitan areas have not followed Nevada's lead because driving in unpredictable and heavy traffic is not for robots or computers alone. And like heavy traffic, complex e-discovery is not for computers alone, but they can help humans make it more efficient and cost-effective.

Computers use binary numbers for input and output. They receive or read bits of input in zeros and ones and output the same. Granted, they do this very, very fast in consistent, repetitive manners that make them efficient candidates to review large sets of documents and determine whether or not some documents are relevant, or not, to a set of litigation facts. For example, Anne Kershaw and Joseph Howie found that when e-discovery providers used technology-assisted review with predictive coding, they were more cost-efficient than humans in a "brute force linear review."

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Source: law.com
By: Sean Doherty

Amended Expert Discovery: One Year Later, Has Anything Changed?

Amendments to Federal Rule of Civil Procedure 26, effective as of Dec. 1, 2010, promised to dramatically restrict the discoverability of materials related to work performed by a party's testifying experts. An express purpose of the amended Rule 26 was to "alter the outcome in cases that ... require[d] disclosure of all attorney-expert communications and draft reports." Fed. R. Civ. P. 26 advisory committee's note, 2010 amendment. Accordingly, with limited exceptions, amended Rule 26 grants work product protection to draft reports prepared by testifying experts, as well as to communications between a party's attorney and a testifying expert.

But one year after the amended Rule 26 took effect, has the landscape of expert discovery truly changed?

IMPETUS FOR AMENDMENT

Old Rule 26(a)(2) required a retained testifying expert's report to contain all of "the data or other information considered by the witness" in forming his or her expert opinion. As a result, prior to the Dec. 1, 2010, amendments, draft expert reports, and attorney-expert communications were unquestionably fair game for discovery by an opposing party. As one court explained, under the old Rule 26, "documents and information disclosed to a testifying expert in connection with his testimony are discoverable by the opposing party, whether or not the expert relies on the documents and information in preparing his report." In re Pioneer Hi-Bred Int'l Inc., 238 F.3d 1370, 1375 (Fed.Cir. 2001).

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Source: law.com
By: William H. Gussman Jr. 

Reducing Costs And Risks Associated With The Preservation Of Electronically Stored Information Through The Remediation Of Legacy Data

There is no doubt that the costs associated with preserving information that is potentially relevant to litigation or regulatory investigations, particularly in cases where the allegations are vague or where the party making the allegations takes the position the responding party must preserve all its documents, can be enormous and, in some cases, crippling. The costs associated with storing such information, as significant as they can be, often pale in comparison to the costs associated with analyzing and reviewing the information to determine whether it is, in fact, relevant to the litigation or investigation. The lack of uniform guidance from state and federal courts regarding the scope of the duty to preserve relevant information and the penalties for failing to do so further exacerbates the problem, leaving parties to weigh the costs of preserving vast amounts of data against the risks of being accused of spoliation – accusations which, even if unproven, can cause significant damage to organizations such as publicly traded companies. This weighing effort often results in a conservative decision to preserve broadly – an expensive course of action that seldom benefits either the parties to the litigation, the investigation or ultimately, the civil justice system. In fact, it can be argued that the current preservation rubric fails to follow one of the fundamental tenets of the Federal Rules of Civil Procedure, which states that the Rules "should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. Pro. 1 (emphasis added).

While proposed amendments to federal and state procedure rules as well as proposals to radically change the common law preservation rubric through legislation will undoubtedly improve the current situation, it will take a significant amount of time before the benefits of such changes are felt. However, there are steps that organizations can take today to mitigate the costs and risks associated with the retention and preservation of information.

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Source: metrocorpcounsel.com
By: Matthew Cohen & Brendan Sullivan 

EU Privacy Rules to Include Leak Disclosure Within 24 Hours

A European Union proposal to simplify and toughen the region’s data-protection rules will require companies to disclose data breaches within 24 hours of their occurrences, Justice Commissioner Viviane Reding said.

The EU will this week outline an overhaul of its 17-year- old data-protection policies addressing online advertising and social-networking sites. The bill, which includes stricter sanctions and will equip national data-protection authorities with powers to levy administrative sanctions and fines, will “become a trademark people recognize and trust worldwide,” Reding said at a conference in Munich yesterday.

Sony Corp. was criticized last year by U.S. lawmakers for taking six days to warn customers about a cyber attack that exposed more than 100 million customer accounts, the second- largest online data breach in U.S. history. Industry groups with members including Microsoft Corp. and Google Inc. have warned the EU against setting overly strict data-privacy rules, saying that may stifle innovation.

“What exactly do companies need to do within those 24 hours, and what happens for example with cookies?” said Kay Oberbeck, Mountain View, California-based Google’s head of communication for Germany, Austria and Switzerland, in an interview. Oberbeck was referring to Internet files that are saved on a user’s computer to enable website operators to display personalized content.

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Source: businessweek.com
By: Cornelius Rahn

FBI Megupload Shutdown Cuts Off Users From Personal Files, Business Data

Megaupload users who stored backups and personal data on the site protested the loss of their files, highlighting the risks of using a consumer file-sharing service for business purposes.

After law enforcement authorities shut down Megaupload, a popular file sharing service, for violating copyright laws, Internet users took to Twitter and online forums in protest, calling it a form of censorship.

For many users, the shutdown had nothing to do with piracy and everything to do with the fact that their backups and data were now gone.

The Department of Justice executed more than 20 search warrants in the United States and in eight other countries to seize servers and domains belonging to Megaupload, according to a 72-page federal indictment unsealed Jan. 19. Megaupload is an online "locker" service in which users can anonymously upload large files to the company servers and share the content via a unique URL.

While users may have used Megaupload to illegally share music, TV shows, movies and software, as the indictment claimed, there were plenty of people who used the service to store personal and private files, including work documents, videos and photographs. After the shutdown, these users complained on Twitter that they had been using the service to store their own content.

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Source: eweek.com
By: Fahmida Y. Rashid

Right-Thinking E-Discovery Project Management

Lawyers are not "project managers" -- they're lawyers.

That's not to say that lawyers don't juggle a thousand tasks every day, diligently supervise the folks that support their practice, or carefully manage a diverse portfolio of clients. Indeed, project management is part of doing business as a lawyer, but it is curiously not part of most law school curriculums.

E-discovery, however, throws a curveball at the intellectually routine practice of law. And evidence shows that lawyers are not prepared or not willing to manage the granular tasks necessary to supervise a successful e-discovery project.

Lawyers are trained to analyze and strategize -- not to categorize, prioritize, and quantify. Categorizing and prioritizing tasks and goals and quantifying results are absolutely critical to the success of any e-discovery project, but are considered beneath the ken of practicing law by many lawyers. So how should e-discovery tasks be managed, and who should be responsible?

Lawyers should look to forms of management that have been tested and proved successful, such as project management.

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Source: law.com
By: Brett Burney

What Megaupload Teaches Us About the Cloud, SOPA and Backups

The raid and subsequent shutdown of file-sharing service Megaupload not only hacked off members of Anonymous, it also underscores one of the inherent vulnerabilities in storing data in the cloud.

Beyond just providing easy TV access to college students without cable, Megaupload and the other sites in its network helped encompass the largest digital locker service in the world. While we suspect that the majority of Megaupload users were not storing family photos and personal documents, the site was exceedingly popular with users.

Ars Technica reports that Megaupload consumed more bandwidth in corporate workplaces than cloud-storage and collaboration services like Dropbox and Box.net.

Since the Megaupload shutdown, users with non-infringing content served on Megaupload’s servers have expressed outrage at no longer having access to their content.

According to the federal indictment, the data center that housed Megaupload’s servers had more than 1,000 different computers and contained more than 25 petabytes (25 million gigabytes) of data storage. That’s a lot of data.

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Source: mashable.com
By: Christina Warren 

Get Ready for State Regulation of Social Media

Although the author of this post is an attorney, nothing contained in this post should be considered legal advice. For legal questions, please consult with an attorney from your jurisdiction.

In a bold move, the Securities Division for the Commonwealth of Massachusetts announced guidelines on the use of social media for state investment advisors who were previously permitted to market their services on social networks, such as LinkedIn, Twitter and Facebook, without social media guidelines. Coming just two weeks after the SEC issued its own set of social media guidelines, the Division’s actions have raised the bar for other states to take similar action for the protection of investors.

Though many investors think that all investment advisors are regulated by the SEC, the reality is that the SEC only regulates investment advisors who manage $25 million or more in client assets. For investment advisors managing less the $25 million in client assets, the responsibility of regulation is left to the securities regulator for the state where the adviser has its principal place of business.

In July of 2011, the Massachusetts Division conducted a survey of investment advisers registered and doing business within the Commonwealth to “to determine the scope of investment advisers’ use of social media, and what, if any, record retention and supervisory procedures have been implemented or utilized by those advisers.” Seven-nine percent of the 576 investment advisers registered with the Division responded to the survey.

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Source: business2community.com

By: Glen Gilmore

Why Google's new search might be illegal

There's nothing illegal about being so big that you dominate a market.

But when Google (GOOG, Fortune 500) unveiled a new feature last week called Search Plus Your World, some antitrust experts believe Google stepped over the line.

Google's new feature risks abusing the company's dominant position in the search market to stifle competition from its rivals. That could be against the law.

"Google runs a very high risk of being found in violation of antitrust and competition laws," said Ted Henneberry, a partner at Orrick, Herrington & Sutcliffe's antitrust group. "The issue raised by Google's new announcement is how it potentially increases its dominance and furthers its discriminatory treatment of rivals."

Search Plus Your World tailors search results to each individual user by tapping into Google's social network, Google+. Search results now include Google+ posts and profiles. Noticeably absent from the feature are the much larger social networks of Facebook and Twitter, or any other social service.

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Source: money.cnn.com
By: David Goldman

State Dept., AG address EU cloud data privacy concerns

According to the U.S. Dept. of State, cloud computing, while a new and fast-growing technology, doesn't present any new issues when it comes to ensuring privacy of data within that cloud from law enforcement, and should not affect current treaties the U.S. has with law enforcement agencies in Europe and elsewhere.

In a conference call hosted by U.S. Ambassador Philip Verveer, Deputy Assistant Attorney General Bruce Swartz noted that "Cloud computing has important advantages to consumers (but) doesn't present any issues that have not always been present. Certainly not regarding Internet service issues, but even before that."

Concern about the way U.S. law enforcement obtains information about private citizens of the EU has been roiling in Europe for several months. Network World reported last fall that Patriot Act provisions could have the Dutch government cold-shouldering American cloud services vendors trying to bid on its contracts, because U.S. law enforcement can compel those vendors to release information on Dutch citizens to them. The European Parliament is also debating the Patriot Act's effect on its own data privacy laws.

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Source: fiercetelecom.com
By: Samantha Bookman

Guidance Revamps Decade-Old Evidence File Format

Guidance Software has updated its widely used but decade-old evidence file format, which now supports data encryption, officials said last week.

The format, which determines how information is stored in Guidance's EnCase series of e-discovery and forensic applications, works with the current EnCase 7, itself several years in the making. It also works on older version 6 releases, but not version 5, so the previous format called E01 is still supported.

Because of the new format, files are now far more secure. In E01, files only had passwords, but the new Ex01 uses asymmetric keys and 256-bit encryption. That makes lost or stolen files extraordinarily difficult to crack, although hackers have shown that it is possible with that encryption method.

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Source: law.com
By: Evan Koblentz

2012: The Year Of Technology-Assisted Review In eDiscovery

A lawsuit can really knock a company for a loop. Imagine being sued and asked to produce all responsive information, only to find that means sifting through 10 TB of emails. The process is complicated and it can be very costly. After all, the company must somehow determine with confidence whether each and every one of those emails is relevant to the lawsuit and/or subject to attorney-client privilege. This process has become much more manageable using technology to assist the review process.

While prognosticating information governance and eDiscovery trends last month, the eDJ Group asserted that 2012 would be the year that technology-assisted review and predictive coding really take off. Companies obviously need to address and reduce high legal review costs. It is also critical to dramatically increase review capacity given the growth in information volumes while improving the accuracy and quality of review. There is anecdotal evidence of technology-assisted review methods like predictive coding gaining traction, but there was not great data on actual usage rates or plans. eDJ Group began running a survey on the topic earlier this month (you can take the survey here), and early data returns show that 2012 is indeed the year that technology-assisted review for more automated review processes will take off.

What technology-assisted review techniques like predictive coding do is use a mix of people and technology to automatically mark documents in a case corpus as either privileged, responsive, or both. Actual predictive coding methodology has been in practice for decades outside of the legal industry (e.g. Pandora’s music service is really a predictive coding methodology). The legal market has been slower to adopt some technology-assisted review methodologies en masse because this market, in particular, tends to be more conservative about adopting new techniques. Many prefer to wait for rules or precedents to be set before buying in to these technology-assisted approaches. eDJ Group asked survey respondents if they have used or are using predictive coding at present. While the survey has only been live for a week, early results confirm our hypothesis that adoption is still fairly low – only one-third of respondents have used or are using predictive coding.

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Source: forbes.com
By: Barry Murphy

Bottom Line Driven Proportional Review

I have been working on the problem of out-of-control e-discovery costs since 2006. At that time I phased out my general trial practice, went full-time e-discovery, and started this blog. (By the way, did you notice the new ® in the blog title? It means the U.S. Patent and Trademark Office granted me the trademark to e-Discovery Team.) I focused on the expense side because it was obvious that crazy high e-discovery cost was a core problem of civil litigation. It still is. Indeed, the high price of e-discovery, and the uncertainty of these costs, are the main reasons most attorneys still avoid e-discovery like the plague. For more reasons see Tell Me Why?

The primary expense of e-discovery comes from the document search and review process; most estimate that it constitutes from 60% to 80% of the total. The core expense of the review process comes from the final manual quality control checks of each document to be produced to verify relevancy and to protect confidentiality by redaction and privilege logging. Confidentiality protection is an enormous problem in litigation. See Anonymous, An Open Letter to the Judiciary – Can We Talk? Parts One and Two.

Further, you cannot just dispense with final manual review. As I explained in my series Secrets of Search, Parts One, Two and Three, we are not going to turn that over to the Borg anytime soon. I’ve asked around and no law firms do that now. No experts advocate that approach either, even the most extreme advocates for automation (of which I’m one). The only exception I have heard of is in non-litigation circumstances, such as second reviews with production to the government. Automated review is nowhere near good enough to go it alone. You use predictive coding to speed up the final manual review to be sure, but only a fool (or con artist trying to get at a producing parties secrets) trusts coding software today without human verification.

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Source: e-discoveryteam.com
By: Ralph Losey

The Sedona Conference® Issues "International Principles on Discovery, Disclosure & Data Protection"

In December, the Sedona Conference® made available its latest publication, International Principles on Discovery, Disclosure & Data Protection: Best Practices, Recommendations & Principles for Addressing the Preservation & Discovery of Protected Data in U.S. Litigation (Public Comment Version). Among the information included are six Principles and attendant commentary as well as a model protective order and a “model data process and transfer protocol for use by parties and courts to better protect litigation-related data subject to data protection laws within the ambit of traditional U.S. litigation and court discovery practices.”

From the Introduction:
Here, TSC advances its position that data protection and discovery must co-exist. Data Protection Laws, after all, are not inherently antithetical to U.S. preservation and discovery efforts. U.S. courts and parties often provide protections for personal, confidential, and sensitive information through the use of confidentiality agreements and protective orders. Courts, in fact, have denied discovery in circumstances where privacy rights are deemed more important than the discovery sought by litigants.

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Source: ediscoverylaw.com

5 Key Considerations When Litigating Cloud Computing Disputes

Given the ever-increasing reliance on cloud computing, it is inevitable that disputes and litigation will increase between corporations and cloud service providers. The most obvious point of contention will occur if data in the cloud is lost, damaged, stolen or is otherwise rendered inaccessible for a period of time. In such circumstances, the corporation may be facing enormous liability and will seek to hold the cloud provider responsible, while the cloud provider will undoubtedly look to the parties' agreement and the underlying circumstances for defenses. This article discusses five key considerations for litigators representing corporations and/or cloud providers to focus upon in litigating cloud computing disputes.

BACKGROUND
Cloud computing is the process by which a corporation uses remote computing providers connected via the Internet, rather than internal servers and network drives, to store and access the corporation's electronically stored information. Cloud computing essentially consists of large blocks of server space that are owned and managed by cloud providers, which corporations essentially "rent" on an as-needed basis.

Renting cloud space has become increasingly popular in recent years because it saves corporations the cost of building and maintaining their own data centers, and allows them to ramp up or down the amount of server space on an as-needed basis. For example, cloud computing allows retail companies to have access to more server space during the holiday season without paying for that space as it goes unused during the slower summer season. Cloud providers also provide software maintenance and updates, which allows corporations to reduce expenditures on software and information technology staff.

LITIGATION LIKELY TO INCREASE
When a corporation internally houses its own data and software, problems, of course, may arise. Data may be stolen, lost, damaged or rendered inaccessible, potentially causing the corporation to shut down all or parts of its business for a period of time, resulting in lost profits, lost customers and costs of remediation. However, since the corporation is in charge of its own data, it may have only itself to blame. On the other hand, when the corporation enlists a cloud provider and problems occur, the corporation has a clear target -- the so-called "expert" or cloud provider. Thus, as more and more corporations rely on the cloud, litigation in this area is expected to increase.

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Source: law.com
By: Gerry Silver

FTC Adding Social Search to Google Antitrust Probe

The FTC is reportedly adding Google's "Search, plus your world" service to its federal antitrust inquiry into the company's search practices. Search experts agree this is the logical course.

The Federal Trade Commission is reportedly expanding its antitrust probe of Google to include the company's new "Search, plus your world" social-search feature, an effort to make users' results more personal.

Bloomberg and Reuters both said Jan. 13 that the FTC is looking into the matter because it is concerned Google is providing preference to Google+ over Web services from others, breaking its promise to provide unbiased search results.

Search, plus your world injects posts and pictures from users' Google+ accounts into their search results. It also makes users' Google+ contacts and relevant Google+ Pages more readily searchable.

However, the service eschews such content from Facebook and Twitter, two of the world's leading social services that users have come to expect content from on search engines. Google's failure to treat third-party sources equal to Google+ in search results drew complaints from the media, Twitter and the Electronic Privacy Information Center (EPIC).

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Source: eweek.com
By: Clint Boulton

From the Experts: Don't Get Caught With Your Head in the Clouds

Among the most notable tech developments over the past year was the significant move by leading technologies companies such as Apple, Amazon, Google, and Microsoft toward cloud computing for both personal and business data. Indeed, a recent survey by Forrester Research Inc. found that 28 percent of all online U.S. adults use a personal cloud service, and 41 percent of them use cloud computing at work. This relatively nascent technology platform, however, entails some potential risks, particularly in the already complex area of e-discovery.

Regardless of whether your company currently relies on a cloud platform or is contemplating such a move, you need to honestly assess whether your company is currently in a position to identify, locate, preserve, and produce cloud data potentially responsive to litigation or an investigation. These questions need to be considered and worked through prior to litigation.

While the variety of internal IT and cloud structures makes prescribing specific solutions difficult, any prudent plan for managing e-discovery for cloud data should touch on the following areas:

Control
Federal Rule of Civil Procedure 34 requires that parties produce or make available “documents or electronically stored information” in the party’s “possession, custody, or control.” A handful of courts have already held that data stored in a cloud is indeed within a party’s control, for purposes of Rule 34. See, e.g., Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443, 453 (C.D. Cal. 2007); Tomlinson v. El Paso Corp., 245 F.R.D. 474, 477 (D. Colo. 2007). Other courts may take this approach, given the increasingly widespread adoption of the “practical ability” test, under which the court considers whether a party has the practical ability to access the requested information.

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Source: law.com
By: Ben Barnett and Regan Hunt Crotty