Wednesday, August 31, 2011

How Law Enforcement Agencies Are Using Social Media to Better Serve the Public

Article by Aliza Sherman, appearing on Mashable website.

This article discusses ways in which law enforcement agencies in various countries use social media to help increase the effectiveness of their efforts.  As the author points out, "As demonstrated in countries like Egypt and Syria, governments worldwide are monitoring — and in some cases, shutting down — social media channels in attempts to control gain control of unfolding events. More recently, the unrest in the U.K. highlights the complexity of monitoring social media conversations and putting the information gathered in real-time to use."

In addition, the author states, "According to Washington D.C. social media lawyer Bradley Shear, any user of social media should realize that everything he posts publicly online has the potential to be reviewed by others who may not be the intended readers — that includes governments and police departments.

“If you post something on a public Facebook Page, public Twitter account, public Google+ profile, you generally give up your right to privacy regarding the content that you have posted,” says Shear. “When I tweet or blog, I do so with the knowledge that my content may be viewed by anyone at any time who has access to the Internet.”"

The article also references the Fourth Amendment, and how it limits what information can be obtained by law enforcement in the U.S. without a warrant.

The article also discusses how police can tactically use social media, "Operationally or tactically, police units can aggregate, filter and analyze a social media stream in a given policing area and look for conversations ahead of planned events such as demonstrations. Analyzing what people are talking about can guide the effective deployment of services.

For intel, a police unit could identify key influencers to both glean and disseminate credible information. They could monitor the streams during the day of an event to make on-the-spot decisions and better manage resources on the ground. Then after an event, they could learn from the operation and assess the public’s feelings about what took place."

Judge Blocks Teacher-Facebook Law

Article and video by Danielle Smith, appearing on stollerderby blog.

This article, and accompanying video clip discuss a law proposed in Missouri, aimed a restricting teachers from becoming Facebook friends with their students.  The law was blocked by a Judge, stating that is violates the First Amendment, and restricts free speech rights excessively.  There are still hearings underway regarding this matter.

This is an interesting case of first impression regarding attempts to restrict Facebook based on the relationship between teachers and students.  Watch the video at the link above for more insight into this matter.

NY man suing Facebook has to allow email access

AP article appearing on the Wall Street Journal website.

The article discusses the latest development in Paul Ceglia's case against Facebook.  "Judge Richard Arcara denied Paul Ceglia's request to delay Facebook's access to his emails so he could object on privacy grounds. It was the latest in a series of court rulings that have gone Facebook's way as the Palo-Alto, Calif.-based company and its founder, Mark Zuckerberg, aggressively defend against Ceglia's claims that Zuckerberg signed away half of Facebook before it got off the ground."

The article goes on to discuss a statement made by Ceglia's attorney, "When a judge on Friday refused to stay the entire order, Ceglia sought Monday to protect just his email accounts.

"In today's world, people commonly discuss their most private and important matters by email," his attorney, Jeffrey Lake, wrote. "As such, allowing defendants' experts to search though and read all of Ceglia's emails since 2003 undoubtedly will give them a view of matters far outside the scope of this litigation and far inside Ceglia's private life, a view to which no one is entitled and that is protected from government prying by the most sacred components of the Constitution."

As the article further states, "Facebook and Zuckerberg will soon move to dismiss the lawsuit based on "the now-overwhelming evidence that Ceglia appears to have destroyed critical electronic documents and is perpetrating a large-scale fraud," Snyder, of Gibson, Dunn & Crutcher LLP in New York, wrote in last week's filing."

Counsel’s Accidental Information Back-Up Breaks the Budget

Article by Christopher D. Dize, appearing on E-Lessons Learned website.

This article discusses the New York State case of Oxxford Info. Tech., Ltd. v. Novantas, LLC, 910 N.Y.S.2d 77 (N.Y. App. Div. 2010).

In this case, counsel for the plaintiff entered into a stipulated confidentiality agreement regarding the preservation of data provided by the defendant.  The stipulation called for the erasure of all the defendant's data after the termination of the case. Plaintiff's counsel accidentally stored data belonging to the defendant on various back-up tape systems, and upon realizing this error, they sought relief from the court to modify the confidentiality agreement, rather than incur the costs of data removal.  The court denied the attorney's request, and so did the appellate court.

The article states the following in regard to this situation:

"In what was no doubt a humbling moment for plaintiff’s counsel, New York’s Appellate Division basically said, “You should have known better.”

“Plaintiff voluntarily consented to the Confidentiality Order . . . and its counsel, who have demonstrated experience in and sophisticated knowledge of electronic discovery matters, should have foreseen the problem and addressed it when the Confidentiality Order was being negotiated.”

The appellate division reasoned that the cost to Oxxford’s counsel did “not outweigh defendants’ bargained-for interest in the post-litigation destruction of its business information in outsiders’ hands . . . .” The court emphasized that the plaintiff’s proposed safeguards for keeping Novantas’ business secrets safe amounted to “something considerably less than a guarantee.”

It is possible that the court would have reversed if counsel had not “demonstrated experience in and sophisticated knowledge of electronic discovery matters.” But we know for sure that if you do demonstrate such experience and knowledge of e-discovery, cleanup is on you if you mess something up.

And if you agree to return or destroy the other party’s confidential information at the close of litigation, the ol’ too-costly excuse ain’t gonna cut it if you don’t. This is especially true when the other party relies on a confidentiality stipulation, into which you entered while flexing your e-discovery muscles."

This is a perfect example of how costly an eDiscovery error can be.

Reasonable Particularity in Requesting ESI

Article on bowtie law blog, by Joshua Gilliland, Esq.

This article discusses the case of Doubt v. NCR Corp., 2011 U.S. Dist. LEXIS 95518, 11-12 (N.D. Cal. Aug. 22, 2011). In this case both the Magistrate Judge, and later the District Court, held that a plaintiff's discovery request was overly broad, and denied the request.

The requests asked for "each and every document" in several instances, the case was based on age discrimination. As the the Mr. Gilliland, the author of the article stated "A discovery request must both be relevant to a party’s claims or defenses and “reasonably calculated to lead to admissible evidence.” Doubt, at *11, citing Federal Rule of Civil Procedure Rule 26(b).

Federal Rule of Civil Procedure Rule 34 states that a discovery “must describe with reasonable particularity each item or category of items.”Doubt, at *11, citing Federal Rule of Civil Procedure Rule 34."

The author describes that the court felt that the plaintiff's request was too burdensome, and would require the defendant to search through too many documents that were unrelated to the facts of the case.  The article suggests the following, as a means of improving discovery requests:

 "For both a requesting or producing party, technology such as “early case [data] assessment” can be extremely helpful in identifying relevant discovery. However, ECDA cannot limit ESI for identification without first determining what is being searched with “reasonable particularity.”

In identifying ESI with “reasonable particularity” at a minimum includes the type of ESI (email, Excel, text message), the author of the ESI (Email Sender or who drafted a file), Recipients of messages, date ranges and keywords designed to identify ESI relevant to a party’s claims or defenses."

This case serves as a good example for the need to draft properly tailored discovery requests, and provides some insight into how to improve skills in this area.

Tuesday, August 30, 2011

The End of Social Media 1.0

An article by Brian Solis posted on the website.

This article touches on the fact that social media networks are competing, and evolving.  This change in the social media landscape has caused services like Facebook to lose momentum in some aspects of its use. The author also warns against too many advertisements from corporations, and states that this may have a chilling effect on the conversations taking place on social media.

 The author points out that the following lessons should be learned regarding the role that social media will play:

"What can we learn of this?
1) Businesses must first realize that there’s more to social media than just managing an active presence, driven by an active editorial calendar. Listening is key and within each conversation lies a clue to earn relevance and ultimately establish leadership.
2) Consumers want to be heard. Social media will have to break free form the grips of marketing in order to truly socialize the enterprise to listen, engage, learn, and adapt. You can’t create a social business if the business is not designed to be customer-centric from the outside-in and the inside-out.
3) Social media becomes an extension of active listening and engagement. Strategies, programs, and content are derivative of insights, catalysts for innovation, and messengers of value. More importantly, social media becomes a platform for the brand and the functions that consumers deem mandatory. From marketing to HR to service to R&D, brands will expand the role they play in social networking to make the acts of following and sharing an investment in a more meaningful relationship."

Duty to Protect Confidentiality of E-Mail Communication with One's Client

This is a formal opinion from the ABA (Formal Opinion 11-459) dated August 4, 2011

The introductory comment of this formal American Bar Association opinion states as follows: 

"A lawyer sending or receiving substantive communications with a client via e-mail or other electronic
means ordinarily must warn the client about the risk of sending or receiving electronic communications
using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or
another third party."

The opinion goes on to provide other insight regarding ethical obligations associated with an attorney's duty to warn their client, and cites specific cases that pertain to this issue, as well as the ABA Model rules of professional conduct.

Duty to Protect Confidentiality of E-Mail Communication with One's Client

This is a formal opinion from the ABA (Formal Opinion 11-459) dated August 4, 2011

The synopsis of this formal American Bar Association opinion states as follows: 

"A lawyer sending or receiving substantive communications with a client via e-mail or other electronic
means ordinarily must warn the client about the risk of sending or receiving electronic communications
using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or
another third party."

The opinion goes on to provide other insight regarding ethical obligations associated with an attorney's duty to warn their client, and cites specific cases that pertain to this issue, as well as the ABA Model rules of professional conduct.

There's an App - and a Risk for That

Article by John Martin, Esq. partner at Nelson Mullins Riley & Scarborough, appearing on on the Corporate Counsel website.

The article touches on the use of iPads in the corporate environment, and the fact that much of the ESI stored in iPads could be subject to a production request in litigation.  To minimize this potential risk, the author suggests a number of steps:

"Because of all the above concerns, legal departments should consider adopting the following procedures to protect the confidentiality of their companies' data. You can institute these measures as company policies, and circulate them among all employees issued company iPads:

  • The company bears no responsibility for an employee's personal use of the iPad.

  • Employees should have no expectation of privacy in using the company's electronic resources, including all personally owned hardware to the extent it stores ESI associated with company business.

  • Before using them for company business, employees should make the iPad available to IT personnel for implementation of security settings.

  • Employees are expected to immediately report any loss or theft of an iPad, or possible unauthorized access to an iPad.

  • Remote wipe will be initiated immediately when any iPad is lost or stolen.

  • Pursuant to records management policy, employees must consent to dispose of data from any iPad used for company business when retention of such ESI on the iPad is no longer necessary for legal hold or company retention purposes.

  • Limits on downloading apps shall be enforced, and specific apps for corporate business shall be required.

  • Limited use or designation of specific acceptable social networking sites shall be enforced.

  • For legal hold purposes, existing policies and notifications also extend to business content stored on iPads.

  • Employees must affirmatively accept the duty to personally enforce records management and litigation hold directives across their iPad content."

5 Enterprise Social Trends for Next 5 Years

Article by Debra Donston-Miller appearing on

This article touches on 5 anticipated trends that the use of social media networks will cause over the next 5 years.

The author projects that the 5 following areas will be impacted through the increasing use of social media:
1. Organizations will "flatten";
2. Customers will be a bigger part of the corporate community;
3. Customer service models will change dramatically;
4. Internal social networks will be the new intranets;
5. The marketing function will continue to expand.

The author makes some interesting points about all the topics referenced above.  There certainly are some unique new trends that will continue to develop as result of the increased presence of social media networks.

eDiscovery Rules: What's Really Required for a Meet and Confer?

Article by Doug Austin, on the eDiscovery Daily Blog.

This article outlines items that are required for discussion at a proper Meet and Confer conference, under FRCP Rule 26(f).

As the author points out, "Rule 26(f) states that attorneys must meet and discuss "any issues about preserving discoverable information" as well as developing a "discovery plan." It also specifies that:
Attorneys must already be aware of the location and nature of their own clients' computer systems and discoverable documents, and must be prepared to ask questions about their opponents' ESI, electronic systems, and data preservation actions.
In order to be fully prepared for this conference, an attorney needs to know as much as possible about the location, volume, and logistical challenges that surround the collection of ESI, as well as the client's preferences regarding privilege, protective orders, and document review.
The more informed the attorneys are on each of these counts, the more capable they will be to address relevant issues, streamline the discovery process, and minimize eDiscovery costs.
Attorneys may exchange either in-depth or limited information about the legal holds process.
The result of the "meet and confer" conference is to establish a comprehensive discovery plan and lay the groundwork for the discovery aspects of the rest of the proceeding."

Monday, August 29, 2011

8,000 Menacing Posts

An article by Somini Sengupta regarding appearing on the EDD Update blog, regarding a test of the limits for free speech of Twitter.

This article illustrates a real life situation which as an example of Cyberstalking.  This blog post references a New York Times article and states, "...The New York Times article, "Case of 8,000 Menacing Posts Tests Limits of Twitter Speech," involves efforts by William Lawrence Cassidty to harass a woman, Alyce Zeoli, by posting thousands of threatening and defamatory Twitter posts. He was charged with online stalking, on the theory that his posts caused emotional distress to the victim.

Cyberstalking laws are, accordingly to the article rarely enforced. The prosecution in this case raises a question about the precise nature of information posted on social networks -- are they better viewed as private communications between parties, or public statements like newspaper articles."

The author of the blog post also discusses an eDiscovery aspect related to this situation, "For an EDD standpoint, note that Twitter, in response to a subpoena, revealed the IP address of the computer used to post the messages – information that allowed law enforcement to locate the accused. This raises an additional First Amendment issue, as the disclosure of the author of seemingly anonymous posts to law enforcement is likely to have a chilling effect on future anonymous posters about controversial subjects."

3 Ways to Cut eDiscovery Costs

An article by Deborah Galea on the Email and Security Compliance website.

This article provides insight into possible ways to reduce eDiscovery costs.  The author points out three key areas to focus on for how to reduce costs:  1) Have a Data Map; 2) Store and Manage Data Centrally; and 3) Use Non-Attorneys when possible.

With respect to the third point, the author points out the following, "Some companies have turned to college-level interns or entry-level employees to search data stores for eDiscovery. However, when doing as such, it’s important the company has adopted an email archiving solution that is role- based (with for instance an auditor role or eDiscovery role) and can be configured to only grant access to areas of data storage that will include information pertinent to a particular case. That will help avoid a data breach that could present costs that trump even those associated with eDiscovery."

Social Media Policies Database - Policies of 236 Different Corporations

This is a resource provided on the compliance building website.

This link contains at present 236 different social media compliance policies from some Fortune 1000 corporations, and other entities that have published their compliance policies.  The policies posted here range from regulation of blogging, social media networks, and general internet usage by employees.

We trust that you will find this to be a valuable resource of information.

Hiding from eDiscovery in Plain Sight

Article by Bill Tolson appearing on eDiscovery 101 website.

This interesting article discusses the use of QR codes, which are bar codes that can be scanned to transmit various types of messages, such as writing messages, audio files, video files, and links to websites.

QR codes are not generally processed by eDiscovery software, and could be used to hide information that the sender does not wish to be found during the discovery process.  This is something eDiscovery vendors need to become aware of, and develop protocols for.  A scan of the QR bar code would reveal the contents of the message, but for most part scanning these QR codes is not part of best practices for eDiscovery processing.  In the near future, eDiscovery processing will likely require that these QR codes be scanned to reveal their contents.

20 Quick Tips for Using LinkedIn Better

Article by "social media zone" on the social media zone website.

This article provides some insight on more efficient ways to use LinkedIn.

It provides some useful ideas, and reminds the reader that LinkedIn is social media too.

Sunday, August 28, 2011

Get on the Google+ eDiscovery and Legal Technology List

Using Google +?  Interested in Legal Technology, eDiscovery or computer forensics?  Join the new list created on Google +...the first list on Google + for this topic.

We hope to see you on the list, and if you do join, thanks for doing so.

Confronting E-Discovery's "Ill Defined Preservation Obligations"

Article by Gina Passarella, appearing on on the LTN website, via the Legal Intelligencer.

This article touches on the fact that sanctions for failing to preserve potentially relevant evidence is the most common reason cited for imposing punishment.

The article discusses a specific case, and some other cases that have followed, and an apparent inconsistency in case precedent. As the article states, "The 2010 Southern District of New York case Pension Committee of the Montreal Pension Plan v. Banc of America Securities made clear a written litigation hold notice was required by the attorney as well as a continued monitoring of the client's preservation policies. But other courts have come down since Pension Committee and not required written hold notices.

LDiscovery's Leonard Deutchman said a party's duty to preserve begins at the first instance litigation might be expected. Sometimes that is obvious, like when the Deepwater Horizon exploded, there was immediately an expectation that litigation might follow. But it's not always that clear. The duty in an employment discrimination case doesn't begin when the employee files a claim with the EEOC, for example, but as early as when he walks out the day he was fired saying "'you'll hear from my attorney,'" Deutchman said.

While the case law has developed on the issue, the federal rules are silent as to a party's preservation obligations at the start of a case, Morgan Lewis & Bockius' Tess Blair said.

The biggest burden in e-discovery, she said, is "this broad, ill-defined preservation obligation.""

There is an effort to possibly augment the Federal Rules of Civil Procedure again, to clarify the preservation obligations that attach to evidence, and this is also discussed in this article.

Confronting E-Discovery's "Ill Defined Preservation Obligations"

Article on on LTN website from the Legal Intelligencer, by Gina Passarella.

This article discusses the preservation obligation that attaches to ESI and other forms of potentially relevant evidence.  Sanctions for failing to properly preserve evidence are the mo

Saturday, August 27, 2011

ILTA 2011 - That's a Wrap

Article by Greg Buckles, an eDiscovery industry expert, posted on the eDiscovery Journal website.

This article provides an overview and recap of the recently complete ILTA 2011 conference.  As the author states in his article, "Overall, the mood was upbeat and almost everyone I queried has had a record year. Litigation and discovery readiness spending seems to have recovered from the 2008-2009 lull."

The author discuses some of the hot topics he overheard at ILTA, and mentions Clearwell's new pricing structure, and kCura's latest predictive coding offering.

  In addition, he discusses a panel discussion he moderated which touched on the fact that forensic collection of entire drives is often "overkill".  The article touches on the fact that there is still uncertainty about the acceptance of some of the newly developed technological solutions.  "Most predictive analytics are essentially black box technologies that ask the user to trust complex selection profiles. There is no doubt that we need these technologies to tackle the ever-growing scope of collections, but the panel agreed that the easiest way to mitigate risks was to get the opposing parties agreement on review methods."

Half of America is Using Social Networks

Article on the New York Times by  Somini Sengupta.

That is right....for the first time half of America reports using a social networking site.  If you are in the half that doesn' likely aren't reading this blog.

Only 6 short years ago, the number that reported using a social media site was only 5%.

Social media is NOT a fad, those who claim it is are simply missing the reality of the situation.  It will continue to grow in importance, and frequency of use.  Here are some statistics provided in this article:

"The Pew survey found that among adults who are online the rates of participation are higher: 65 percent, according to the survey, up slightly from 61 percent last year.

Not surprisingly, the sites are more popular among younger people: 83 percent of people surveyed in the 18-29 age bracket said they use social networking sites, compared to 51 percent of those in the 50-64 age bracket. The young are also twice as likely to use social sites every day."

Tech Rev-elations from ILTA 2011

Article by Jobst Elster appearing on website.

This article touches on some of the key developments that took place at the ILTA conference in Nashville this past week.

The top items that are referenced in this article include:  Microsoft's decision to shutter its legal market division; HP's acquisition of Autonomy; ADERANT's acquisition of CompuLaw and Client Profiles; Steve Job's resignation from Apple; Workshare's patent infringement lawsuit of Litera.  In addition, the article focuses on some specific educational seminar sessions that were held at ILTA.

The article also provides a link which provides the ability to download the content of the presentations provided at ILTA, as well as a link to some interviews that took place at ILTA.

Joe Bartolo, J.D. of SRM Legal attended ILTA this year, and thought it was an excellent conference, and the attendance seemed to be an increase over the past two years.  There are exciting developments in various aspects of legal technology.  The eDiscovery space in particular is undergoing some major shifts, and there are several newsworthy developments creating a buzz for eDiscovery and early case assessment.

One noteworthy event that was not discussed in this article is the looming presence of Google, as it seems that HP might not be the only giant entering the eDiscovery space in 2011.

Sorting Out Social Media for Lawyers: Part 1 and Part 2  Part 1  Part 2

Article by Gina Rubel, appearing Panther Marketing Jobs UK website, and part 2 appearing on the Legal Intelligencer website.

This article defines social media, and discusses some of the social media networks that are most applicable to the legal practice.

"A social networking site is one that is designed to allow multiple users to publish content themselves and share it with others. The information may be on any subject and may be intended for consumption by friends, colleagues, target clients and the many other audiences found online. Social networking sites typically allow users to create a “profile” describing themselves, to exchange public or private messages and list other users or groups they are connected to in some way."

As stated in part 2 of the series, "The first installment of this series addressed social networking platforms including LinkedIn, Facebook, Twitter and Google Plus. It also addressed lawyer and law firm review and recommendation sites including Avvo, Yelp and Martindale."

Part II of this series focused on social content sharing and location-based services.  The second part of the series discusses blogs, Legal Ramp Online, and JD Supra, as well as location based services such as Foursquare.

As the second part of the series stated, "Location-based services allow users to share their "location" and connect with others based on where they are. So for example, if you're at JFK airport awaiting a flight and you post that you're there, others who are also there can connect with you. Personally, I'm not a big fan of letting the world know where I am and when; however, there are advantages to these services for lawyers. They include word-of-mouth marketing, law firm reviews, search engine optimization and client research."  

Friday, August 26, 2011

How IBM's Cognitive Computer Works

Article in Forbes, by Alex Knapp, posted on LinkedIn by Charles Skamser.

This interesting article discussed the development of a new cognitive computer chip, and how it will advance the speed of information processing by computers. The article discusses an interview with Dr. Dharmendra S. Modha, who is the head of the SyNAPSE project.   The SyNAPSE team’s solution is to bypass von Neumann architecture, which all modern computers rely upon, entirely with cognitive computing. "The goal, says Dr. Modha, is a chip that’s able to better handle environmental feedback. “So far, our computers are left-brained, focusing on linearity and computation. What this is is a right-brained computer” capable of recognizing patterns and able to handle ambiguity. And because it’s operating in parallel, with an integrated memory, it uses much less power than a traditional processor.""

As the article states, "Dr. Modha likens processing to transporting oranges. The trees are memory, the oranges are bits. The consumers are processors. The oranges have to travel, by highway, to get to the consumer – but the more oranges, the more tied up traffic gets, so you run into problems on the chip....
Solving this problem is the focus of computer scientists around the world. The SyNAPSE team’s solution is to bypass von Neumann architecture entirely with cognitive computing. To keep the orange grove analogy, the SyNAPSE team wants to, in Dr. Modha’s words, “move people to the orange grove” so the processors can be integrated with the memory."

This is an interesting insight into how the processors are arranged in a computer chip, and the efforts being made to build a better solution.

3 Key I.T. Trends that will Drive Information Security Evolution

Article by Steve Hamby on the Huffington Post.

This article touches on past I.T. trends and looks at 3 developments that will enhance the security of I.T. infrastructure.

Enhanced Infrastructure is one key issue, Enhanced Threat Modeling is a second key factor and finally Semantic Security is said to be the third key topic.

As the article states, "...users are to security what location is to real estate -- the most important aspect of security is users, users, users, whether employees, partners, customers, adversaries or automated bots acting on behalf of one or more of these. These future information security enhancements will help IT organizations continue to focus on users and user interactions to ensure the availability, integrity and confidentiality of the organization's information."

eDiscovery Trends: Lawyers versus Machines, Who's "Winning"?

An article by Jason Krause, on eDiscovery Daily Blog.

This is a fascinating and comprehensive article, that provides links and references to many other important article that pertain to the topic of attorneys vs. computer technology.
The article states the following, "As discussed on this blog, mainstream publications including The New York Times andForbes have noticed the rise of search technology in discovery, particularly predictive coding. The New York Times article, Armies of Expensive Lawyers, Replaced by Cheaper Software, inspired a lot of consternation in the legal community by proposing that technology was replacing human lawyers. Among the first to reply, Ralph Losey wrote a blog post New York Times Discovers eDiscovery, But Gets the Jobs Report Wrong, arguing that “the supposed job-chilling impact of these new technologies on the legal profession was off the mark. In fact, the contrary is true.”

However, the Times article does point to a real trend - clients demanding that their outside counsel and litigation support teams use technology to work more efficiently. “Just because the “paper of record” says something doesn’t make it so, of course. But it does mean that every GC and Litigation DGC/AGC in America (and likely Canada) now has this trend on their radar,” litigation project management guru Steven Levy wrote on the blog Lexican."

The article goes on to provide additional insight, including research by TREC.  Moreover, there are comments made regarding the use of a traditional linear review, and the benefits of using technology as opposed to a more traditional approach.  

A recent comment made at the ILTA 2011 conference likened the use of a traditional linear review approach to the use of wooden tennis rackets.  With the increased volumes of information that requires attorney review, coupled with the desire to reduce costs, the only practical solution is to rely on technological advancements to enhance the process.

7th Circuit Electronic Discovery Pilot Program and the Principles on ESI

Article by Allison Walton, posted on e-Discovery 2.0 website.

This article touches on the pilot project initiated in 2009 by the 7th Circuit, which has judges, counsel and service providers collaborating regarding eDiscovery issues in the court system.  As the article points out about the proejct, "multi-phase project to develop, implement, evaluate, and improve pretrial litigation procedures, which ideally would provide fairness and justice to all parties..."  It is also aimed at looking for ways to reduce costs and burden on the parties.

The project has been well received, and provides important guidance for the other circuits.  As the article states, "With each jurisdiction having its own local rules and each legal community having its own flavor, the exercise of bringing all stakeholders into the process to contribute to the Principles is unprecedented. Whether each Circuit starts their own Pilot Programs, or initially adopts the 7th Circuit’s Principles and then modifies as necessary, remains to be seen. Either way, results from the 7th Circuit have been positive thus far, generating supporters nationally. The hope is that courts and practitioners will start with these Principles in order to avoid a patchwork of ESI rules across the country."

Updates and Comments from ILTA 2011 from the eDiscovery Paradigm Shitf

ilta2011_web_header_2a.png (747×252)

This is a post from Charles Skamser on his blog The eDiscovery Paradigm Shift.

This is a comprehensive post regarding some of the key developments that took place at ILTA 2011 in Nashville this week.  The conference was well attended and there were many important announcements, this article addresses many of them.

The article also refers to other interesting articles by Evan Koblentz and Katey Wood.

As the article points out, " regards to the "big data" and culling issue, ESI will continue to increase at an accelerating rate and therefore Early Case Assessment (ECA) and culling will continue to be even more important. And, directly to Wood's comment, I believe that the enterprise and the CIO/CTO is going take the lead in regards to proactively developing platforms that can provide the responsive information that is required for both information governance and eDiscovery. And as such, outside counsel is going be relegated back to being a law firm instead of an IT provider."

Thursday, August 25, 2011

What is Early Case Assessment? A CLE by Joe Bartolo, J.D. on

What is the EDRM? What does the EDRM diagram reveal?  See the above link.

What is Early Case Assessment?  Why is it important?  How is ECA utilized?

View the CLE provided by Joe Bartolo, J.D. of SRM Legal via

Further information provided below.

Kill Your Data Warehouse

An article on by Dan Woods.

This article discusses the difference between a data warehouse, and what the author describes as a data "lake".

"Here are the primary differences between a data warehouse and a data lake:
  • In a data lake, end-users are far more involved in deciding when and how the information will be distilled. The creation of the equivalent of data cubes and other summaries to speed analysis is far faster and less intermediated by experts.

  • A data lake contains many more types of data than a data warehouse, which usually has transactional records from enterprise applications. In a data lake you will find also machine data from server logs, networking equipment, telecommunications equipment, and lots of different kinds of sensors. In addition, you will find unstructured information that can be used to add context to numerical information. (See A Vision for Unifying Access to Data and Documents.)

  • A data lake will use many more techniques to correlate and understand data than a data warehouse. Capabilities like Splunk and Hadoop and other MapReduce implementations will be employed to distill and summarize machine data. Complex event processing systems will sift through many streams of data looking for patterns. Unstructured data will be analyzed and correlated to structured data using capabilities like Attivio or Autonomy.

  • A data lake will be far more oriented toward in-memory processing in real time than batch processing, which dominates the world of data warehouses."

Move Over Watson - Automated Document Review has Arrived

This is a post from the Above the Law website, and is an ad for Valora Technologies.  Valora is a trusted partner of SRM Legal.

As ILTA 2011 comes to a close today, one of the most frequently discussed topics has been predictive coding. How about taking that one step further with a fully automated review? Don't believe it can happen? It is already an available technology.
The ad for Valora states, "Drawing from capabilities in statistical relevance (predictive coding), pattern-matching, Bayesian analysis and latent semantic indexing, Valora’s PowerHouse system combines the best technology available in a proprietary, wholly configurable process. And since we built our software over 30 person-years, there are no pesky license fees or per-click charges to contend with."

There is a plain and simple fact that doesn't get discussed often enough....who is checking the results of the attorney review after the case is over?  If there was no complaint by opposing counsel, and no sanctions for discovery mistakes...then law firms and corporate law department consider the review a success.  However, how do they really know how many documents were tagged incorrectly, or missed entirely?  

Automated review is the future of the legal profession, like it or not.  At the very least it can be used as a QC mechanism to gauge the accuracy of the completed attorney review.  Automated review is fast and inexpensive, and provides a true safeguard against the inadvertent production of privileged information.  

For certain projects, where there are large volumes of data, a short time frame to complete the review, and a limited budget...automated review is the perfect solution.  It works, and it is available now. 

Call SRM Legal for more information and we will be pleased to discuss the technology that Valora provides in specific detail.

Wednesday, August 24, 2011

A Social Media Policy Checklist - Tips for Preventing Privacy Violations

Article from Howard Anderson appearing on healthcare info security website.

This article provides some insight into the use of social media by healthcare providers.  The article quotes Cecilia Backman, associate director of health information management at Parkland Health and Hospital system in Dallas.  Among the advice provided in the article is the following,  "Steps that organizations can take to minimize the risks involved in using social media, Backman said, include:
Conduct a social media risk analysis that addresses operational and well as technical issues;

Develop a formal social media policy that addresses all identified risks and covers staff as well as volunteers,

contractors and independent practitioners - anyone who might have access to patient information;

Spell out in the policy expectations for the ethical behavior of those who create content for social media sites on behalf of the organization or use social media in any way, both at work or on their personal time;

Specify sanctions for violations of the policy and provide extensive annual staff training;

Modify medical staff rules, employee privacy agreements as well as business associate agreements to address the use of social media;

and Monitor mentions of your organization on various social media sites to guard against potential health information breaches."

Mitigating Risks in the Cloud - A Checklist for Managing Vendor Relations

From EDD Blog online, by Howard Anderson, posted by Jeffery Fehrman.

This post outlines an interview taken by Howard Anderson of HealthcareInfoSecurity, providing comments from Feisal Nanji, Executive Director of the security consulting company Techumen.

The points of the interview discuss issues such as chain of custody for the cloud, keeping track of how software interacts with data in the cloud, and proper administration of cloud data.  The article provides a link to a more detailed article about the interview, posted on govinfosecurity.

Catalyst Secure, Stored IQ Partner to Help Client's Better Manage E-Discovery

This is a press release from Catalyst Secure.

SRM Legal is pleased that two service providers that SRM Legal can provide to our clients, have combined their advanced technological capabilities to better assist corporations and outside counsel law firms with the eDiscovery process.

As the press release indicates, "Two of the nation’s most innovative e-discovery companies, Catalyst Repository Systems and StoredIQ, announced today that they have formed a cooperative partnership to enable enterprises to better manage e-discovery, from collection and identification all the way through review and production.

Catalyst, headquartered in Denver, is a pioneer in providing cloud-based document repositories for e-discovery and complex legal matters. StoredIQ, based in Austin, Texas, is a leading provider of enterprise-class information governance solutions. StoredIQ's Intelligent eDiscovery solution helps organizations respond rapidly and efficiently to legal matters, litigation or investigations.

As technology partners, Catalyst and StoredIQ provide enterprises with end-to-end management of e-discovery. Enterprises can now locate, collect, process, analyze, review and produce documents more efficiently, with greater consistency and speed from start to finish and far less likelihood of errors or delays."

8 Factors to Consider in Creating a Document Management Strategy

Article by Joan Honig, appearing on

This article provides 8 items to plan for when preparing to create a document management/records management strategy.  The factors discussed include:

1. Establish an enterprise-wide approach
2. Make process re-engineering part of the plan
3. Identify champions among stakeholders in each department or functional group
4. Plan for line-of-business extension and integration
5. Encourage collaboration but control access
6. Provide remote and mobile access
7. Don’t forget to measure incremental process improvement and track ROI
8. Develop a strategy with the flexibility to accommodate change by enabling integration with emerging technology

Nexidia Integrates Audio and Visual Discovery into Relativity

This is a press release issued by kCura's Relativity, a solution that is offered by SRM Legal.

SRM is very pleased to be able to provide Relativity for attorney review, and the addition of Nexidia's technology makes Relativity a more complete solution for attorney review, further enhancing the process.

Nexidia is the audio and video search company with patented technologies and breakthrough applications that enable legal professionals to quickly and accurately search, review, and categorize large volumes of audio and video in response to discovery, regulatory, or compliance investigations. Nexidia was recently named the 2011 Market Winner in Speech Analytics by Speech Technology, the fifth consecutive year the company has earned this recognition.

Tuesday, August 23, 2011

Inside Legal - Technology Purchasing Survey 2011 - ILTA

Results from the Inside Legal - Technology Purchasing Survey - ILTA 2011

Interesting results, include responses indicating an increase in cloud services up from 9% in 2009, to 17% in 2010, to 33% this year.

2011 ILTA/ Inside Legal - Technology Purchasing Survey

A very interesting survey undertaken by Inside Legal and distributed at the ILTA 2011 conference in Nashville.  Of interesting note, 33% indicate some type of cloud strategy, up from 17% last year, and 9% from 2009.

From the survey responses, 84% came from the U.S., 10% from Canada, 2% from UK, and 2% from Brazil.  There are many interesting findings in this study.

Download ILTA 2011 Presentations

All ILTA 2011 presentations can be downloaded.  Check the link above if you are interested in obtaining information regarding any presentation given at the ILTA event in Nashville this week.

The conference has been very well attended, and the future of legal technology seems very bright.

Court Declines to Excuse Production where Party's Own Negligent Failure to Preserve Rendered Data "Less Accessible"

Post by Hayley on eDiscovery News website.

This article discusses the case United States v. Universal Health Servs., Inc., No. 1:07cv000054, 2011 WL 3426046 (W.D. Va. Aug. 5, 2011).

The article states, "..the Commonwealth sought to avoid producing allegedly inaccessible information. The court declined to excuse production, reasoning in part that it was the Commonwealth’s own “negligent failure to take steps to adequately preserve information” which rendered the information “less accessible.” Instead, the court indicated that it would order the backup tapes and forensic images be produced to defendants “for use by a commercial vendor” to retrieve the information “in a format usable by the Commonwealth” and that defendants would bear the costs, subject to a motion seeking reimbursement.

Defendants sought to compel production of documents related to complaints of Medicaid fraud from the Commonwealth of Virginia."

The article further states that a defendant should not receive benefits as result of their own negligent conduct in failing to issue a litigation hold in timely fashion.


E-Discovery: Cutting Costs with Targeted Collections

Article by Michael Collyard, appearing on

This article points out that targeted collections can provide true assistance in reducing eDisocvery costs.  As the author states, "Real targeted collections combine talent and tools to reduce the amount of data that needs to be reviewed for production. A good targeted collection plan will:
  • Identify the key custodians who have responsive data

  • Interview those custodians to find where the data is stored

  • Involve the custodians in creating and testing search terms to find responsive documents and data"

New technology makes it easier than ever to sort through data prior to collection, thus reducing costs for eDiscovery processing, as well as limiting the risk of inadvertent production of privileged information.

SRM Legal provides various early case assessment technologies to our clients, including some that take place prior to the collection process.  This type of practice will become more commonplace, as technology continues to improve.

Monday, August 22, 2011

E-Discovery Leads Products Charge at ILTA

This is an article by Evan Koblentz on on the LTN blog.

This article discusses the ILTA conference being held in Nashville this week.

As the article points out, "Early Case Assessment (ECA), predictive coding, and search/data review applications will dominate the e-discovery product announcements at this week's International Legal Association Trade show in Nashville, Tenn.

Katey Wood, e-discovery analyst with Enterprise Strategy Group in New York is quoted in the article. "Even if they (law firms) throw bodies at the problem with contract reviewers and [outsourcing], it's not possible for them to review all the data in some cases under court timeframes. Technology has to improve, and law firms have to evolve."

Software vendors recognize this trend and the article outlines some specific major e-discovery product announcements expected this week, including some being made by partners of SRM Legal.  Joe Bartolo, one of the author's of this blog is attending this conference, and is pleased to report that the turnout at tonight's vendor event the Music Hall of Fame was very well attended.

Hitting the Unlike Button on Expedited Discovery

This is a post from Joshua Gilliland, Esq. from his blog Bow Tie Law.

This article discusses a case in which there were named and unnamed defendants that were sued by Facebook for trademark infringement.

The court failed to grant a request for expedited discovery, primarily based on the fact that the named defendant's would have a duty to preserve evidence, and thus there was no need to allow Facebook a quick attempt to determine the identities of the unnamed defendants.

The article discusses Facebook, Inc. v. Various, Inc.,2011 U.S. Dist. LEXIS 64539, 6-9 (N.D. Cal. June 16, 2011), and states, "The 9th Circuit allows expedited discovery to identify unknown defendants when 1) a plaintiff cannot identify any defendants and 2) there are “legitimate fears” that information leading to the identities of the defendants faces “imminent destruction.”  In this case the court felt that neither situation existed.

ACEDS and ALSP - ALSP endroses CEDS eDiscovery Cerfitifcation

A press release appearing on ACEDS website dated August 22, 2011.

"The Association of Certified E-Discovery Specialists and the Association of Litigation Support Professionals today announced a landmark partnership that will facilitate the certification as Certified E-Discovery Specialists of the members of ALSP.

The partnership focuses on CEDS certification but also portends a broader collaboration by the two associations. A recent survey by Litigation Support Today, the leading publication of the litigation support industry, shows that nearly one out of five litigation support professionals is affiliated with ALSP, and that the growth curve is steep."

This is good news for ALSP members, as they will be given a discount to enroll in the detailed training provided by ACEDS, and will be given access to provide input in the development of future training. 

Are Big Law Firms Inflating Partner Profits? Citigroup Unit Reportedly Finds Fudging

Article by Debra Cassens Weiss posted on ABA Journal Law News Now.

This article refers to American Lawyer Magazine, and states that half of the nations top 100 AM Law firms might be overstating profits per partner.  As the article states, "An analysis by Citi Private Bank Law Firm Group reportedly found that 22 percent of the top 50 firms overstated profits per partner by more than 20 percent in 2010, the newspaper says. Another 16 percent inflated partner profits by 10 to 20 percent, and 15 percent boosted partner profits by 5 percent to 10 percent.

Citigroup disclosed its figures in a briefing this month attended by law firm leaders, but it did not confirm the findings when contacted by the newspaper. The Wall Street Journal relied on a source briefed on the findings for its report."