FTC expected to take antitrust action against Intel

Feds said to be 'devoting tremendous time, effort' to building a case

With New York filing antitrust charges against Intel Corp. this week, industry watchers say the Federal Trade Commission will join the fray against the chip maker, maybe even before the end of the year.

N.Y. Attorney General Andrew Cuomo leveled the state's suit against Intel on Wednesday, adding one more log on the legal pile for Intel, which has been dealing with related legal issues in the U.S., Europe, Japan and Korea.

This latest suit piggybacks on a lawsuit filed by Intel's biggest rival, AMD, in U.S. District Court in 2005, and expected to go to trial this coming spring.

But industry analysts say if the FTC launches its own legal attack against Intel, it will be a whole new ball game for the chip company.

"It wouldn't surprise me to see the FTC jump into the fight with an antitrust action of their own against Intel, if only so that they don't look like they're being lazy in the face of actions from the European Union and now New York," said Dan Olds, principal analyst with The Gabriel Consulting Group.

"If this happens, it could result in a very long, drawn out legal battle that could make WWI trench warfare seem quick and efficient by comparison," he said.

Rumors started circulating on Wednesday that Cuomo's office had been in talks with the FTC before it filed its own charges this week.

John Balto, a former policy director at the FTC and currently a senior fellow at the Center for American Progress, told Computerworld that the FTC has been working long and hard on a case against Intel. He contends the FTC probably will seek an injunction against the company, and that there's a good chance it would come in the next few months.

"I know the FTC is devoting a tremendous amount of time and effort to this,"Balto said. "I think we can look forward to the FTC filing an action that would be much more significant than those brought by AMD and the New York Attorney General."

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Source: Computerworld

By: Sharon Gaudin

Employee Leaving? Are You Sure Your Data Isn't Going With Him?

You are familiar with the scenario: one of your employees leaves to go work for a competitor, but before he goes, he copies confidential information for use at his new job. While the scenario may not have changed much, the means of obtaining the information has.

The days of photocopying documents and sneaking out the door with hard copies are long gone. Most information is now available electronically, and large amounts of data can be copied efficiently and discreetly via computer. The good news is that in many instances, accessing information electronically leaves a distinct trail for a former employer to follow. The bad news, though, is that if the proper steps are not taken, this trail can quickly be lost.

In fact, in many cases, simply doing nothing can result in valuable information being lost forever. There are a number of pitfalls to avoid when building a case against a former employee who you believe has taken your confidential information.

To begin with, there are some inadvertent pitfalls to avoid. The root of the problem is that most HR and IT personnel, while good at what they do, are not trained in computer forensics and the steps necessary to build a case through computer evidence. Oftentimes, building a case against a former employee rests on proving that he or she copied or deleted certain confidential company information. An overzealous company representative trying to find evidence of misconduct can actually do more harm than good, including inadvertently altering the evidence.

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Source: law.com
By: Carl J. Rychcik

Microsoft raises cloud computing concerns

Packaged software powerhouse Microsoft on Thursday released a paper outlining privacy concerns businesses should consider prior to leaping into the computing "cloud."

Shifting to software being hosted online as services in the Internet "cloud" brings enormous economic potential as well as serious questions about protecting data, according to Microsoft.

Companies should know where their data is sitting in the cloud and be guaranteed that they dictate who accesses it and when, according to Microsoft.

"We want to take the initiative in regard to our position on privacy in the cloud," Microsoft senior director of privacy strategy Brendon Lynch told AFP.

Microsoft released a "white paper" on the issue in conjunction with an International Conference of Data Protection and Privacy in Madrid.

"Cloud computing does raise a number of important policy questions concerning how people, organizations, and governments handle information and interactions in this environment," Microsoft said in the paper.

"Privacy protections are essential to building the customer trust needed for cloud computing and the Internet to reach their full potential."

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Source: news.google.com

Archiving to the cloud

Archiving to the cloud

The anticipated new Companies Act and the release of the King III report represent milestones in the evolution of corporate governance in SA. They also underline the need for sound governance practices and highlight the numerous practical benefits that organisations can realise if they integrate such practices into their operational processes.

One such process is accurate, reliable and secure record keeping, which is expected to be enshrined in new 'e-discovery' laws in the Act. This comes as the overall level of digital information growth spirals to more than 50% year-on-year, driving the need for more storage.

Many organisations have adopted a mandate to save everything 'just in case', resulting in them keeping every record, report and e-mail, including unused data. Stretched IT budgets and reduced staffing levels threaten to undermine this approach and compromise the ability to reliably access critical historical business data when required.

Perhaps it is fortuitous that technology is currently driving new data storage strategies, one of which is to lower the cost of inactive data typically stored in high-end storage arrays, by archiving it to lower cost storage.

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Source: itweb.co.za
By: John Hope-Bailie

Attorney-Client Privilege in Work E-Mails

There are now several decisions determining whether employees can retain attorney-client privilege for e-mails sent to their lawyers using their employer-provided e-mail addresses and computers -- reaching apparently inconsistent conclusions. This article compares and seeks to reconcile the cases, and to assist lawyers in advising clients on how to avoid the risks that such communications pose. The first of these cases, Scott v. Beth Israel Medical Center Inc., 2007 WL 3053351 (N.Y. Sup. Oct. 17, 2007), was previously featured in an article in this column ("Abusive Litigation Tactics and Loss of Privilege," March 3, 2008), but is revisited here because a New Jersey court recently reached a diametrically opposite conclusion on quite similar facts, in Stengart v. Loving Care Agency Inc., 973 A.2d 390 (N.J. Super. A.D. July 29, 2009). The article also reviews other recent decisions in the same general subject area.

Scott v. Beth Israel involved a breach of contract action arising from the defendant's termination of the plaintiff doctor's employment, in the course of which certain e-mails between the plaintiff and his lawyer came into the possession of the defendant, because they had been transmitted utilizing the defendant's e-mail system.

The plaintiff asserted that the e-mails were protected under the attorney-client privilege and under the work-product doctrine. The defendant argued that the communications could not be privileged because they were not made in confidence. The defendant's position was based on the fact that the communications were subject to the defendant's e-mail policy, which was known to the plaintiff and to all employees of the defendant. The policy in question stated:

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Source: Law.com
By: Anthony E. Davis

RocketLawyer CEO Talks Privacy, Compliance in the Cloud

Lora Bentley spoke with Charles Moore, CEO of RocketLawyer.com, about how cloud computing is changing the practice of law -- allowing increased efficiency and decreased cost to clients. He notes that maintaining compliance and privacy in a cloud computing situation is actually easier than it was in the past when the only hosted apps anyone used were e-mail systems.

Bentley: Tell me about RocketLawyer. What does it offer?
Moore: RocketLawyer.com really enables ordinary consumers and small business owners to use the cloud to do legal work on their own without a lawyer, and at the same time, to find a lawyer when they need one.

The lawyers featured on RocketLawyer.com are solo practitioners or small firm lawyers from different parts of the country. We have profiles from about 90,000 attorneys who are available to help consumers and small business owners with their legal issues -- online. Most of the services provided by the lawyers are provided online, without any need to physically visit the lawyer's office. It's really a virtualized law practice environment.

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Source: itbusinessedge.com
By: Lora Bentley

Commentary: Shift happens: Cloud computing (and why you should care)

While most technologies advance the state of best practices incrementally, there are some advances that are genuine game changers.

These changes create a paradigm shift that rattles the accepted norms of how computing systems are created and deployed. Smart phones, 3G and cheap laptops have all changed the way we work each day. Now cloud computing seems poised to have a seismic impact on the perceptions and expectations of any individual or business using any sort of software.

While the entire scope of what comprises “cloud computing” is still a perfectly good subject for debate, there are some workable definitions that give it some shape. The National Institute of Standards and Technology defines cloud computing technologies as those sharing the common characteristics of (a) being on-demand services that (b) are available from anywhere, (c) achieve economies of scale through shared resource pools, (d) are scalable on demand according to the needs of the customer, and (e) are metered or subscription based services.

The cloud technologies break down into three primary delivery models: Software-as-a-Service (SaaS), Platform-as-a-Service (PaaS) and Infrastructure-as-a-Service (IaaS).
Software-as-a-Service

SaaS applications form the “visible” outer edges of cloud computing. You’ve already used SaaS applications if you’ve used Google Docs or Gmail. Unlike traditional desktop applications that are installed on your computer, SaaS applications are delivered through a web browser and don’t have to be installed to use them. It doesn’t really matter where the web front-end and the supporting back-end services are, as long as they are available any time, from anywhere.

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Source: wislawjournal.com
By: Ron Phillips

Am Law Tech Survey 2009

CIOs are trying to persuade their reluctant bosses to consider more cost-efficient, cutting-edge tools

Like a bad Hollywood thriller, law firm technology has a villain that's all too easy to spot. The economic downturn has -- to no one's surprise -- taken a toll on the coffers of law firm IT departments: Fully one-third of the 110 Am Law 200 firms participating in our fourteenth annual survey of technology directors reported that their capital budgets were down more than 10 percent this year. Staffing levels and salaries have taken hits, and equipment purchases and software upgrades have been put off. None of it is happy news. (Access all the charts in our survey from the links below.)

"When I proposed a budget similar to last year, it was clearly communicated [by the firm's technology committee] that it went beyond what the firm wanted to spend on the capital side, by 30-40 percent," says a law firm technology director who asked not to be identified. "So we had to go back and ask ourselves what we could live without for another year. We might get better performance on [Microsoft] Exchange 2007, but we were going to stay on Exchange 2003. We weren't going to spend money on new BlackBerrys. We made conscious choices not to do certain things."

But the recession is also forcing firms to look at new technologies that are more nimble and cost-effective. Law firms have never been known for embracing cutting-edge gear or still-in-progress technologies. Indeed, if you want to find the world's last user of Windows 95, a law firm is a good place to start. But that's changing. Budget constraints and demands for efficiency are prodding firms to rethink how they do things.

"Probably the biggest trend I'm seeing is firms looking to control costs by leveraging IT spending," says Daniel Gasparro, chief information officer and executive director of firm operations at Howrey. "This is being accomplished by weeding out those things that are used by one or two people, or [dropping] a solution that provides the same functionality as something else." Howrey, he says, is also decreasing the number of vendors it uses. "Previously, we had several hundred. By moving to fewer, bigger vendors, I can get 20-30 percent savings." Indeed, Howrey has put so much emphasis on its paring-and-pairing strategy that in February 2008, it set up a global procurement group to manage, and optimize, vendor relationships, contract costs and payment schedules -- not just for IT but in areas including travel and research services. Savings in the first year amounted to $1.8 million, of which IT accounted for $1.1 million. "Most businesses outside law firms [have an office like] this," says Gasparro. "We [too] need to find more efficient ways to deliver IT."


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Source: law.com
By: Alan Cohen

CIOs are trying to persuade their reluctant bosses to consider more cost-efficient, cutting-edge tools

Like a bad Hollywood thriller, law firm technology has a villain that's all too easy to spot. The economic downturn has -- to no one's surprise -- taken a toll on the coffers of law firm IT departments: Fully one-third of the 110 Am Law 200 firms participating in our fourteenth annual survey of technology directors reported that their capital budgets were down more than 10 percent this year. Staffing levels and salaries have taken hits, and equipment purchases and software upgrades have been put off. None of it is happy news. (Access all the charts in our survey from the links below.)

"When I proposed a budget similar to last year, it was clearly communicated [by the firm's technology committee] that it went beyond what the firm wanted to spend on the capital side, by 30-40 percent," says a law firm technology director who asked not to be identified. "So we had to go back and ask ourselves what we could live without for another year. We might get better performance on [Microsoft] Exchange 2007, but we were going to stay on Exchange 2003. We weren't going to spend money on new BlackBerrys. We made conscious choices not to do certain things."

But the recession is also forcing firms to look at new technologies that are more nimble and cost-effective. Law firms have never been known for embracing cutting-edge gear or still-in-progress technologies. Indeed, if you want to find the world's last user of Windows 95, a law firm is a good place to start. But that's changing. Budget constraints and demands for efficiency are prodding firms to rethink how they do things.

"Probably the biggest trend I'm seeing is firms looking to control costs by leveraging IT spending," says Daniel Gasparro, chief information officer and executive director of firm operations at Howrey. "This is being accomplished by weeding out those things that are used by one or two people, or [dropping] a solution that provides the same functionality as something else." Howrey, he says, is also decreasing the number of vendors it uses. "Previously, we had several hundred. By moving to fewer, bigger vendors, I can get 20-30 percent savings." Indeed, Howrey has put so much emphasis on its paring-and-pairing strategy that in February 2008, it set up a global procurement group to manage, and optimize, vendor relationships, contract costs and payment schedules -- not just for IT but in areas including travel and research services.
Savings in the first year amounted to $1.8 million, of which IT accounted for $1.1 million. "Most businesses outside law firms [have an office like] this," says Gasparro. "We [too] need to find more efficient ways to deliver IT."

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Source: Law.com
By: Alan Cohen

Case Study: E-Mail as a Managed Service

Law firms have a reputation for being document-intensive, and Miami-based Stearns Weaver Miller Weissler Alhadeff & Sitterson is no exception. Over the last several years, this full-service firm has worked diligently at becoming a paperless operation, and more than 95 percent of everything it does now is computer-based, says Eugene Cabreja, IT director at Stearns Weaver.
Until recently, however, Stearns Weaver's e-mail system was hobbling in their digital transition.

The firm was using an outdated Novell GroupWise installation that was buckling under the massive amount of e-mail going back and forth between attorneys, staff and clients. To make matters worse, it didn't integrate well with the firm's BlackBerry Enterprise Server. Given that most of the firm's 120 lawyers use BlackBerry devices as a primary means of communication, an outage on that end could mean the difference between getting a 200-page M&A agreement to the client with time to spare and missing the deadline altogether.

The firm decided to migrate from GroupWise to Microsoft Exchange 2007, but Cabreja had several concerns about both the migration and the subsequent management of the new Exchange site. First off, neither Cabreja nor his staff was well-versed in Exchange, and even if any of them were, the task of administering Exchange and BES in a proactive fashion would have been an onerous one at best.

Then a fellow IT professional told Cabreja about Seattle-based Azaleos and their Managed Exchange Services. Not only could Azaleos map out the migration from GroupWise to Exchange, it also offered the 24/7 proactive monitoring and management Cabreja wanted and integrated managed services for BES. "Azaleos had exactly what I needed," Cabreja says.

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Source: Law.com
By: Robyn Weisman

Inside Counsel Give Top Tips for Controlling E-Discovery Costs in New FTI Technology Study

NEW YORK, Nov. 4 /PRNewswire-FirstCall/ -- FTI Consulting, Inc. (NYSE: FCN),the global business advisory firm dedicated to helping organizations protectand enhance their enterprise value, today announced the results of anFTI-funded study of in-house counsel and e-discovery professionals. Thefindings, as well as several tips from interviewees on how to controle-discovery costs, are available for download from FTI Technology andhighlight many of the common steps companies have successfully taken to reducethe overall cost of e-discovery.

"Nearly three years after the Federal Rules of Civil Procedure (FRCP) wereamended, many corporations have made great progress in implementing bothshort-term tactical and long-term strategic plans for e-discovery," said AdamCohen, senior managing director of FTI Technology. "The study highlightsspecific e-discovery best practices in effect today at leading corporations,and can serve as a practical guide for all corporate counsel in targeting andimproving this complex and costly process."

Among the findings:

-- Legal review: 72% of respondents cited legal review as the most expensive phase of e-discovery, and gave numerous suggestions from experience on how corporations could reduce costs.

-- Using fewer providers: 97% of respondents cited using fewer providers to support the e-discovery process as one of the more important considerations in the selection process.

-- Defensibility: The most important factor for selecting both softwareand legal services was defensibility, with 62% naming it as a top factor in selection of e-discovery software and 52% for legal services.

-- E-discovery vendor viability: Ahead of cost, corporate counsel prioritized selecting a provider with long-term viability, given many uncertainties in the rapidly evolving e-discovery market. Viability was listed as the second most important factor when selecting a software vendor (by 41%) and a legal service provider (by 45%).

-- In-house control: 86% said they had developed and implemented more effective and holistic information management, retention anddestruction policies, and had also reduced the overall amount of data in-house to streamline review.

-- E-discovery cost savings: Cost was cited as the third and fourth most important factors respectively when selecting legal service providers and software.

"As part of this study I spoke with an in-house legal team member that had reduced their e-discovery and legal fees by as much as $2 million in one year through implementing more efficient legal review software and processes," said Ari Kaplan, legal consultant and principal of Ari Kaplan Advisors. "The findings are exciting in that they go beyond theoretical best practices and show tangible, quantifiable evidence of the measures that corporations areusing to reduce e-discovery costs today."

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Source: Reuters

Improved data access would mean more work for LPO sector

Companies could come under increasing pressure to make electronically stored information (ESI) more accessible following a document management ruling in a US intellectual property (IP) suit. In the ongoing case, Capitol Records alleges that online music service MP3Tunes supplied illegal versions of Capitol songs to consumers. During pre-trial proceedings that are still underway in New York, MP3Tunes accused Capitol of poor email disclosure. While the judge accommodated Capitol, he nonetheless hinted that time is running out for company data systems that inadequately serve legal processes.

The wording of Maas's ruling indicates that current laws and procedures are one step short of where they should be, if they are to elicit sufficient compliance. It is likely that official steps to improve data access would further increase the workload for legal process outsourcing (LPO) providers, for whom document research – particularly in the IP field – is already a significant area of activity.

While giving his interim ruling in the Southern District of New York, magistrate judge Frank Maas referred to Federal Rule of Civil Procedure 26, which sets out disclosure terms for documents used in expert witness testimony. Although Maas took the peculiarities of Capitol's ESI into account, his tone suggests that action is required to ensure that all corporate electronic records are clear, organised and discoverable.

'The day undoubtedly will come,' said Maas, 'when burden arguments based on a large organisation's lack of internal e-discovery software will be received about as well as the contention that a party should be spared from retrieving paper documents because it had filed them sequentially, but in no apparent groupings, in an effort to avoid the added expense of file folders or indices.

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Source: cpaglobal.com

Trouble Investigating 'Textual Harassment'

Imagine a supervisor making an inappropriate remark to one of his direct reports in an after-hours conversation. If he made the comment verbally, and the employee then reported it to the supervisor's employer, any resulting litigation would have involved the usual "he said, she said" situation, in which lawyers would have challenged the employee's credibility.

But what if the comment occurred in a text message? Then, lawyers for the company are at a disadvantage, since a written record of the comment exists.

Harassment by text message -- or "textual harassment" -- is becoming more prevalent. Texas and 45 other states have laws expressly criminalizing electronic forms of harassment, including text messages. Besides the obvious duties involved when investigating a claim of textual harassment, in-house counsel need to be aware of hidden dangers in trying to retrieve text messages or other electronic information as part of an investigation.

When faced with a textual harassment complaint, in-house lawyers for the employer may need to review other text messages as part of an internal investigation. In litigation, employers often want to discover all of the employee's text messages to uncover communications that suggest the employee welcomed the harassment. An employer also may want evidence that the messages, although inappropriate, were not connected to the workplace or were taken out of context. But can an employer access employees' text messages outside of a discovery request without violating their expectations of privacy?

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Source: law.com
By: Charles H. Wilson

Lawyers in Discovery Scandal Say Qualcomm Lied

Lawyers in the Qualcomm discovery scandal claim that the company misled and stonewalled them, ultimately leading to the failure to turn over a mountain of relevant evidence and harsh sanctions from the court.

The allegations were made in briefs filed Monday by lawyers from the now-defunct Day Casebeer Batchelder & Madrid, who for the first time are telling their side of what has become the most infamous discovery fiasco in recent times.

Qualcomm Inc. was sanctioned by San Diego Magistrate Judge Barbara Major in January 2008 for intentionally withholding "tens of thousands of e-mails" in an infringement case against Broadcom Corp. involving video compression technology patents. The company's lawyers -- six from Day Casebeer and one from Heller Ehrman -- were also sanctioned for assisting "Qualcomm in committing this incredible discovery violation," either knowingly or recklessly, Major wrote at the time.

The sanctions were later lifted while the lawyers got a chance to defend themselves. The lawyers argue they shouldn't be penalized -- they were misled by their client.

The Day Casebeer lawyers claim that they repeatedly prodded Qualcomm about whether the company had participated in industry meetings at which video compression standards were discussed. The upshot being that if the company had, then Qualcomm may have had no rights to enforce its patents against Broadcom.

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Source: law.com
By: Zusha Elinson

The eDiscovery Institute is hosting its 5th Annual Gourmet Pizza After Party on November 12th in Washington DC

The eDiscovery Institute is hosting its 5th Annual Gourmet Pizza After Party* at the Newseum in Washington DC on Thursday, November 12th, 2009, after the Georgetown University Law Center Advanced eDiscovery Institute CLE Program. It’s a great opportunity to interact and mingle with some of the leading e-discovery jurists, lawyers and providers. Last year’s party drew 150 participants, and it looks like this years party will have an even larger crowd.

This year’s sponsors include: Alix Partners, Aphelion Legal, BIA, Crowell Mooring, Encore Discovery, Epiq Systems, Guidance Software, Integreon Discovery Solutions, Jurinnov, Kroll OnTrack, Mayer Brown, Peak Discovery, Precision Discovery, Recommind, RenewData/Digital Mandate, Shook Hardy & Bacon, TCDI, UHY Advisors, and Winston & Strawn.

The eDiscoveryInstitue is a 501(c)(3) non-profit corporation dedicated to researching solutions to problems associated with ediscovery processing and costs. Its website has information on the efficacy of automated alternatives to human review of productions and on savings that can be achieved through appropriate deduping technologies. Funds raised by the Pizza Party are used by the Institute to further its mission.

For ticket information, contact one of the above sponsors or email info@ediscoveryinstitute.org

ECA And Over-Collection Solutions In E-Discovery

Editor's Note: Benton Armstrong and Andy Ruckman are principals in Deloitte Financial Advisory Services LLP (Deloitte FAS). Andy leads the Analytic and Forensic Technology (AFT) practice in the Southeast and Benton is the practice's global and West Coast leader. Deloitte's practice consults with global corporate clients and law firms regarding approaches to addressing technology and process challenges related to e-discovery, record retention, and enterprise information management.

Benton and Andy were involved in developing Deloitte FAS's White Paper entitled Early Case Assessment: Finding Value Beyond Your Next Lawsuit. Because the conclusions in the White Paper are of such great importance, we asked to interview them. Both Benton and Andy participated in answering each of my questions.

Editor: Tell us about the costly results of the repeated export of information in conventional e-discovery systems.

Armstrong/Ruckman: The volume and complexity of electronic data that is being stored presents challenges and great opportunities to reduce e-discovery costs and to mine that data for valuable business information. Today conventional e-discovery systems often require collecting large volumes of data from data stores throughout the organization for export and processing. The costs can be immense - one of our clients had hundreds of thousands of SharePoint sites within its organization. When they did a collection that touched a given department, they felt compelled to pull data from every SharePoint site to which anybody in that department had access. On a recurring basis, they were collecting enormous amounts of data for culling and review, knowing full well that the vast majority of it would not be relevant to the matter on which they were working, but they were still having to either handle that data internally or pay an external vendor to do so.

Even if that data is programmatically culled to remove irrelevant data, you still have to go through the collection process, and you may get large numbers of false positives. I don't think Andy or I have ever worked on a case where the initial set of keyword search terms that was devised by the client, counsel and consultants would not have been revised based on the knowledge we gained by actually reviewing the data.

Most of our clients incur significant internal costs around collection while having processing done externally. Many companies that have invested in an early case assessment solution use it to cull the data down to what is likely to be relevant and hand that subset to a vendor to process, with the review and production being handled by outside lawyers.

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Source: metrocorpcounsel.com
By: Benton Armstrong & Andy Ruckman

What's The Big Deal About Search?

"For lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread."

- Magistrate Judge John Facciola of the U.S. District Court of Washington, D.C., in U.S. v. O'Keefe ( D.D.C. Feb. 18, 2008).

As suggested rather colorfully by Judge Facciola in the O'Keefe case, the use of search in support of electronic discovery creates potential pitfalls for attorneys. Lawyers need to think before they search; without careful attention to factual research, search results testing, and collaboration with opposing counsel, discovery search can become a fool's game.

Judge Facciola followed-up on O'Keefe within a month in a second search-related opinion, Equity Analytics, LLC, v. Lundin, (D.D.C. 2008) . His thinking was further elaborated upon several months later in a tightly reasoned 43-page opinion by Judge Paul Grimm in Victor Stanley, Inc., v. Creative Pipe, Inc. (D. Md., May 29, 2008). Collectively, these three decisions have forced litigators to confront the limitations of search as a discovery tool. They outline the dangers of ill-conceived and untested search strategies and call for greater cooperation between litigating parties to address discovery search methods early in the pretrial process.

The search testing and collaboration theme continued into 2009 with Judge Andrew Peck's decision in William Gross Construction Assoc. Inc. v. American Manufacturers Mutual Insur. Co. (S.D.N.Y. March 19, 2009) in which he called for "careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or 'keywords' to be used to produce emails or other electronically stored information ('ESI')." These decisions have enhanced our understanding of the issues surrounding the application of search for the discovery of ESI, and memorialized broad practice requirements to which litigating parties can adhere.

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Source: metrocorpcounsel.com
By: Theodore Sedgwick Barassi

Does cloud computing need malpractice safeguards?

Recent failures to protect consumer data stored on the Internet (aka "the cloud") point to an alarming gap between the value of that data and the care with which some vendors treat that data.

Microsoft subsidiary Danger failed to put in even adequate safeguards for its customers' data. Amazon Web Services failed to discover an obvious problem that kept a loyal customer down for 20 hours. Coghead's agreement to sell to SAP without any provisions to continue support for existing customers.

(Credit: DB King/Flickr) The truth is that cloud computing means that now, more than ever, IT operations is a profession that has a very real economic and quality-of-life effect on its consumers--in very many ways much like health care or the law. I think it's time we hold ourselves as individual and organizations to similar standards that we expect from doctors, lawyers, and law enforcement. Our ethics must reflect an understanding of the responsibility we are being granted by the rest of society.

The instances above are examples of companies failing to follow well-known professional protocols, or putting the needs of the business ahead of the needs of the client. Heck, look at just about any cloud operator's terms of service, and you see paragraph after paragraph of text that basically states, "If something goes wrong, you can't blame us."

I think its time to change this attitude. I see a couple of options, neither of which I love, to achieve this. I'd love to hear from some innovative thinkers on others

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Source: news.cnet.com
By: James Urquhar

Text Analytics Gains a Broader Audience in the Enterprise

For the last several years, text analytics technologies have been continually improving and are increasingly being incorporated into new information filtering solutions. These advanced analytical tools are critical not only for the intelligence community but also for corporate executives and researchers and for any content-intensive information applications. Text analytics extracts key information from unstructured text and helps to retrieve otherwise hidden information. It is a key component of many customer relationship management (CRM) applications, as well as for media and publishing, competitive intelligence, reputation monitoring, e-discovery, compliance, and financial analysis. Because of this, we've seen a number of acquisitions of text analytics firms by larger search companies (Business Objects acquired Inxight, Reuters acquired ClearForest, SAS acquired Teragram, and IBM acquired SPSS) and an increased pace of product and service rollouts.

Seth Grimes of Alta Plana, author of "Text Analytics 2009: User Perspectives on Solutions and Providers," says, "The global text-analytics market is growing at a very rapid pace, an estimated 40% in 2008, creating a $350 million market for software and vendor supplied support and services." He also "projects 2009 market growth up to 25% despite the economic downturn."

Susan Feldman, IDC's vice president for search and discovery technologies, recently issued a market update on the search and discovery market, which includes text mining vendors. "Two thirds of the way through 2009, the search and discovery software market continues to be a bright spot in the IT industry, but it is clear that the recession is finally catching up to the market," she wrote. "Vendors report that sales are strong in some key areas such as ecommerce, eDiscovery, and sentiment analysis, but sales in general are taking longer to close.
Nevertheless, search and related technologies such as text analytics and language analyzers supply a missing piece for many software applications, so we expect this market to continue its relatively strong growth."

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Source: Information Today
By: Paula Hane

Content Management: Collaboration And Social Networks Change The Game

The blurring lines between different types of content mean IT organizations needs to adapt their strategies.

The realms of collaboration, social software, and document management are coming together, and your company is at the center. Your strategy over the next 12 to 18 months will determine whether these three pieces can slide together reasonably neatly--or end up scattered all over the floor.

Business content is coming from more sources and in larger quantities than ever. In addition to accumulating reams of traditional documents and transaction-oriented content, companies are wrestling with newer content types such as blogs, wikis, and threaded discussions on Facebook-style employee profile pages. All of this content needs to be accessible to the right people, meet regulatory requirements, and be governed by an appropriate retention period.

Until recently, however, the content management vendors and the social software vendors didn't have much to do with each other. Social business software that encourages ad hoc information creation and sharing--meaning blogs, wikis, social profiles--stood apart, creating its own taxonomy through tag clouds and user ranking of content. Social software companies such as Jive and Telligent didn't see a need to build rich back-end content management systems with complex taxonomies, file plans, and retention/disposition capabilities because those systems already exist.

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Source: informationweek.com
By: Andrew Conry-Murray

Records and the Threat of Cloud Computing

I recently hosted a panel for ARMA that discussed compliance and records management issues related to Cloud Computing. It proved to be one of the most thought-provoking sessions I have been involved in for a long time. What became abundantly clear very early on was that records managers and compliance officers really need to get their head around cloud computing, and fast.

In the session we spent some time explaining that for every vendor out there that claims to have a cloud solution, only one in ten really has. That "cloud" relates to a virtualized world utilizing the Internet as a network -- whereas hosted and SaaS options (the nine out of ten) almost always have a specific data center location that they operate from.

This short blog entry is no place to get into the intricacies of this topic, so suffice it to say that with most hosted and SaaS options you can impose an SLA that will tell you, at any time you need to know, exactly where your data resides. With a true cloud option, this is simply impossible -- nobody (literally nobody) actually knows where your data resides. That is currently a complete no-no for most regulated data.

Secondly, when cloud-based vendors tell you (and many do) that you never need to delete anything, and that this is the beauty of the cloud, you need to run a mile in the opposite direction. The secure disposition of data is a legal requirement, with the onus on you, the data owner (and not on your technology supplier) to dispose of data and show how you did it. You need to know exactly how data is disposed of, and how that can be verified. Keeping everything forever is not a legal option.

The cloud is a truly amazing development in computing -- whether we take the grid or the supercomputer route -- but laws are laws, and technology vendors don't write them, and if they don't like them they need to lobby politicians to change them. Simply ignoring laws you don't like, or willfully breaking them, is not an option. Even genuine ignorance is no defense.

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Source: intelligent-enterprise.informationweek.com
By: Alan Pelz-Sharpe

IT and General Counsel Together At Last - Or Not

Corporate culture often rebels against interdisciplinary teams formed from the IT and General Counsel's Office (GCO). Stereotypes rule: the GCO thinks that IT is a bunch of geeks who open their mouths and babble some language other than English. To IT's mind, the GCO is a bunch of technology dinosaurs whose egos won't fit through the door.

Neither image is true but when did that ever stop a stereotype? Meanwhile, interdisciplinary teams stay a pipe dream for way too many corporations, And as Scott Whitney of Mimosa Systems noted to me, very real cost savings go begging.

Let's look at what working together can actually accomplish in terms of lowering risk and gaining cold, hard cash savings.

The further left you move on the Electronic Discovery Reference Model (EDRM) - i.e., to collection, identification and preservation - the more that GCO needs IT's help. Traditionally, GCO hasn't much cared about this, but it's this stage that is proving so costly in modern eDiscovery wars.

True ECA happens on the left-hand side of the EDRM. Early Case Assessment (ECA) needs the ability to search through relevant information early and fast. GCO needs IT to prepare potential data ahead of time, so that said data is ready and waiting in indexes and catalogs.

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Source: networkcomputing.com
By: Christine Taylor

Ariz. Supreme Court Sees the Metadata

Daniel Barr, a partner in Perkins Coie Brown & Bain's Phoenix office, was sitting in a dentist chair during an appointment last year when he read an e-mail update on his BlackBerry about an obscure public records case. The issue: Should metadata, the information that reveals the history of a document, be considered a public record like most other government documents?

A state appeals court in Arizona said no earlier this year in denying a police officer access to performance reviews written by his superiors, but the state Supreme Court reversed the decision Thursday in what is believed to be the first metadata ruling from a state's highest court, the Associated Press reports. The officer at the center of the case suspected his superiors had backdated the negative reviews so it would appear that they were written before his demotion. Such data is not included in the final performance review. To find out who accessed the document when, the officer needed to see the metadata.

Barr, who has extensive experience in media law, read about the ruling on his BlackBerry and knew immediately the case had importance far beyond the individual officer, and that the state Supreme Court should hear it. He called several of his regular media clients only to find few interested in pursuing the case as an amicus party; some had never heard of metadata, and some simply didn't have the money to pay legal fees, he says.

Eventually, three press organizations signed on as amicus parties under Barr's representation: The First Amendment Coalition of Arizona, the Society of Professional Journalists and the Arizona Newspapers Association. Three more retained Steptoe & Johnson partner David Bodney to file their own amicus brief.

The state Supreme Court accepted the case, much to the surprise of Caroline Pilch of Yen Pilch Komadina & Fleming, the employment attorney who had been representing the officer all along. "We never envisioned this case going all the way to the Supreme Court," Pilch says. "It started out as a narrow little case."

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Source: law.com
By: Zach Lowe

Kansas Case Casts Doubt Rule 502

Just when you thought it was safe to enter into "quick peek" and "clawback" agreements, along comes Spieker v. Quest Cherokee, LLC. The decision's comments concerning the application of recently enacted Federal Rule of Evidence 502 seem entirely at odds with the purpose and history behind the adoption of Rule 502. One can only hope other courts adopt a more limited reading of Spieker, No. 07-1225-EFM, 2009 WL 2168892 (D. Kan. July 21, 2009).

A major goal of the 2006 amendments to Rules 16 and 26 of the Federal Rules of Civil Procedure and new Federal Rule of Evidence 502 was to reduce the cost of electronic discovery by minimizing pre-production privilege review of electronically stored information through the endorsement of "quick peek"[FOOTNOTE 1] and "clawback"[FOOTNOTE 2] agreements in those cases where the parties jointly agreed to such procedures.

However, Spieker demonstrates that not all courts will interpret these provisions in light of the stated goals of the new rules, raising the risk that courts will decline to approve orders including "quick peek" and "clawback" agreements unless the parties can first establish they have undertaken a reasonable pre-production privilege review.

Spieker was a dispute over oil and gas royalties allegedly owed by Quest Cherokee LLC -- the defendant lessee -- to Spieker and others -- the plaintiff lessors -- and allegedly to other similarly situated lessors throughout Kansas' Cherokee Basin region. In pressing their claims, plaintiffs sought to certify the case as a class action under Federal Rules of Civil Procedure 23(a) and requested discovery of documents and ESI to bolster the claims

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

The Rural Payments Agency experiences major data loss as DEFRA denies whistleblower claims

The Rural Payments Agency (RPA) has reportedly lost confidential data belonging to anyone who has ever claimed a single farm payment.

According to a report by Farmers Weekly, the bank accounts of every farmer in England have been at risk after the data was lost in May. The department for environment, food and rural affairs (DEFRA) was alerted to the issue immediately and said the risk posed to farmers was very low.

However Farmers Weekly claimed that the agency only discovered the problem in September. It also said that at no time has the agency or DEFRA attempted to inform farmers about the breach.

Whistleblowers claimed that 39 backup tapes containing confidential details went missing after they were transferred from RPA offices in Reading to Newcastle. DEFRA has admitted that tapes went missing, but told Farmers Weekly that the data was not lost in transit and was instead misplaced within the data centre.

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Source: scmagazineuk.com
By: Dan Raywood

Women in eDiscovery Elects New Board Members and Reports Continued Growth

Women in eDiscovery, a non-profit organization that brings together businesswomen interested in technology related to the legal industry, announced today the names of new chapter directors and that it is proudly approaching the 4,000 member mark. The organization held its first meeting with 30 women in attendance in 2007. In a short period of time, Women in eDiscovery has achieved global reach and nearly 4,000 members. The organization provides members with opportunities to help each other grow personally and professionally through leadership, education, networking support, and national recognition.

Women in eDiscovery has 28 chapters across three countries. The organization’s members comprise women from all walks of life, including general counsel, secretaries, law firm partners, associates, chief operating officers, paralegals, litigation support and e-discovery professionals. Many chapters held board elections in October, giving the organization fresh energy into the 2009/2010 term.

National co-founders include Margaret Havinga from a District of Columbia law firm, Shawnna Childress from LECG, and Lana Schell of Clearwell Systems.

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Source: prlog.org