EDD Blog Online

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

2012-01-31T21:59:00.002-05:00

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

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

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

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Source: networkworld.com
By: Ms. Smith

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

2012-01-31T21:57:00.002-05:00

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

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

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

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

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Source: law.com
By: Evan Koblentz

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

2012-01-28T12:29:00.000-05:00

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

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

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

NLRB warns employers about broad social media policies

2012-01-27T07:47:00.004-05:00

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

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

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

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

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Source: bizjournals.com
By: Linda Chiem

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

2012-01-27T07:45:00.004-05:00

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

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

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

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

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

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Source: law.com
By: Catherine Dunn

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

2012-01-26T21:23:00.002-05:00

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

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

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

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Source: networkworld.com
By: Ms. Smith

Revealed: The FBI Wants to Monitor Social Media

2012-01-26T21:09:00.000-05:00

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

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

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

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

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

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

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Source: mashable.com

By: Christina Warren

Opinion: Eliminating human error from data loss risk

2012-01-26T07:52:00.006-05:00

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

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

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

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

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Source: computing.co.uk
By: Eoin Blacklock

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

2012-01-26T07:02:00.002-05:00

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

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

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

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

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Source: law.com
By: Anne Kershaw

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

2012-01-25T21:28:00.001-05:00

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

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

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

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Source: eDiscovery 2.0
By: Allison Walton

Megaupload Closure Forces Cloud Storage Questions

2012-01-25T21:22:00.004-05:00

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

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

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

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

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

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Source: informationweek.com
By: Matthew J. Schwartz

Preparing for eDiscovery in Outsourcing Contracts

2012-01-25T21:19:00.002-05:00

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

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

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

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

Pricing: The Small Case E-Discovery Dilemma

2012-01-25T08:46:00.005-05:00

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

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

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

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

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

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Source: law.com
By: Tom O'Connor

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

2012-01-25T08:44:00.002-05:00

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

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

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

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

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

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

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Source: guardian.co.uk
By: Staff

Failure to Produce Originals Could be Spoliation in Third Circuit

2012-01-24T14:06:00.003-05:00

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

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

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

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

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Source: ediscoverylaw.com

Predictive Coding Gaining Acceptance As A Defensible eDiscovery Tool

2012-01-24T14:03:00.004-05:00

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

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

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

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

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

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

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

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Source: metrocorpcounsel.com

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

2012-01-24T07:24:00.004-05:00

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

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

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

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

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

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Source: mywebtimes.com
By: Julie Stroebel

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

2012-01-24T07:17:00.005-05:00

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

What is predictive coding?

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

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

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Source: eDiscovery 2.0
By: Matthew Nelson

The Story Behind Delaware's Default E-Discovery Standard

2012-01-24T07:12:00.004-05:00

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

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

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

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Source: law.com
By: Mark Michels

Reduce Over-Preservation: One Of Many Uses Of Technology

2012-01-24T07:09:00.004-05:00

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

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

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

Editor: How does that relate to over-preservation?

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

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

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Source: Metropolitan Corporate Counsel

Human Element Critical to Computer-Aided E-Discovery

2012-01-23T09:09:00.005-05:00

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

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

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

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Source: law.com
By: Sean Doherty

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

2012-01-23T07:20:00.001-05:00

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

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

IMPETUS FOR AMENDMENT

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

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

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

2012-01-23T07:16:00.004-05:00

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

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

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

EU Privacy Rules to Include Leak Disclosure Within 24 Hours

2012-01-23T07:05:00.003-05:00

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

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

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

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

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Source: businessweek.com
By: Cornelius Rahn

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

2012-01-21T15:03:00.001-05:00

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

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

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

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

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

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Source: eweek.com
By: Fahmida Y. Rashid

Right-Thinking E-Discovery Project Management

2012-01-21T15:00:00.000-05:00

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

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

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

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

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

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Source: law.com
By: Brett Burney

What Megaupload Teaches Us About the Cloud, SOPA and Backups

2012-01-21T14:57:00.004-05:00

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

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

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

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

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

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Source: mashable.com
By: Christina Warren

Get Ready for State Regulation of Social Media

2012-01-20T07:38:00.001-05:00

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

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

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

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

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Source: business2community.com

By: Glen Gilmore

Why Google's new search might be illegal

2012-01-19T08:14:00.002-05:00

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

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

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

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

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

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Source: money.cnn.com
By: David Goldman

State Dept., AG address EU cloud data privacy concerns

2012-01-19T08:11:00.003-05:00

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

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

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

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Source: fiercetelecom.com
By: Samantha Bookman

Guidance Revamps Decade-Old Evidence File Format

2012-01-18T07:19:00.000-05:00

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

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

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

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Source: law.com
By: Evan Koblentz

2012: The Year Of Technology-Assisted Review In eDiscovery

2012-01-18T07:15:00.001-05:00

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

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

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

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Source: forbes.com
By: Barry Murphy

Bottom Line Driven Proportional Review

2012-01-16T20:47:00.001-05:00

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

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

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

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Source: e-discoveryteam.com
By: Ralph Losey

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

2012-01-16T14:29:00.003-05:00

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

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

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Source: ediscoverylaw.com

5 Key Considerations When Litigating Cloud Computing Disputes

2012-01-15T11:05:00.003-05:00

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

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

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

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

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Source: law.com
By: Gerry Silver

FTC Adding Social Search to Google Antitrust Probe

2012-01-15T11:03:00.005-05:00

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

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

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

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

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

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Source: eweek.com
By: Clint Boulton

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

2012-01-15T11:01:00.006-05:00

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

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

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

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

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

TalkingPoint: Legal Challenges In Cloud Archiving And E-discovery

2012-01-11T06:27:00.000-05:00

FW moderates a discussion covering the legal challenges in cloud archiving and e-discovery between Michelle Martinez Reyes at Clarium Group, Neal Lawson at Intelligent Discovery Solutions, Inc (iDS), and Wayne C. Matus at Pillsbury Winthrop Shaw Pittman LLP

FW: More companies are collecting, storing and communicating their information electronically. What e-discovery considerations and implications should companies consider when migrating to the cloud?

Lawson: The revolution is underway as a broad spectrum of organisations has embraced cloud computing. However, there is a struggle to find best practices as regulators and courts have not yet had the opportunity to address e-discovery in the cloud. Companies should consider the following when entering the cloud. First, have an escape plan. Know how you’ll get your data out, whether for discovery, compliance, or change in provider before you enter. Second, don’t just toss your dirty laundry in a drawer and forget about it. Use your migration to the cloud as an opportunity to clean your records management house. Third, set standards. Clearly define who can use cloud data and when. Fourth, create and test a response plan before moving to the cloud. Finally, know where everything is. Maintain an accurate data and system map.

Martinez Reyes: As cloud computing becomes the new information technology (IT) standard for enterprises of all varying sizes and industries, replacing the traditional legacy IT systems, companies need to become better educated on evaluating and managing their own proprietary systems and related providers. From collecting, storing and transmitting key business data electronically, to sustaining the necessary technological infrastructure and processes, companies need to focus on the basics of hardware, software, peripherals, and applications. Pivotal areas for cloud computing environments also entail sensitive IT concerns and e-discovery key factors such as security, compliance, data storage, privacy, intellectual property, and disaster recovery. Businesses must consider and plan for how they will be affected by arising legal issues including e-discovery during design, planning, implementation, and migration to cloud computing.

Matus: E-discovery requires at least seven distinct steps: the identification; preservation; collection; processing; review; analysis; and production of electronically stored information. Before migrating to the cloud, companies need consider how they will continue to perform each of these steps once they have migrated. For example, many companies have developed methods for both the identification and preservation of information ‘in place’ within the corporate firewall. Will there be a corresponding method when adopting a provider’s cloud solution or can one be created?

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Source: Financier World

What Technology-Assisted Electronic Discovery Teaches Us About The Role Of Humans In Technology

2012-01-09T13:54:00.000-05:00

If 2011 was the year of technology-assisted document review, 2012 will be the year of re-humanizing technology-assisted review at its most strategic points. Going forward, the focus will be not only on the foundational role humans play in guiding document assessment, but also on the role human expertise can play during the earliest stages of case strategy development and later during optimization of the review process. During these phases, experts from various fields may serve as a vital extension of the legal team, providing critical perspectives that legal subject matter experts alone may not possess.

The past year’s most seminal article on technology-assisted review (commonly known as “automated document classification” or “predictive coding”) was Maura Grossman and Gordon Cormack’s law review piece, which effectively debunked the notion that manual review offers an unimpeachable gold standard. The authors succinctly summarized their statistically validated findings as follows:

This article offers evidence that . . . technology-assisted processes, while indeed more efficient, can also yield results superior to those of exhaustive manual review, as measured by recall and precision.

Maura R. Grossman & Gordon Cormack, Technology-Assisted Review in E-Discovery Can Be More Effective And More Efficient Than Exhaustive Manual Review, XVII Rich. J.L. & Tech 11 (2011). Anne Kershaw and Joe Howie agree. In a survey of 11 e-discovery vendors who use technology-assisted review in the form of predictive coding, they found not only that technology-assisted review outpaced their aptly termed “brute force [human] linear review of electronic data,” but also technologies that have been used in the not-so-distant past. They write:

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Source: forbes.com
By: Amanda Jones & Ben Kerschberg

Twitter Ordered To Hand Over WikiLeaks Supporters’ Account Information

2012-01-08T11:29:00.002-05:00

Twitter has to provide the U.S. Department of Justice with all account information for three users who allegedly support WikiLeaks, a federal judge ordered on Wednesday.

U.S. District Judge Liam O’Grady denied a motion to suspend previous orders that would allow the DOJ access to the Twitter account information of three people who are suspected of having ties to WikiLeaks.

The account information for Jacob Appelbaum, a computer security researcher, Birgitta Jonsdottir, a member of Iceland’s Parliament and Dutch activist Rop Gonggrijp will be used in the investigation into WikiLeaks and its leader, Julian Assange.

“We’re disappointed with the decision,” Aden Fine, an attorney with the American Civil Liberties Union who represents Jonsdottir, told Mashable. “Before…constitutional rights are infringed, individuals need to have an opportunity to go to court to protect their rights.”

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Source: mashable.com
By: Kate Freeman

Financial services firm loses 1.4 million customer records

2012-01-08T11:18:00.002-05:00

A financial services firm has admitted losing backup tapes containing sensitive information relating to 1.4 million of its customers.

The Cattles Group owns Welcome Financial Services Limited and its business Shopacheck, and is based in Yorkshire. The firm said in a statement that the tapes went missing at the end of November 2011, and that investigations began as soon as the loss was discovered – although it has only recently written to customers to warn them.

"Cattles Group confirms that two IT back-up storage tapes are missing from its Kingston House [headquarters]. The tapes were discovered as missing at the end of November 2011 and an investigation started immediately," it said.

The firm has described the nature of the missing information as "low-level personal data". However, Computing understands that this includes names, addresses, dates of birth and payment histories.

The missing tapes also include some HR information relating to staff employed by the group up to October 2010.

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Source: computing.co.uk
By: Stuart Sumner

Plaintiff "Entitled" to Search Non-Party's Personal Hard Drive Pursuant to Modified Subpoena

2012-01-06T16:30:00.002-05:00

Wood v. Town of Warsaw, N.C., No. 7:10-CV-00219-D, 2011 WL 6748797 (E.D.N.C. Dec. 22, 2011)

Defendant moved to modify a subpoena which sought access to a non-party’s personal hard drive. Upon plaintiff’s clarification that he would bear the costs of the search and cooperate to negotiate search terms and that he sought only the non-privileged ESI identified by search terms and not all contents of the drive, the court ordered that the non-party’s counsel could review the results before production and allowed the search to go forward.

In this employment discrimination case, defendant sought to modify a subpoena seeking inspection of a non-party’s personal hard drive and specifically objected that the subpoena was overly broad, unduly burdensome, not calculated to lead to the discovery of admissible evidence, and sought private, irrelevant information. The non-party was the former town manager and allegedly involved in plaintiff’s termination—the underlying issue in this case.

Beginning its discussion, the court first identified the appropriate considerations when addressing a motion to quash or modify a Rule 45 subpoena: 1) the relevance of the discovery sought, 2) the requesting party’s need, and 3) the potential hardship to the party subject to the subpoena. The court then turned to the specific objections.

Addressing the objections to the subpoena, the court identified several particularly pertinent facts, namely that plaintiff was willing to bear the costs of the search and to negotiate search terms and that he did not seek production of the entire contents of the drive, but only those non-privileged documents identified by the keyword search. Regarding the potential relevance of the drive’s contents, the court noted the non-party’s involvement in plaintiff’s termination and opined regarding the likelihood of recovering relevant evidence:

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Source: ediscoverylaw.com

How SOPA threatens the move to the cloud

2012-01-04T13:12:00.002-05:00

The Stop Online Piracy Act could oblige cloud providers to harm their own customers

The Stop Online Piracy Act (SOPA), introduced in the U.S. House of Representatives in late October, would allow the Department of Justice and copyright holders to seek court orders to block payment processors and online advertising networks from doing business with foreign sites accused of infringing copyright.

If this thing passes, we could see court orders that bar search engines from linking to the allegedly infringing sites. Or most interesting, it would require domain name registrars to stop resolving queries that direct traffic to those sites -- and even require Internet service providers to block subscriber access to sites accused of infringing.

[ Get the no-nonsense explanations and advice you need to take real advantage of cloud computing in InfoWorld editors' 21-page Cloud Computing Deep Dive PDF special report. | Stay up on the cloud with InfoWorld's Cloud Computing Report newsletter. ]

As you may expect, nobody likes this act due to the potential for abuse. Indeed, in the last 30 days we've seen the Internet in an uproar. This includes a movement to boycott Go Daddy, which has now changed its tune on SOPA from supporting to not supporting.

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Source: infoworld.com
By: David Linthicum

10 Social Media Law & Governance Resolutions for 2012

2012-01-04T13:09:00.003-05:00

1. Create a Social Media Corporate Governance Team.

2012 should be the year in which business gets serious about social media governance, integrating social business into corporate culture.Your social media governance team should reflect a cross section of your organization and it should become a center of excellence for your business.

Social media silos do not work.

A social media governance team should bring together diverse talent, including marketing, customer service, IT, legal, and human relations, to share in learning, establish best practices, and create benchmarks for excellence, while humanizing your brand and driving business results.

2. Establish/Update A Social Media Policy.

If your organization doesn’t have a social media policy, you are courting disaster as you are inviting even a single employee to have the power to redefine your brand in one inadvertent or ill-conceived post.If, on the other hand, your organization was an early adopter of social media (or at least an early adopter of a social media policy!), it is likely time to update your social media policy. In the past year, the National Labor Relations Board has rendered over a hundred decisions touching on the topic of employee use of social media, with many of the Board’s actions prompted by overly broad social media policies. The law is finally catching up to the implications and technologies of social media. Your social media policy should reflect those changes and clarifications. An abundance of social media policies exists online. Be mindful that some of the policies you may find online may also be in need of updating or just plain wrong. You need to invest in getting your policy right and the proper policy for your organization may vary immensely depending on they type of organization you are and the degree of existing regulatory guidelines you must follow.

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Source: business2community.com
By: Glen Gilmore

How to make the litigation process easier and less costly

2012-01-03T16:40:00.002-05:00

No business owner starts each day thinking that his or her company will be sued. Preparing to avoid a lawsuit isn’t on most owners’ to-do lists, but it’s a risk that should garner their attention — a reality of running a business is that it’s always a potential target.

“The statistics say that about 70 percent of all businesses in the United States find themselves engaged in litigation every 10 years,” says Richard L. Charnley, a partner at Ropers Majeski Kohn & Bentley PC.

Smart Business asked Charnley for tips on what to do if a company is sued and how a company can be prepared by taking appropriate preventive measures.

What are common reasons that a business may be sued?
Commonly, businesses make the mistake of not having well-drafted employee handbooks or a set of company guidelines regarding Internet usage. Problems occur when companies use items off the Internet without getting permission. Companies become involved as defendants of litigation for using someone else’s artwork or logo and violating the intellectual property rights that belong to third parties. It’s very difficult for companies to manage the issue because their employees, looking to come up with a new design or competitive edge, regularly use the Internet for inspiration. Management relies on the employee’s ‘new concept,’ runs with it and somewhat innocently broadcasts it to the public. Then, suddenly, the owner of the original art files suit against the company for violating a trademark or infringing upon a copyright. Well-drafted handbooks and guidelines addressing Internet use can help businesses to avoid this.

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Source: sbnonline.com
By: Smart Business & Richard Charnley

What is predictive coding and can it help me?

2012-01-03T16:34:00.006-05:00

In large civil litigation and regulatory cases, the discovery process is becoming increasingly automated, scientific, and objective. This is evident by the increasing use of “predictive coding.”

Predictive coding are the new e-discovery buzzwords. Articles about the benefits of predictive coding have appeared in Forbes magazine and The New York Times. In mid-2011, one company announced a patent for the technology, sparking a war of words in the e-discovery press.

Let’s start with what predictive coding is not. It is not the “eyes on every document” approach of traditional linear review, where a lawyer starts with the first document and looks at every collected document until every document is reviewed. That approach works well when there is a small amount of documents or in circumstances that require human eyes on every page. However, that approach becomes unwieldy and expensive when hundreds of thousands or millions of pages require review.

Predictive coding remains poorly understood because it is not just a technology but also a project management technique. Predictive coding is a series of computer search and sampling technologies, coupled with a new approach to searching for and reviewing potentially responsive documents. Properly combining all of these elements permits expedited, cost-effective, and highly accurate document review. Lawyers who use predictive coding need to understand how to combine these elements. It’s not necessarily the technologies that are indefensible — just certain uses of them. Judges need to learn to recognize when their use has been or will be ineffective.

Predictive coding has been described as lawyer-driven, computer-assisted document review. At its most basic, it is a form of automated document review; but strictly understanding it this way is to misapprehend the role predictive coding technology plays in searching for and retrieving potentially relevant documents. Predictive coding groups and organizes potentially relevant documents in a way that permits human reviewers to maximize their review time and look at potentially related matters together. I prefer to think of predictive coding not as review technologies, but as search retrieval and information organization technologies applied to the discovery review process.

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Source: canadianlawyermag.com
By: Dera J. Nevin

New York's Newest E-Discovery 'Best Practices' and Rules

2012-01-03T07:13:00.000-05:00

E-discovery "best practices" recently have been published by the New York State Bar Association (NYSBA) and, in state court, a pilot e-discovery preliminary conference order is now in effect in certain courts. Practitioners need to be versed in both. The NYSBA's Commercial and Federal Litigation Section's E-Discovery Committee (the Committee) has released a report entitled "Best Practices in E-Discovery in New York State and Federal Courts" (the Guidelines), which contains practical "hands-on" advice concerning the challenging electronic discovery landscape relating to, among other things, the preservation, collection, and production of electronically stored information.

In addition, a pilot project for complex civil cases has been implemented in the U.S. District Court for the Southern District of New York, effective Nov. 1, 2011, which provides, among other things, for counsel to submit to the court in connection with the Rule 16 conference a joint electronic discovery submission and proposed order (the e-discovery submission).[FOOTNOTE 1]

Practitioners also should be aware that the New York State Unified Court System's E-Discovery Working Group (the working group)[FOOTNOTE 2] will soon be releasing a draft e-discovery bench book that will be provided to the state judiciary and is putting together a multi-part course on various aspects of e-discovery that will be available to the state judiciary and its staff. The working group has adopted an electronic e-discovery order that has been piloted to several New York supreme court justices statewide and, in Manhattan, Commercial Division Justice Jeffrey K. Oing is utilizing this electronic discovery order.[FOOTNOTE 3]

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Source: law.com
By: Mark A. Berman

Questioning Courts' Deference to Broad Electronic Searches

2011-12-29T10:52:00.003-05:00

Computers and related digital devices like smartphones store increasingly massive amounts of business and personal data. As a result, when law enforcement obtains a digital device during an investigation of suspected financial crime, child pornography, or other offense, a massive cache of unrelated data is inevitably caught in the net.

Although the Fourth Amendment demands that search warrants be particular as to the material sought and seized, prosecutors invariably argue -- and courts often agree -- that the requested search and its execution necessarily must be extremely broad. Many courts acknowledge Fourth Amendment concerns but nonetheless proceed to embrace, implicitly or explicitly, the following notion: Because investigators do not know in advance where any contraband is located, practical considerations allow them to examine every electronic folder and document seized, however briefly, to rule out the possibility that it contains evidence sought by the warrant.

A recent opinion by the 6th U.S. Circuit Court of Appeals, United States v. Richards, has continued this trend toward sanctioning broad searches and did so by citing heavily to an opinion issued earlier in 2011 by the 3rd Circuit, United States v. Stabile. These and similar opinions raise this question: once the government has obtained a search warrant regarding the contents of a hard drive or phone, whether there are any practical limits to what data may be accessed, viewed and ultimately used to convict.

Although these cases often arise in the context of child pornography investigations -- when courts are presumably particularly reluctant to grant suppression -- the general legal principles that they establish of course govern every kind of case, no matter how complex or esoteric the alleged wrongdoing.

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Source: law.com
By: Peter D. Hardy and Abraham Rein

Leaked Twitter Subpoena Raises Online Privacy Issues

2011-12-29T10:42:00.005-05:00

The leaked subpoena sent to Twitter this month by the Suffolk District Attorney’s Office in Boston is causing some hoopla on the web and raising the issue of law enforcement’s access to online personal data.

On Dec. 14, the D.A.’s Office issued a subpoena to Twitter in order to access the account information of two users who tweeted a list of personal information they allegedly obtained by hacking into the Boston Police Patrolmens’ Association. The hackers stole identifying information and Tweeted it to followers. The subpoena requests “available subscriber information, for the account or accounts associated with the following information, including IP address logs for account creation.”

In the subpoena, assistant D.A. Benjamin A. Goldberger requests that the investigation be kept from the Twitter users as to not impede the ongoing probe. But the information was leaked. We reached out to Twitter for comment, but have yet to hear back.

On Dec. 23 one of the accounts under investigation, @p0isAn0N Tweeted, “Haha. Boston PD submitted to Twitter for my information. Lololol? For what? Posting info pulled from public domains? #comeatmebro.”

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Source: mashable.com
By: Kate Freeman

The Case for In-House eDiscovery

2011-12-28T09:32:00.004-05:00

Litigation Growth Moves Organizations to Develop Skills Internally

In mid-2011, Canada's Scotia Bank set up an internal eDiscovery team of three full-time professionals to tackle litigation issues for the institution in 50 countries.

The goal: to preserve, collect, review, manage and produce any electronic evidence relevant to a court case. For Greg Thompson, vice president of enterprise security services at Scotia Bank, Canada's third-largest institution, eDiscovery has become a top concern because of the rising litigation caseload. Failure to comply with an eDiscovery request could result in fines or other penalties.

The main reasons for establishing an internal eDiscovery team, versus outsourcing it: huge cost savings, increased control of data and a better understanding of the litigation process.

"Satisfying a court order is heavy lifting," Thompson says. "The cost and risks of outsourcing this service with regards to the number of litigations we are dealing with has skyrocketed. If you send your data to an external party for investigations, you can expect to pay somewhere around $2,000 per day compared to internal expertise, where we spend around $800 per day."

Scotia Bank's choice is increasingly common among private and public sector organizations worldwide. The expansion of litigations, electronically stored information and the risk of sending data to third parties are pushing these organizations to develop their own eDiscovery capabilities.

"eDiscovery is becoming a big deal," says David Matthews, deputy chief information security officer for the City of Seattle in the U.S., and author of a forthcoming book called "Electronically Stored Information: The Complete Guide to Management, Understanding, Acquisition, Storage, Search, and Retrieval." "Every bit of infrastructure and activity generates electronic data, so organizations and individuals are expected to understand by law where their electronic evidence is and how it's accessed and produced in court."

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Source: Healthcare Info Security

By: Upasana Gupta

Time To Revise Your Social Media Policy on Who Owns Your Followers

2011-12-27T17:49:00.004-05:00

Earlier this fall, a judge ruled that a lawsuit filed by the PhoneDog.com over one of its long-departed employees, Noah Kravitz, has merit. According to Eric Goldman's Technology and Marketing Law Blog, the company is suing Kravitz over three points, including trade secrets and misappropriation of the account. The ruling, reported by Goldman and the New York Times, states that Kravitz is liable for several hundred thousand dollars in damages, calculated at $2.50 per month per Twitter follower.

This isn't the first conflict over who owns your Twitter account, and it certainly won't be the last. When Rick Sanchez left CNN he kept his account but changed the name. This is what Kravitz did when he left PhoneDog.

What this means to me is that now more than ever you need to get your social media policies firmed up and clarified. As in, start a conversation with your corporation counsel asap.

Dell's senior legal counsel Ryan Garcia recommends that any firm creating a social media policy take the time to understand how they are going to be using social media before they put anything together. "You also want to cover both extreme cases, where someone is an experience social media user before they came to the company, as well as a neophyte who learns while on the job." There is risk involved in both situations: a Twitter pro could get sued, as in the case of PhoneDog, from his previous employer. Or a newbie could garner a bunch of followers and then take this newfound popularity to a competitor.

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Source: readwriteweb.com
By: David Strom

Is Your Company Tweeting Its Way Into Trouble?

2011-12-27T07:58:00.002-05:00

In the October 2010 issue of Corporate Counsel, we provided five tips that corporations should follow to avoid "E-Trouble," a term we coined to refer to the devastating impact emails and electronically stored information can have in litigation. With social media use exploding nationwide, the E-Trouble threat has expanded to platforms such as Facebook, Twitter, LinkedIn, MySpace, YouTube, and Foursquare, which all allow users to create profiles and "connect" with others to meet new people; share ideas, news, entertainment, personal information, photographs, and videos; and engage in networking.

An August 2011 Nielsen Company study found that Americans spend nearly a quarter of their online time on social networking sites and blogs, a 43 percent increase from the previous year. Since social media sites have become increasingly popular for marketing and business purposes, the risk of E-Trouble has increased, and managing that risk is mission-critical for corporations operating in today's online world.

New York Congressman Anthony Weiner's fall from grace this past summer was caused by his misuse of social media. Weiner's case may be extreme -- he was forced to resign over a scandal begun by a Twitter post -- but the case should serve as a warning: Online activities do not remain "private" and can be very damaging. Even well-educated users exercise poor judgment while utilizing social media sites.

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Source: law.com
By: Judah Lifschitz and Laura Fraher

Weighing the Burden, Court Excuses Plaintiff from Reviewing Millions of Pages from Unallocated Space

2011-12-22T14:36:00.006-05:00

I-Med Pharma, Inc. v. Biomatrix, Inc., No. 03-3677 (DRD), 2011 WL 6140658 (D.N.J. Dec. 9, 2011)

“This case highlights the dangers of carelessness and inattention in e-discovery.” In this case, the court affirmed the order of the Magistrate Judge which excused plaintiff from the obligation of reviewing and producing millions of pages of documents recovered from unallocated space files in light of the extreme burden and cost of such an undertaking.

Pursuant to a stipulation between the parties, defendants hired an expert to conduct a keyword search of plaintiff’s computer network, servers, and related storage devices. Per the court's order, plaintiff was to produce the results of the examination. There were more than 50 search terms, and many were also run in French. Moreover, “the search was not limited to targeted document custodians or relevant time periods. Indeed, the search was not even limited to active files.” The search was instead run “across all data on the computer system” including unallocated space. Unsurprisingly, the results were voluminous, returning 64,382,929 hits in unallocated space alone which represented approximately 95 million pages of data.

Following a telephonic hearing, the Magistrate Judge entered an order permitting plaintiff to withhold data found in the unallocated space and allowing defendants to seek reimbursement for the costs incurred in extracting and searching that data. Among other things, the order was based on findings that the burden of the review would outweigh any potential benefit and that the likelihood of finding relevant, admissible evidence was “minimal.”

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Source: ediscoverylaw.com

New Utah Rule 26: A Blueprint for Proportionality in eDiscovery

2011-12-22T07:22:00.002-05:00

The eDiscovery frenzy that has gripped the American legal system over the past decade has become increasingly expensive. Particularly costly to both clients and courts is the process of preserving, collecting and producing documents. This was supposed to change after the Federal Rules of Civil Procedure (FRCP) were amended in 2006. After all, weren’t the amended rules designed to streamline discovery, allowing parties to focus on the merits while making discovery costs more reasonable? Instead, it seems the rules have spawned more collateral discovery disputes than ever before about preservation, collection and production issues.

As a solution to these costs, the eDiscovery cognoscenti are emphasizing the concept of “proportionality.” Proportionality typically requires that the benefits of discovery be commensurate with its corresponding burdens. Under the Federal Rules of Civil Procedure, the directive that discovery be proportional is found in Rules 26(c), 26(b)(2)(C) and Rule 26(b)(2)(B). Under Rule 26(c), courts may generally issue protective orders that limit or even proscribe discovery that causes “annoyance, embarrassment, oppression, or undue burden or expense.” More specifics are set forth in Rule 26(b)(2)(C), which enables courts to restrict discovery if the requests are unreasonably cumulative or duplicative, the discovery can be obtained from an alternative source that is less expensive or burdensome, or the burden or expense of the discovery outweighs its benefit. In the specific context of electronic discovery, Rule 26(b)(2)(B) restricts the discovery of backup tapes and other electronically stored information that are “not reasonably accessible” due to “undue burden or cost.”

Despite the existence of these provisions, they are often bypassed. The most recent and notable example of this trend is found in Pippins v. KPMG (S.D.N.Y. Oct. 7, 2011). In Pippins, the court ordered the defendant accounting firm to continue preserving thousands of employee hard drives. In so doing, the court sidestepped the firm’s proportionality argument, citing Orbit One v. Numerex (S.D.N.Y. 2010) for the premise that such a standard is “too amorphous” and therefore unworkable. Regardless of cost or burden, the court reasoned that “prudence” required preservation of all relevant materials “until a more precise definition [of proportionality] is created by rule.”

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Source: eDiscovery 2.0
By: Philip Favro

Obama Administration Memorandum Creates New Opportunities For Records Management SMBs

2011-12-22T07:20:00.001-05:00

A recent presidential memorandum requires federal agencies to digitize their recordkeeping processes, all but forcing additional collaboration with private companies in the area of e-discovery and records management.

On November 28th, the Obama administration issued a presidential memorandum requiring 480 federal agencies to begin the process of digitizing federal documents and creating electronic records management procedures within their organizations.

The move has important implications not only for federal agencies, but also for private records management firms, many of which will be called upon to assist with the digitization of millions of existing documents and help create processes for the efficient execution of electronic records management on a go-forward basis.

Tasked with overseeing the initiative, the National Archives and Records Administration (NARA) has estimated that the government's trove of paper documents has grown by 475 million pages each year over the past decade.

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Source: gaebler.com
By: Resources for Entrepreneurs Staff

Overly Onerous E-Discovery Demands Can Backfire

2011-12-22T07:17:00.002-05:00

Federal courts have been ruling that prevailing parties are entitled to recover their discovery costs. The costs resulting from electronic discovery continue to be a critical concern for clients and their counsel. Seven years after enactment of cost-shifting provisions into the federal civil rules, substantial e-discovery costs continue to fall heavily on producing parties -- often defendants in complex litigation -- and can rise to a level that affects both pretrial and settlement strategy.

A number of recent federal district court decisions, however, offer some potential relief for parties that, in response to onerous requests, incur significant costs related to collection, review, and production of electronically stored information. These decisions award prevailing parties the costs and expenses of electronic discovery as part of the parties' bill of costs.

The Federal Rules of Civil Procedure provide that "[u]nless a federal statute, these rules, or a court order provides otherwise, costs -- other than attorney's fees -- should be allowed to the prevailing party." Fed R. Civ. P. 54(d)(1) (2006). The fees that can be recovered by a prevailing party are detailed in 28 U.S.C. 1920. That section provides, in part, that a prevailing party may be awarded costs including "[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case[.]" 28 U.S.C. 1920(4) (2008).

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Source: law.com
By: Benjamin R. Barnett and Rebecca S. Kahan

Compare and Contrast: Network and Internet Remote Collection Tools

2011-12-21T18:02:00.002-05:00

After I compared e-discovery self-collection tools in August, readers asked why I didn't include software delivered over the network or the internet. Sending USB drives to custodians to self-collect data and using network-enabled, remote collection software are two ways to reach the same goal, but with different approaches that aren't easily compared.

I sent five providers a request for information about collecting data relevant to litigation from numerous custodians who work outside of a central office location. I specified that the collection should be conducted over the network or internet without sending custodians USB drives.

AccessData, BIA, Guidance Software, and PinPoint Labs responded, describing how their network-enabled products provide real-time management tools to monitor and report on multiple collections — which are not available when you simply deliver a hard drive. With network software, reports during collection can be viewed and downloaded in Microsoft's Excel or .csv format.

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Source: law.com
By: Sean Doherty

Delaware's Default E-Discovery Developments

2011-12-20T14:10:00.003-05:00

On Dec. 8, 2011, the Federal District Court for the District of Delaware posted two new default standards for litigation: the Default Standard for Discovery, Including Discovery of Electronically Stored Information ("ESI") and the Default Standard for Access to Source Code.

These new default standards were developed by the district court's Ad Hoc Committee for Electronic Discovery which included District Court Judge Sue L. Robinson and Magistrate Judge Mary Pat Thynge, practioners from the bar, and in-house counsel. This is the second time that the Delaware default rules have been updated.

The Delaware Federal Court first published default electronic discovery rules in 2004, two years before the 2006 Federal Rules of Civil Procedure ESI amendments. The court updated the default standards in 2007 to address the changes brought on in the 2006 FRCP amendments. These latest revisions address head-on some of the most challenging discovery issues that have arisen since the FRCP amendments went into effect. The discovery standards encourage the parties' cooperation in discovery. However, if the parties fail to agree on the "parameters and/or timing of discovery," then the default standards will apply unless or until the parties reach agreement or the court issues its own orders. (Para. 1.a.) Experience with the prior default standards has, in fact, led parties to cooperate early in the discovery process and tailor their discovery plan to be consistent with the case requirements rather than deal with some of the default provisions.

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Source: law.com
By: Mark Michels

Zero e-mail at work 'possible but not easy'

2011-12-20T13:58:00.000-05:00

Eliminating the use of e-mail as an internal communication tool among staff in an organization is not impossible, but it is not easy either. While the adoption of social enterprise and collaboration tools is indubitably on the rise, traditional e-mail's ease of use and how it is already entrenched in work culture can be further enhanced with social media integration.

According to Richard Absalom, analyst for consumer IT at Ovum, the move toward zero internal e-mail will gradually catch on among companies.

He explained that social collaboration platforms such as Yammer, Jive and Chatter are seeing growing adoption, though, for the most part these are currently used as additional tools alongside e-mail.

Hence, for some companies, the "next logical step would be to use these social tools as an e-mail replacement", Absalom said in an e-mail interview.

Looking in the long term, new recruits in an organization, especially those from Generation Y, would also generally be happier, more familiar and, hence, productive using social communication tools as opposed to e-mail, he added.

With such tools, employees can also save time from not having to filter through spam and unimportant e-mail messages, he said. There is also the potential for more productivity and easier collaboration through interaction, recommendation and discovery, he added.

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Source: zdnetasia.com
By: Jaimie Yap

Plaintiffs Have Their Own Duty to Preserve

2011-12-20T13:47:00.001-05:00

Their attorneys must see that they obey it, especially since the client has a vested interest in the dispute

Consider the following hypothetical scenarios:

• the plaintiff claims she was harassed at work, but laments in an online chat room that she has a romantic crush on her boss and is upset that he will not pay attention to her;
• the plaintiff claims he suffers from a debilitating injury that prevents him from working, but on Facebook posts pictures and videos of his post-injury rock-climbing vacation, albeit in a "private" section of his Facebook account that only Facebook "friends" can view; and
• the plaintiff frequently posts daily musings about her employer on a blog called "Ihatemyemplyer.com." She then sues her employer alleging a multitude of claims.

While the focus of electronic discovery is often on the defendant's information technology systems and data sources, litigants should not lose sight of the fact that e-discovery is a two-way street, and obligations apply just as forcefully to plaintiffs -- who often anticipate litigation well in advance of any defendant.

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Source: law.com
By: Paul Weiner

eDiscovery Confidential: A Look Ahead At 2012

2011-12-20T13:42:00.004-05:00

2011 proved to be a lively chapter in the eDiscovery odyssey, with notable acquisitions of eDiscovery vendors by technology giants HP and Symantec, and a growing focus in the federal courts on creating strong judicial standards around eDiscovery.

As the amount of electronically stored information (ESI) continues to grow exponentially, it’s inevitable that the energy of regulators and the courts, along with the capital resources of strategic investors and acquirers, will increasingly be directed at eDiscovery software and services.

At the same time, the burgeoning costs associated with growing ESI will prompt litigants and the courts to look for innovative ways to reduce the cost of eDiscovery while continuing to effectively manage litigation and regulatory matters. Against that backdrop, here are my 5 predictions for eDiscovery in 2012:

1. No Country for Old Pricing
In this era of big data, the amount of electronically stored information has continued to increase significantly, and along with it, the cost of eDiscovery under the industry-standard per-gigabyte pricing model. Because eDiscovery has become an integral part of litigation, market forces will require a re-evaluation of pricing strategies. In order to remain competitive, eDiscovery vendors will begin implementing alternative fee arrangements and flexible pricing structures in order to meet evolving client demands.

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Source: businesscomputingworld.co.uk
By: Kurt Jensen

Social Media, e-Discovery Bring IT, Legal Closer Together

2011-12-19T15:16:00.001-05:00

Working well together is a skill that most of us learned in kindergarten. However, for IT and legal departments, it’s a skill that they are still learning to master. But according to Recommind’s third annual survey on the working relationship between corporate IT and legal departments, the two departments are getting better about working together.

Works Well With Others
According to the report (PDF), which surveyed senior IT managers at enterprises averaging 17,500 employees, both IT and legal are making e-Discovery a higher priority, which seems to be bringing the two departments together. To be more specific, the report highlights a few promising trends.

In 2010, 54.5% rated the relationship between legal and IT has good or very good. In 2011, 52.1% rated it as such. Yet despite the slight decrease, there are other indicators that the relationship between the two is improving. Almost 67% report that legal and IT are meeting to collaborate or strategize at least once per quarter (compared to 48.4% in 2010) and fewer respondents across departments rated e-Discovery as a low or very low priority than they did in 2010.

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Source: cmswire.com
By: Marisa Peacock

5 steps to choosing the right cloud provider

2011-12-19T13:17:00.003-05:00

Is your business considering a switch to cloud computing in the New Year? If so, you might want to take note of the following best practices from Andy Brewerton, Country Manager for cloud back-up specialists, EVault.

Choosing a cloud provider that’s right for youAndy Brewerton, Country Manager, UK & Ireland, EVault

According to a recent Forrester Research report, about half of all midsize companies are either pursuing cloud-based services as part of their business practices, or they’re in their near-term implementation. Why? The realised benefits are clear– reduced infrastructure costs, pay-as-you-go services, flexibility, agility, and significantly reduced IT management and oversight.

Yet despite the massive migration to the cloud, businesses are still confused when it comes to data ownership, data privacy, data location, and cloud IT governance oversight.

Some of the frequently asked questions are: “Do I own my data in the cloud? Who is responsible for protecting my data? How secure is my service provider? How can providers safeguard my data from ending up across the globe? And, who is actually providing the oversight?”

It seems that there are always the issues of trust, reliability, compliance and security when you’re looking to partner with a cloud service provider, so to make sure that you are choosing or working with the most secure cloud service provider for you, follow these best practices…

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Source: businesscloudnews.com

How the Proposed 2012 EU Directive on Data Privacy Could Impact Social Media

2011-12-19T09:33:00.003-05:00

Last week we held a senior executive round table event at Claridges and one of the topics of discussion was about the proposed European Union (EU) directive on data privacy and the potential impact of this on social media.

As current EU data laws were created in 1995, before the rise of Facebook and other social networking sites, the EU has proposed a new directive on data privacy which is due to come into place in January 2012.

In essence, European politicians are seeking to simplify the EU Data Protection Directive in order to give businesses within the EU only “one law” with “one data protection authority”. Proposed changes to the data law aim to unify the existing legislation of each EU Member State, making it easier for businesses to transfer data.

According to Reuters, EU officials expect the draft legislation to be ready early next year (as early as January 2012) but it could take up to 18 months for the bill to become law, meaning that businesses will still have to comply with disparate laws and often conflicting decisions made by data protection authorities (DPAs) in each of the 27 Member States.

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Source: business2community.com
By: Joe Stratmann

E-Discovery Pitches Meet Sabermetrics

2011-12-19T09:21:00.000-05:00

A pair of e-discovery research projects, intended to test new methods and processes, may also lead to customers receiving extra velocity on sales pitches this spring.

That's because in addition to the final results of the U.S. government's annual Text Retrieval Conference (TREC) Legal Track, due in February, there will also be a new round of the nonprofit Electronic Discovery Institute's own performance study, last conducted in 2006. In both cases, the contests pit teams of document reviewers, using their choice of software, all working on the same data set to learn which methods are the fastest and most thorough.

Such benchmarks may be the e-discovery equivalent of sabermetrics in professional baseball -- the concept that computers and measurements are more useful than a veteran leader's intuition.

Similarly, organizers of both projects know that real-world customers value cost savings, ease-of-use, and efficient processes, not laboratory results. As such, teams from both sides are discouraged from openly discussing test results and from using results for marketing and sales purposes. Some do anyway, especially after results begin to circulate in the legal technology community. For example, among predictive coding specialists, Equivio this month published advertisements touting its 2010 TREC performance, while its rival Recommind is already asserting high marks based on preliminary results from the 2011 edition. (Law Technology News viewed TREC documents from both years and found mixed evidence of both vendors' claims.)

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Source: law.com
By: Evan Koblentz

House Judiciary Subcommittee: No Need to Act on EDD Costs

2011-12-18T21:06:00.002-05:00

The House Judiciary Subcommittee on the Constitution convened its hearing on "The Costs and Burdens of Civil Discovery" on Tuesday, Dec. 13, to address whether amendments to the Federal Rules of Civil Procedure (FRCP) are needed to ameliorate what the corporate legal community considers to be excessive costs and burdens of e-discovery. In the end, the consensus of the participating members was that the question is being actively studied by the Federal Judicial Conference's Civil Rules Advisory Committee, so there is no reason for Congress to involve itself at this time.

In his opening statement, Chair Trent Franks stated that the current discovery rules "appear to fall short" of the goal of encouraging the just, speedy, and inexpensive resolution of disputes envisioned by FRCP 1. "Costs are increasing because the discovery rules are too vague," Franks said, and the "[v]ague standards and harsh sanctions leave parties no choice but to preserve excessive amounts of data."

Rep. Jerrold Nadler, D-N.Y., opened his statement with the observation that the title of the hearing did not "even remotely acknowledge" the critical role discovery plays in uncovering facts so that cases can be resolved on the merits. While acknowledging that electronic data discovery poses new challenges and burdens to litigants, Nadler pointed out that electronic data has also "proven particularly valuable in uncovering critical evidence and improving accountability," and that "we should not lose sight of the tremendous benefits of discovery in our focus on its alleged costs and burdens." Nadler also read from a letter submitted to the subcommittee by the Civil Rules Advisory Committee, which urged the subcommittee "to allow the Rules Committees to continue their consideration of these issues through the thorough, deliberate, and time-tested procedure Congress created in the Rules Enabling Act."

Next up, Rep. John Conyers, D-Mich., pointedly asked Franks why no members of the advisory committee had been invited to testify at the hearing. When Franks responded that some judges on the Advisory Committee believed it was more appropriate for that committee to convey its position by letter, as opposed to appearing before the Congressional subcommittee, Conyers quipped that "apparently, their letter may not have been as persuasive upon you as they had hoped it would because you determined to continue the hearing anyway." Conyers then noted that less than one-tenth of 1 percent of federal cases involve the level of discovery costs that were subject of the hearing, "which suggests that this hearing may be based on some corporation insistence that they be heard about this matter" rather than a genuine need to consider rules changes.

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Source: law.com
By: Henry Kelston

e-Tips and Traps: Is Connecticut ready for new e-discovery rules?

2011-12-18T21:01:00.000-05:00

Connecticut state courts leap into the modern world on Jan. 2, 2012 with the implementation of new electronic discovery rules.

In theory, this will make it easier for victims of medical malpractice or corporate wrongdoing to secure “smoking gun” evidence. As with any cases, a lot will depend on the competence of judges and litigators. Still more critical in this rapidly-evolving arena could be the experts hired by opposing parties to either ferret out hidden evidence or demonstrate good faith in the evidence production.

Very few professionals – including vendors, lawyers and judges – know how to collect data for litigation.

“I don’t think the judges know a lot – even the ones who write the opinions,” attorney Julia Brickell of Columbia University told the New Haven Bar Association last month. Brickell, a former vice president and deputy general counsel for Philip Morris USA, currently runs an automated document review firm in New York. She said the costs of electronic discovery – if not managed properly – can be wildly disproportionate to the value of a case.

Most states now have electronic discovery rules, based somewhat on the federal rules adopted in 2006. Basically, the rules force lawyers for opposing parties to meet at the onset of a civil action to work out the sharing of electronically stored information. This will have a huge impact on business because more than 90 percent of business documents are created and stored electronically. Electronic data can be located pretty much anywhere, from sources including flash drives, audio and video files, corporate servers, home and work computers, hard drives, DVDs, CDs and social media.

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Source: registercitizen.com
By: Bill Murray & Andy Thibault

5 Big Database Breaches Of Late 201

2011-12-16T15:11:00.001-05:00

Healthcare breaches have dominated the second half of the year. Consider these lessons learned.

Though the second half of the year has been comparably calmer than the first half's excitement over database breaches at RSA, Sony, and Epsilon, the breach numbers continued to roll in -- especially at healthcare organizations, which made up a disproportionate number of exposed records. Here are some of the biggest breaches that went down in the second half of the year, along with a few database security lessons learned.

1. The Breach Victim: Nemours
Assets Stolen/Affected: Names, addresses, dates of birth, Social Security numbers, insurance data, medical treatment data, and bank account information for 1.6 million patients, vendors, and employees.

Three unencrypted tapes containing a mother lode of personal information on patients, vendors, and employees were lost amid the dust of a facility remodel project when a cabinet that held them since 2004 went missing.

Lessons Learned: Database backups are often the Achilles' heel in enterprise database security. Because of their portability and longevity, database backup tapes are frequently lost in transit or in these types of relocation scenarios. Encryption of data is key to ensuring security even when tapes can't be physically secured.

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Source: darkreading.com
By: Ericka Chickowski

Old Smartphones Leave Tons Of Data For Digital Dumpster Divers

2011-12-16T15:09:00.000-05:00

A recent forensics examination shows how much information is left behind after smartphones are tossed in the discard pile

A recent exploration made by a digital forensics company into a handful of phones found in the smartphone secondary market showed how easy it is to glean information from old or lost phones, even if a factory reset has been committed. Today an expert from Access Data gave Dark Reading the skinny on his findings from his informal research and explained some of the repercussions for both corporations and consumers who don't pick, manage, or dispose of their phones wisely.

"I buy a lot of recycled phones and there is tons of data still on them," says Lee Reiber, director of mobile forensics for AccessData, "I'd guess if you went and grabbed ten phones [from recycling companies], 60 percent of those are going to contain data still."

Reiber says that at the behest of a customer interested in the data lingering on phones sold by used phone resellers and consumers using Craigslist and eBay, he used AccessData's tools to do an in-depth forensics dive into five handsets acquired from this secondary market. The phones were the iPhone 3G, Sanyo 2300, HTC Wildfire, LG Optimus, and HTC Hero. Of those five, the iPhone and the old Sanyo had not been reset and contained what Reiber called logical data, things like active account sign-ons, contacts, and calendar information easily usable by any person who turns on the phone.

Even though all of the Android phones had been wiped through a factory reset, four of the five phones also included information that would take someone with forensics tools and knowledge to extract from more hidden storage locations.

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Source: darkreading.com
By: Ericka Chickowski

Strong Strong Objections to the Magistrate Judge's Order in 'Pippins'

2011-12-16T10:08:00.005-05:00

Since my column last month, in which I discussed the U.S. District Court for the Southern District of New York's 2011 opinion in Pippins v. KPMG, many online journals and bloggers have noted and weighed in on the opinion, in which Magistrate Judge James L. Cott denied KPMG's motion to preserve a sampling of only 100 hard drives that could contain relevant data, as opposed to the 2,500 hard drives the defendant had been preserving at the cost of $1.5 million and an additional 6,500 it might have to preserve. Instead, the court ordered preservation of all 9,000 hard drives.

On Oct. 28, KPMG filed an objection; a week later, on Nov. 4, the U.S. Chamber of Commerce filed an amicus brief in support of KPMG, and a week after that, on Nov. 11, the Washington Legal Foundation filed its amicus brief.

As discussed in far greater detail in my November column, the plaintiffs in Pippins, KPMG audit associates of different types, challenged KPMG's treatment of them in its audit practice as exempt employees under the federal Fair Labor Standards Act and New York State Labor Law by misclassifying them as exempt employees under the FLSA, causing them to be deprived of overtime wages for time they worked in excess of 40 hours per week. They further alleged that KPMG failed to keep accurate records of the time they worked. The plaintiffs moved for class certification and KPMG objected. KPMG also sought a protective order to limit the scope of its preservation obligations to require it to preserve only a random sample of 100 hard drives from among those hard drives of former audit associates that it had already preserved in the course of this and other litigations. The parties could then search the drives using keywords proposed by plaintiffs.

In support of its motion for a protective order, KPMG made several arguments. It noted that the plaintiffs' argument that each class member's hard drive had to be preserved because it could hold data that was unique to that class member was inconsistent with its motion to certify the plaintiffs as a class. It argued that it had broadly preserved extensive and detailed human resource records that would establish the job duties and hours of audit associates, thus making preservation of the hard drives irrelevant or, at best, of marginal importance. It strongly asserted that the cost of preserving just the first 2,500 hard drives, at $1.5 million and climbing (the additional 6,500 drives would, presumably, add an additional $3.9 million), was wildly disproportionate to the value of the matter, and that the proportionality test under Federal Rule of Civil Procedure Rule 26(b)(2)(B) should be applied to narrow the universe of drives to be preserved.

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Source: law.com
By: Leonard Deutchman

L.A. won't put LAPD on Google's cloud-based email system

2011-12-15T10:46:00.001-05:00

The City Council votes to scale back L.A.'s email services contract with Google, saying its technology could not meet the security needs of departments including police and the city attorney's office.

In a setback for Google Inc.'s ambitions to be a major provider of email service to governments, Los Angeles has abandoned plans to move 13,000 law enforcement personnel to the Internet company's cloud-based messaging system.

The Los Angeles City Council voted Wednesday to scale back the city's email services contract with Google, agreeing with staff analysis that the company's technology could not meet the security needs of crucial departments including police and the city attorney's office. The city will continue using Google's email system for 17,000 other employees.

The latest security worries are likely to slow Google's push into the lucrative government email business, analysts said. The Los Angeles contract was considered a marquee win for Google, which two years ago beat Microsoft Corp., the dominant email services provider.

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Source: latimes.com
By: David Sarno

Carrier IQ Defends Mobile Phone Monitoring Tool as FBI Denies FOIA Request

2011-12-15T03:28:00.001-05:00

The FBI denies a Freedom of Information Act request for information the agency has on Carrier IQ as the beleaguered startup continues to assert its tool is not a keylogger.

The FBI has denied a request for information on how the nation's topmost law enforcement agency is using Carrier IQ's mobile diagnostic and monitoring software.

Michael Morisy of Muckrock News filed on Dec. 1 a Freedom of Information Act (FOIA) request for "manuals, documents or other written guidance used to access or analyze data gathered by programs developed or deployed by Carrier IQ." The FBI denied the request on Dec. 7, claiming that complying with the request may "interfere" with "pending or prospective enforcement proceedings."

David Hardy, the section manager of the FBI's Records Management Group, said the FBI has in its possession "responsive documents" pertaining to Carrier IQ but will not release the documents as requested, according to a copy of the letter posted along with the FOIA request on MuckRock.com.

"I have determined that the records responsive to your request are law enforcement records; that there is a pending or prospective law enforcement proceeding relevant to these responsive records," Hardy wrote.

Morisy said it is not clear whether the FBI is using Carrier IQ in its own investigations, whether it is currently investigating the company or a combination of both. However, Jeff Cormier, an attorney with The Next Web, said there is no indication of an ongoing investigation, since the letter mentioned only "pending or prospective" proceedings.

The denial was most likely because Sen. Al Franken, D-Minn., and other congressional lawmakers are asking for the Federal Trade Commission to investigate, according to Cormier. "That is the likely reason why information is being withheld. It's completely inaccurate to state there is an 'ongoing investigation,'" Cormier said.

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Source: eweek.com
By: Fahmida Y. Rashid

How to Create and Implement an Information Management Policy

2011-12-13T13:22:00.001-05:00

Mitigate potential legal risks and costs by applying clear, consistent rules to all data

As is invariably the case in technological advances, the many benefits of digital records are offset by significant risks. Chief among these risks is the cost of electronic discovery during litigation. E-discovery is the use of sophisticated sampling and search tools to mine databases for documents relevant to a lawsuit.

The more files there are to search, the larger a company's e-discovery costs are likely to be. Thanks to IT professionals' commitment to being excellent stewards of data, a company can have tens of thousands of backup tapes stored, each of which can contain 10 million documents – all of which may be subject to e-discovery. The result could be millions of dollars in e-discovery costs in the event of litigation.

The solution to this potential problem is obviously to store less data. But how does a company know what to keep and what to delete? If they are not careful, company executives could find themselves in serious legal trouble (perhaps accused of destroying evidence) if they delete the wrong documents. There is also the danger of deleting information that is vital to company operations.

In the face of these big unknowns, many companies simply do nothing and hope for the best. But, as the old saying goes, hope is not a strategy.

The solution is to create and thoroughly implement an information management policy that clearly lays out what kind of data should be kept and what kind should be deleted. In my experience as an e-discovery professional, very few companies have done this. Fortunately, I worked with a large national firm that recently spent a year designing and implementing such a policy that is working quite well.

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Source: information-management.com
By: Tom Turner

Keeping your lawyers happy -- it's not impossible!

2011-12-13T13:21:00.000-05:00

Is your collaboration system a legal record or a legal risk? To put it simply, if you can just delete information, then it's not a legal record.

If you use your collaboration platform to manage project risk, then you must be able to ensure the integrity of "data records." In an increasingly complex legal and regulatory environment, you must understand completely where your data is, who controls it, and whether how you store it, protect it, share it, and destroy it is consistent with the specific laws that apply to your industry and operation.

An absolutely unbreakable rule is that data records cannot simply be deleted by anyone at any time. They actually must become part of a system of records that is tightly controlled, typically by the legal or records information management department.

That being said, if you are using any kind of collaboration solution that allows data to be permanently deleted by users, then you aren't creating the necessary system of records, putting your organization at significant risk of regulatory and compliance violations, as well as monetary sanctions in the event of a legal hold or e-discovery process.

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Source: blogs.computerworld.com
By: Leigh Jasper

Still No Bright-Line Rules on Spoliation Sanctions

2011-12-13T11:33:00.000-05:00

In 2010, federal courts in New York, Texas, and Maryland rendered well-publicized decisions on the proper factors to consider on a motion for sanctions based on spoliation of electronically stored information. Two issues predominated in each case -- culpability and prejudice. In the first decision, Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities,[FOOTNOTE 1] the court in the Southern District of New York held that sufficiently culpable conduct was enough to warrant severe, even case-dispositive, sanctions irrespective of whether the innocent parties demonstrated that the loss of such ESI was prejudicial.

The subsequent decisions, Rimkus Consulting Group Inc. v. Cammarata,[FOOTNOTE 2] and, perhaps more so, Victor Stanley Inc. v. Creative Pipe Inc.,[FOOTNOTE 3] seemed to de-emphasize culpability; focusing instead on the alleged relevance of the spoliated ESI and the resulting prejudice to both the innocent party's case and the truth-finding process. Since these decisions, several federal district courts have weighed in on the proper analysis for ESI spoliation motions with differing results but some trends are emerging.

This article briefly summarizes the three 2010 decisions referenced above with particular emphasis on how those courts analyzed the issues of culpability and prejudice and the relative weight allocated to each such issue in fashioning spoliation sanctions. The article then examines several 2011 decisions to determine whether, and to what extent, federal courts have followed these decisions in considering spoliation motions. Finally, given the uncertainty that remains with respect to ESI spoliation law, the article concludes with recommendations for establishing and maintaining defensible litigation holds, which remain critical in avoiding potentially case-dispositive spoliation sanctions.

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Source: law.com
By: Keith M. Brandofino and Ian M. Goldrich

Backup Tapes and Archives Bursting at the Seams? The Seven Year Itch Has Technology to Answer the Scratch

2011-12-13T08:07:00.001-05:00

Just like Marilyn Monroe stopped traffic in her white dress in The Seven Year Itch, enterprises are being stopped dead in their tracks by the data explosion, lack of information governance policies and overstuffed IT infrastructures. During the 2004-05 timeframe, a large number of enterprises began migrating to an archive, and this trend has kept steady pace since. Archiving historically began with email, but has been recently extended to many other forms of information, including social media, unstructured data and cloud content. This adoption was somewhat related to the historic Zubulake ruling, that required preservation to attach upon “reasonable anticipation of litigation.” Another significant driver behind the archive need is the ability to comply with a range of statutes and regulations. The reality is it is difficult to preserve efficiently and defensibly without an archive and other automatic classification technologies. Some companies still complete the information management and eDiscovery processes manually, but not without peril.

Currently, there is a sudden upsurge in corporations finally starting to shrink the archives that they implemented to manage email, legal preservation requirements and regulatory compliance. After roughly seven years, over which time there have been many advances in technology, a shift in thinking is taking place with regard to information governance and data retention. Change has been borne out of necessity, as infrastructures are suffering with the amount of data they are retaining and the pains associated with searching that data. This shift will enable companies to delete with confidence, clean up their backup tapes, shrink their archives, and manage/expire data on a go-forward basis effectively. Collectively, this type of good information governance hygiene allows organizations to minimize the litigation risk that’s attendant with bloated information stores.

One reason many archives have become so bloated is because many enterprises purchased archiving software, but did not properly enable expiry procedures according to a defensible document retention policy. This resulted in saving everything for the past seven or so years. Another reason for retaining all data in the archive was because enterprises were afraid to delete anything fearing being accused of spoliation and/or the inability to retrieve data that should have been on legal hold. These two reasons combined have resulted in companies being forced to address the impact of having to search this massive amount of data in the archive each time a matter arises. The resulting workflow for data collection is time consuming and expensive, especially for companies that still employ third party vendors for data collection. For many organizations, the situation has become unsustainable from both a legal and IT perspective.

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Source: e-Discovery 2.0
By: Allison Walton

Secrets of Search – Part One

2011-12-13T07:05:00.000-05:00

Two weeks ago I said I would write a blog revealing the secrets of search experts. I am referring to the few technophiles, lawyers, and scientists in the e-discovery world who specialize in the search for relevant electronic evidence in large chaotic collections of ESI such as email. I promised the exposé would include a secret deeply hidden in shadows, one only half-known by a few. Before I can get to the dark secret, I must lay bare a few other search secrets that are not so hidden.

A Secret of Search Already Known to Many

The first secret of search here exposed is the same kind of secret as those revealed in Spilling the Beans on a Dirty Little Secret of Most Trial Lawyers. You probably have heard it already, especially if you have read Judge Peck’s famous wake-up call opinion in William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009). He repeated it again recently in his article Predictive Coding: Reading the Judicial Tea Leaves, (Law Tech. News, Oct. 17, 2011), that I wrote about in Judge Peck Calls Upon Lawyers to Use Artificial Intelligence and Jason Baron Warns of a Dark Future of Information Burn-Out If We Don’t. Despite these writings and many CLEs on the subjects, most of your less informed colleagues in the law still don’t know these things, much less litigants or the public at large. It would seem that Jason R. Baron’s dark vision of a future where no one can find anything is still a very real possibility.

The wake-up call on search has a long way to go before it is a shot heard round the world. I am reminded of that on almost a daily basis as I interact, usually indirectly, with opposing counsel in employment cases around the country. They often insist on antiquated search methods. So bear with me while I begin by repeating what you may have already heard before. I promise that the exposé of these more common secrets will also set the stage for revealing the seventh step of incompetence causality that I mentioned in last week’s blog, Tell Me Why?, and the one deep dark search secret that you probably have not heard before. Yes, the one is related to the other.

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Source: e-discoveryteam.com
By: Ralph Losey

'Pippins v. KPMG' Order Highlights Preservation Burdens

2011-12-10T14:13:00.001-05:00

Preservation of electronically stored information continues to be a vexing topic for attorneys and their clients. Judicial expectations vary widely, existing precedent is often unhelpful, and the Federal Rules of Civil Procedure (Federal Rules) do not give guidance on the issue. The lack of guidance, coupled with conflicting judicial standards, often causes parties -- mindful that one misstep could lead to sanctions -- to overpreserve.

Acknowledging the growing cry for guidance on the topic of preservation in the Federal Rules, the Discovery Subcommittee of the Advisory Committee on Civil Rules held a mini-conference on preservation and sanctions on Sept. 9, 2011. The subcommittee, chaired by Judge David Campbell, proposed three wide-ranging, alternative rulemaking proposals: a rule setting forth a detailed list of preservation duties with specific guidance on triggers, scope, and sanctions; a rule providing a more general list of such duties without specific guidance; and a rule focusing only on sanctions in the absence of reasonable preservation-related behavior.[FOOTNOTE 1] It is unclear what, if anything, will come from the subcommittee's initial work.

So, in the absence of guidance, what is a party to do? In Pippins v. KPMG, LLP,[FOOTNOTE 2] KPMG thought it had the right approach. Unable to agree with plaintiffs on the scope of preservation, KPMG moved for a protective order to limit the scope of preservation of computer hard drives or to shift the preservation costs to plaintiffs.

Instead, Magistrate Judge James L. Cott of the Southern District of New York issued a Memorandum and Order requiring KPMG to "preserve the hard drives of thousands of former employees" who could fall within an as yet uncertified nationwide FLSA collective and/or a New York state class at a potential cost of millions of dollars to KPMG. KPMG, supported by an amicus brief filed by the U.S. Chamber of Commerce, has since asked U.S. District Judge Colleen McMahon of the Southern District of New York to set aside the Memorandum and Order.[FOOTNOTE 3] McMahon's opinion will be of keen interest to those who are struggling to contain the significant costs associated with e-discovery and eager for guidance.

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Source: law.com
By: H. Christopher Boehning and Daniel J. Toal

Will the consumer IT revolution sweep away corporate data privacy?

2011-12-10T14:10:00.002-05:00

The implications of recent Gartner predictions are clear; consumer-IT technology is loosening business's grip on workforce practices and sensitive data.

By 2012, 73 per cent of the enterprise workforce will be mobile, and 20 per cent of companies will no longer own any IT assets.

By 2013, 80 per cent of businesses will support a workforce using tablets, and by 2014 almost all businesses will supply corporate data through smart-phone apps, as sensitive data migrates beyond office walls to the remote realms of virtual reality and cloud services.

This conjures up visions of corporate informational chaos, endless mobile endpoints handling sensitive data, remote boards thrashing out mergers in virtual meetings and vital data flowing across public networks.

With 372 million mobile devices sold worldwide this year, mobile data storage is replacing PCs, with potentially disastrous consequences.

The average data breach costs UK organisations £1.9 million. With the FSA flexing its punitive muscle and the ICO armed with the power to impose £500,000 fines on negligent organisations, data security is becoming a legal imperative.

In a services economy where reputation is the biggest asset, and a 24/7 media culture where mainstream news converges with social media, the instantaneous effect of data breaches on reputation concerns big business. And for an estimated 80 per cent of SMEs, data breaches lead to bankruptcy.

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Source: computing.co.uk
By: Phil Evans

In-House Compliance Requires Companywide Efforts

2011-12-10T14:08:00.000-05:00

When Frances McLeod and Greg Mason need to find missing money or probe a company's compliance programs, they construct and analyze large datasets of the company's financial transactions. About 75 percent of their global forensic accounting business is driven by compliance and enforcement issues, particularly those related to the U.S. Foreign Corrupt Practices Act (FCPA) -- a priority area for U.S. regulators, and a top concern for general counsel.

Even though they've consulted with corporations and assessed market risks the world over, McLeod continues to be amazed by gaps in company compliance programs that bear on bribery and illicit payments. "There are a lot of companies that still don't get it," says McLeod, who worked in investment banking and on international banking and money-laundering investigations before co-founding Forensic Risk Alliance, a consultancy, in 1999.

Last week, McLeod and her business partner Mason, a statistician who had previously evaluated systems for the U.S. Department of Defense, convened with reporters in New York City for a Q&A presentation on regulatory trends and compliance pitfalls. Their discussion dovetailed with what has been a big year for FCPA enforcement actions, leading many general counsel to question their own compliance preparedness.

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Source: law.com
By: Catherine Dunn

Top Ten eDiscovery Predictions for 2012

2011-12-10T14:06:00.001-05:00

As 2011 comes quickly to a close we’ve attempted, as in years past, to do our best Carnac impersonation and divine the future of eDiscovery. Some of these predictions may happen more quickly than others, but it’s our sense that all will come to pass in the near future – it’s just a matter of timing.

1. Technology Assisted Review (TAR) Gains Speed. The area of Technology Assisted Review is very exciting since there are a host of emerging technologies that can help make the review process more efficient, ranging from email threading, concept search, clustering, predictive coding and the like. There are two fundamental challenges however. First, the technology doesn’t work in a vacuum, meaning that the workflows need to be properly designed and the users need to make accurate decisions because those judgment calls often are then magnified by the application. Next, the defensibility of the given approach needs to be well vetted. While it’s likely not necessary (or practical) to expect a judge to mandate the use of a specific technological approach, it is important for the applied technologies to be reasonable, transparent and auditable since the worst possible outcome would be to have a technology challenged and then find the producing party unable to adequately explain their methodology.

2. The Custodian-Based Collection Model Comes Under Stress. Ever since the days of Zubulake, litigants have focused on “key players” as a proxy for finding relevant information during the eDiscovery process. Early on, this model worked particularly well in an email-centric environment. But, as discovery from cloud sources, collaborative worksites (like SharePoint) and other unstructured data repositories continues to become increasingly mainstream, the custodian-oriented collection model will become rapidly outmoded because it will fail to take into account topically-oriented searches. This trend will be further amplified by the bench’s increasing distrust of manual, custodian-based data collection practices and the presence of better automated search methods, which are particularly valuable for certain types of litigation (e.g., patent disputes, product liability cases).

3. The FRCP Amendment Debate Will Rage On – Unfortunately Without Much Near Term Progress. While it is clear that the eDiscovery preservation duty has become a more complex and risk laden process, it’s not clear that this “pain” is causally related to the FRCP. In the notes from the Dallas mini-conference, a pending Sedona survey was quoted referencing the fact that preservation challenges were increasing dramatically. Yet, there isn’t a consensus viewpoint regarding which changes, if any, would help improve the murky problem. In the near term this means that organizations with significant preservation pains will need to better utilize the rules that are on the books and deploy enabling technologies where possible.

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Source: eDiscovery 2.0
By: Dean Gonsowski

Losers Pay Electronic Discovery Costs in Several More Cases - This is a Trend Worth Watching

2011-12-06T09:27:00.001-05:00

As electronic discovery costs continue to grow and the complexity of litigation increases, lawyers and corporations need to pay closer attention to the document requests that they make during the discovery process. Why? Because ever since Race Tires II awarded EDiscovery costs in favor of the prevailing party, there has been an increase in the number of cases that award these types of expenses. Therefore, expected EDiscovery costs should be added to the list of things to consider before filing a case, and strong consideration should given to the methods utilized to capture and review the data.

Focusing on crafting a reasonable discovery request and then employing the most cost effective method to analyze and control the data are key to guarding against a large bill should you lose your case. In addition, cost shifting can be prevented if the parties participate in a jointly developed review process with shared expenses. Given the sophistication of software today, it is quite easy to put up confidential walls between data in the same system.

Courts in California and Pennsylvania have recently found that the prevailing party can recovery EDiscovery costs under FRCP 54. How the court interprets 28 U.S.C. § 1920(4), with key language that states, “fees for exemplification and the cost of making copies of any materials where the copies are necessarily obtained for use in the case” is the determining factor. Recently this language has been interpreted to mean that electronic discovery costs that are related to the duplication and production of data are in fact recoverable.

Three recent cases are summarized briefly below to show the results of this recent trend. To obtain the details, you should read the full rulings. My focus is on awareness and options to help you avoid these types of situations moving forward.

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Source: Studeo Legal

By: Jeffrey Parkhurst

European cloud customers worried by US privacy laws

2011-12-06T07:31:00.001-05:00

Local vendors offer protection from Patriot Act

Concern in the European Union that US data protection laws are too lax may have created a new market for European cloud computing services.

A recent survey indicated that 70% of Europeans have concerns about their online data and how well companies secure it and now two Swedish companies, Severalnines and City Network, have begun promoting their newly merged service as "a safe haven from the reaches of the US Patriot Act". Under the controversial act, data from European users of US-based cloud services can secretly be seized by US law enforcement agencies.

"We believe that a service owned and operated locally in the EU, and fully compliant with EU data protection laws, will be very attractive for European companies. US companies with European operations will also benefit from the lower latency of a locally hosted solution," said City Network chairman Johan Christenson.

This gap in the market is also being exploited by other firms such as DNS Europe, Colt and MESH. The latter strongly promotes its location in Germany and "data separation in strict compliance with German data protection laws".

European legislators are also worried about the protection accorded to personal data held in the cloud.

"It is crucial, for European businesses and users, that the data on the cloud is stored in a safe country," said Philippe Juvin, a Member of the European Parliament.

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Source: techcentral.ie
By: IDG News Service

Fighting Lawsuits in the Digital Era

2011-12-06T07:25:00.002-05:00

E-discovery excellence could make the difference between life and death for your company.

When a company is hit with litigation, the pressure becomes intense to collect and understand the potentially relevant, electronically stored information that may support or undermine defense of the case. That pressure comes from the need to understand the scope and risk of the matter, so the company can strategize how to defend the lawsuit. The pressure also comes from the potentially high costs involved in collecting and processing the information.

As the amount of digital information grows exponentially, many organizations are establishing in-house e-discovery processes to reduce the cost and speed up the processes associated with outsourcing the work. In a 2010 e-discovery report from the Taneja Group, analysts Christine Taylor and Jeff Boles surveyed large companies on their e-discovery processes. Half of the respondents reported having an internal e-discovery capability. The analysts said this number indicates that a tipping point has been achieved for on-premises e-discovery, also called insourcing.

As part and parcel of this insourcing process, most companies implement software and hardware technology to support the change from outsourcing. Most often, the burden of implementing and maintaining the technology falls squarely on the shoulders of the IT department.

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Source: baselinemag.com
By: Amanda Berger

Two-fifths of firms still rely on tape to backup data - survey

2011-12-06T06:48:00.000-05:00

Two-fifths of companies in Europe are increasing the risk of security breaches and data loss by still relying on tape to backup their data, a survey by EMC suggests.

The EMC European Disaster Recovery Survey 2011, which covered 1,750 companies across Europe, found that businesses are spending, on average, 10pc of their information technology (IT) budgets on backup and recovery.

But 40pc of companies still rely on tape when storing a copy of a backup off-site for disaster recovery, with an average annual cost of €74,000 spent on transporting, storing, testing and replacing tapes.

Where tape is used for disaster recovery purposes, 10pc still have an employee take home a copy of the backup tapes with them.

The survey found that, overall, most (80pc) of organisations using tape want to move beyond it, with speed of restoration, faster backups and lack of durability cited among the main reasons.

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Source: siliconrepublic.com
By: EMC

e-Tips & Traps: The Care of eDocs is crucial for business

2011-12-04T13:05:00.001-05:00

Electronic data includes any information that used to be stored on paper.

As the Internet matured as a long-term information holder and the prices of computers dropped, business learned of the necessity to digitize information in certain formats. From billing records and prescriptions to accident reports, court motions and real estate transactions, some companies have learned the hard way that their data must be safe and accessible.

For example, Hartford’s Brainard Airport was slapped by Connecticut’s Supreme Court for intentionally discarding an accident report. The case – despite pages of the standard legal mumbo jumbo – actually reflects common sense.

A plaintiff in a lawsuit was struck and injured by the wing of an aircraft while walking with his flight instructor. Because Brainard authorities tossed the accident report filed by a third party, the Federal Aviation Administration was never notified and did not conduct an investigation.

The 2007 ruling is considered a key “spoliation” case for Connecticut. Spoliation is the intentional or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal proceeding. This particular ruling is significant because it reaches beyond the defendant owner of the plane that struck the student pilot to a third party, Brainard Airport.

Federal courts formally recognized the need to protect electronic data in 2006, and most states followed with their own versions of the Federal Rules of Civil Procedure. Key change: Before 2006, discovery and production of documents began shortly before trial; now, e-discovery begins as soon as a lawsuit is filed.

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Source: registercitizen.com
By: Andy Thibault

Congress Probes TRICARE Breach

2011-12-04T13:03:00.000-05:00

Five members of Congress have sent a bipartisan letter to the director of TRICARE, the military health program, asking detailed questions about a recent breach that affected 4.9 million beneficiaries.

In the incident, a TRICARE business associate, Science Applications International Corp., reported that unencrypted computer backup tapes containing TRICARE patient information, including Social Security numbers, were stolen from an employee's car (see: New Offer for TRICARE Breach Victims). TRICARE already faces a class action lawsuit as a result of the case (see: TRICARE Hit With $4.9 Billion Lawsuit).

In the Dec. 2 letter, the members of the House of Representatives characterize the breach as "an extremely serious and substantial lapse in security" and point out that SAIC has been responsible for at least six other security incidents.

"SAIC has received more than $20 billion in federal contracts over the previous three fiscal years, according to USA spending.gov," the letter notes. "This is despite the fact that federal officials have lodged complaints against the company's conduct for years."

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Source: govinfosecurity.com
By: Howard Anderson

4 'friends' corporate legal officers should avoid on Facebook

2011-12-02T08:21:00.002-05:00

Holiday parties and events are approaching and with that a fair amount of socializing is expected. At this time of year we meet colleagues and make new friends from different departments and industries, many of whom may wish to stay in touch all year round and what better way to do that than by adding them to your Facebook ‘friends list’?

Deciding whether or not to accept a ‘friend request’ from a colleague, boss or even a former employee on Facebook is a problem many professionals face.

The idea of reconnecting with old friends or former work colleagues may seem intriguing, but if not done with care, there can be some repercussions and the wrong person can end up on your friends list.

For corporate secretaries rushing to fill their friends list, it’s always a good idea to know who has access to your Facebook page, especially if you are new to the application. Often, in legal, compliance and governance roles, there is an expectation of neutrality and objectivity among friends – even in a public forum.

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Source: businessinsider.com
By: Aarti Maharaj

5 ways to benefit from NIST's cloud road map now

2011-12-02T08:20:00.000-05:00

Most government technology managers face the common problem of how to keep up with policy flow, the steady and sometimes torrential stream of IT directives, guidance and requirements from oversight agencies on how to modernize agency systems.

But in area of cloud computing, at least, help is on the way. On Nov. 2, the National Institute of Standards and Technology released a “cloud computing technology road map,” a set of steps to setting up cloud systems that its creators said would help clear their path to cloud adoption.

The draft document, "U.S. Government Cloud Computing Technology Roadmap, Release 1.0" (NIST Special Publication 500-293) defines high-priority requirements for standards, official guidance and technology developments that need to be met for agencies to accelerate their migration to the cloud model.

“The Tech Roadmap aggregates the ocean of information out there regarding the cloud,” said Fred Whiteside, manager of the Commerce Department’s critical infrastructure protection program. The plan “takes the finger of the federal manager and places it on the things he needs to know to move forward with cloud adoption,” said Whiteside, who is also chairman of the NIST Cloud Computing Security Working Group.

Deployed correctly, cloud computing has the potential to greatly reduce waste, increase data center efficiency and usage rates, and lower operating costs, federal officials said. It should also eventually cut down the policy thicket.

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Source: gcn.com
By: Rutrell Yasin

When Preservation Requests Are Wielded as Weapons

2011-12-02T08:17:00.000-05:00

Cooperation in e-discovery doesn't mean bowing to your opponent's demands for over-preservation.

Have you noticed how corporate counsel are flexing their collective muscle in an effort to rein in e-discovery? Their rallying cry is that plaintiffs have begun to "weaponize" preservation. That is, plaintiffs are demanding preservation of electronically stored information with such breadth that corporations are settling just to avoid the cost of finding and protecting their own discoverable data.

The weapon of mass (self) destruction is a preservation letter reminding defendants of the common law duty to preserve relevant evidence.

It typically mixes sweeping "any and all" generalities with litanies of specifics that "include, but are not limited to" every form of newfangled storage since Thomas Edison recorded "Mary Had a Little Lamb" on tinfoil.

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Source: law.com
By: Craig Ball

Who Will Save E-Discovery? Say “Hello” to Big Data!

2011-12-02T08:11:00.001-05:00

E-discovery is so 2010. Just about everywhere you turn, you see reasons to believe that the e-discovery heyday has passed and we are at last on the falling edge of the curve. Courts are quickly embracing the Model Order on E-Discovery in Patent Cases, severely limiting the amount of ESI that parties must produce in a given case. New technologies are helping companies to more accurately identify potentially relevant information, resulting in far less data being subject to review. Predictive coding is moving us towards the day when computers alone will review documents. Perhaps it is time to look for another practice specialty…

But wait! There, up in the sky! Is it a man? Is it a plane? It’s Big Data! What is it? What does it mean? Put very simply, it means that there is a lot of data out there. More than we ever could have imagined even a few short years ago, and it is expanding at a mind-boggling rate. Here are a few statistics from a McKinsey & Company report:

You can purchase a hard disk drive for $600 with the capacity to store all of the music in the world.
The U.S. Library of Congress had 235 terabytes of data as of April, 2011.
15 of 17 business sectors in the U.S. have more data stored per company than the entire U.S. Library of Congress.

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Source: e-discoverymyth.com
By: Dennis Kiker

Destroy Legacy Data Before It Comes Back to Haunt Your Firm

2011-12-01T07:44:00.000-05:00

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

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

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

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

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Source: law.com
By: Anne Kershaw

Europe wants unified privacy approach: One data protection law, one single authority

2011-12-01T07:42:00.001-05:00

European politicians are seeking simplifying and harmonising measures to the EU Data Protection Directive, which would allow businesses to have “one law” with “one data protection authority”.

Viviane Reding, European commissioner for justice, fundamental rights and citizenship, proposed on Tuesday new data protection principles that would allow companies to work across all borders of the 27 member states without legal conflict.

Speaking at a data protection conference, Reding said that there should be “one [data protection] law and one single data protection authority” for each business, so that a business only needs to comply with the data protection laws in the jurisdiction where it has its main European headquarters.

For Facebook, this would be Ireland, while Twitter would have to comply with UK law, for example.

This fragmented approach has made it increasingly difficult for businesses to trade, and comply with the complicated rules and regulations. Reding said that these “unnecessary hurdles” were costing businesses €2.3 billion ($3.1bn) per year in administrative costs.

The new directive will update the EU’s data protection laws, to not only patch holes created by U.S. law through the introduction of the Patriot Act, but also bring the ageing law up to speed on new and developing technologies, such as cloud computing.

Reding reiterated that European law would apply to any company operating within the European Union, even if the company is based outside the area, such as the United States.

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Source: zdnet.com
By: Zack Whittaker

How to Fulfill Document-Preservation Obligations

2011-11-30T08:17:00.000-05:00

In the age of email, metadata, flash drives, and cloud computing, most attorneys are acutely conscious of their duty to ensure that their clients appropriately preserve documents. An attorney should issue a written litigation hold immediately upon notice of a triggering event (e.g., potential claim) or a suit, whichever comes first. In a perfect world, the initial demand for litigation hold would contain the universe of information necessary to capture all systems and parties relevant to the claim or suit.

But the real world is not always perfect. Lawyers and clients rarely have complete information at the outset of a dispute. As such, document preservation is not a one-time process initiated at the commencement of a case or upon some other pre-litigation triggering event. It is an ongoing obligation, continuing throughout the course of the litigation. With that in mind, here are four things lawyers should do when implementing and updating a litigation hold.

Communicate. Communication is key to effective document preservation. Counsel must communicate with the client and discuss, inter alia, the who (source of potential documents), the what (documents and data the client must preserve), the when (relevant date range), the where (location of documents), and the why (crafting of explanation to be disseminated to employees).

Notably, other parties also may have pertinent information early in the case to which the attorney is not privy, particularly in regard to identifying relevant people who need to receive the litigation hold memo. In In Re Weekley Homes (2009), the Texas Supreme Court encouraged early communication among parties before promulgation of requests for electronic information. It's prudent for attorneys to speak to counsel for other parties to ferret out information pertinent to his or her client's document preservation.

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Source: law.com
By: Barbara S. Nicholas

e-Discovery in The Cloud Not As Simple As You Think

2011-11-30T08:15:00.000-05:00

Cloud computing is a hot and controversial topic. One recent event highlights the issue that the cloud may not be worth the initial hype.

Two years ago, the City of Los Angeles approved a $7.25 million budget to move its e-mail and productivity infrastructure to Google Apps with the assistance of a systems integration contractor. However, the migration has still not been completed because the Los Angeles Police Department and other agencies are unsatisfied with security related to the handling of criminal history data. The city is also demanding Google and the contractor provide credits to keep an on-premise GroupWise System until November 2012 while it completes the migration. Additional credits are being demanded because “e-Discovery will not be implemented.”

The City of Los Angeles is no different than many other organizations increasingly adopting cloud-based solutions for activities like email archiving, collaboration and storage. Indeed, it is difficult to avoid the buzz-phrase “the cloud” across the information management spectrum. The city’s dissatisfaction, however, highlights problems that are typical of ambitious efforts to transition to an entirely cloud-based solution. The events in L.A. also bring up a thorny issue that many people don’t even think about: eDiscovery in the cloud.

While organizations are utilizing cloud-based solutions more and more, eDiscovery from those solutions often remains an afterthought. In many cases, there is little consideration of how information in the cloud will be placed on legal hold, or how it will be accessed, reviewed and produced in response to litigation or regulatory requests. While there seems to be a widespread assumption that information in the cloud is at an organization’s fingertips at all times with the touch of a search button, that is not necessarily the case.

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Source: forbes.com
By: Barry Murphy

Obtaining Disclosure of ESI From Non-Parties

2011-11-29T09:26:00.000-05:00

It must be hard to be a computer network professional. You're responsible to maintain security, you have little or no control over what people send and receive from the computers you maintain, and you may be the only person with the technical knowledge and access to identify the source and availability of electronically stored information. I imagine these folks hate subpoenas, especially if they have nothing to do with their employer's business.

In Tener v. Cremer,[FOOTNOTE 1] the plaintiff sought to compel a non-party, New York University, to respond to a subpoena that might enable the plaintiff to identify the source of a posting on "Vitals.com," an internet opinion website that advertises itself as the place "where doctors are examined." This appears to be one of many internet sites that solicit opinions that others may use in making consumer decisions, and the plaintiff in Tener was a board certified physician who wanted to sue the author of allegedly defamatory remarks.

The Vitals.com posting was anonymous,[FOOTNOTE 2] but the plaintiff had learned of an Internet Protocol (IP) address[FOOTNOTE 3] associated with the offending message. This IP address did not identify the author's computer, but did lead to the server for the entire computer network maintained by NYU. Relying on this clue, the plaintiff subpoenaed the university, seeking to identify all persons using the NYU server who had accessed the internet on the date of the offensive posting, and to identify which of those computers had connected to the Vitals.com site.

It apparently was not easy for the university to comply with the plaintiff's requests. Although only NYU personnel could obtain access to the system, the "network address translation portal" used by NYU essentially acted as a switchboard, and through this "portal," many thousands of persons had access to outside websites. When NYU did not produce information satisfactory to the plaintiff, she moved to hold the university in contempt of court.

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Source: law.com
By: Thomas F. Gleason

How Private Is Your Email? It Depends

2011-11-25T13:57:00.000-05:00

Do the police need a warrant to read your email? Believe it or not, two decades into the Internet age, the answer to that question is still "maybe." It depends on how old the email is, where you keep it — and it even depends on whom you ask.

Some big-name tech companies are now asking Congress to step in and clarify Americans' online privacy rights.

If you do run afoul of the law and you happen to be one of the millions of people who use Gmail then cops will likely be directing their inquiries to the legal department at Google, in Mountain View, Calif.

This building has the same college-dorm feel as the rest of the Google campus: a pool table, free food, young people in T-shirts. But that doesn't mean they're not busy. Every month, Google gets about 1,000 government requests for user data.

"We get agents calling us on the phone," says Richard Salgado, senior counsel at Google. "We get faxes and emails and snail mail. Sometimes we'll have an investigator show up in the lobby with a piece of paper."

Salgado says most law enforcement requests are legitimate, and Google complies promptly. But there are times when Google says "not so fast."

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Source: npr.org
By: Martin Kaste

A Growing Trend: Use of E-Discovery 'Special Masters'

2011-11-25T08:50:00.000-05:00

The use of e-discovery "special masters" -- who help parties frame and execute the discovery of electronically stored information -- is a growing trend. At last week's Georgetown Law Advanced eDiscovery Institute, there were podium discussions about court-related pilot programs as well as informal conversations among attendees about the new job opportunities.

On a Friday panel, Judge Joy Conti of the U.S. District Court for the Western District of Pennsylvania outlined a pilot project in progress to help ligitants identify and use special masters. Conti, who chairs the court's Alternate Dispute Resolution Implementation Committee, said the court decided to create a list of approved special masters. Finalists were selected for the one year pilot effort, that began in May, she explained.

Acccording to the court's website, a subcommittee, led by Judge Nora Fischer, and including court IT personnel and local practitioners with EDD experience, provided recommendations to the ADR committee, ultimately resulting in approved application and selection criteria. "The final set of criteria approved by the ADR Committee includes active bar admission; demonstrated litigation experience, particularly with electronic discovery; demonstrated training and experience with computers and technology; and mediation training and experience."

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Source: law.com
By: Monica Bay

Google Apps vs. Microsoft Office: The Battle for Your Business Gets Ugly

2011-11-20T14:37:00.002-05:00

Last Monday, I attended Google's Atmosphere, a conference at its Silicon Valley headquarters. Other than journalists, the packed audience consisted of CIOs attending at Google's invitation.

The event's nominal topic was cloud computing, and the speaker lineup -- including Google employee and Internet co-creator Vint Cerf, Harvard Law School Professor Jonathan Zittrain, and DreamWorks Animation's Kate Swanborg -- was impressive. But Google's overarching goal was obvious: It wanted to sell all those CIOs on the idea of dumping Microsoft's venerable Office suite and Exchange server software in favor of its Google Apps services. And maybe even replacing PCs with the Web-centric devices known as Chromebooks.

By bringing so many business IT strategists to its home court, Google hoped to get their undivided attention. But up in Redmond, Wash. Microsoft was busy lobbing snarky little missiles of fear, uncertainty, and doubt in the direction of the conference.

It did so in the form of two blog posts -- here's one, and here's the other -- explicitly designed to raise troubling questions about Google's Atmosphere pitch even before the conference got underway.

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Source: allbusiness.com
By: Harry McCracken

Georgetown Panel Focuses on Discovery Rules

2011-11-20T14:23:00.000-05:00

A wide-ranging discussion about e-discovery and the Federal Rules of Civil Procedure highlighted Friday morning's sessions at the Georgetown Law Center Advanced eDiscovery Institute.

The panel, "Future of the Rules/New Developments," included federal judges Joy Flowers Conti, of Pittsburgh, Paul Grimm, of Baltimore, and Lee Rosenthal, of Houston, along with attorneys William Butterfield of the Hausfeld law firm and Jeane Thomas of Crowell & Moring, both of Washington, D.C.

"Take our brains back to what the e-discovery world was a generation ago -- the late 1990s," Rosenthal began. Rules at the time were "the stuff of giant controversy," she noted, taking 20 years to mold and still being abstract and limited. "In the early 2000s we started looking really hard at e-discovery and we all had to go to school."

"The last time the rules were amended to take technology into account was in 1974 when the words data and data compilation were added," Rosenthal continued. Now that sounds quaint. Therefore, "we knew in 2006 [ when the rules were updated] that we were not finished with e-discovery," she said.

Now, the focus is on a FRCP e-discovery subcommittee, the members of which hope to have a rules proposal by March 2012, Grimm said. Whether that will be delivered on time may be determined in a conference call this week. There is also a congressional hearing on Dec. 13, added Butterfield, who is among the scheduled witnesses.

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Source: law.com
By: Evan Koblentz