District Court Upholds Judge Peck’s Predictive Coding Order Over Plaintiff’s Objection

In a decision that advances the predictive coding ball one step further, United States District Judge Andrew L. Carter, Jr. upheld Magistrate Judge Andrew Peck’s order in Da Silva Moore, et. al. v. Publicis Groupe, et. al. despite Plaintiff’s multiple objections. Although Judge Carter rejected all of Plaintiff’s arguments in favor of overturning Judge Peck’s predictive coding order, he did not rule on Plaintiff’s motion to recuse Judge Peck from the current proceedings – a matter that is expected to be addressed separately at a later time. Whether or not a successful recusal motion will alter this or any other rulings in the case remains to be seen.

Finding that it was within Judge Peck’s discretion to conclude that the use of predictive coding technology was appropriate “under the circumstances of this particular case,” Judge Carter summarized Plaintiff’s key arguments listed below and rejected each of them in his five-page Opinion and Order issued on April 26, 2012.

■ the predictive coding method contemplated in the ESI protocol lacks generally accepted reliability standards,

■ Judge Peck improperly relied on outside documentary evidence,

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Source: eDiscovery 2.0

By: Matthew Nelson

Three hot issues in records management

"The user should not be a de facto records manager, now that methods of doing it automatically are available."...

Information governance, auto-categorization and e-discovery focus attention on RM.

Records management is generating an unusual degree of passion lately. Long held captive to an image of dusty file cabinets in the basement, accessed only when needed for legal purposes, records management is now being recognized as a critical component in information governance, a vital process that extends beyond—but includes—records management. The sheer volume of information with which organizations must cope is an important aspect of records management, because proper application of policies will eliminate unnecessary documents.

The need to locate information is another issue driving records management. If it is not classified correctly, information is much harder to locate quickly. Auto-categorization is helping to reduce the burden on users to declare and categorize documents as records, a step that is often overlooked or incorrectly carried out. Also, e-discovery has been driving records management because when records are properly managed, the process is greatly simplified and the threat of sanctions is reduced.

Information governance

"Records management is a fundamental cornerstone of good governance," says Galina Datskovsky, senior VP of information governance at Autonomy, (an HP company) and president of ARMA International. "As a part of governance, records management touches multiple groups, including business users, the IT department, the legal community and executive management."

The broad relevance of records management also points to the need for interdisciplinary skills from the records management officer. "Records management should be involved in everything from procurement to e-discovery, and the leaders should have the skills to match this diversity of activities," says Jason R. Baron, director of litigation in the Office of General Counsel at the National Archives and Records Administration. "Records managers should be involved in a creative, interdisciplinary way to ensure that the role of records management is understood and supported."

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Source: kmworld.com

By: Judith Lamont Ph.D.

Preserving e-evidence a difficult task

Legal community seeks rules to curb digital shredding

Canadian lawyers can rest easy knowing the courts here won’t typically use attorneys to prove a point, as is occasionally the case in other jurisdictions. Just ask an American lawyer who was served with a rude awakening to the tune of US$542,000.

Last October, a Virginia judge slapped lawyer Matthew Murray with one of the largest e-discovery sanctions levied to date for advising his client to take down Facebook photos.

“The reason is quite simple. In the U.S., judges are elected and they tend to be a bit populist,” says Dominic Jaar, KPMG’s National Leader of Information Management and E-Discovery. It was a startling twist in a lawsuit that spawned a massive US$8.6 million wrongful-death award. The judge also took away US$4.1 million from Murray’s client, Isaiah Lester, whose wife was killed when a truck rolled on to her car in 2007. On top of that, Lester was forced to pay an additional US$180,000 fee.

The words Murray wishes he could rescind: “We don’t want blowups of this stuff at trial,” he told his assistant, referring mostly to a photo that showed Lester holding a beer can and a T-shirt emblazoned with “I (heart) hot moms”.

Sanctions of that magnitude for spoliation of evidence haven’t surfaced yet in Canada. It’s unlikely they ever will, even as it becomes more challenging to preserve evidence as social media proliferates. The obvious ethical implications of telling a client to destroy or conceal records keep lawyers in check.

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Source: The Lawyers Weekly

By: Anwar Ali

FTC Chair: ‘I Don’t Think Most of Us Understand’ How Personal Data Is Used

Federal Trade Commission Chairman Jon Leibowitz believes that, while most people don’t know what happens to their personal data online and some notions of privacy may be shifting, average Internet users still “care enormously” about digital privacy.

“I think they are very concerned because they have a sense that information is being captured, and they’re not sure where it’s going,” Leibowitz told a small group of reporters at the FTC’s Western Region office in San Francisco on Thursday. “I don’t think most of us understand how it’s captured and transferred and monetized, but I think there is generally concern from consumers about that.”

As social and mobile technology continue to explode and proliferate the amount of information people reveal about themselves — including location, preferences and consumption habits — a number of recent high profile gaffes by tech companies have thrust privacy issues more into the public eye.

Google, Apple, Facebook and Twitter have all been the subject of relatively visible privacy breaches or questions over the past several months. To name a few examples: Google is currently being investigated by the Federal Communications Commission regarding personal emails and data collected by its Street View cars; Facebook missed a deadline to grant European users more control over privacy; Sen. Charles Schumer called out Apple and Google for allegedly stealing users’ private contacts without their consent; and Twitter faced criticism for storing iPhone app users’ contacts on its own servers.

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Source: Mashable
By: Sam Laird

Nod to Predictive Coding in 'Da Silva Moore' Stirs Caution, Excitement

Feedback is flying fast around the recent affirmation of Magistrate Judge Andew Peck's predictive coding order in the potentially historic labor law case of Monique da Silva Moore, et al. v. Publicis Group SA, et al, in the U.S. District Court for the Southern District of New York.

The order, affirmed Wednesday by Judge Andrew Carter, allows the defendant to use computerized review software. Such software uses artificial intelligence to search for responsive information -- a method advocates say is more accurate, and potentially faster and less expensive, than manual review or partially automated processes such as keyword search. In da Silva Moore, the software is Recommind's Axcelerate suite.

Law Technology News asked several interested parties to comment via email.

"In affirming Judge Peck, Judge Carter specifically noted, 'There is simply no review tool that guarantees perfection. 'It is important not to overlook this aspect of the decision, as requesting parties -- especially those that themselves claim to not have a lot of data, like plaintiffs in labor and employment disputes like da Silva Moore -- often start their analysis of preservation, search and production standards as one of perfection," noted Paul Weiner, national e-discovery counsel for Littler Mendelson, in Philadelphia.

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Source: law.com

By: Evan Koblentz

Should You Worry About Google Drive Privacy?

PC World — The wording of the Google Drive terms of service has ruffled some feathers. However, the short answer to the question posed in the title of this article is "no". Allow me to explain.

Google Drive finally unveiled its long-rumored cloud data storage service, Google Drive. The wording of the terms of services claims that Google reserves the right to "use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute" content uploaded to their services.

What? Taken literally, that seems to imply that when I store a picture from my kid's birthday party in Google Drive, Google can do whatever it wants to with that file. Why does Google need to reproduce, modify, or distribute a picture from my kid's birthday? Does this mean I've surrendered my data and Google now owns it?

Again, the answer is "no".

All of the confusion about data privacy and ownership with Google Drive ignores the sentence that comes right before that part: "You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours."

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Source: CIO

By: Tony Bradley

Da Silva Moore, Global Aerospace, and Kleen Products – Hyped Triumvirate, But Dispositive Opinion Is Yet To Come

Three recent cases have taken the spotlight in the eDiscovery world, lauded as groundbreaking for their approval of predictive coding. This blog is no exception, having contributed to the commotion, particularly that surrounding Monique da Silva Moore, et. al. v. Publicis Group SA, et al.

In Da Silva Moore, the parties initially agreed to use predictive coding (although they never agreed to all of the details) and Magistrate Judge Peck allowed its use. Plaintiffs have since attacked Judge Peck and most recently formally sought his recusal from the matter. That request is currently pending. Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles, is the most recent case to address predictive coding, and it goes a step further than Da Silva Moore. In

Global Aerospace, the defendants wanted to use predictive coding themselves, but plaintiffs objected. Virginia County Circuit Judge James H. Chamblin, ordered that Defendants could use predictive coding to review documents. Like Da Silva Moore, the court did not impose the use of predictive coding, rather, the court allowed a party to use it upon request.

Kleen Prods., LLC v. Packaging Corp. of Am. goes the furthest, and is perhaps the most interesting of the three predictive coding cases because it is different than Da Silva Moore and Global Aerospace in one very important way: the plaintiffs in Kleen are asking the court to force the defendants to use predictive coding when defendants review their own material. The court has yet to rule on the issue.

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Source: eDiscovery News

By: Brandon D. Hollinder

Cloud storage booming, but trouble brewing

SkyDrive, Google Drive, Dropbox, Box, and SugarSync have the same feature that got Megaupload shut down, and users still have reason to distrust providers

No matter how you slice it, there's only a finite number of people and companies that will put their data in the public cloud, but that hasn't stopped the competition -- for a free service, no less! -- from turning cutthroat. But the market could be in trouble if the same standards that brought down Megaupload are applied or if providers continue to abuse users' trust.

Over the past few days, two industry heavyweights have tossed their hats in the online storage ring. Microsoft's SkyDrive came first, with 7GB of free storage, tight integration with Office Web Apps, and promised (but not yet delivered) Windows 8 Metro support. The next day, Google announced its long-anticipated Google Drive, improving upon Google Docs with 5GB of free storage and tight integration with Google Apps.

Microsoft and Google, by blessing and massively publicizing the concept, will certainly convert some hesitant users and businesses to the public cloud storage faith, but they'll hardly have the field to themselves. Pick your favorite online storage approach -- iCloud, SkyDrive, Google Drive, Cloud Drive (from Amazon), Dropbox, Box, SugarSync, SpiderOak -- and you can find at least three online reviews right now that will agree with your choice. I guess that's what makes a horse race.

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Source: infoworld.com

By: Woody Leonhard

First State Court Issues Order Approving the Use of Predictive Coding

On Monday, Virginia Circuit Court Judge James H. Chamblin issued what appears to be the first state court Order approving the use of predictive coding technology for eDiscovery. Tuesday, Law Technology News reported that Judge Chamblin issued the two-page Order in Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles Jet Center, et al, over Plaintiffs’ objection that traditional manual review would yield more accurate results. The case stems from the collapse of three hangars at the Dulles Jet Center (“DJC”) that occurred during a major snow storm on February 6, 2010. The Order was issued at Defendants’ request after opposing counsel objected to their proposed use of predictive coding technology to “retrieve potentially relevant documents from a massive collection of electronically stored information.”

In Defendants’ Memorandum in Support of their motion, they argue that a first pass manual review of approximately two million documents would cost two million dollars and only locate about sixty percent of all potentially responsive documents. They go on to state that keyword searching might be more cost-effective “but likely would retrieve only twenty percent of the potentially relevant documents.” On the other hand, they claim predictive coding “is capable of locating upwards of seventy-five percent of the potentially relevant documents and can be effectively implemented at a fraction of the cost and in a fraction of the time of linear review and keyword searching.”

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Source: eDiscovery 2.0

By: Matthew Nelson

No Warrant Necessary: Judge Rules Tweets Can Be Used in Court

Anything you tweet may be used against you in a court of law.

A judge in New York ruled Monday that prosecutors don’t need to have a warrant to subpoena your Twitter account, since that information is made publicly available through a third-party service.

Occupy Wall Street protester Malcolm Harris was informed earlier this year by Twitter that his account had been subpoenaed. He attempted to block the subpoena, citing concerns such as the method by which the subpoena was delivered to Twitter—it was faxed to the company’s San Francisco office.

Harris is facing up to 15 days in prison for disorderly conduct. He was on the Brooklyn Bridge last fall, when a march took place. He pleaded not guilty to the charge.

"New York courts have yet to specifically address whether a criminal defendant has standing to quash a subpoena issued to a third-party online social networking service seeking to obtain the defendant’s user information and postings,” wrote Judge Matthew Sciarrino Jr. in his decision. “Nonetheless, an analogy may be drawn to the bank record cases where courts have consistently held that an individual has no right to challenge a subpoena issued against the third-party bank.”

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Source: mashable.com

By: The Daly Dot

Making E-discovery work for legal eagles

There is little argument that cloud computing and software-as-a-service (SaaS) platforms have created a paradigm shift in enterprise technology and IT as a whole. Companies of all sizes – both public and private – seeking to reduce storage costs, improve overall efficiency and integration with partners, are increasingly turning to the cloud to house information and run essential business functions remotely.

The Business Software Alliance Global Cloud Computing Scorecard ranked Australia second only to Japan as a global destination for the software-enabled resources and services delivered on an “as needed” basis. The Scorecard was based on seven key criteria: industry-led standards and international harmonisation; data privacy; security; cybercrime; intellectual property; free trade; and information technology readiness and broadband deployment.

Australia was rated among the leaders in each category, contributing to its overall second place ranking in what is one of the fastest growing information technology sectors globally. Indeed, a September 2011 IDC survey of enterprises in Australia found that 20.6 per cent of the respondents are using Cloud computing, while 32.4 per cent are planning to deploy cloud services in the next six to 12 months. A further 41.2 per cent of companies are planning to implement Cloud services by 2013.

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Source: technologyspectator.com.au

By: Adrian Briscoe

Compliance Is A Gold Mine

Regulations are not just for big businesses anymore. Today states are enacting data privacy laws that mandate companies both large and small protect the confidential data of their customers. And this could be a huge opportunity for you to add services and provide expertise to your customers.

Earlier this month the state of Utah disclosed that 181,000 people who receive benefits from Medicaid and the Child Health Insurance Plan had personal information stolen due to a simple configuration error. These types of disclosures happen all too often. In fact, there have been more than 3,000 breaches since 2005 with more than 545,645,703 records breached in the same time period. While Windows has been the platform of choice for hackers, the popularity of Apple devices has hackers moving their attention toward the Mac platform. Kaspersky Lab recently said that its analysis of a massive botnet revealed that more than 98 percent of the infected systems were running a version of Mac OS X and more than 600,000 computers had been compromised. If you think anyone or any platform is safe, think again.

There is an alphabet soup of regulations out there: PCI-DSS for companies that take credit-card payments, GLBA and SOX for financial institutions, HITECH and HIPAA for the health-care sector. You can add to the mix 46 states that now have some sort of data breach notification law on the books, with Massachusetts and Nevada leading the charge with stringent laws forcing proactive, not reactive, security measures.

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Source: crn.com

By: Kelley Damore

As unstructured data heats up, will you need a license to webcrawl?

Cheap computing and the ability to store a lot of data at a low cost have made the concept of big data a big business. But amid the frenzy to gather that data, especially unstructured information scraped from or accessed via crawling web sites, companies might be pushing the boundaries of polite (or ethical) behavior. They may also be stealing valuable IP. So is it stoppable and could the current solutions lead to the demise of the open web?

The web is full of all kinds of data, some in data-friendly formats such as CSV files and others in indecipherable text or pricing formats that require companies to clean it before shoving it in a database to use it. Companies such as Infochimps or Microsoft’s Windows Azure Marketplace are trying to take some of the messier files and offer them to people. Other companies, such as Factual and Datafiniti, are building businesses based on scraping the content from sites and then creating customized databases for clients.

And scraping is complex. The act of indexing a web page and then pulling the data from it can be a beneficial action, such as when Google indexes your web site, but not everyone is a good scraper. When done without regard to the host site it can suck up a site’s bandwidth or even appropriate their intellectual property. Some argue that the behavior is problematic, while others argue that preventing it hurts consumers, society and maybe even the open web. So should one have a license to webcrawl?

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Source: gigaom.com

By: Stacy Higginbotham

E-discovery in the cloud? Not so easy

Don't wait until the lawyers come calling to figure out if you can find your cloud-based data. Your company is embroiled in a lawsuit, and your general counsel has come to IT for help in conducting e-discovery on a batch of data. You easily gather some of the information from storage in your data center, but the rest of it is sitting in the cloud. Easy enough, you think, to get that data as well.

You may be in for a rude awakening.

Many lawyers and IT staffers "just assume if they put data in the cloud it's going to be at their fingertips, that it's inherently discoverable," says Barry Murphy, co-founder and principal analyst at eDJ Group, a consulting firm specializing in e-discovery. "That's not necessarily the case."

Under the Federal Rules of Civil Procedure, a party to litigation is expected to preserve and be able to produce electronically stored information that is in its "possession, custody or control." But in the cloud, the situation isn't so clear. Information that's electronically stored in the cloud is presumably under your control, but it may not technically be in your possession, says James M. Kunick, principal and chair of the intellectual property and technology practice at law firm Much Shelist.

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Source: Computer World
By: Tam Harbert 

Social Media Roundtable: Privacy Issues And Courtroom Implications

Editior: In what ways has social media altered the definition of privacy (and the reasonable expectation thereof), and how do you imagine it evolving going forward?

Clark: The prevalence of social media has blurred the line between what information is public and private as well as the line between what is business and personal. Further complicating that already blurry distinction is that employers are now asking for access to applicants’ accounts to review their suitability for positions, in addition to conducting traditional background checks. For example, the Maryland State Department of Corrections recently asked applicants to log in to their social media accounts during interviews so that the interviewer could inspect their Facebook timelines.

This trend is likely waning. Facebook recently asserted that “if you are a Facebook user, you should never have to share your password, let anyone access your account or do anything that might jeopardize the security of your account or violate the privacy of your friends.” In addition, Maryland has become the first state to develop legislation designed to protect employees and applicants from having to disclose their usernames and passwords for electronic accounts, including social media. Furthermore, U.S. Senators Chuck Schumer (NY) and Richard Blumenthal (CT) have asked the U.S. Equal Employment Opportunity Commission and Department of Justice to investigate this trend and determine whether this practice violates the Stored Communication Act or the Computer Fraud and Abuse Act. But until this legislation is enacted, companies are likely to continue to search for ways to get at prospective and current employees’ social media accounts – they contain too rich a repository of information on prospective hires for them to ignore.

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Source: metrocorpcounsel.com

Proportionality Demystified: How Organizations Can Get eDiscovery Right by Following Four Key Principles

Talk to most any organization about legal issues and invariably the subject of eDiscovery will be raised. The skyrocketing costs and lengthy delays associated with data preservation and document review provide ample justification for organizations to be on the alert about eDiscovery. While these costs and delays tend to make the eDiscovery landscape appear bleak, a positive development on this front is emerging for organizations. That development is the emphasis that many courts are now placing on “proportionality” for addressing eDiscovery disputes.

Though initially embraced by only a few cognoscenti after 1983 and 2000 amendments to the Federal Rules of Civil Procedure (FRCP), proportionality standards are now being championed by various district and circuit courts. As more opinions are issued which analyze proportionality, several key principles are now becoming apparent in this developing body of jurisprudence. To better understand these principles, it is instructive to review some of the top proportionality cases issued this year and last. These cases provide a roadmap of best practices that, if followed, will help courts, clients and counsel reduce the costs and burdens connected with eDiscovery.

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Source: eDiscovery 2.0

By: Philip Favro

Is Pinterest Now Dangerous for Pinning Videos?

Pinterest only allows members to “pin” links to videos from both YouTube and Vimeo, and not upload the actual videos themselves like they can with static images. But can you still get in trouble for pinning videos that aren’t your own? I asked this question of three attorneys with legal expertise in social media, who explain the potential legal issues with embedding videos on Pinterest that marketers and other professionals need to consider before pinning.

Attorneys Weigh In on Pinterest Videos – Fair Use or Illegal?

Daliah Saper is the Principal attorney of Saper Law Offices out of Chicago, with a focus on New Media and Intellectual Property Issues. She is also a legal analyst on Fox Business News, and has been a featured speaker on legal issues with Pinterest.

“The question of whether or not linking to or embedding a link is considered copyright infringement is one that has yet to be definitively answered by courts. For example, while the Court in Ticketmaster v. Tickets.com found that sharing links themselves does not constitute copyright infringement, other court decisions have laid the groundwork for copyright owners to bring successful claims under contributory copyright infringement against individuals who provide links to infringing material. (Grokster)

Therefore, even if a Pinterest user is merely linking to a YouTube video rather than uploading it, there is still the possibility that this individual may be liable for contributory copyright infringement. It is always best to proceed with caution and avoid linking to or embedding clearly infringing content such as an episode of a TV show. It is also important to note that most copyright owners simply ask YouTube to remove the infringing material instead of going after every individual who has linked to it.”

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Source: business2community.com

By: Grant Crowell

The eDJ Group Predicts that ‘Assisted Review’ will be the Keywords in 2012

Sifting through hundreds of thousands of emails to find all the relevant correspondence for a court case can be long and laborious, costly and complicated, but with the introduction of technology to help with this process, the process could be a lot simpler and easier. The eDJ Group’s assessment demonstrates that 2012 is the year when technology ‘assists’ the review of electronic data, and the new method of predictive coding could really be the new ‘hot’ solution for companies and litigators.

Technology-driven assisted review methods, such as predictive coding, is essentially bringing together ‘man and machine’, with the technology element automatically ‘marking’ documents as either privileged, responsive or both. Predictive coding has been in use in other industries for some years, like Pandora’s music service, the legal industry has taken a bit longer to adopt the methods of technology-assisted reviews. The eDJ Group is currently running an online survey regarding eDiscovery and have asked respondents on their use of predictive coding; early results indicate that adoption of assisted review methods as being low, with just one third of them confirming they have used or are using predictive coding. Despite this low feedback, what is encouraging is that 28% of those who are not using predictive coding say they plan to within the next year, which could give the method a market penetration of 50%.

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Source: enterprisecommunications.com
By: Allie Philpin

It's Time for Smaller Firms to Question BigLaw Technology

They can learn from larger firms, but may have better, more nimble, options. Technology leaders in smaller law firms have three prime directives: They must maintain technical operations, keep legal professionals happy and productive, and continually innovate. The challenge is to balance all three with limited resources.

In the past, the default posture was to reduce risk by following BigLaw's lead. But this approach is progressively painting our entire profession into a corner. Smaller firms actually have a huge advantage over larger ones when it comes to risk and innovation.

Smaller firms are more nimble and can adapt to change. Their users typically are more open to new ideas, standards are less rigid, and implementation costs are usually lower. But that doesn't stop vendors from name-dropping. Ask any legal technology vendor for its "elevator pitch" and within the first few sentences, you will hear a litany of names of law firms customers (the bigger the firm, the stronger the emphasis).

There is a changing tide in legal technology that many vendors don't seem to recognize as they assume our legal culture is pigeonholed into making "lemming" decisions based upon what other firms are doing.

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Source: law.com

By: William Caraher

Telstra's social media school

Telstra chief executive David Thodey said yesterday the telecommunications giant operates a 60-person social media monitoring team, fuelling discussion about how businesses monitor their own social media presence.

It’s been well-known for a while now that Telstra maintains a healthy social media presence, responding to customers on Twitter, Facebook, or on websites such as the Whirlpool forums.

Although 60 people may seem like a lot, Telstra’s a big company, and has a lot of people talking about it on a variety of platforms – it’s a lot of content to sort through and respond to.

"We ourselves have about 60 people who monitor every social media site... and you can imagine what is said about Telstra," Thodey said yesterday at an event in Queensland.

You may not have 60 people – you may not have one full-time social media manager – but here are a few places you can start looking if you ever decide to put someone on the task.

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Source: businessspectator.com

By: Patrick Stafford

US government wants to deny Megaupload a fair trial

Probably a good reason to fight extradition

The chances of Megaupload founder Kim DotCom getting a fair trial in the US appears remote.

The United States government is making it as difficult as possible for Megaupload to obtain legal advice in the Land of the Fee.

While the top law firm of Quinn Emanuel Urquhart and Sullivan has sought permission to represent Megaupload in the case, the government has refused.

The government's argument is that DotCom should not be allowed to use money he has "stolen" from Big Content to pay for a fancy lawyer to get him off.

As Quinn Emanuel told the court that the government's objections are so broad that they would effectively prevent Megaupload from hiring any lawyer with experience litigating major copyright cases and would make it impossible to hire any lawyer at all.

According to Ars Technica, the New Zealand courts have seen the sense of allowing Kim Dotcom to withdraw tens of thousands of dollars to cover his living expenses while they decide on his extradition case. But the US government is moaning that these funds give Kim Dotcom and Megaupload plenty of money to pay for legal representation.

It is fairly clear that the argument is that Kim Dotcom is guilty and will be forbidden to argue his case in the US.

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Source: news.techeye.net

By: Nick Farrell

Consolidation of Services and Functionality: A Growing Trend in the eDiscovery Field. Will It Cost Customers in the Long Run?

Blog Post submitted by Brandon D. Hollinder (Falcon Discovery)

Reed Smith, a US based international law firm, announced this week that they would be bringing Relativity in-house, continuing their expansion into the eDiscovery market (in 2011, the firm established a team dedicated to eDiscovery that has grown to over 50 lawyers). This marks a developing trend in the industry; many law firms are taking deliberate steps to ensure they keep eDiscovery work in-house and take back any business they may have lost to traditionally lower cost eDiscovery vendors and service providers. From the firms’ perspective, this makes sense; keep as much business inside the walls as possible, even if that means making capital expenditures.

Reed Smith indicated they would utilize Relativity primarily for document review, which is a relatively cheap (from the firms perspective) and easy way for the firms to make money off their clients. Money, that previously often went to eDiscovery vendors who offered superior technology. Many other firms are employing a similar strategy. With the acquisition of programs like Relativity, the vendors no longer clearly offer superior technology, and decisions about who performs the work become more contingent on relationships, which are often to a law firm’s advantage. In the long term, this is smart business for the firms.

From the clients’ perspective though, this could mean higher costs, as law firms traditionally charge higher rates than their eDiscovery vendor counterparts do. For the eDiscovery vendors, it obviously hurts them, as Firms like Reed Smith will take some, although not all, business that the vendors previously attracted because they had better technology and tools.

Software companies are likewise consolidating the functionality they provide either via development or via acquisition. One need not look any further than KCura’s Relativity for an example of the former, while Symantec ‘s acquisition of Clearwell is a clear example of the latter. Both KCura and Symantec offer products regarded as best in class, and both are aggressively expanding those products’ capabilities, sometimes at the expense of other less dynamic companies and products that not that long ago were consider must-haves in the eDiscovery world.

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Source: eDiscovery News

By: Brandon D. Hollinder

How your Tweets can get you into trouble

This week a man was convicted of sending an online death threat to Corby MP Louise Mensch concerning one of her children.

Sixty-year-old Frank Zimmerman first contacted her via Twitter using a pseudonym claiming he had information about the phone hacking scandal.

Mrs Mensch sent him her personal email address and it was to that account that Zimmerman sent the threatening message, telling her she would have to choose which of her three children would die.

He wrote: “We have sent a camera crew to photograph you and your kids and will post it all over the net, including Twitter.

“You now have a Sophie’s Choice. Which kid is to go? One will, count on it.”

The MP took the threat seriously and contacted the police.

Zimmerman was this week convicted of sending by public communication network an offensive, indecent, obscene, menacing message or matter and will be sentenced next week.

This is the latest in a series of cases that highlight the implications of posting inappropriate and offensive messages online.

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Source: northantset.co.uk

E-Discovery Lessons of "Downton Abbey"

An institution governed by convention, strict divisions of labor and a rigid decision-making hierarchy. A head of the house content to stay "upstairs" with little interest in the work being done "downstairs." Traditional ways on a collision course with seismic cultural change. Yes, that's a description of Masterpiece Classic's popular period drama "Downton Abbey," which just wrapped up its second season on PBS. But it could just as easily refer to a legal team handling the typical e-discovery litigation project.

When lawyers fail to adapt to the technological revolution and, for example, resist taking a direct role in e-discovery, they face the same challenges and fate as Downton's patriarch, Robert Crawley, the Lord of Grantham, who is stuck firmly in the Victorian era even while the world around him is changing irrevocably.

It's amusing for viewers to watch as Downton Abbey's Victorian aristocrats stubbornly resist the modern world and only grudgingly use a telephone. "Is this an instrument of communication or torture?" quips one member of the stiff-collared clan at the thought of using the phone.

Some face obsolescence with steely resolve, while others bravely negotiate great changes caused by the Great War and societal and economic shifts. It has been particularly painful to watch Lord Grantham's floundering attempts to maintain the status quo. "Before the war I believe my life had value," he laments. "I should like to feel that way again."

With the luxury of hindsight, viewers want to give Lord Grantham a little push and tell him to get with the times — to learn to use the phone or drive a car, for heaven's sake! It's ridiculous nowadays not to see the good that was brought about by electricity or communicating by telephone.

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Source: law.com

By: Erin Nealy Cox

E-discovery dispute over RRA data grinds on

Qtask, the California software company caught up in the Scott Rothstein Ponzi scheme, has won a victory in Fort Lauderdale bankruptcy court, but the dispute over its data isn’t totally resolved yet.

The case has broader implications as society deals with issues involving online privacy and the protection of data.

U.S. Bankruptcy Judge Raymond Ray recently ruled that Qtask should retain control over any data on its servers that is not related to the Rothstein Rosenfeldt Adler law firm bankruptcy.

Qtask was a web-based project management and communication system that Rothstein invested in. He also used the system at his firm.

Qtask and its founder, Reichart Von Wolfsheild, continue to be the gatekeepers or custodian of passwords for clients on Qtask system that included a government military contractor called PhaseSpace. The U.S. Attorneys office had filed motions seeking to protect the PhaseSpace data on behalf of the U.S. Navy, Army and Air Force.

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Source: bizjournals.com
By: Paul Brinkmann

Megaupload user asks for his perfectly legal videos back

The Electronic Frontier Foundation filed a brief on behalf of an Ohio man in a federal court case brought by the United States against Kim Dotcom, founder and owner of the file-sharing locker Megaupload. The brief requested that Kyle Goodwin, and users like him, be allowed access to the files they had stored on the currently shuttered site.

Goodwin is a local high school sports reporter and the sole proprietor of the company OhioSportsNet, who stored his video footage on Megaupload.com as a backup to his video library on his hard drive. He had paid €79.99 (about $107) for a two-year premium membership. Just days before the government seized the site, Goodwin's hard drive crashed. The brief states that his lost videos include footage to make highlight reels for parents to send to their children's prospective colleges, and an unfinished full-length documentary about the Strongsville girls soccer team’s season.

While there is no way of telling how many Megaupload users like Goodwin stored legal files on the site, he is one of millions of users who can no longer access any of the information they stored there.

When the Feds shut down the file-sharing locker earlier this year, they seized more than 1,000 servers that Megaupload was leasing from hosting company Carpathia, including 525 servers in Virginia alone. Government authorities have been using the servers in the investigation of Dotcom and his company. Earlier this week, Carpathia announced that the 25 petabytes of Megaupload data stored on its servers have been costing the company $9,000 a day, and Megaupload has no way of paying its bills with its assets frozen.

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Source: arstechnica.com

By: Megan Geuss

American Airlines sues former flight attendant for data privacy leaks

American Airlines is suing former flight attendant Gailen David for leaking the itineraries and ticketing details of American Airlines executives and improper use of the airline's trademarks in papers filed Tuesday in a North Texas District Court. The suit names David, a former Miami based international flight purser, along with ten as-yet unnamed American Airlines employees who the carrier alleges provided David with confidential passenger data for publication on his website. The papers indicate the names of the additional defendants will be added when they are determined during the discovery process. Several causes of action are also included in the suit, including breach of the duty of loyalty, breach of fiduciary duty, trade infringement and anti-dilution statutes under Texas Law, and conspiracy to commit/aiding and abetting the aforementioned.

The suit names several examples where the travel itineraries of American Airlines executives were shared publicly prior to departure. In another example, the seat assignment and frequent flier status of a retired executive's wife were published, in addition to the seat assignment of another frequent flier allegedly "bumped" to coach class on the same flight to accommodate her.

The filing goes on to state David admitted to posting the flight itineraries, but pointed out that the purpose of doing so was to expose situations where revenue customers had been downgraded to economy class:

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Source: examiner.com
By: Scott Laird

Hold That Password: The New Reality of Evaluating Job Applicants

The news that some employers have asked for direct access to the Facebook accounts -- including user names and passwords -- of people applying for jobs at their firms has set off a firestorm of controversy. The reports have raised questions about whether the practice is illegal and if such a policy could expose those employers to potential discrimination lawsuits. The dust-up has even triggered calls by some in Congress for a federal investigation into the practice.

But those recent events only highlight a new reality: the identity that individuals create in the world of social media is quickly becoming an important factor in hiring decisions and in people's broader professional lives. "The questions around employer access to social network logins reflect a broader debate in society about a host of digital privacy issues," says Andrea Matwyshyn, a Wharton professor of legal studies and business ethics. "This is a new concern -- the degree to which employers can gain access to all role identities through one virtual space. There is no parallel to that in the real world."

While the reaction to the practice has been swift and intense, it's hard to predict if it will become a lasting trend. But Matwyshyn says she began hearing about employers requesting access to the Facebook accounts of potential hires as far back as 2008. To date, however, she notes that there is no good data on how widespread the practice has become. But the fact that it exists at all is not entirely unexpected: According to Matwyshyn, a number of studies show that most employers look at candidates' online profiles when making hiring decisions. Case in point: A 2011 survey by social media monitoring service Reppler found that 91% of recruiters reported using social networking sites to evaluate job applicants.

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Source: knowledge.wharton.upenn.edu

Data Privacy Suits Slamming App Developers

Even the slickest mobile app can get caught in a privacy debacle. The blogosphere erupted in outrage in February after a blogger discovered San Francisco photo-sharing app Path was downloading users' phone contacts without permission. Soon after, another local app company, Hipster, admitted it had done the same. Both companies issued embarrassing public apologies and vowed to change their ways.

Then late last month, app developer RockYou Inc. agreed to pay $250,000 to settle allegations that it had collected personal information from children, even though its privacy policy stated otherwise.

As the RockYou settlement illustrates, app developers face more than bad publicity and public acrimony for their privacy blunders. Their legal problems, and expenses, are mounting.

They're not only being hit with a growing number of class actions. They're facing increased scrutiny from government regulators and politicians who are demanding more transparency and consumer protections from app developers.

For example, the Federal Trade Commission has been sending out "civil investigative demands" to companies in the mobile space asking about privacy policies, lawyers said. The FTC's main interest is making sure app developers are telling users exactly what they're doing, said David Jacobs, a consumer protection fellow at the Electronic Privacy Information Center in Washington, D.C.

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Source: law.com
By: Amy Miller

Megaupload Host Refuses to Delete User Data and Evidence, For Now

Months after the Megaupload raids and arrests, the fate of the 1,103 servers hosted at Carpathia is still undecided. While the feds won’t mind if the servers are wiped clean, Megaupload, the EFF and the MPAA want the data to be preserved because it contains critical evidence and irreplaceable user data. Carpathia is sympathetic to these concerns and has put the fate of Megaupload’s data in the hands of Judge O’Grady.

For weeks Megaupload has attempted to come to a workable solution with the Department of Justice, but Megaupload founder Kim Dotcom has just confirmed to TorrentFreak that these efforts have been in vain.

The DoJ and Megaupload couldn’t reach an agreement and as a result several parties are now fighting over the data, all for very different reasons.

The government’s position is somewhat confusing. Initially the authorities argued that they had no interest in the data at all, but when Carpathia Hosting made a deal with Megaupload to sell the servers for $1,000,000, the feds backpedaled. The government does not trust Megaupload with the data and would rather see it deleted.

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Source: torrentfreak.com

Information Management Cost Reduction Strategies for Litigation

In these still questionable economic times, most legal departments are still looking for ways to reduce, or at least stop the growth, of their legal budgets. One of the most obvious targets for cost reduction in any legal department is the cost of responding to eDiscovery including the cost of finding all potentially responsive ESI, culling it down and then having in-house or external attorneys review it for relevance and privilege. Per a CGOC survey, the average GC spends approximately $3 million per discovery to gather and prepare information for opposing counsel in litigation. Most organizations are looking for ways to reduce these growing costs of eDiscovery. The top four cost reduction strategies legal departments are considering are:

•  Bring more evidence analysis and do more ESI processing internally

•  Keep more of the review of ESI in house rather that utilize outside law firms

•  Look at off-shore review

• Pressure external law firms for lower rates I don’t believe these strategies address the real problem, the huge and growing amount of ESI.

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Source: informationgovernance101.com

By: Bill Tolson

4 lessons counsel can learn from Da Silva Moore

Judge Peck’s e-discovery decision lays the groundwork for more predictive coding There’s good news in the world of electronic discovery. This February in New York, Magistrate Judge Andrew Peck and counsel for the parties in Da Silva Moore v. Publicis Groupe gave us a magnificent e-discovery lesson and pushed open the door for the utilization of advanced search technologies.

The case

The plaintiff filed a Title VII class action gender discrimination claim against defendant Publicis Groupe, alleging she and other female employees at Publicis Groupe endured discriminatory terminations, demotions and job reassignments. The plaintiff (who had very little, if any, electronically stored information of her own to produce) demanded that Publicis Groupe produce documents (including electronically stored documents) that related to whether Publicis Groupe:

1.Compensated female employees less than comparably situated males through salaries, bonuses or perks

2.Precluded or delayed selection and promotion of females into higher-level jobs held by male employees

3.Disproportionately terminated or reassigned female employees when the company was reorganized in 2008

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Source: insidecounsel.com

By: Steven Hunter

Good, Better, Best: a Tale of Three Proportionality Cases – Part One

Three cases came out recently on proportionality, the key legal doctrine to discovery based on Federal Rules 26(b)(2)(C), 26(b)(2)(B)(iii), and 26(g)(1)(B). I-Med Pharma Inc. v. Biomatrix, 2011 WL 6140658 (D.N.J. Dec. 9, 2011) (GOOD); U.S. ex rel McBride v. Halliburton Co.,, 272 F.R.D. 235 (D.D.C. 2011) (BETTER); DCG Sys., Inc. v. Checkpoint Techs, LLC, 2011 WL 5244356 (N.D. Cal. Nov. 2, 2011) (BEST). Since all three cases embody proportionality, they are all good. But some are better looking than others.

The quality of the application of the doctrine in these cases is directly tied to the parties timing. In the best case the issue was raised fast, even before discovery. It was raised in the 26(f) conference and 16(b) hearing. DCG Sys., Inc. v. Checkpoint Techs, LLC, 2011 WL 5244356 (N.D. Cal. Nov. 2, 2011). Counsel followed the Facebook good-hacker credo, as I explained in Impactful, Fast, Bold, Open, Values: Guidance of the “Hacker Way.” They were fast, and their bold use of proportionality will likely have a big impact on the case. With the guidance of the wise judge supervising the parties’ discovery, U.S. Magistrate Judge Paule S. Grewal, the application of the proportionality doctrine should lead to open, yet cost-controlled discovery. This should allow both parties in the patent case to focus on the merits. It should help avoid wasteful email reading endurance contests. Is that not a positive value we should all endorse? Answer: Yes! See Rule 1 and Judge Waxse’s article, Cooperation—What Is It and Why Do It?, as discussed in last week’s blog, Judge David Waxse on Cooperation and Lawyers Who Act Like Spoiled Children.

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Source: e-discoveryteam.com

By: Ralph Losey 

Weighing the Risk of Discovery When Corporations Email Outside Directors

In today's economy, where so much business is transacted remotely or on the go, corporations would be well advised to focus on communications with their outside directors. And outside directors would be well served to consider the personal disclosure burdens and risks they may face as a result of their board service. Corporate directors today are frequent travelers who often serve on multiple boards.

To accommodate their lifestyles, corporations often send board books and other sensitive communications to directors by any means available, including via the director's private or "day-job" email accounts. In addition to the security risk this practice creates, many directors do not realize these accounts will be vulnerable to discovery in the event of litigation. Companies (and directors) confronted with this reality need to be mindful to balance the desire for security against the risks and burdens associated with the possibility of intrusive discovery into the personal email accounts of their outside directors.

THE PRACTICE

The results of a recent Thomson Reuters comprehensive global survey of corporate counsel and company secretaries about board communications and director behavior are unsurprising. The survey revealed that corporate directors travel frequently, live across the world from their companies, and must often receive board updates from afar and on the go.[FOOTNOTE 1]

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Source: law.com

By: H. Christopher Boehning and Daniel J. Toal

What to Do When A Potential Employer Asks for Your Facebook Password

Could you imagine a job interview during which your interviewer asks you for your Facebook password? Well folks, it’s happening and you should know what to do when it happens to you.

The reason why companies are doing this is to get better insight into who you really are. They will strategically ask you to look at Facebook with them — right there, on the spot. You would think there would be some type of HR regulation in place to prohibit this type of conduct during an interview, but currently there is not — although the state of Maryland is starting to take action in a case regarding the Facebook profiles of student athletes.

With that in mind, what about job applicants in all the other states? Maryland is the first to do anything about this (and it’s currently concerned with student protections), so how long will it take for the job applicant process to be evaluated? Will asking for social networking account passwords be prohibited? The answer is, “There is no answer.” But you do not have to give the information as a condition of employment.

Let’s go over some things you can do to protect yourself on a job interview. Don’t forget: You have the right to a personal life and your privacy!

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Source: mashable.com
By: Tony Morrison 

Should Amazon Define Cloud Standards?

Since Citrix gave Cloudstack to the Apache Software Foundation, there has been a lot of blogging, tweeting, and arguing about whether cloud computing software vendors should simply let Amazon AWS drive cloud computing standards. My answer is no. First, I don't think Amazon even wants to be the standard and second, standards should be developed independently of any single vendor. It's time for the stakeholders--enterprises, vendors, open source projects, and anyone else interested to start scoping, developing, and implementing standards that everyone can use. If that doens't happen, the cloud landscape will continue to be fragmented to everyone's detriment.

With Amazon getting Cozy with Eucalyptus, many people, including Informationweek's Charlie Babcock, are wondering if Amazon will try to stop others from mimicking it's API in similar manner that Oracle is suing Google over the latter's use of the Java language semantics in Android. There doesn't seem to be any prohibition to mimicking Amazons API in their license agreements, but that didn't stop Citrix from pointing out that one of the benefits of using their commercial offering of Cloudstack (which is tightly integrated with AWS), is indemnification of its use in the case of legal action, presumably from Amazon.

The big question being debated, without Amazon taking a position what so ever, is what the company should do with their API. Dan Woods writes in Forbes that there are three Questions Amazon Should Answer About Its Cloud Strategy 1) Are there limits to the use of Amazon's APIs? 2) How will community experience inform the evolution of Amazon's APIs? And 3) What is the process that will govern the evolution of the Amazon APIs?

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Source: networkcomputing.com

By:  Mike Fratto