Friday, September 30, 2011

Big Data: Sorting the Reality From the Hype




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Article by Steve Lohr posted by the NY Times Blog on bits.blogs.nytimes.com

This article discusses the development of new computer projects attempting to design new computer technology.

The article points out, "A Forrester Research report, published Friday, provides some leavening perspective on the big data phenomenon. The report is based on a survey of 60 Forrester clients who are using or experimenting with big data computing. It tries to define big data, assess its current applications and offer tips for corporate managers."  A link to the report is provided in the article.

The article describes some examples of "Big Data" projects cited in the report, "The science-project nature of big data to date is highlighted, I thought, by six examples of innovators described at the start of the report. There is Google, of course. And IBM’s Watson, which defeated two human “Jeopardy” champions earlier this year, is cited. But two of the other examples — remote sensors collecting data on premature babies in a hospital ward at the University of Ontario, and a smart-grid project at the Tennessee Valley Authority — are also collaborations with IBM Research (which is not mentioned).

So yes, there are cutting-edge innovators with big data, but not a lot, it seems."

The article quotes Boris Evelson of Forrester as saying, “With the other technology, you need to model something first,” Mr. Evelson said. “But what if you don’t know the questions? Big data is all about exploration without preconceived notions.”




The article describes the hardware being developed, and also states that the real cost is the talented people that need to work with these systems to accomplish what they are trying to do.




ow.ly/6KdHZ


Social Media and eDiscovery: New Kid on the Block, but the Same Story




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

The article discusses the increasing impact that social media is having upon eDiscovery in litigation.  The author states, "Recently, Symantec issued the findings of its second annual Information Retention and eDiscovery Survey, which examined how enterprises are coping with the tsunami of electronically stored information. Having lost some popularity, email came in third place (58%) to files/documents (67%) and database/application data (61%) when respondents were asked what type of documents were most commonly part of an eDiscovery request. The new kid on the block for data sources is social media, reported by 41% of those surveyed. Social media is in essence no different than any other data type in the eDiscovery process, it’s just the newest. Said another way; social media is the new email."  A link to Symantec's findings is provided in the article.

As the author points out, "What is newsworthy is the question of how to effectively store, manage and discover these communications which come in such varying forms, making the logistics of doing so for social media different than for traditional mediums."

The article goes on to further state, "Unlike email, social media comes in many different forms (Facebook, LinkedIn, Twitter, etc.), is not controlled within an organization’s firewalls (custody, possession and control issues), and has more complex requirements within the information governance lifecycle (technology is needed to ingest social media into an archive).

The two main areas to examine in relation to social media use and an organization’s policies are: 1) the legal issues that apply specifically to the organization, and 2) the logistical and technical requirements for preservation and collection."

The author recommends, "...organizations should evaluate which laws and regulations apply to their organization, develop a policy and train their employees on that policy."



Dancing in the Dark: Resolving form disputes early can prevent expensive, time-consuming headaches during litigation.




http://ow.ly/6JIGf

An article by Craig Ball, Esq. published by law.com on the LTN webpage (yet another article dated October 1st...is my calendar off..third one this week that is dated in the future).

This article discusses a recent conversation Mr. Ball had at a conference regarding why counsel prefers to produce in TIFF, even when a native review has been undertaken.

The author states, "I wanted functional evidence. She wanted Bates numbers on every page. I wanted the embedded communications. She wanted to be sure I couldn't see anything she'd overlooked. We danced around for a while, but I knew when the music stopped, I might be stuck holding a disk full of .tiffs, partly due to a crucial flaw in the federal rules governing forms of ESI production."

The article discusses various steps involved in the process to request and produce ESI under the Federal Rules of Civil procedure.  The author provides a worthwhile reminder, "The Notes to Rule 34(b) of the 2006 Rules amendments make clear that the Advisory Committee appreciated the risk: "A party that responds to a discovery request by simply producing electronically stored information in a form of its choice, without identifying that form in advance of the production…runs a risk that the requesting party canshow that the produced form is not reasonably usable and that it is entitled to production of some or all of the information in an additional form."

The risk of additional production has proven insufficient to promote good practice. Five years on, disputes about forms of production are commonplace."

The conclusion of the article is also a useful note, "Requesting parties, too, shouldn't wait until the response date to know if an opponent refuses to furnish the forms sought. Press for a commitment; and, if not forthcoming, move to compel ahead of the response date. Don't wait to hear, "Why didn't you raise this before they spent all that money?""


The 2011 Global 100: Most Revenue

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http://www.law.com/jsp/tal/PubArticleTAL.jsp?id=1202514393371&The__Global__Most_Revenue

Article by American Lawyer

Gross revenue rebounded slightly last year. The Global 100 firms reported a 3 percent increase in 2010. Seventy-eight of the world’s top-grossing firms are American and 12 are British, though four of them are structured as vereins. Rounding out this year’s list are six Australian firms; and one firm each from Canada, France, Spain, and the Netherlands.


Revenues for American firms are from The Am Law 100. European firm revenues are from Legal Week. Australian and Canadian firms were surveyed directly. Currency conversion rates to U.S. dollars are annual averages for 2010. Lawyer numbers are average full-time-equivalent numbers for 2010. Revenue figures are rounded to the nearest $500,000.

TOP 5 Ranked by Gross Revenue

1. Baker Mckenzie            $2,265,500,000
2. Skadden Arps               $2,100,000,000
3. DLA Piper                     $1,961,000,000
4. Latham & Watkins        $1,929,000,000
5. Clifford Chance             $1,833,500,000

Click the link on top to see the rest

Search, Forward Will manual document review and keyword searches be replaced by computer- assisted coding?



http://ow.ly/6Ju9h

An article by Hon. Andrew Peck published by law.com on LTN webpage (article dated October 1, 2011...I guess we are getting an advanced peek).

The article discusses traditional linear review, and then comments as to whether other means of technology enhanced reviews can provide similar results.

As the article states, "Despite its flaws, many senior lawyers (and some clients) still consider manual review to be the "gold standard" against which other review techniques are compared. While the volume of electronically stored information (and concomitant expense) has largely eliminated manual review as the sole method of document review, manual review remains used along with, for example, keyword screening. Let us consider whether manual review as the gold standard is myth or reality."

The article goes on to state, "Two recent research studies clearly demonstrate that computerized searches are at least as accurate, if not more so, than manual review. Herb Roitblatt, Ann Kershaw, and Patrick Oot, of the Electronic Discovery Institute, concluded that "[o]n every measure, the performance of the two computer systems was at least as accurate (measured against the original review) as that of human re-review." ("Document Categorization in Legal Electronic Discovery: Computer Classification vs. Manual Review," Journal of Am. Society for Information Science & Technology, 61(1):70-80 (2010).)

Likewise, Wachtell, Lipton, Rosen & Katz litigation counsel Maura Grossman and University of Waterloo professor Gordon Cormack, using data from the Text Retrieval Conference Legal Track, concluded that "[T]he idea that exhaustive manual review is the most effective — and therefore the most defensible — approach to document review is strongly refuted. Technology-assisted review can (and does) yield more accurate results than exhaustive manual review, with much lower effort. ("Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review," Richmond J. of Law & Tech., Vol. XVII, Issue 3, 1-48 (2011))."

Links to the case studies cited above are provided in the article.

Judge Peck points out issues associated with keyword searching, and the various limitations associated with that technique, "The problems with keyword search are well known. Lawyers are used to doing keyword searches in "clean" databases, such as Westlaw and Lexis, which use full sentences, full words (not abbreviations), and largely the same words to describe the same concept. E-mail collections are not clean databases. People use different words to describe the same concept; even business e-mails are informal, rampant with misspellings, abbreviations, and acronyms."

The article cites case law that has criticized the results of keyword searching, and also provides the following example: "How effective is keyword searching? In 1985, scholars David Blair and M.E. Maron collected 40,000 documents from a Bay Area Rapid Transit accident, and instructed experienced attorney and paralegal searchers to use keywords and other review techniques to retrieve at least 75% of the documents relevant to 51 document requests. Searchers believed they met the goals, but their average recall was just 20%. This result has been replicated in the TREC Legal Track studies over the past few years."

The article reiterates remarks Judge Peck has made in the past regarding the use of "predictive coding" techniques, and the fact that there is no case he is aware of approving such use.  However, he states that counsel need not wait for such judicial approval in a specific opinion, rather he suggests the following: "
Of course, the best approach to the use of computer-assisted coding is to follow the Sedona Cooperation Proclamation model. Advise opposing counsel that you plan to use computer-assisted coding and seek agreement; if you cannot, consider whether to abandon predictive coding for that case or go to the court for advance approval.

Until there is a judicial opinion approving (or even critiquing) the use of predictive coding, counsel will just have to rely on this article as a sign of judicial approval. In my opinion, computer-assisted coding should be used in those cases where it will help "secure the just, speedy, and inexpensive" (Fed. R. Civ. P. 1) determination of cases in our e-discovery world."

P.S.  Have questions or comments about this topic, the writers of this blog would love to hear them. This is an area of great interest to SRM Legal, and we would be happy to get your insight to share with others.

ALA Current - TECHNOLOGY PURCHASING SURVEY RESULTS - ILTA



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This is a link to the ALA Currents publication from alanet.org, which includes a comment about hiring trends, and also includes an article by Jobst Elster regarding the recent ILTA 2011 Conference, and the results of the purchasing survey.

There is also a link provided to download the complete 16 page purchasing survey.

Some of the interesting statistics provided are as follows:
  • 90 percent indicated using LinkedIn for professional purposes followed by Twitter (19 percent) and Facebook (17 percent)
  • Of the 52 percent who indicated using Twitter (actively or passively, privately or professionally), 27 percent have an account but don't actively use it. Only 4 percent mentioned tweeting frequently
  • 55 percent of surveyed firms provide IT support for employees that purchase and use their personal tablet devices
  • 57 percent of all responding firms spend between 2-4 percent of total firm revenue on technology
  • 46 percent of surveyed firms spend between $8,000-$17,000 per attorney on technology

Thursday, September 29, 2011

EDRM XML 2.0 Schema Posted – Please Comment!



http://www.edrm.net/archives/10424?utm_source=rss&utm_medium=rss&utm_campaign=edrm-xml-2-0-schema-posted-please-comment

The link above will take you the EDRM website.  The EDRM is seeking comments regarding the new XML 2.0 Schema prior to the next EDRM meeting in October.  Please visit the site, and click on the link you will find there to provide your feedback.

As the EDRM post from George Socha states, "Version 2.0 of the EDRM XML schema is available on EDRM.net for public comments now through October 14, 2011. Public comments provide vital feedback to the EDRM XML team and ensure that the schema is truly useful and robust."

Why Blue Button Data Is a Big Deal





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An article by Brian Klein posted on medgadget.com


This article discusses the digitization of health care records, and the push to make them accessible online.  As the article states, "Last year, the U.S. Department of Veterans Affairs launched the Blue Button Initiative in an effort to facilitate veterans’ access to their medical records, which they’d be able to share with doctors or insurers. Medicare, the Department of Defense, and the private sector have since adopted the concept. Earlier this month, the Robert Wood Johnson Foundation rolled out bluebuttondata.org, which it hopes will eventually give “all Americans” online access to their health data."


The author discusses the attempts to make healthcare records accessible to individuals, via efforts such as the Blue Button Initiative.  The article provides a link to offer further information about the Blue Button organization.

This article is the 2nd part of a series based on comments from U.S. Health and Human Services (HHS) CTO Todd Park.  Park is quoted in this article as follows:  "[People asked us:] “Are you allowed under Health Insurance Portability and Accountability Act, the privacy law in healthcare, to give people their own information electronically?” We said, “Yes! That act actually encourages that.” But [that type of questioning] illustrates a lot of the confusion that is out there. So, now more and more private-sector organizations have announced that they are going to Blue Button their data, too."

Additional efforts are referenced as well,  "Aetna, at a recent event, announced that it has now Blue Buttoned its personal health record for 10-million people who were covered by Aetna. United Healthcare, Walgreens, and the states of Vermont and Indiana have announced that they were going to do the same thing. PatientsLikeMe, which is a very cool patient website, has said it is going to do the same thing. And, so, it’s starting to spread."

P.S.  This can be a very positive trend...so long as the sites can be kept secure for hackers...no easy task these days.

E-discovery laws: Having an information governance framework matters



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An article by Ron Condon, UK Bureau Chief, posted on the search security website, searchsecurity.co.uk

This article discusses the U.S. Federal Rules of Civil Procedure and how the eDiscovery provisions effect UK corporations.

The article states, "According to Debra Logan, an analyst with research and advisory firm Gartner who specializes in the field of e-discovery, most UK organizations believe e-disclosure is an American phenomenon, and of no concern to them. But they are wrong.

“Some Europeans think it doesn’t matter here,” Logan said, “but the fact is that the rules of disclosure and discovery are no different in any jurisdiction.”

Furthermore, with increased regulations and laws covering factors such as privacy and corporate bribery, there is a growing level of litigation in Europe. According to Fulbright & Jaworski, a law firm that tracks litigation trends in the US and UK, 50% of UK companies faced at least one legal dispute in 2010, compared with 45% the year before."

The article goes on to state, "The UK courts are already aware of the problem. In April 2011, the Ministry of Justice issued Practice Direction 31B – Disclosure of Electronic Documents, which spells out in some detail what lawyers need to consider when discovering and disclosing electronic evidence.

According to the Direction, the main guiding principles should be as follows:
  • Electronic documents should be managed efficiently in order to minimise the cost incurred by e-discovery.
  • Technology should be used to ensure document management activities are undertaken efficiently and effectively.
  • Disclosure should be given in a manner that gives effect to the overriding objective [of getting to the truth].
  • Electronic documents should generally be made available for inspection in a form that allows the party receiving the documents the same ability to access, search, review and display the documents as the party giving disclosure.
  • Disclosure of electronic documents that are of no relevance to the proceedings may place an excessive burden in time and cost on the party to whom disclosure is given."
In addition, the article further provides some interesting statistics, "And don’t just think it’s a question of archiving emails. As a recent study by Symantec revealed, e-disclosure requests can cover a wide range of file types. Files and documents (67%) are the most frequently requested, followed by database or application data (61%), email (58%), SharePoint files (51%), instant messages and text messages (44%), and social media (41%)." 

A link to the Symantec survey is provided in the article, and was previously referenced on the Litigation Support Technology and News blog.


Are you in danger of 'drive-by' hacking?




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Article by Howard Swains on CNN.com on the CNN Tech webpage.

This article discusses the hacking phenomenon, and the increase in hacking taking place to mobile devices such as smartphones and tablets.

The author states, "iPhones, iPads, BlackBerrys, Windows 7 phones and Android users routinely use shared networks in public places, which leaves them all susceptible to infiltration. Unless these networks have been properly secured, freely available browser add-ons and apps can help hackers seize control of personal data at the touch of a button.

Meanwhile so-called "drive-by download" attacks lie invisibly in wait on web-pages or in malicious emails then compromise the machine of anyone unfortunate enough to visit."

The article describes the following incidents as examples, "None of the most popular devices are immune. In 2009, for instance, a hack resulted in 145,000 BlackBerry users having their email forwarded to servers in the United Arab Emirates. Pennell also described an attack on the network of an airport in Israel, which threatened anyone using Bluetooth in the terminal."  The article even mentions hacking that took place through code embedded in the "Angry Birds" app.

To further add to this frightening situation, the author mentions, ""Your Facebook or YouTube account could be hijacked with someone using little more than a cheap second-hand phone from eBay," said information security professional Steve Lord."

One of the suggested solutions, "Security experts have touted the idea of "split personality" phones, with an inbuilt division between personal and business data."

Finding the missing link



http://ow.ly/6IGyS

A blog post from Charles Holloway from his blog, The Smart e-Discovery Blog.

This article discusses trends concerning the use of LPO services to outsource certain legal functions. The author states, "In my own “second career” it is plain that e-disclosure is becoming a much more main stream activity and in general lawyers are not good at it and many do not “get it”.

Why should clients continue to pay for lawyers to do something at which they are not very good and where some at least appear not to want to get their hands dirty?

Why not go to a discovery expert? There are lawyers out there (sometimes called discovery counsel) who are making an excellent living providing the service to clients already and effectively sweeping up after the litigation lawyer."

The author also discusses anthropological finds regarding possible missing links, and uses this as an analogy between law firm attorneys, and those specialists they may rely upon.  "I think I may have found the Missing Link by which I mean that the star of the future may well not be the bright litigation lawyer with a flair/knack/talent for litigation but the e-disclosure expert."

New Survey Finds Integrated Healthcare Privacy Protection and Security Methods Most Effective




http://ow.ly/6IlFQ

An article published by proofpoint.com  (no author credit provided).

This article discusses a recent survey by PWC. "...the PwC report found less than half of all healthcare providers currently integrate privacy protection and security compliance practices. The firm believes that this likely makes data loss prevention procedures more difficult, as integration of these processes has proven to improve the safety of EHRs and the effort required to meet HIPAA compliance and other regulations."

The article further discusses some of the findings from this recent survey, and mentions that the survey recommends integration among various I.T. systems, "Integrating privacy protection and security procedures, the website asserts, can improve the overall scope of IT compliance and safety operations through streamlined processes and increased efficacy. Additionally, this strategy could potentially decrease overlooked areas, as the source notes the survey found more than half of the respondents had not assessed security for mobile devices currently in use in their respective organizations.

In the survey from PwC, more than 35 percent of healthcare providers said they had experienced patients trying to gain admittance and care with stolen or fraudulent identification, the source added. Integrating IT operations can thwart these attempts, the website affirmed."




When E-Discovery breaches data protection




http://ow.ly/6Il5t

An article by Irene Bodle appearing on webanalyticsworld.net

This article discusses the impact that eDiscovery has upon data protection and privacy rights.

The article states that when litigation arises, you may be compelled to produce data that is subject to conflicting privacy protections. "The court order to disclose data may well conflict with compliance and privacy requirements in relation to data in the countries in which the data is actually held. However for the purposes of complying with a court order the actual location of the data and the local rules applying to the storage of the data cannot be used as a reason to refuse disclosure."

The author cites a recent situation where there was such a conflict, "For example in AccessData Corporation v ALSTE Technologies GmbH a US court ordered a German company to disclose emails stored in Germany as part of the disclosure process in a court case, although the company argued that this breached the German Data Protection Act."

Wednesday, September 28, 2011

eDiscovery Trends: Sedona Conference Provides Guidance for Judges




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An article by Jason Krause posted on the eDiscovery Daily Blog.

The article states, "Last month, The Sedona Conference® made a public comments version of the Cooperation Proclamation: Resources for the Judiciary available on the Sedona Conference website. The Sedona Conference Cooperation Proclamation has set a non-trivial goal- to teach the profession to collaborate during the discovery process instead of the traditional gladiatorial style of litigation. The Resources for the Judiciary document aims to provide judges with a foundation for creating a collaborative and non-adversarial approach to managing eDiscovery."

The article provides a link the available resources on the Sedona Conference site.

The article states, "The Resources make the following recommendations:
  • Judges should adopt a “hands-on” approach to case management early in each action;
  • Judges should establish deadlines and keep parties to those guidelines (or make reasonable adjustments) with periodic status reports or conferences;
  • Judges should encourage the parties to meet before discovery commences to develop a realistic discovery plan;
  • Judges should encourage proportionality in preservation demands and expectations and in discovery requests and responses;
  • Judges should exercise their discretion to limit or condition disproportionate discovery and shift disproportionate costs;
  • If necessary, judges should exercise their authority to issue sanctions under the relevant statutes, rules, or the exercise of inherent authority on counsel or parties who create unnecessary costs or delay, or who otherwise frustrate the goals of discovery by “gaming the system”."
 
The author further points out, "The Sedona Conference has acknowledged that cooperation is contrary to the adversarial instincts lawyers have been taught, and that it will require a generational shift for the nature of litigation to change. But there is perhaps no better way to encourage lawyers to cooperate than to create and active and informed judiciary on eDiscovery issues."






Managing Information Risk and Archiving Social Media




http://ow.ly/6Hyfo

An article by Ben Kerschberg on Forbes.com

This article discusses the recent survey by Symantec, and also addresses the rise in requests for production of electronically stored information from social media networks.  As the article discusses, "Social media has changed the face of business. Whether in product marketing, consumer branding, customer relations, and/or human resources, the benefits of corporate social media are beyond dispute. Yet mounting evidence shows that the risks are, too. Last week, Symantec released the results of an independent survey of 2,000 global enterprises across a variety of industries with a minimum of 1,000 employees. (Symantec confirmed that “[t]he respondents do not represent any kind of grouping of former or current Symantec customers.”) The survey results speak to the heterogeneous nature of the types of electronically stored information (“ESI”) stored during legal proceedings. See Evan Koblentz, Symantec: Files, Databases Overtake Email in E-Discovery, Law Technology News (Sept. 19, 2011)."

The article goes on to discuss the plans to implement social media policies, "Only 30% of corporate respondents identified themselves as either having discussed or being in the process of discussing such a plan, with an additional 14% stating that they neither had nor intended to create such a plan."

The article goes on to address the need for policies to regulate, and also to archive social media ESI.  "Corporate giants such as Coke and IBM have posted their own policies online and can be the starting point for a solid, tailored policy. Yet creating a clear, defensible and enforced social media policy is just the start.

Current case law leaves little doubt that social media is discoverable in litigation. This raises the obvious question: How can companies archive social media the way they do email so that they can answer such requests? There are serious challenges to doing so properly."


P.S.  If you are interested in creating a policy to regulate social media use, please see Joe Bartolo's article at the link provided below, the conclusion of this article provides a link to a site with over 230 different corporate policies that are actually in use presently:

http://www.litigationsupporttechnologyandnews.com/2011/09/social-media-in-workplace-regulating.html

E-Discovery Sanctions May Be Entered and Have Consequences Long After Litigation Concludes




http://ow.ly/6Hv5a

An article by Jennifer A. Hradil published on the Gibbons E-Discovery Law Alert website.

This article discusses the case of Green v. Blitz U.S.A and uses it as an example of an instance where sanctions for eDiscovery violations can have long lasting impact, well beyond the one case they arose from.

As the article points out, "Over a year after the conclusion of the trial and entry of final judgment in Green, the court entered monetary and non-monetary sanctions against the defendant for its failure to adequately preserve and identify potentially relevant documents. Because the matter had closed, many of the non-monetary sanctions under Rule 37(b)(2) were not available. Accordingly, the court fashioned a creative non-monetary sanction requiring the defendant (1) to provide the sanctions opinion to all plaintiffs in any litigation against the defendant for the prior 2 years; and (2) to file the opinion with any court in any new lawsuit in which the defendant is a party for 5 years following entry of the opinion.

Like many opinions issuing sanctions for e-discovery violations, at first glance, Green appears to present somewhat extreme facts reflecting the defendant’s electronic discovery failures:
  • The defendant’s employee charged with the collection of relevant information testified that he was computer illiterate;
  • That employee did not perform any electronic search for emails or talk to the IT department in connection with his search;
  • No litigation hold directive was given to employees; and
  • Over the course of the relevant period, numerous emails were sent by the IT department instructing employees to delete old emails."
The article goes on to provide some guidance as to how to avoid sanctions, "While the facts giving rise to the defendant’s e-discovery failures seem extreme, Green provides valuable lessons for executing any e-discovery preservation and collection plan. For example, Green once again highlights the dangers of not having developed a litigation hold procedure and issuing an adequate litigation hold when appropriate. Likewise, while charging a computer illiterate employee with sole responsibility for discovery collection is an obvious gaffe, Greenshould nonetheless serve as a reminder that choosing appropriate personnel to work in conjunction with counsel is critical to a defensible collection plan. Finally, given the nature of the sanctions here, parties involved in repeated litigation should be aware that they could continue to face consequences from e-discovery violations even well after the conclusion of the litigation in which they occurred."

P.S.  As with many things in life, try to learn lessons through the mistakes of others, and do what you can to avoid making the same mistakes.




Social Network Warning – Employers Should Use Caution in Disciplining Employees for On-line Statements



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An article by H. Andrew Matzkin and Tyrone P. Thomas from Mintz Levin's Employer, Labor & Benefits newsletter. 

The article provides information regarding disciplining employees for comments made on the internet or social media networks, and states, "On-line postings of employees related to the workplace are of obvious interest to employers. However, there are risks to employers who discipline employees for posting statements relating to the conditions of their workplace."

The article cites some real examples of employees terminated for social network posts, and court rulings that required the reinstatement of those employees.  In addition, the article goes on to state, "Employers should also be aware that the National Labor Relations Act protects both organized and non-organized employees, and, among other things, protects the rights of all employees (whether or not unionized) to discuss and engage in other concerted activity relating to their working conditions. Indeed, the Hispanics United ruling serves as a notice to all employers that this will be a growing and continuing concern.

Employers should consult with their legal advisor on the content and application of their social media policies for compliance with federal and state labor laws. In addition, employers should exercise care before investigating or disciplining employees for comments published on social networking sites."


A New View of Review: Predictive Coding Vows to Cut E-Discovery Drudgery



http://ow.ly/6HjPw

An article by Joe Dysart published on the ABA Law Journal....with a date of October 1, 2011 (Wow....predictive coding truly is the future, since today's date is September 28, 2011)

This article provides ammunition to the argument that predictive coding technology is as accurate (if not more so) than traditional attorney review methods.  As the article states, "

There has been a long-standing myth in the legal field that exhaustive manual review is the gold standard, or nearly perfect, but that has been shown to be a fallacy,” says Maura R. Grossman, counsel at Wachtell, Lipton, Rosen & Katz in New York City. “Humans manually reviewing large numbers of documents for responsiveness make errors.

“Research has shown that, under the best circumstances, manual review will identify about 70 percent of the responsive documents in a large data collection. Some technology-assisted approaches have been shown to perform at least as well as that, if not better, at far less cost.”

In fact, Grossman recently released research (PDF link available in the article) with co-author Gordon V. Cormack, a computer science professor at the University of Waterloo in Ontario, that concluded software using a predictive-coding approach can do a better job of sifting through more than 800,000 documents than humans."

The article goes on to state, "But the technology’s use at law firms is still so new, many question its legal defensibility, although that mindset is beginning to change, according to Craig Carpenter, vice president of marketing at Recommind, a predictive-coding software provider based in San Francisco.

“What often happens is that both sides will essentially agree that one or the other or both will use predictive coding, and that that’s fine with both sides,” says Carpenter, whose firm licenses its software at $650 per gigabyte of data searched. “It doesn’t make it defensible, but it makes the potential defensibility not an issue at all.”

Perhaps the only worrisome facet in this new wave of search is that a machine is now promising to do the same work that was previously the realm of entry-level new hires. More than a few fresh-out-of-law-school types are probably wondering: Is predictive coding my friend, or should I stick a pencil in my computer fan?"

P.S.  Auto-Review and Predictive Coding technologies will continue to develop, and they are certainly not going away.

eDiscovery Trends: Economy Woes Not Slowing eDiscovery Industry Growth



http://ow.ly/6HiZQ

A blog post by Doug Austin from his blog eDiscovery Daily.

The article discusses recent surveys regarding trends in the eDiscovery market, and finds that eDiscovery continues to show growth as an industry.

The article states, "...according to a Market Research Report now available from IBISWorld.
As revealed in a press release announcing the report, revenue in the eDiscovery industry is growing at an annual rate of 5.6% over the last five years to an estimated $786.5 million in 2011. In line with a rebound in corporate profitability last year, eDiscovery industry revenue jumped 9.1% then and is anticipated to exceed the five-year average growth rate again this year, with an increase of 7.6%. As the press release notes, “[t]he copious amount of electronically stored information (ESI) has made e-discovery services resilient in the face of tough economic conditions”. In addition, 60% of law firms are planning on increasing their eDiscovery staff in the next 6 months, according to a survey of 45 AmLaw 200 firms conducted by The Cowen Group."

A link to the Cowen Group report is provided in the article, in addition to a link that will allow purchase of the IBISWorld report.

The article also states, "With corporate profit expected to grow at a rate of 7.3% annually over the next five years (to 2016), continued spiraling growth of ESI volumes and growing demand from the legal market, IBISWorld expects eDiscovery industry revenue to continue to rise at an average annual rate of 6.1% over those five years, to reach $1.1 billion by the end of 2016."

Doing Justice to Justice: e-Discovery Reform Part 3




http://ow.ly/6HgRh

A blog post from BLLAWG, at  blog.liquidlitigation.com.

The article provides information regarding recent efforts to limit the scope of eDiscovery requests in order to reduce costs.  As the blog post states, "The group Lawyers for Civil Justice published their opinions on current attempts at e-discovery reform and did not hold back their frustration. LCJ insists that the scope of required discovery must be greatly narrowed in order to start solving today’s extensive discovery problems."

The blog post goes on to state, "Lawyers for Civil Justice has proposed four ideas that they feel would greatly help the dire state of today’s e-discovery standards.
1. Limit the scope of discovery to non-privileged data that gives clear proof of a claim or defense.
2. Define categories and sources of electronically stored information (ESI) that can be exempted from discovery or considered “not reasonably accessible.”
3. Explicitly state discovery requirements in the proportionality rule.
4. Limit requests to 25 productions, 10 custodians, and a two year period prior to the complaint."

A concluding statement is offered as follows, "We can all agree that better defined discovery guidelines are in great need, but are 25 productions and two years of data enough to do all matters justice?"

P.S.  This writers of this blog feel that technological advancements will be the real solution to this issue.  The answer to concerns regarding eDiscovery productions is to address the attorney review costs, and to use technology to enhance the review process, and reduce the costs associated with the review...not limit the ability to find evidence that is relevant to the case.  While proportionality in discovery request should certainly play a factor, artificial caps on what evidence can be requested simply make no sense. 






Authenticity of Web pages under attack by hackers




http://ow.ly/6Hg1m

An article by Byron Acohido published by USA Today.

This article discusses a troubling trend, hackers are targeting companies that authenticate the validity of website pages.

The article describes this type of hacking incident as follows:  "Hackers cracked three companies that work with the most popular Web browsers to ensure the authenticity of Web pages where consumers type in sensitive information. The hacked firms are among more than 650 digital certificate authorities (CAs) worldwide that ensure that Web pages are the real deal when displayed by Microsoft's Internet Explorer, Firefox, Opera, Apple's Safari and Google's Chrome.
A hacker gained access to digital certificate supplier DigiNotar this summer and began issuing forged certificates for dozens of marquee companies."

The article further states, "Unable to cope with the fallout, the Dutch company filed for bankruptcy last week. Two other digital certificate companies, New Jersey-based Comodo and Japanese-owned GlobalSign, were similarly hacked this summer, exposing a glaring weakness in the Internet's underpinnings."

As the article further mentions, "The pressure is on CAs and browser makers to do more to identify and quickly eradicate counterfeit certificates and faked Web pages, security experts say. "No one knows where the next breach will occur," says Jeff Hudson, CEO of digital certificate management company Venafi."



Our Pleasure to Serve You: More Lawyers Look to Social Networking Sites to Notify Defendants




http://ow.ly/6HeHg

An article by Stephanie Francis Ward published by the ABA Journal.

This article discusses some instances in which service of process was permitted through the use of email, or via social media networks.  This is certainly an interesting use of technology.

The article states, "

While courts in Australia, Canada, New Zealand and the United Kingdom embrace electronic legal notice, it’s rare in the United States. Many state and federal statutes disallow electronic service of process, lawyers say.
In federal cases, some attorneys cite Federal Rule of Civil Procedure 4(f)(3), which allows service only for foreign defendants “by other means not prohibited by international agreement, as the court orders.”"

The author goes on to state, "In a 2002 case, the 9th U.S. Circuit Court of Appeals at San Francisco upheld a default judgment against Rio International Interlink, a Costa Rican gambling website that was served electronically after traditional methods failed. The trademark infringement action was brought by Rio Properties Inc., a Las Vegas hotel and casino.

The defendant, wrote Judge Stephen S. Trott, “had neither an office nor a door; it had only a computer terminal. ... When faced with an international e-business scofflaw playing hide-and-seek with the federal court, email may be the only means of effecting service of process.”"

The article offers opinions from various counsel regarding this development, and whether or not it makes sense.  One comment provided in the article is as follows: "Adam C. Losey would like to see courts take that a step further, and in 2009 he co-wrote a Federal Courts Law Review article advocating domestic electronic service of process.

“You would be surprised at how many people evade service but update their Facebook profile on a near daily basis,” says Losey, a Foley & Lardner associate who practices out of Orlando, Fla., and New York City.

“A lot of the way the law works in giving notice to parties is just tethered to antiquated ways of communication that no one uses anymore,” says Losey, who wrote the article with retired U.S. Magistrate Judge Ronald J. Hedges and lawyer Kenneth N. Rashbaum of New York City’s Rashbaum Associates."

P.S.  What do you think?  Should someone be allowed to serve legal papers via Facebook?

Health Care Organizations Underprepared to Secure Patient Data: PwC




http://ow.ly/6HdEo

Article by Brian T. Horowitz appearing on eweek.com

The article provides information regarding a recent health care report from consulting entity PWC.  The report provides some troubling findings, "Consulting firm PwC's Health Research Institute has come out with a report revealing that health organizations are underprepared to secure patient medical information."

This article goes on to state, "The report, "Old Data Learns New Tricks: Managing Patient Privacy and Security on a New Data-Sharing Playground," shows that despite advances in electronic health records (EHRs) software and security technology, health care organizations have yet to adopt privacy measures on a large scale.
For the survey, PwC interviewed 600 executives from hospitals, physician practices, health insurers and pharmaceutical and life science companies.
Only 58 percent of providers and 41 percent of health insurers train employees on privacy measures for EHRs, PwC reports."

The article states that health providers have invested more in HIPAA compliance than they have in I.T.  However, the article does state the following:  "Despite health care organizations being underprepared, advances in access controls, encryption and monitoring related to EHR application development are happening faster than in other industries..."

Some further statistics are cited in the article regarding issues that deal with the security of health information, such as, "A big security issue for respondents was insiders improperly accessing health data. Over the last two years, 40 percent of providers surveyed reported a breach due to insider snooping or sharing of information. These incidents can include chatting in an elevator or through social media.
In addition, health care organizations are grappling with how to handle security on mobile devices such as iPads, with 55 percent of respondents of health care firms not formulating plans for security on mobile devices.
PwC also revealed that 74 percent of health care organizations plan to share patient data externally for studies and development of new products, but only 17 percent of providers, 19 percent of payers and 22 percent of pharmaceutical and life sciences companies have developed a process to allow patients to consent to the disclosure.


Tuesday, September 27, 2011

N.J. Company Faces Sanctions Over Failed Litigation Hold




http://ow.ly/6GMWS

An article by Mary Pat Gallagher published by the New Jersey Law Journal and appearing on law.com on the LTN webpage.

The article describes a situation in which a corporation was sanctioned for failing to preserve information.  As the article states, "A party that destroyed potential evidence after its lawyers at Pashman Stein failed to impose a litigation hold and left it to the company's nonlawyer CFO to sort out what was relevant has been slapped with spoliation sanctions.

In a ruling on Wednesday, District Judge Esther Salas found that N.V.E., an Andover, N.J., nutritional supplement company, did not destroy records deliberately but was grossly negligent in failing to preserve them."

The article goes on to provide some further information about this situation, "Pashman Stein failed to oversee the discovery process, leaving Jensen "responsible for not only gathering the documents to produce in discovery but making relevance calls without the assistance of counsel," Salas said, adding she was "extremely surprised to learn that Mr. Jensen has received no assistance from counsel, nor has any counsel from Pashman Stein visited N.V.E. over the five years this litigation has been pending to review any documents.""

The article provides some specifics about what information was lost, and when.  In addition the article states, "Aidan O'Connor of Pashman Stein says N.V.E. is considering asking for reconsideration or an interlocutory appeal. "I don't think anyone could have predicted that we would not be able to get into our old computers," he says. He also notes that Palmeroni never took N.V.E. up on its offer that he could hire an expert to try to access the data.

He says that since the case was filed there's been a "sea change" in the law regarding litigation holds, which are "now done as a matter of course."

Palmeroni's counsel when the spoliation motion was filed, Westfield solo Fred Shahrooz Scampato, says, "if you represent a company that's being sued or bringing a lawsuit, you have an obligation to issue a litigation hold letter.""

P.S.  If you are concerned about best practices for litigation hold, SRM Legal can provide some technological options that can assist with this process.



E-Discovery Attorney Says Preserve to Protect: Onsite Coverage




http://ow.ly/6GMyK

Article by Mark Rapport appearing on the Credit Union Times website.

This article discusses a recent presentation provided by eDiscovery attorney Gregory Johnson, which was delivered to the CUNA Operations & Service Council/CUNA Technology Council at a conference in San Antonio.

The article states, "Johnson’s talk included a number of practical tips, such as a reminder that copy machines have hard drive memories and they should be erased before leased machines are turned in, and he especially drove home the point that not being transparent with attorneys for both sides about what’s available can be costly."

In addition, the article goes on to say, "he (Johnson) tells his clients to “preserve, preserve, preserve, and tell me about it. We can always fight later about what we’re going to give to the other side. But they have the right to know it exists.”

The best defense is a good defense, he added. Credit unions should have very clear policies about employee use of company computers, and they need to be as concerned about inside jobs as outside hackers."

AN E-DISCOVERY MODEL ORDER (for Federal Patent Litigation)




http://ow.ly/6GrrI

This link is to an attachment that is available for downloading, and the file is a model order generated by a recent eDiscovery committee meeting.  The model order is meant to provide guidelines for dealing with eDiscovery associated with patent litigation.

The committee members listed on the model order are as follows:

E-Discovery Committee
Chief Judge James Ware (ND Cal)
Judge Virginia Kendall (ND Ill)
Magistrate Judge Chad Everingham (ED Tex)
Chief Judge Randall Rader (Fed. Cir.)
Tina Chappell
Richard “Chip” Lutton
Joe Re
Edward Reines
Steve Susman
John Whealan

As the Model Order states, "...this Model Order requires a discovery process whereby the partiesexchange core documentation concerning the patent, the accused product, the priorart, and the finances before making email production requests. Moreover, emailproduction requests should be focused on a particular issue for which that type of discovery is warranted. Much as Federal Rule of Civil Procedure  presumptively limits cases to ten depositions and seven hours per deposition, this Model Order presumptively limits the number of custodians and search terms forall email production requests."



Predictive Coding: E-Discovery Game Changer




http://ow.ly/6Gf61

An article by Melissa Whittingham, Edward H. Rippey and Skye L. Perryman of Covington Burling  published by the EDDE Journal.

The article defines predictive coding, and discusses the manner in which it is used.  As the author's state,

“Predictive coding” refers generally to the use of automation to manipulate ESI during any stage of ediscovery. The technology is also known by such other names as automated document review,
automated document classification, automatic categorization, predictive categorization, and predictive
ranking. Predictive coding software, often used in conjunction with traditional early case assessment
technologies, presents the possibility to increase rates of document review — in turn dramatically
reducing review costs. "

The article goes on to state, "Although linear document review — in which individuals manually review and code documents ordered by date, keyword, and the like — has long been the accepted standard, this approach has become costly and, in many cases, inefficient given the exponential increase in ESI."

The article also addresses some further issues that pertain to the use of predictive coding, such as: volume based discounts for the service; getting what you expect; and providing safeguards in conjunction with the use of such techniques and technology.

This article is well documented, and is worth reading if you are already using such technological solutions, or considering using predictive coding as a component of your workflow.


Text Message, Email, and Social Media Authentication



http://ow.ly/6G2KL

An article by Philip K. Miles, III on lawfficespace.com website.

This article discusses the important topic of authentication of electronically stored information as evidence in litigation.  The article discusses a case in which the evidence offered was deemed to have been inadmissible since it was not properly authenticated.

"Earlier this month, the Superior Court of Pennsylvania addressed the authentication of text messages in a criminal case, Com. v. Koch, 2011 WL 4336634 (Sept. 16, 2011). As a matter of first impression, the Court held that text messages on the defendant's cell phone were not properly authenticated."

As the article states, "The Court specifically noted in its analysis:

[T]he difficulty that frequently arises in e-mail and text message cases is establishing authorship. Often more than one person uses an e-mail address and accounts can be accessed without permission. In the majority of courts to have considered the question, the mere fact that an e-mail bears a particular e-mail address is inadequate to authenticate the identity of the author; typically, courts demand additional evidence."

The author goes on to state, "I don't think I'm making too much of a leap here to suggest that authentication of social media may require more than just, "it came from your account" too. "

This will be an issue to watch, as procedures become more developed as to how to properly authenticate electronically stored information that comes in text form, email form or from social media posts.







Monday, September 26, 2011

The Shadow Knows



http://ow.ly/6FCBC

An article by Craig Ball, Esq. on his blog Ball in Your Court.

This article discusses the fact that deleted data on a hard drive is sometimes recoverable.  As the author writes, "“You can get anything back from a computer, can’t you? Even the deleted stuff!”

I get that that a lot, and tend to respond, “Pretty much.” My lawyer side wants to add, “but it depends.”"

The article discusses a recent development by Microsoft, "Microsoft has been gradually integrating a feature called Volume Snapshot Service (a/k/a Volume Shadow Copy Service) into Windows since version XP".

The article goes on to state, "Volume shadow copies are old news to my digital forensics colleagues, but I suspect they are largely unknown to the e-discovery community. Though a boon to forensics, volume shadow copies may prove a headache in e-discovery because their contents represent reasonably accessible ESI; that is, much more potentially probative evidence that you can’t simply ignore. So, for heaven’s sake, don’t tell anybody."

The author goes on to point out, "What you need to know now is that much of what you might believe about file deletion, wiping and even encryption goes out the window when a system runs any version of Windows 7 or Vista Business, Enterprise or Ultimate editions. Volume Shadow Copies keep everything, and Windows keeps up to 64 volume shadow copies, each made at (roughly) one week intervals for Windows 7 or daily for Windows Vista. These aren’t just system restore points: volume shadow copies hold user work product, too."

P.S.  Deleted often doesn't mean "gone".

A Bit About Data Mapping




http://ow.ly/6F13b

An article by Craig Ball, Esq. appearing on his blog Ball in Your Court.

This detailed article discusses a webcast that Craig Ball, Esq. recently conducted regarding data mapping.  The author provides some significant information regarding the process of data mapping, including defining what it is, and offering insight into how to properly perform the function.

Mr. Ball points out, "I use “data mapping” to describe methods used to memorialize the identification of ESI–an essential prerequisite to everything in the EDRM east of Information Management. Of course, like Nessie and Bigfoot, Information Management is something many believe exists but no one has ever actually seen. Consequently, identification of ESI, viz. data mapping, is the de facto entry point for all things e-discovery."

The author further states, "Unless created expressly for e-discovery, few companies have any diagram approaching what’s required to serve as an EDD data map. Neither network diagrams from IT nor retention schedules from Records and Information Management are alone sufficient to serve as an EDD data map, but they contribute valuable information; clues, if you will, to where the ESI resides."

There are some logical points of concern pointed out by the author, such as "The duty to identify ESI is the most encompassing obligation in e-discovery. Think about it: You can’t act to preserve sources you haven’t found."

Some additional tips provided by the author are as follows:

"Creating a competent data map is also akin to compiling a history of:

  • Human resources and careers (after all, cases are still mostly about people);
  • Information systems and their evolution; and
  • Projects, facilities and tools.

A data map spans both logical and physical sources of information. Bob’s e-mail is a logical collection that may span multiple physical media. Bob’s hard drive is a physical collection that may hold multiple logical sources. Logical and physical sources may overlap, but they are rarely exactly the same thing.
  1. As needed, a data map might encompass:
  2. Custodian and/or source of information;
  3. Location;
  4. Physical device or medium;
  5. Currency of contents;
  6. Volume (e.g., in bytes);
  7. Numerosity (e.g., how many messages and attachments?)
  8. Time span (including intervals and significant gaps)
  9. Purpose (How is the ESI resource tasked?);
  10. Usage (Who uses the resource and when?);
  11. Form; and
  12. Fragility (What are the risks it may go away?).
This isn’t an exhaustive list because the information implicated changes with the nature of the sources being inventoried. That is, you map different data for e-mail than for databases."

The article provides some additional tips and suggestions.  In addition the author provides 3 key points to address:
  • Accountability is key every step of the way
  • Where you start matters less than when and with whom
  • Just because your data map can’t be perfect doesn’t mean it can’t be great.
If you are interested in this topic, this article is certainly worth reading, as Mr. Ball's articles generally are.




Email Fingered As Main Source Of Data Leaks



http://ow.ly/6EOxL

Article by Fahmida Y Rashid posted on eweekeurope.co.uk

This article discusses the fact that email was recently cited in a survey as the main source of data breaches.

The article states, "A recent Ponemon Institute report has blamed email systems as the main source of data leakage within an organisation.

In a survey of 830 information technology, security and compliance professionals, more than half of the respondents said improper email use by employees is the main cause of data leaks within the organisation, the Ponemon Institute said 20 September."

There is a link in the article to the study that is referenced.

The article goes on to further point out some interesting trends from the study, "Approximately 69 percent said employees have violated security policies and frequently send sensitive information through insecure email channels, and 60 percent use personal Webmail accounts to send corporate information, the survey found. About 63 percent believe employees mistakenly send confidential information to recipients outside the workplace.

In addition, 70 percent of the compliance and security professionals surveyed are concerned about data lost via email on mobile devices."

In addition, another very interesting, and concerning statistic is provided, "On average, 75 percent of an organisation’s intellectual property is in an email or an attachment, the researchers estimated."

Don't fear the Patriot Act says Microsoft lawyer - (US Govt can get data without it)




http://ow.ly/6ENME

An article by Stephen Bell posted on computerworld.co.nz.

As the article states, the U.S. will seek to access data, regardless of the Patriot Act...which has recently been cited as a reason for concern about the U.S. accessing data in foreign nations.

"Microsoft’s Australasian legal chief says there is nothing to fear from the Patriot Act when considering a move to cloud-based services, because the US government can access your data regardless.

The Patriot Act has been cited as a reason for caution when considering cloud computing using providers in the United States. Some fear that this law, passed in the wake of the September 11 2001 terrorist attacks, could permit US government agencies to access their private data if it is stored at a datacentre in the US.

Lawyer Jeff Bullwinkel – associate general counsel and director of legal and corporate affairs at Microsoft Australia and New Zealand – in a recent blog, says there is no reason to fear the Patriot Act specifically. However, his comments are scarcely a reassurance. The US government can access your data with or without the Patriot Act, he says."

Bullwinkel is further quoted, "US courts have long held that a company with a presence in the US is obligated to respond to a valid demand by the US government for information – regardless of the physical location of the information – so long as the company retains custody or control over the data.”"


The article goes on to further state, "New Zealand Computer Society CEO Paul Matthews, who is coordinating moves towards a cloud-computing code of practice in New Zealand, agrees with Bullwinkel’s analysis.
“The issue of data sovereignty and cross-border jurisdiction, which is really what we’re talking about here, is a very significant one and the clients that Mr Bullwinkel writes about are raising very valid concerns,” he says in an email to Computerworld.""




Sunday, September 25, 2011

Sanctions: Allied Concrete attorneys want $900K in legal fees



http://ow.ly/6E67R

Article by Lisa Provence on the readthehook.com website.

This article discusses a case in which an attorney advised his client to "clean-up" his Facebook page after receiving a discovery request.  The author states, ""Don't worry about sanctions," attorney Matt Murray wrote in an email to his client, Isaiah Lester, which was read in opening and closing statements by opposing counsel. "If we get sanctioned, after the trial, you'll have plenty of money to pay it.""

As the article states, "On March 26, 2009, according to the judge's order, Murray came up with a scheme to take down or deactiviate Lester's Facebook account so that he could respond that he had no Facebook page on the date the discovery request was signed.

When defense attorneys filed a motion to compel, Murray instructed Lester to reactivate the account. But in a December 16, 2009, deposition, Lester denied deactivating the account.

Murray is also accused of withholding the email from Smith instructing Lester to clean up his Facebook page when he was ordered to produce it shortly before the trial began. Murray falsely claimed after the trial that the omission was the paralegal's mistake, according to the court order."

There is now an unresolved dispute regarding the attorney fees that are being sought to support the motion for sanctions, and if the fees are reasonable.  The defense counsel is seeking that the sanctioned plaintiff's attorney pay for their attorney fees, and the fees are alleged to be excessive by the opposing attorney.


P.S.  Don't play games with discovery requests seeking production of ESI.
 

"First Impression" Ruling: Court May Review the Rationality of Emails Sent By GAO Attorneys



http://ow.ly/6E5zy

Article written by Townsend L. Bourne appearing on natlawreview.com website.

This case addresses a case of first impression involving review of emails.  The author states, "
In Systems Application & Technologies, Inc. v. United States, No. 11-280C (Fed. Cl. August 25, 2011), the Court of Federal Claims addressed an “issue of first impression” – whether the court can review an email message from a Government Accountability Office (“GAO”) attorney in the same way that it reviews a formal GAO decision. In this instance, the court determined that the answer was "Yes.”"

A GAO attorney had sent an advisory email in this matter, and corrective action was taken based on that email, this fact had influence in the court's decision to review the email.  "In this case, because there was no formal GAO decision, and citing its “broad mandate to entertain bid protests and review government procurement decisions,” the court held that it could review the email from the GAO attorney in order to determine its rationality. It could review the email, however, “only because the Army relied upon the message” when deciding to take corrective action."

Of additional interesting note, "The court found that conclusions contained in the GAO attorney’s email regarding the timeliness of the initial protest and alleged deficiencies in the source selection decision were irrational and, thus, the Agency’s decision to take corrective action lacked a rational basis. In the alternative, the court held that the Agency’s corrective action decision was irrational even if it was not based on the email from the GAO attorney. This was true because the court determined that “the source selection decision was a rational exercise of the Army’s discretion” and so taking action to correct the source selection decision was unreasonable. Hence, apart from its “first impression” ruling, the Systems Application decision also is noteworthy due to the fact that the court has sustained challenges to proposed Agency corrective action in only a handful of cases over the past ten years."




Saturday, September 24, 2011

Technology: Reduce your risk of e-discovery sanctions by 80 percent



http://ow.ly/6DUjE

Article by Patrick Zeller published by insidecounsel.com

This article provides insight on how to reduce the risk of sanctions for eDiscovery violations.  As the author states, "

To determine whether such sanctions are warranted, courts have used the following test:

1. Whether the party had an obligation to preserve the evidence at the time it was destroyed

2. Whether the evidence was destroyed with a “culpable state of mind”

3. Whether the destroyed evidence was “relevant” to the party’s claim or defense (Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 430 (S.D.N.Y. 2004))

Therefore, if a party has a defensible, repeatable process to collect and preserve potentially relevant information from getting destroyed once the duty to preserve arises, it will substantially reduce or eliminate its potential risk for sanctions. The most prevalent sanctionable conduct related to e-discovery is the failure to preserve ESI."

The author goes on to advise, "It’s important to keep in mind that whoever does your ESI searches and collections will need to testify, so ensure that they have the necessary training and certifications (some well-established certifications include the EnCE and EnCEP). Second, you need an in-house process with early case assessment (ECA) capabilities.

Specifically, these ECA capabilities should allow you to test, search and sample keywords, file types, dates, times and other criteria before you collect data. A true pre-collection ECA capability also will allow your lawyers to collaborate with IT professionals to determine what data they truly need to collect. Doing so will allow you to test and sample your environment, and it will better arm your lawyers for their meet-and-confer conference with opposing counsel.

Third, your in-house process needs to search, collect and preserve ESI without altering any metadata."

This article provides a nice overview of some means which can be employed to ensure that the eDiscovery process you are following is relying on established best practices.

Social Media: the Next eDiscovery Elephant in the Corner – Electronic Discovery



http://ow.ly/6DDRc

An article from electronicdiscoveryinfo.com written by jcscholtes.

This article discusses the increased importance of social media to eDiscovery processes.  More social media electronically stored information is being requested in litigation, and eDiscovery services will have an increased need to be able to process such data.

As the article states, " In a recent survey by the Enterprise Strategy Group (ESG) 41% of the questioned legal professionals indicated that identifying and collecting from new data sources as SharePoint and the cloud is challenging. In short, social media composes new challenges for both IT and legal departments."

The article also mentions that Gartner estimates that social media will be subject to eDiscovery requests for 1/2 of existing corporations by the close of 2013.

Some of the startling numbers provided by the article are as follows:
  • In 2009 already two-thirds of the world’s internet population visited social networking or blogging sites
  • Social media accounts for one in every six minutes spent online
  • Last year Americans spend a third of their online time (36 percent) communicating and networking across social networks, blogs, personal email and instant messaging, and that number is rapidly growing
  • In February 2011 the average number of Tweets people sent per day, was 140 million. On March 11 of that same year it was 170 million and the number is still growing
  • Facebook has more than 750 million active users. 50% of their active users log on to Facebook every day
  • The US houses 114.55 million, the Netherlands 6.30 million, Germany 18.81 million and the UK 19.27 million active social networkers 
  • “750 million photos were uploaded to Facebook over New Year’s weekend 2011”
The article also references some laws that impact the use of social media, "As an employer there are some laws you need to consider, especially when using social networks in the recruitment process.

  • The Information Commissioner’s Office (ICO) has not issued specific guidance on the use of online profiles to inform recruitment decisions. There are recommendations like “give the applicant an opportunity to make representations should any of the checks produce discrepancies” .
  • Data Protection Act (DPA): in the US, some states have laws protecting employees’ legal off-duty activities and political activities or affiliations.
  • Section 7 of the National Labor Relations Act protects employees who engage in “concerted activities” that includes the right to discuss the terms and conditions of employment with colleagues and outsiders. 
  • Federal and state whistleblower laws protect employees who complain about misconduct and potential securities fraud violations."
As the author states, "It is clear that data in social networks are the next elephant in the corner. After having dealt with exponential data volumes, email and multimedia in the past years, there is a new dimension to records management and eDiscovery: not only do we have even more data than ever, we also no longer have control over that data within our secure corporate networks: it is now in the cloud, which basically that means it is everywhere and nowhere and we no longer own the data! Implementing eDiscovery and records management will be an even bigger challenge!"


P.S. You can read Joe's article on this topic, it provides a link at the end of the article to a social media database that shows over 230 corporations social media use policies: http://www.litigationsupporttechnologyandnews.com/2011/09/social-media-in-workplace-regulating.html

The Difference Between Virtualization and Cloud Computing




http://ow.ly/6DDom

Article by Chris Brenton on the Cloud Passage Blog.

This article provides information on the differences between virtualization and Cloud computing.

As the article states, "Virtualization, at its core, is the ability to emulate hardware via software. If we walk through the system initialization processes, some form of operating system still needs to be booted from the hardware. This may be a full blow OS such as Linux or Windows, or it may be a stripped down OS specifically designed to provide virtualization, such as VMware’s ESXi (which is a stripped down Linux operating system). In either case an operating system is first booted and then an emulation software stack is loaded which is referred to as a “hypervisor”.

The hypervisor is the component which is responsible for emulating specific hardware configurations to guest operating systems."

The article provides a description of cloud computing as well, "...a cloud maximizes the efficiency of a resource by spreading it out over multiple consumers. For example let’s say that you and five of your neighbors determine you only actually need a car for two hours a day. If you each buy your own car, you will have purchased six cars total and each will spend an overwhelming majority of its time sitting in the driveway idle. If you all chip in on a single car however, you each spend 1/6th as much, and if schedules align you each still have a vehicle available for the required two hours per day. This is essentially how resource pooling works in cloud computing, except the shared resources are CPU’s, hard drives, network access, etc. rather than automobiles."

The article also discusses the intersection between the two, "So how does virtualization and cloud fit together? Virtualization simplifies the process of sharing computer resources. Cloud computing needs to be able to share resources in order to improve efficiency and reduce costs. This makes the two technologies a natural fit to work together. Virtualization increases the efficiency of hardware utilization, while cloud adds a layer of management so that VMs care be created, scaled and torn down as required. This is why a majority of today’s cloud solutions are built on virtualization technology."

To further illustrate the point the author states, "A good analogy is home building. Most houses are built on top of basements. They are great for storage as well as expanded living space. Basements are certainly not a requirement of house building however as many homes are built on slabs or even stilts. So while it can be argued that using a basement results in a better house, it is not a prerequisite to building a home. Think of cloud (house building) and virtualization (basement) in the same light and you’ll get the idea."