10 Bonehead Mistakes That Can Kill an EDD Search

In e-discovery, failing to understand data and how to apply tools can leave you vulnerable to poor results.

Spoiled by Google and legal research, lawyers are woefully unprepared for the difficulty of search in electronic data discovery. Search fails us in two, non-exclusive ways: Our query will not retrieve the information we seek, and our query will retrieve information we didn't seek.

Obviously, we want what we're looking for (high recall) and only what we are looking for (high precision). Recall and Precision aren't friends. Every time Recall has a tea party, Precision crashes with his biker buddies and breaks the dishes. It's easy to achieve a high recall of responsive electronically stored information. You simply grab it all: 100% of the data = 100% recall. The challenge is achieving precision. If one out of every hundred items returned is what you seek, 99 items are duds — 1% precision stinks.

Keyword search followed by human review is called "linear search," and for now, it's standard operating procedure in EDD — in part because linear search is mistakenly considered the safest course lest a party fail to produce something responsive, or turn over something that should have been withheld.

Linear search is time-consuming, so it's expensive. Worse, it doesn't work well. People make search and assessment errors, and making lots of searches and assessments, they make lots of errors. Mistakes can be subtle and hyper-technical, but most are not. If we eliminate bonehead errors, we improve the quality of e-discovery, and markedly trim its cost. Search will ever be a battle between Recall and Precision, but avoiding bonehead mistakes limits casualties.

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Source: law.com

By: Craig Ball

Megaupload wants U.S. court to dismiss indictment, cites jurisdiction

Megaupload has not been served with a summons, according to a filing

Megaupload cannot be brought within the jurisdiction of a federal court in Virginia for criminal proceedings without its consent, as federal rules do not contemplate service of a criminal summons on a wholly foreign corporation without an agent or offices in the U.S., its lawyers said in a filing on Wednesday.

The move to get the court to dismiss the criminal case against the Hong Kong based file-sharing site comes a day after a court in Auckland ruled that Megaupload founder, Kim Dotcom, should be allowed access to documents that contain evidence against him, held by prosecutors in the U.S. and New Zealand.

Dotcom and colleagues, and two companies including Megaupload, were indicted by a grand jury in the Eastern District of Virginia on Jan. 5, and charged with engaging in a racketeering conspiracy, conspiring to commit copyright infringement and money laundering, and two substantive counts of criminal copyright infringement, according to the U.S. Department of Justice. Dotcom and colleagues Finn Batato, Mathias Ortmann and Bram van der Kolk were arrested in Auckland by New Zealand authorities, who executed provisional arrest warrants requested by the U.S.

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Source: computerworld.com

By: John Ribeiro

How Hard is Authenticating Social Media?

In the world of eDiscovery, it seems that there’s no end to alarmist editorializing about the next looming problem law firms and corporations have to grapple over. Authenticating social media is clearly one of those topics, seen here, here, and here. Of course, social media is a real and emerging complication to the eDiscovery landscape, but alarmism is not warranted.

Authenticating social media does present special challenges in litigation. Hacking and spoofing is a real phenomenon in social media platforms. But authenticating social media evidence involves the same common sense approach that serves in any other form of digital evidence authentication. Courts have continually ruled that evidence is authenticated by “appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.”

Proving who wrote a message will always be a foundational issue for evidentiary hearings. For example, in State v. Eleck, (Conn. App. Ct. Aug. 9, 2011) the court ruled that just because a message came from particular Facebook account, there is no foundational proof of authorship. Or in Commonwealth v. Purdy, 459 Mass. 442, 450-51, 945 N.E.2d 372 (2011), an e-mail sent from Facebook account bearing defendant’s name was not proof of authorship without additional “confirming circumstances.”

But the bar for authentication of evidence is actually not particularly high, and in fact only needs to be corroborated with circumstantial evidence. In the digital world, there is no handwriting or fingerprinting expert as courts often used to prove authorship of a letter. However, courts do consider evidence like commonly used phrases found in a message, or activity and actions that may indicate who was responsible for creating a message as legitimate forms of identification.

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Source: Nextpoint Blog - Frank

By: Jason Krause

Who Owns Your Data and What Can They Do With It? Understanding Data Privacy and Information Security in the Cloud

With the recent introduction of Google Drive, cloud computing services are garnering increased attention from entities looking to more efficiently store data. Specifically, using the “cloud” is attractive due to its reduced cost, ease of use, mobility and flexibility, each of which can offer tremendous competitive benefits to businesses. Cloud computing refers to the practice of storing data on remote servers, as opposed to on local computers, and is used for everything from personal webmail to hosted solutions where all of a company’s files and other resources are stored remotely. As convenient as cloud computing is, it is important to remember that these benefits may come with significant legal risk, given the privacy and data protection issues inherent in the use of cloud computing. Accordingly, it is important to check your cloud computing contracts carefully to ensure that your legal exposure is minimized in the event of a data breach or other security incident.

Cloud computing allows companies convenient, remote access to their networks, servers and other technology resources, regardless of location, thereby creating “virtual offices” which allow employees remote access to their files and data which is identical in scope the access which they have in the office. The cloud offers companies flexibility and scalability, enabling them to pool and allocate information technology resources as needed, by using the minimum amount of physical IT resources necessary to service demand. These hosted solutions enable users to easily add or remove additional storage or processing capacity as needed to accommodate fluctuating business needs. By utilizing only the resources necessary at any given point, cloud computing can provide significant cost savings, which makes the model especially attractive to small and medium-sized businesses. However, the rush to use cloud computing services due to its various efficiencies often comes at the expense of data privacy and security concerns.

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Source: virtual-strategy.com

Megaupload User Asks Court To Order Return Of His Data

Months after the Megaupload raids and arrests, the fate of the data stored on the site’s 1,103 seized servers is still unclear. Many Megaupload users want their accounts returned because they contain irreplaceable information, but they have been waiting in vain. Today the EFF has filed a motion on behalf of Megaupload user Kyle Goodwin, which demands that the court finally comes up with a solution.

In the wake of the January shutdown of Megaupload, many of the site’s legitimate users complained that their personal files had been lost.

Behind the scenes Megaupload negotiated with the Department of Justice and other parties to allow these users to temporarily access their files. When these negotiations failed last month the court was asked to provide a solution, but in response it instructed the parties to reach an agreement on their own.

However, a month has passed and absolutely no progress has been made on the issue according to a document filed today by the EFF.

Representing Kyle Goodwin, a sports reporter who used Megaupload to store work-related files, the EFF has filed a motion in which it demands that the court finds a workable solution for the return of his data. Goodwin already requested the court to assist in a document filed early April, but he is tired of waiting.

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Source: torrentfreak.com

By: Ernesto

Cloud contracts – the Devil is in the detail

Cloud computing today is no longer a buzzword associated with universities or advanced technology organisations at the bleeding edge of innovation. It is now a mainstream sourcing model that most organisations are looking to as part of their broader IT strategy.

The shift away from building customised systems specifically for organisational requirements is fast approaching. Global financial scenarios are presenting a funding challenge for IT innovation initiatives, transformation projects and ongoing support services.

One of the greatest shifts was demonstrated and highlighted by a US Government White House Paper titled: “25 Point Implementation Plan to Reform Federal Information Technology Management”, in December 2009, and included support for a “Shift to Cloud First Policy”. An important point to note is the term “Stand-Up Contract Vehicles” was used for both secure infrastructure-as-a-service (IaaS) and commodity services. Supporting actions were required, alongside the endorsement of the strategy and the guiding “Cloud First” policy.

In all cloud discussions to date, major emphasis is placed on the service types of cloud—Software-as-a-Service (SaaS), Infrastructure-as-a-Service (IaaS), Platform-as-a-Service (PaaS), or cloud models such as Public Cloud, Private Cloud, Hybrid Cloud and Community Cloud. Very little emphasis or discussion is undertaken about the major vehicle through which these models and services will be utilised and consumed—cloud contracts.

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Source: cso.com.au

By: Puneet Kukreja

Cloud providers cave into more flexible contracts

Contract terms can be a source of competitive advantage

Combined legal and market factors may force cloud providers to offer more flexible contract terms, suggests new research from Queen Mary, University of London.

The research examines how and why cloud providers have begun to negotiate standard contract terms to better meet cloud users’ needs, minimise operating risks and address legal compliance obligations.

The research, by the Cloud Legal Project at the Centre for Commercial Law Studies at Queen Mary, is primarily based on in-depth interviews with global and UK cloud providers, cloud users, law firms and other market players.

The report found that the top six types of cloud contract terms most negotiated were provider liability, service level agreements, data protection and security, termination rights and lock-ins/exits, unilateral amendments to service features, and intellectual property rights.

“These are the key contractual issues of concern to users in the cloud market at this relatively immature stage of cloud adoption,” said professor Christopher Millard, lead academic on the Cloud Legal Project (CLP).

He said standard "one-size-fits-all" terms are often weighted in favour of the provider, and many are potentially non-compliant, invalid or unenforceable in some countries.

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Source: computerworlduk.com

By: Antony Savvas

10 Steps for Responding to a Corporate Data Security Breach

Data security breaches can have significant reputational, business, and legal costs for companies. Depending on the nature and severity of the incident, a data security breach can result in the loss of key business assets, cause public embarrassment, diminish customer goodwill, result in costly response and remedial requirements (including legal obligations), create contractual liability risks, attract regulatory scrutiny at the federal and state levels, and result in litigation.

While companies can reduce the likelihood of a breach by maintaining robust data security practices and procedures, the reality is that there is no such thing as perfect security. In other words, when it comes to data breaches, the question for most businesses will be not "if," but "when." Thus, to manage risk around data breaches, businesses must also have in place procedures to guide a quick and effective response.

Although every incident is unique, these procedures generally should include the following steps:

1. Develop your plan before the incident.

Develop a written incident response plan before an incident occurs, and then create a hypothetical scenario to test the plan. Such a plan ultimately will not be a precise script for when an incident occurs, but it will help ensure preparedness -- and that the right team and procedures have been identified in advance of the incident. This is important not only to help expedite a response, but also to address regulatory risks. If a breach becomes subject to regulatory scrutiny, the company will need to demonstrate that it had a reasonable plan in place to address incidents and made a good faith effort to follow that plan.

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Source: law.com

By: David Fagan and Stephen Satterfield

Shining a Light into the Black Box of E-discovery Predictive Coding

For years, litigators cited a lack of judicial guidance as their primary objection to using predictive coding technology. The objection is based on the notion that even though predictive coding technology promises to significantly reduce the time, cost, and error rate of pure human document review during discovery, few attorneys want to be the first to defend the use of technology they don’t understand. It is this fear of what some characterize as “black box technology” that has led many outside counsel to caution corporate clients to take a “wait and see” approach, in spite of continued pressure from those same clients to decrease document review costs.

In 2012, the wait for judicial guidance ended abruptly when not one, but three new predictive coding cases surfaced: Da Silva Moore v. Publicis Groupe; Kleen Products, LLC v. Packaging Corporation of America; and Global Aerospace Inc., v. Landow Aviation, LLP. In Da Silva Moore, Judge Andrew Peck even approved the use of predictive coding technology in “appropriate cases,” leaving some to believe the courthouse doors had been thrown open to unbridled use of the technology. Somehow, within weeks of the decision, the wheels of the predictive coding freight train locked up, leaving many wondering whether or not these new predictive coding cases provided clarity or merely added more confusion.

This article explains how predictive coding technology works, explores recent predictive coding cases, and provides a roadmap for understanding what must happen for predictive coding to regain momentum and become mainstream in the legal field.

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Source: law.com

By: Matthew Nelson

5 things CIOs should know about big data

These five tips set the foundation for any CIO's big data plans

No. 1: You will need to think about big data

Big data analysis got its start from the large Web service providers such as Google, Yahoo, and Twitter, which all needed to make the most of their user-generated data. But enterprises will big data analysis to stay competitive and relevant.

You could be a really small company and have a lot of data. A small hedge fund may have terabytes of data, said Jo Maitland, GigaOm research director for big data. In the next couple of years, a wide number of industries -- including health care, public sector, retail, and manufacturing -- will all financially benefit by analyzing more of their data, consulting firm McKinsey and Company anticipated in a recent report.

There is an air of inevitability with Hadoop and big data implementations, said Eric Baldeschwieler, chief technology officer of Hortonworks, a Yahoo spinoff company that offers a Hadoop distribution. It's applicable to a huge variety of customers. Collecting and analyzing transactional data will give organizations more insight into their customers' preferences. It can be used to better inform the creation of new products and services, and allow organizations to remedy emerging problems more quickly.

No. 2: Useful data can come from anywhere (and everywhere)

You may not think you have petabytes of data worth analyzing, but you will, if you don't already. Big data is collected data that used to be "dropped on the floor," Baldeschwieler said.

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Source: InfoWorld

By: Joab Jackson

Confidential data: Delete it or eat it, say security experts

Hoarding sensitive information is easy and inexpensive, but as the collected information grows, so do the risks

The only way for companies to guarantee their confidential data can't be stolen is to delete it. But few companies are making use of that guarantee, say security experts.

"They can't steal it if you don't have it," Alan Brill, senior managing director of Kroll Advisory Solutions, said in a recent interview with Dark Reading.

Unfortunately, there isn't an app for that -- at least not a simple one. And unfortunately not many enterprises are doing much about it.

Chester Wisniewski, a senior security adviser at Sophos, said he considers this a major problem. "In the digital age many organizations are collecting massive amounts of information on their users/customers and stashing it away in case it may be useful in the future," he said. "This has resulted in many data breaches disclosing far more than necessary, simply because organizations are hoarding information."

Wisniewski said getting rid of confidential data ought to be a routine, "trivial action." But, it becomes more difficult "if it wasn't factored into the original design of the data structures."

Part of the problem is that it is so easy and inexpensive to hoard information. In digital form, it's not like you're going to run out of file cabinets. "People think of it as this gold mine of data that they may want to mine later," Wisniewski said. "And it's not like a storage locker.."

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Source: csoonline.com

By: Taylor Armerding

New regulations usher in the era of data governance

With President Obama’s announcement a few months ago of a renewed focus on data privacy in the “Data Privacy Bill of Rights,” the European Union’s sweeping data protection legislation last year and increasing fines for non-compliant organizations, some as much as 5 percent of global revenue -- it is safe to say the era of global data governance has officially arrived.

When these various global regulations are combined with the rapid growth in organizational data, 50 percent year-over-year, many organizations are not only struggling to comply with data laws, but also to prevent the loss of critical IP and customer data. In 2011 alone, more than 23 million records containing personally identifiable information (PII) were leaked.

Research from IDC and other analyst firms show that more than three quarters of data in large enterprises is unstructured, is overly accessible, lacks access auditing and lacks automated analysis of authorizations and use.

In many cases the biggest risk surrounding data does not come from hackers directly compromising customer and employee files, but from employees and contractors with overly permissive access, lack of access auditing, lack of context and lack of automation for the volumes of unstructured data that exist in company archives.

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Source: gsnmagazine.com

By: David Gibson

Customizable Cloud SLAs on the Way, Researchers Predict

Service-level agreements and legal standards for cloud offerings will become more customized to individual customers and vertical industries as the cloud market continues to mature and providers look for ways to differentiate their offerings, researchers at the University of London predict.

Providers today are in many cases looking to push "one-size-fits-all" contracts on customers that favor the provider, the researchers found, but they don't always meet the needs of customers. For example, some vertical industries, such as healthcare, government and finance, each have compliance requirements that need to be addressed before they can more fully embrace a cloud strategy. Providers are only beginning to offer these types of services, and it's a trend researchers expect will pick up steam.

"To remain competitive, providers may have to be more aware of user concerns, more flexible in negotiations, and more willing to demonstrate the security and robustness of their services," says Christopher Millard, lead academic on the Cloud Legal Project at Queen Mary, University of London

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Source: CIO

By: Brandon Butler

7 Ways to Build Credibility During Government FCPA Investigations

Good communication is key to any relationship—particularly when that relationship is with the U.S. government, and they’re inquiring about a possible violation by your company of the Foreign Corrupt Practices Act. How corporate counsel respond to the government’s electronic discovery requests can determine whether or not that relationship stays on track.

What could go wrong? Plenty, says Avi Gesser, counsel to the chief of the fraud section in the criminal division at the U.S. Department of Justice. “There is a lot of potential for mutual benefit,” he says, “and a lot of room for misunderstanding.”

Gesser addressed attendees at an event hosted by legal-technology company UBIC North America this week in New York City. He was not speaking on behalf of the Justice Department, nor iterating department policy, he said, though the former Davis Polk & Wardwell partner did offer pointers based on observations he has “collected over time.”

Most importantly, when facing an FCPA inquiry, “it’s a very good idea to engage the government early,” Gesser says. “You can create a set of expectations that both sides understand . . . in a way that will be very beneficial to you in the course of an investigation.”

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Source: Corporate Counsel

By: Catherine Dunn

E-discovery costs: Pay now or pay later

Latent information risk lurks in uncontrolled data stores

Those old enough to have watched TV in the early ’80s will undoubtedly remember the FRAM oil commercial in which the mechanic utters his iconic catchphrase: "You can pay me now, or pay me later." The gist of the vintage ad was that the customer could either pay a small sum now to replace his oil filter, or a far greater sum later to replace the car’s entire engine.

This “pay me now/pay me later” scenario perplexes many of today’s organizations as they try to effectively govern (understand, discover and retain) electronically stored information (ESI). The challenge is similar to the oil filter conundrum, in that companies can make rather modest upfront retention/deletion decisions in order to prevent monumental, downstream e-discovery charges.

Fortunately, savvy organizations are starting to realize that the cost of storage shouldn’t be the main factor in determining if data is ever deleted. Given the nearly unlimited storage reality that the cloud is promulgating, the question shouldn’t be, “What does it cost to keep data indefinitely?” Instead, the more germane question is, “How much will it cost to search through endless terabytes/petabytes of data when there’s a governmental inquiry, e-discovery event or internal investigation?”

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Source: InsideCounsel

By: Dean Gonsowski

Kim Dotcom Using Passwords As Bargaining Chips

He hopes to get some hard drives and computers back 

It’s been relatively quiet on the MegaUpload front recently. After a U.S. judge said that the trial may not even happen, it seemed that all the parties seemed to have just given up. It appears that is not the case as Kim Dotcom is now fighting for the return of his computers and hard drives.

TorrentFreak is reporting that Dotcom has requested a judicial review of the search warrants that were used against him back in January. The legality of the search warrant was already brought into question before, but the police filed the proper warrant. The result was that Dotcom got back some of his money, but he’s now fighting to get back something more important – evidence.

Dotcom’s defense argued that the hard drives and computers are needed to mount a proper defense against the forces that seek to extradite him to the U.S. He also wants to use the information to prove that the police used excessive force against him in the raid that he claimed left him with a bleeding hand from a ruptured fingernail.

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Source: webpronews.com

By: Zach Walton

7th Circuit eDiscovery Pilot Program Tackles Technology Assisted Review With Mock Arguments

The 7th Circuit eDiscovery Pilot Program’s Mock Argument is the first of its kind and is slated for June 14, 2012. It is not surprising that the Seventh Circuit’s eDiscovery Pilot Program would be the first to host an event like this on predictive coding, as the program has been a progressive model across the country for eDiscovery protocols since 2009. The predictive coding event is open to the public (registration required) and showcases the expertise of leading litigators, technologists and experts from all over the United States. Speakers include: Jason R. Baron, Director of Litigation at the National Archives and Records Administration; Maura R. Grossman, Counsel at Wachtell, Lipton, Rosen & Katz; Dr. David Lewis, Technology Expert; Matt Nelson, eDiscovery Counsel at Symantec; and Jeff Sharer, Partner at Sidley Austin.

The eDiscovery 2.0 blog has extensively covered the three recent predictive coding cases currently being litigated, and while real court cases are paramount to the direction of predictive coding, the 7th Circuit program will proactively address a scenario that has not yet been considered by a court. In Da Silva Moore, the parties agreed to the use of predictive coding, but couldn’t subsequently agree on the protocol. In Kleen, plaintiffs want defendants to redo their review process using predictive coding even though the production is 99% complete. And, in Global Aerospace the defendant proactively petitioned to use predictive coding over plaintiff’s objections. By contrast, in the 7th Circuit’s hypothetical, the mock argument predicts another likely predictive coding scenario; the instance where a defendant has a deployed in-house solution in place and argues against the use of predictive coding before discovery has begun.

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Source:  eDiscovery 2.0

By: Allison Walton

Florida Jurors Banned From Using Social Media to Discuss Criminal Cases

The Florida Supreme Court banned jurors from using electronic devices or social media to talk about their cases Thursday.

The detailed opinion adopts the work of the court’s Committee on Standard Jury Instructions in Criminal Cases, which builds on more broad-ranged 2010 juror instructions prohibiting the use of social media, the Daily Business Review reports. The opinion comes at a time when courts are increasingly aware of the challenges social media and electronic devices present in the courtroom.

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Source:  ABA Journal

By: Rachel M. Zahorsky

Should tech 'jailbreaking' be legal?

Yesterday US copyright regulators opened up the floodgates for a public hearing (PDF) of proposals to change copyright law, including authorizing the cracking of tablets, DVDs, gaming consoles and mobile phones.

Every three years, the US Copyright Office mulls over requests to create temporary loopholes in the law that forbids circumventing encryption in the things we buy.

Changes to those loopholes have the potential to mean a lot to George Hotz.

Hotz is a hardware hacker known online as Geohot who owns a box full of Sony products. Per court order, they've been tucked away where he can't tinker with them.

As Wired's David Kravets writes, Sony last year dropped a PlayStation 3 jailbreaking lawsuit against Hotz in return for his promise to never again hack his game console or any other Sony product.

He told Wired that he hasn't touched the components since the settlement.

Before the settlement of the civil suit, he was busy figuring out how to play homemade games on the Sony console, in violation of a law that forbids cracking encryption in hardware or software, even for legal purposes.

This will be the fifth time the office has heard requests to modify the law—the Digital Millennium Copyright Act (PDF)—since it was passed in 1998.

 

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Source:  technologyspectator.com.au

By: Lisa Vaas - Sophos

Cloud computing: You can't outsource your compliance obligations

Even if your cloud provider is at fault should your company fall out of compliance, the law will come after you.

When it comes to moving functions to the cloud, there's no such thing as being too thorough.

Say you've got an application that's been running in-house but is now nearing end of life. You find a cloud service that can achieve the same result. You evaluate the vendor's infrastructure and security mechanisms, processes and procedures and determine that they're sufficient to meet your needs. You're looking forward to outsourcing this to the cloud and relieving yourself of all the associated responsibilities. It's all smooth sailing ahead, right?

Maybe, but unfortunately, there's one more thing: You can't outsource your compliance obligations to a cloud vendor.

If you move a function to the cloud that's governed by legal or regulatory requirements and later your company falls out of compliance due to an error on the cloud vendor's part, the law won't go after the vendor - it will come after you. So you need to ensure that the cloud vendor can fully comply on your behalf.

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Source: Computerworld

By: Thomas J. Trappler

Contract Attorneys – The Latest Addition to the Endangered Species List

Last week I read an article on law.com titled “Does Predictive Coding Spell Doom for Entry-Level Associates?” The article was prompted in part by the attention predictive coding is currently receiving as the de jure eDiscovery topic and the starring role it has played in the increasingly soap opera like Da Silva Moore case. The article concluded that entry-level associates were still necessary and vital assets, even with the rise of predictive coding.

I agree with the article’s conclusion, and am happy for the associates, but what about their less well placed colleagues, contract attorneys? The threat for survival that contract attorneys face comes not just from predictive coding but from law schools that spill new graduates like a broken faucet, as well as from employers that take advantage of the situation by offering unscrupulously low wages knowing that for every position they have, there are several applicants willing to fill it at almost any rate or cost. So, is there still a place for contract attorneys? Will predictive coding and the deluge of law school graduates wipe out their positions, or depress their value to the point where the attorneys would make more money working at McDonalds? I hope the answer is no, and the answer should be no if the legal community takes a moment to realize they need to treat contract attorneys like the nonfungible assets they can be, rather than as pariahs who are undeserving of earning even $20 an hour.

Despite their persona non grata reputation, a quality contract attorney is worth their weight in gold, and the legal industry should do everything it can to ensure they do not go the way of the dodo, whether because of technology, wages, or anything else. Contract attorneys’ hands-on expertise and knowledge of review platforms and software can add great efficiency and effectiveness to a project. Their in-depth familiarity with the documents and details of a case can be illuminating, and their understanding of the eDiscovery process can be a difference maker. The truly good contract attorneys are knowledgeable experts that can be leveraged to your advantage and provide valuable input and consultation to your case and how you prepare for it. More than hired mercenaries whose goal it is to plow through data as quickly as possible, contract attorneys can be your eyes and ears in the data.

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Source: eDiscovery News
By: Brandon D. Hollinder

Better Analytics Drives Excellent E-Discovery Solutions

The Editor interviews Kurt Michel, President and CEO, Content Analyst Company, LLC.

Editor: Please tell us about your background and about Content Analyst.

Michel: I am the president and CEO of Content Analyst, which is a developer of advanced analytic solutions and enabling technology for use by our partners. Content Analyst is not an e-discovery company and do we not prescribe a particular e-discovery process. Our technology has more global applications. Our partners are the e-discovery solution providers, and they use our enabling technology to develop innovative services that deliver value to their end-user services.

I saw the value of early-stage optical and electronic imaging solutions during my college years and decided to focus my professional career on changing the world of information management. Working for numerous Enterprise Content Management companies, including Oracle and Stellent for almost twenty years, I learned how to intelligently apply technology in a well-designed workflow to improve the quality and efficiency of existing business processes. When I was introduced to the Content Analyst’s technology I saw the potential it had to improve a wide variety of business processes, including e-discovery, and decided it was the best place to focus my professional efforts.

Editor: Please describe the Content Analyst Analytical Technology (CAAT) enabling technology.

Michel: CAAT enables companies to adopt multiple analytic capabilities for managing information governance and e-discovery, including organizing large document collections and identifying information of relevance to the specific task at hand.

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Source: metrocorpcounsel.com

Six Tips for Protecting Your Email Privacy

Sending an email message is certainly more private than posting on a social networking site, but email has its own dangers. Here are six tips to help you communicate without risking your privacy.

By now we all know not to post sensitive information on social networking sites. Even with privacy settings enabled, that angry political rant or embarrassing beach photo can easily become the next viral Internet sensation. By comparison, email seems like a much safer communications medium, but you can still get into trouble if you lose control of your account. In addition, email messages bounce unprotected from server to server, so private information might be compromised. Here are six tips to protect your email account and your private messages.

1. Use a Strong Password. You give out your email address all the time; it's not really private information. That being the case, the only thing protecting your account from misuse is the password. A malefactor who guesses your too-weak password gains full control of your email account. Protect your account with a strong password, especially if you use a Web-based email provider like Gmail or Yahoo mail.

2. Beware Public PCs. If you check your email on a public computer in a library or Internet café, be absolutely sure you've logged out before leaving. Even then, you might be leaving behind traces that could give the next user too much information about you. Follow PCMag's advice to Use Public Computers Safely.

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Source: www.pcmag.com

By: Neil J. Rubenking

Courts Increasingly Cognizant of eDiscovery Burdens, Reject “Gotcha” Sanctions Demands

Courts are becoming increasingly cognizant of the eDiscovery burdens that the information explosion has placed on organizations. Indeed, the cases from 2012 are piling up in which courts have rejected demands that sanctions be imposed for seemingly reasonable information retention practices. The recent case of Grabenstein v. Arrow Electronics (D. Colo. April 23, 2012) is another notable instance of this trend.

In Grabenstein, the court refused to sanction a company for eliminating emails pursuant to a good faith document retention policy. The plaintiff had argued that drastic sanctions (evidence, adverse inference and monetary) should be imposed on the company since relevant emails regarding her alleged disability were not retained in violation of both its eDiscovery duties and an EEOC regulatory retention obligation. The court disagreed, finding that sanctions were inappropriate because the emails were not deleted before the duty to preserve was triggered: “Plaintiff has not provided any evidence that Defendant deleted e-mails after the litigation hold was imposed.”

Furthermore, the court declined to issue sanctions of any kind even though it found that the company deleted emails in violation of its EEOC regulatory retention duty. The court adopted this seemingly incongruous position because the emails were overwritten pursuant to a reasonable document retention policy:

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Source: e-Discovery 2.0 

By: Philip Favro

IBM Faces the Perils of ‘Bring Your Own Device’

When IBM loosened its restrictions on the smartphones and tablets its employees could use for work, the company got a lesson in IT management of the kind it usually sells to clients.

In 2010, like many large companies in recent years, IBM adopted a “bring your own device” policy, meaning that employees who want to work outside the office don’t have to use a smart phone provided by the company. Although IBM still gives BlackBerrys to about 40,000 of its 400,000 employees, 80,000 other workers now reach internal IBM networks using other smartphones and tablets, including ones they purchased for themselves.

The trend toward employee-owned devices isn’t saving IBM any money, says Jeanette Horan, who is IBM’s chief information officer and oversees all the company’s internal use of IT. Instead, she says, it has created new challenges for her department of 5,000 people, because employees’ devices are full of software that IBM doesn’t control.

Horan says that when IBM surveyed several hundred employees using mobile devices, many were “blissfully unaware” of what popular apps could be security risks.

Since then, Horan’s team has established guidelines about which apps IBM employees can use and which they should avoid. On the list of banned apps are public file-transfer services such as Dropbox; Horan says IBM fears that using such software could allow sensitive information to get loose. In the survey, other employees were found to be violating protocol by automatically forwarding their IBM e-mail to public Web mail services or using their smart phones to create open Wi-Fi hotspots, which make data vulnerable to snoops.

“We found a tremendous lack of awareness as to what constitutes a risk,” says Horan. So now, she says, “we’re trying to make people aware.”

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Source: www.mashable.com

By: Brian Bergstein

Clouded issues - IT services are all about the cloud these days, but what’s the attraction and what are the legal risks?

Do you think EU data protection legislation has slowed the uptake of cloud computing among businesses?

Gail Crawford, partner, Latham & Watkins: Not significantly. Worryingly, privacy and security are often overlooked when there are significant cost ­savings to be made, particularly in small and medium-sized enterprises (SMEs) where there is less likely to be an understanding of the legal and ­operational risks of using the cloud.

Conversely, smart cloud vendors have generated business by building models that address privacy concerns, while clouds operated by EU providers can market the fact that they are not subject to the US Patriot Act, allaying fears that data could be accessed by US authorities.

Richard Graham, partner, Edwards Wildman: It is important to distinguish between information security and data protection when we look at cloud computing. Information security is wider in nature than data protection as it seeks to secure all the intangible assets of a business in the cloud, including its IP, confidential information and other customer, employee and financial data.

For any chief information officer (CIO), the protection of all of the organisation’s intangible assets is of paramount importance and must be impact-assessed and understood before the organisation is able to outsource. For some businesses, including those in regulated sectors, it is concern around information security and the location of the cloud service that is hindering uptake.

Compliance with EU data protection legislation is part of this concern and the existing framework is arguably not flexible enough to adapt to these emerging solutions.

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Source: thelawyer.com

25 million gigabytes brings prosecution of MegaUpload and its eccentric founder to standstill

The last time a preservation issue caused this much commotion, the Big Four accounting firm KPMG was fruitlessly disputing a court order forcing it to save 2,500 hard drives that had been used by former employees. Now there is a federal criminal case in Alexandria, Virginia involving a store of data so large it could replace the Library of Congress 1,250 times over.

Carpathia, a data storage company, is hosting 25 million gigabytes of data seized in January by the US government as part of its prosecution of the online “cyberlocker” MegaUpload and its eccentric founder Kim Dotcom. Carpathia is not involved in the criminal litigation, or any of the related civil suits, and does not own or want the content on its servers. Still, it is hemorrhaging thousands of dollars each day preserving what it calls “a historically and mind-bogglingly large amount of data” as several parties that express legal and internet interests in the content wrestle over its fate.

“Carpathia received preservation letters from various parties,” explains Marc Zwillinger, attorney for Carpathia, at Zwillgen, in Washington, DC. “Though it does not believe these letters have any binding effect, out of an abundance of caution, it decided that the right thing to do was petition the court before taking unilateral action.”

“Carpathia did not want to delete the data before giving the potential innocent third-party data owners an opportunity to petition the court for return of their digital files,” he continued.

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Source: aceds.org

By: Robert Hilson

Judge Peck Denies Plaintiffs' Amicus Brief on Recusal

In Monique da Silva Moore v. Publicis Groupe and MSLGroup before the U.S. District Court for the Southern District of New York, Magistrate Judge Andrew Peck denied on Monday an amicus curiae or friend-of-the-court brief filed in support of the plaintiffs' motion for recusal.

In Da Silva Moore, Peck is on the cusp of probing the reliability of predictive coding. Predictive coding is evolving in the computer lab and the courts with an aim to provide litigants an alternative to the time and cost of manual review of large document sets, such as the Enron data set. The promising technology's reliability and defensibility are still being worked out in the courts, but the Da Silva Moore plaintiffs would rather see Peck observe, rather than preside over, the case's e-discovery phase.

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Source: law.com

By: Sean Doherty 

Facebook Updates Data Use Policy to Comply with IDPC - All You Need to Know About the Changes

Facebook has announced that it is updating its data use policy in an effort to help people better understand how the company uses the information they share. As part of these changes, the social networking company is also indicating that it may start displaying ads on sites other than Facebook, based on the interests and hobbies that users express on their Facebook profile. This move comes ahead of Facebook Inc.'s expected initial public offering (IPO) this week.

The data use policy changes come in response to an audit by the Irish Data Protection Commissioner (IDPC) last year, Facebook said on May 11. The IDPC had asked Facebook for more transparency regarding how it collects users' data and uses it for advertising. The IDPC had given Facebook a spring deadline to implement its recommendations.

What You Should Know

Facebook intends to notify its impressive user database (more than 900 million users) through advertisements on the site and on its mobile apps. Through these changes, Facebook aims to help users understand how their data is used, and how the data use policy is changing. The company is also launching a Facebook Terms and Policies Hub to include all 10 policy documents, including a redlined changes version of the new privacy policy, now called Data Use Policy, along with explanations to those changes. Facebook also scheduled a live-streamed Q&A about the changes on Monday, May 14, and users will have the following week to give feedback on the changes before they are implemented.

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Source: mobilenapps.com

By: Alexandra Burlacu

Twenty Years Jail Time for Deleting Text Messages?

Proper document retention and collection are hot button issues for many clients and courts. In addition to maintaining and preserving emails and electronically stored documents, parties to litigation or potential litigation must take steps to preserve information stored on their employees' phones, iPads, and other personal communication devices. Remember that almost all electronic information, even if deleted, may be recoverable through forensic analysis. The remarkable consequences of failing to protect this information include potential criminal penalties.

On April 24, 2012, the U.S. Department of Justice instituted a criminal action against an individual for intentionally deleting text messages regarding pending litigation against his employer. That employee was arrested and later released on April 25 on $100,000 bond.

After allegedly learning that his electronic files were to be collected by a vendor, a defendant's employee allegedly deleted a text string from his iPhone containing more than 100 text messages with his supervisor. Some of the texts (which were recovered forensically) allegedly included sensitive information regarding the subject of the litigation. That employee faces a maximum penalty of 20 years in prison and a fine of up to $250,000 for each count.

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Source: gardere.com

How Social Media Affects eDiscovery

No legal investigation can commence and progress without sufficient evidence. Legal investigations are very tedious processes that require good planning to procure evidence. Organizations often waste their money, time and resources trying to deploy an effective system. In such a chaotic environment, electronic discovery is a wise decision that can produce extraordinary results.

eDiscovery search takes on legal investigations methodically with carefully planned strategies and provides cost-effective solutions. The tools cull data to almost 90%, increase the reviewing output and eliminate the need to move data across several tools. Effective eDiscovery software provides a comprehensive platform that addresses all legal and regulatory issues as well as corporate investigations via one single application.

New advanced eDiscovery easily executes and performs functions that would otherwise be overwhelming if conducted manually. The benefits of eDiscovery have helped courts pass fair judgments without prolonging cases. Thus, eDiscovery has become an essential component that propels legal investigations in the right direction. eDiscovery requires the ability collect, retrieve and cull any data stored either electronically or physically. Email, documents and spreadsheets are all important sources that lead investigators to relevant information.

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Source: newsocialhits.com

By: Ajax

5 Facebook rulings that affect what Canadians can do online

The cases of a teenage Nova Scotia girl who was allegedly defamed on a bogus Facebook page and of two University of Calgary students who were punished for criticizing a professor on the social networking site are just two examples of the legal wranglings involving social media.

The Supreme Court of Canada heard an appeal by the Nova Scotia girl on Thursday. The young woman and her family are appealing a lower court's ruling that said she couldn't proceed with her defamation case without revealing her name.

In the case of the University of Calgary students, the Alberta Court of Appeal sided with the students.

While high-profile cases like those are rare in Canada, there are still a number of outstanding legal issues involving Facebook — apart from the defamation/criticism described above — that could have an impact on social network behaviour

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Source: cbc.ca

By: Mark Gollom

Native Redactions – An Emerging Trend

It is a commonly accepted practice within the eDiscovery industry to image documents for production. Likewise, it is now a commonly accepted practice, and indeed even a preferred practice, to exempt spreadsheets (and some other file types) from that requirement, instead producing those documents natively. The idea being that parties would rather obtain native spreadsheets allowing them to work with and view the content in a meaningful manner rather than receive spreadsheet images that can be useless, cumbersome, or exceedingly difficult to accurately use and understand. There is a nascent trend of not only producing spreadsheets in native format, but redacting them in native format as well (the concept has existed for years but is becoming an increasing point of emphasis as of late).

The inherent nature of a spreadsheet means that it often contains complex data located in multiple rows, columns, and tabs. The data often includes or involves the use of formulas, sorting, or filtering amongst other features. Macros, pivot tables, and hidden content add to the complexity. If printed, the data often falls across multiple pages in a less than complete and less than orderly manner resulting in a confusing mess that is difficult to cobble together, let alone read and use. The fact of the matter is that images simply are unable to capture the complexities many spreadsheets contain, so if the document and its content are to be useful and meaningful, you must produce them natively. Most litigants now recognize this and are comfortable with, and often require, the native production of spreadsheets. Yet, traditionally they have been less than enthusiastic about redacting spreadsheets in native format.

Given that it is an accepted practice to produce spreadsheets natively, because that is how they will be most useful, why should redactions change that? The answer is that it should not, and more and more practitioners are beginning to realize this. Redacting changes the data in the spreadsheet, but it does not change the nature of the spreadsheet, the functionality of it, or how one uses the spreadsheet. If a spreadsheets needs to be produced natively to be useful in its non-redacted original state, then logically it should be produced natively to be useful in a redacted state.

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Source: eDiscovery News

By: Brandon D. Hollinder

Can Twitter Protect Your Data?

Twitter is fighting to shield a Wall Street Occupier from demands for his network data, as the company campaigns to protect user privacy despite increasing government opposition.

The social media company seeks to overturn a subpoena demanding account records for Malcolm Harris, a Twitter user arrested during last fall's Occupy protests.

Police nabbed Harris for allegedly blocking the Brooklyn Bridge, though he maintains they first directed him to occupy the roadway.

District Attorney prosecutors, however, say the defendant's Twitter records will prove he was "well aware of the police instructions and acted with the intent of obstructing traffic on the bridge."

Furthermore, the prosecution maintains Harris has no right to challenge its subpoena, leaving Twitter as his only champion in the legal field.

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Source: mobiledia.com

By: Kendra Srivastava

'Pippins' and the Proportionality Debate

The obligation to preserve potentially relevant documents when litigation is reasonably anticipated is well-settled and, through case law over the past few years, well-known. However, the scope of that obligation is not clear. Should the concept of proportionality apply to preservation obligations? And, if so, how do you apply it?

The issue of proportionality is of critical importance and, in some cases, dramatic significance. For example, in proposed class actions involving large numbers of employees over extended periods of time, the expense and effort involved in simply identifying potential custodians and preserving potentially relevant data can eclipse the real amount in controversy. To compound the problem, at the inception of a case, when preservation decisions have to be made, determining the scope of the issues involved and the individuals whose data must be preserved is rarely easy or clear. It is commonplace for cases ultimately to be dismissed on motion before discovery -- but only after hundreds of thousands, or even millions, of preservation dollars are wasted.

Courts are split on whether, and if so, how, a party may limit the scope of its preservation efforts in a given case commensurate with the likely significance of the information and the amount at issue. U.S. District Judge Colleen McMahon of the Southern District of New York recently added her views to the debate in Pippins v. KPMG, No. 11 Civ 0377, 2012 WL 370321 (S.D.N.Y. Feb. 3, 2012). The court endorsed the concept of proportionality, but pointedly refused to grant KPMG relief from full preservation activities, as a result of KPMG's perceived lack of cooperation in the discovery process and failure to demonstrate that the value of preservation was outweighed by the costs. This case provides useful lessons in evaluating and applying proportionality analysis to preservation obligations.

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Source: law.com

By: Wayne Matus, John Davis and Peter Ostrovski