EDD Blog Online

From the Experts: Cloud Computing's Hidden Export Regulation Risks

2012-02-24T18:14:00.000-05:00

How to avoid violating U.S. trade controls when storing data in the cloud.

Thousands of Americans export data overseas every day without U.S. government authorizations and don’t even know it. How? By using cloud-computing services, ranging from personal services like Gmail to large-scale enterprise data storage solutions. While cloud-based services have become a valuable tool for improving efficiency, outdated government regulation leaves cloud users exposed.

Here’s an example. Imagine you’re an engineer working for a small firm in Indiana that uses a cloud service for data storage. One day you realize the company’s aluminum valves, used only by U.S. customers, could be improved with a redesigned “butterfly” mechanism. You revise the design specifications on your desktop computer and click “save.” Your company’s cloud provider routes your document to its network’s least burdened location—which happens to be in India—for storage.

Guess what? Controlled technical information was just exported to India without U.S. government authorization.

Under a literal interpretation of the U.S. Department of Commerce’s Export Administration Regulations (EAR), you and your company would be subject to penalties totaling up to $250,000 per violation. (If the data were military technology under the U.S. State Department’s purview, civil penalties could reach $500,000 per violation.) Violations are subject to “strict liability”—you would be on the hook even if you didn’t intend to “export,” or even if you didn’t know your technology is subject to controls.

But here’s the kicker: It’s unclear whether the U.S. would apply the rules literally, though there’s reason to conclude that the government would pursue this kind of case if the data involved were particularly sensitive and if the cloud user had failed to take appropriate steps to minimize risk. Only one of the various federal agencies responsible for trade controls has addressed cloud computing, however, and its guidance raised as many questions as it answered. This leaves compliance-minded companies in limbo. But while the lack of clarity causes heartburn for many, it also creates a golden compliance opportunity.

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Source: law.com
By: Chad Breckenridge

Judge Peck Issues Order Addressing “Joint Predictive Coding Protocol” in Da Silva Moore eDiscovery Case

2012-02-24T07:23:00.001-05:00

Litigation attorneys were abuzz last week when a few breaking news stories erroneously reported that The Honorable Andrew J. Peck, United States Magistrate Judge for the Southern District of New York, ordered the parties in a gender discrimination case to use predictive coding technology during discovery. Despite early reports, the parties in the case (Da Silva Moore v. Publicis Group, et. al.) actually agreed to use predictive coding technology during discovery – apparently of their own accord. The case is still significant because predictive coding technology in eDiscovery is relatively new to the legal field, and many have been reluctant to embrace a new technological approach to document review due to, among other things, a lack of judicial guidance.

Unfortunately, despite this atmosphere of cooperation, the discussion stalled when the parties realized they were miles apart in terms of defining a mutually agreeable predictive coding protocol. A February status conference transcript reveals significant confusion and complexity related to issues such as random sampling, quality control testing, and the overall process integrity. In response, Judge Peck ordered the parties to submit a Joint Protocol for eDiscovery to address eDiscovery generally and the use of predictive coding technology specifically.

The parties submitted their proposed protocol on February 22, 2012 and Judge Peck quickly reduced that submission to a stipulation and order. The stipulation and order certainly provides more clarity and insight into the process than the status conference transcript. However, reading the stipulation and order leaves little doubt that the devil is in the details – and there are a lot of details. Equally clear is the fact that the parties are still in disagreement and the plaintiffs do not support the “joint” protocol laid out in the stipulation and order. Plaintiffs actually go so far as to incorporate a paragraph into the stipulation and order stating that they “object to this ESI Protocol in its entirety” and they “reserve the right to object to its use in the case.”

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Source: e-Discovery 2.0
By: Matthew Nelson

#EnterpriseSocial for IM professionals – ‘E-Discovery from the Cloud’

2012-02-24T07:17:00.004-05:00

IM professionals (Information Management) are naturally concerned with aspects like tagging information. The skills are predominately required for organizing and archiving organizational record-keeping, which is achieved by applying indexing data to them.

Ideally this information should all be electronic, to better serve modern citizens, but in many cases synchronizing paper-based records with electornic methods is still common.

However we are seeing a dramatic and sustained evolution to social media being the preferred ‘user interface’, and so integrating records management into these environments is a similarly natural evolution of the practice too.

Cloud Providers will be able to offer relevant services – For example ‘E-Discovery from the Cloud‘.

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Source: cloudbestpractices.net

By: Neil McEvoy

5 Issues to Consider Before Deploying Cloud-Based Email for Law Enforcement

2012-02-24T07:15:00.002-05:00

In a typical U.S. city, the police department and other criminal justice agencies account for as much as half of the government work force. When it’s time to make a big enterprisewide decision, there’s no doubt that law enforcement is — and always has been — a powerful bloc that’s capable of swaying a project toward success or failure.

It’s not surprising, then, that because more city, county and state CIOs have begun to seriously pursue cloud-based email in search of cost savings and up-to-date applications, there now are examples of law enforcement submarining such a migration, as well as being the driving force in a positive outcome.

What should public CIOs consider when thinking about putting their law enforcement agencies’ email into a cloud? Here are five points to ponder that have emerged in the two years since Los Angeles broke new ground by announcing its intent to have a private company manage all city workers’ email.

1. It Can Be Politically Charged

You have to wonder if Los Angeles CTO Randi Levin wishes she could have a do-over. From the start, her IT department’s plan to save money and improve service by having Google host and manage the email of all 30,000 city employees — including the Los Angeles Police Department (LAPD) — ran into opposition on multiple fronts. The Police Department was concerned about the security of its data, privacy advocates worried about data leaks, and some City Council members expressed concerns of their own — though the city ultimately decided to go forward with it.

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Source: govtech.com

By: Matt Williams

The Act of Production: Minimize Risk When Replying to a Subpoena

2012-02-24T07:12:00.000-05:00

There is a trend in recent decisions that affects the attorney-client privilege and work-product protection long afforded inside counsel. The cases distinguishing between an inside lawyer's "legal work" and her "business" functions are being applied to the routine functions of gathering documents in response to subpoenas and issuing corresponding "litigation hold" notices. This article will describe the risk to inside counsel and outline a few simple steps to mitigate the risk.

We see issues when inside counsel take steps to preserve and produce information, especially electronically stored information, in response to subpoenas in civil and criminal cases. To control costs and concentrate resources, some companies have consolidated the process into an almost clerical function. That consolidation, however, spawns arguments that the tasks are no longer "lawyerly" and that, therefore, the process of holding and gathering documents should not be deemed "legal" and the memos reflecting the process should be discoverable. The same issues arise when outside lawyers are called in to do the work, but because outside legal resources generally are engaged to perform legal tasks like identifying and selecting responsive and privileged information, it is less likely that a court would describe what they are doing as not "legal" in nature.

Theoretically, the same rules should apply to inside and outside counsel for purposes of applying the privilege or the exemption. See, e.g., Hertzog, Calamari & Gleason v. Prudential Ins. Co., 850 F. Supp. 255 (S.D.N.Y. 1994); United States v. Mobil Corp., 149 F.R.D. 533 (N.D. Tex. 1993). Recent efforts to distinguish between "legal" duties and the "business" functions that lawyers in corporations are increasingly asked to perform reflect the adversary's eye toward gaining access to otherwise privileged legal work for the company. These arguments draw upon evolving case law on what constitutes "legal work" and whether the gathering of documents is the mere "act of production" rather than a reflection of actual legal advice. Corporations seeking to invoke the attorney-client privilege over "communications made by an attorney who serves the corporation in a legal and business capacity ... [must be able to] clearly demonstrate that the advice to be protected was given in a professional legal capacity." Teltron Inc. v. Alexander, 132 F.R.D. 394, 396 (E.D. Pa. 1990).

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Source: law.com
By: Michael Dockterman and Ira G. Greenberg

Facebook lawyer says Ceglia hid more emails

2012-02-23T11:12:00.004-05:00

‘getzuck’ account among four sought

Facebook co-founder Mark Zuckerberg’s attorneys have again accused Wellsville native Paul Ceglia of concealing information.

But Ceglia’s attorney insisted that Facebook’s legal team is focusing too much on “minutia” and not the crux of Ceglia’s federal lawsuit — that Ceglia has a valid contract that entitles him to half ownership of the social-media colossus.

In federal court papers filed late Tuesday, lead Facebook attorney Orin Snyder claimed Ceglia has been playing “hide the ball” by failing to disclose information pertaining to the case.

Four previously unreported Ceglia email accounts, including one with a “getzuck” handle, have come to light. So have the identities of previously unknown legal representatives and an associate who may have helped Ceglia create a portfolio to shop the Facebook lawsuit to prospective litigators.

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Source: buffalonews.com

By: Tim Graham

Apple, Google, Microsoft Agree To California Mobile Privacy Protection Standards

2012-02-23T11:09:00.005-05:00

Apple (NSDQ:AAPL), Google (NSDQ:GOOG) and Microsoft (NSDQ:MSFT) are among a half dozen mobile application platform providers that have agreed to privacy principles established in California to protect consumers, state Attorney General Kamala Harris said Wednesday.

The companies, which also included Amazon (NSDQ:AMZN), Hewlett-Packard (NYSE:HPQ) and Research In Motion (NSDQ:RIMM), agreed to ensure that mobile applications display privacy policies before the apps are downloaded to a smartphone, tablet or other mobile device, Harris said in a statement. Collectively, the companies account for the majority of the mobile app market.

The California Only Privacy Protection Act requires mobile apps that collect personal information to have a privacy policy. Despite the requirement, the majority of apps sold today do not have such a policy, according to Harris. In addition, consumers typically see the privacy policy after the app is downloaded.

"Your personal privacy should not be the cost of using mobile apps, but all too often it is," Harris said.

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Source: crn.com

By: Antone Gonsalves

AGs challenge Google on new privacy policy

2012-02-23T07:36:00.000-05:00

Attorney General George Jepsen joined with attorneys general of 36 states and territories Wednesday in raising strong concerns about a new privacy policy by Google, Inc., scheduled to take effect March 1 for all users of Google products and services.

Under the new privacy policy, Google gives itself the freedom to combine users’ personal information from services such as YouTube with Gmail and all other Google products.

“This not only raises personal privacy issues, but it makes the collected personal information an attractive target for hackers and identity thieves,” Attorney General Jepsen said. “Google has not given users a real choice to participate and the policy makes it practically impossible to opt out, short of exiting all Google services,” Jepsen said.

In a letter to Larry Page, Google’s chief executive officer, the attorneys general outlined their issues and requested a meeting with the company as soon as possible to “work toward a solution that will best protect the privacy needs of those who use Google’s products.”

Attorney General Jepsen, who has been in contact with Google about potential issues with the changes to its privacy policy, joined the request for a meeting to foster a national discussion.

The attorneys general said Google’s policy appears to invade consumer privacy by automatically sharing personal information consumers provide for one Google product, such as Gmail and YouTube, with all Google products.

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Source: shorelineplus.com
By: Attorney General George Jepsen's office

Annual e-Discovery Demands, Expenses Skyrocket

2012-02-22T08:21:00.002-05:00

The good news is companies are becoming increasingly familiar with predictive coding, but the more unsettling news is they are facing up to $20 million in annual e-discovery expenses. According to the third annual study of streamlining and reducing the cost of e-discovery on inside counsel at mostly Fortune 1000 companies, 81% of respondents are familiar with predictive coding to determine whether a document is appropriate to include in a case, states legal industry analyst Ari Kaplan, who conducted the study in tandem with e-discovery provider FTI Technology. Predictive coding is an algorithm that provides the ability to review documents combining artificial intelligence with a lawyer's input.

"Now there is a movement to get more and more technologies [in-house] to make a determination at least at the most basic level, and 55% of respondents said they would consider using it,'' he says. Kaplan surveyed 31 inside counsels late last year for the study, entitled, Advice from Counsel: An Inside Look at Streamlining E-Discovery Programs.

"This is a real shift in comfort level ... more than half of these people, all of whom are in-house counsel with decision-making capabilities and involved personally in this process, say this has become so sensitive they're willing to use even the newest technologies to see how it works. And as the technologies develop, you'll see adoption of this in some form in terms of how they treat e-discovery."

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Source: networkcomputing.com

By: Esther Shein

The Duty to Know Your Client's Computer System

2012-02-22T08:18:00.001-05:00

Lessons learned from 'I-Med Pharma v. Biomatrix'

Even the most junior litigators are aware of the importance of electronic discovery. Over the past two decades, the manner and means by which we communicate electronically have grown exponentially. As a result, the number and nature of our electronic "conversations," which previously would have taken place through paper correspondence, over the telephone or in person, have grown dramatically as well. As one court noted, email has not just become a substitute for more traditional forms of communication; its ease and informality have led to the transmission of "many informal messages that were previously relayed by telephone or at the water cooler" in electronic form. Byers v. Ill. State Police, 2002 WL 1264004 at *10 (N.D.Il. 2002).

The sheer volume of these electronic communications -- and the permanent record they create -- have made the costs and risks associated with litigants involved in e-discovery greater than ever. Indeed, it is now difficult to imagine a case that does not turn, in large part, on the contents of a party's hard drive or email server. It has therefore become incumbent upon litigation counsel to understand the client's computer system and how data is stored and maintained within it.

In the words of the court, a recent case, I-Med Pharma v. Biomatrix, 2011 WL 6140658 (D.N.J. 2011), "highlights the dangers of carelessness and inattention in e-discovery." I-Med involved an alleged breach of medical distribution contracts between the parties. During discovery, the parties stipulated that the defendant could utilize an expert to conduct a forensic examination and keyword search of the plaintiff's computer network, server, and related storage devices. As the court noted in its opinion, the search the plaintiff agreed to was overly broad in at least two critical respects:

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Source: law.com

By: A. Ross Pearlson

Is It Safe To Store Your Trade Secrets In the Cloud?

2012-02-22T08:15:00.002-05:00

A CIO’s nightmare may be realized if several seemingly-plausible assumptions regarding “cloud” computing and storage turn out to be untrue. These may include the assumption 1) that it is safe to put “everything” my company has in the cloud; 2) that my company’s trade secrets will remain protectable “secrets” in the cloud, even after an accidental leak or an intentional hack is stopped; and 3) in the event of leaks or hacks, the cloud service providers are liable for our losses under our cloud-service agreements. Unfortunately, these assumptions may not be correct.

Companies and their staff may choose to store all kinds of information in the cloud:

Trade secrets and valuable information
Outsourced storage, e-mail or financial services
Information accessible by or stored in employees’ smart phones. For example, iPhone users have the option of backing up all iPhone files to the cloud.
Images and information employees post on social network sites, including Facebook, Twitter and LinkedIn

The trouble is, there are things the CIO has no control over when the company’s information is in the cloud. For example, such information can be stored essentially anywhere in the world, including locations outside the direct reach of U.S. law. Moreover, the company’s data can now be accessed remotely, sometimes by unauthorized subscribers. Finally, back-up, extra, or unsecured copies can exist even after the files are removed, modified or encrypted later. Each of these factors may impact the trade secret status of the information.

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Source: forbes.com

By: Rob McCauley, Ming Yang and Jared Schuettenhelm

Introducing Forrester's Data Privacy Heat Map

2012-02-21T18:18:00.000-05:00

Data privacy laws are the champions of citizens’ rights in the digital age. However, multi-national organizations often find these laws challenging to navigate given the complex framework of global legal requirements. To help our clients address these challenges, Forrester developed a research and planning tool called the Data Privacy Heat Map (try the demo version here). Leveraging in-depth analyses on the privacy legislation of 54 countries around the world, this product is aimed at helping our clients better strategize their own global privacy and data protection approaches.

Using the tool, one can quickly determine how various countries stack up against each another in terms of their data privacy standards. Each country has been rated across seven key criteria, covering the breadth of law, EU adequacy, data transfer limitations, government surveillance activities, etc. Leveraging this data, our clients will be able to establish their own data privacy “high watermarks”, ensuring compliance in all locales in which their organization operates. One such application is in the use of cloud computing. Since the cloud is borderless, jurisdictional-based privacy laws are often a mismatch when applied to clouds. When considering outsourcing to a cloud service, companies should consult Forrester’s Privacy Heat Map to determine, for example, whether their data will be at risk of residing in a country with questionable governance surveillance practices.

While developing the Privacy Heat Map, a number of interesting trends surfaced. Most prominent was the difference between how the US treats data privacy compared with the European Union (EU). While the EU has developed an overarching data privacy framework based on the ideal that privacy is a fundamental right, the United States has taken a largely sector-based approach to its laws. This difference between the two greatly impacts the collection, use, and disclosure of customer and employee data for companies that operate on both sides of the Atlantic. This can also lead to friction between entities that engage in cross-border data transfers, as well as between branches of the same company separated by geographic borders.

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Source: forbes.com
By: Chris Sherman

Transborder Data Flows at Risk

2012-02-21T07:31:00.000-05:00

Physical borders may be technically irrelevant in the age of online business, global corporate groups, and cloud computing, but they retain legal and cultural significance. Some recent developments in data privacy law around the world suggest that the “free flow of information” is becoming more conditional, and that enterprises will have to be nimble to meet the expectations of regulators, consumers, and employees when the organization wants to move personally identifiable data from one country to another.

The proliferation of comprehensive data privacy laws, more or less on the European model, increasingly requires US-based multinationals and online companies to adapt to strict requirements for dealing with individuals in other countries. While the rules may soon become more uniform in the EU, they are still new and uncertain in many other countries.

European Union

In January 2012, the European Commission published a proposed Regulation that would replace the 1995 EU Data Protection Directive. While national practices differ considerably under the 1995 framework directive, the Regulation would establish a much more consistent European approach to data protection rights and enforcement.

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Source: infolawgroup.com

By: W. Scott Blackmer

Tweets on Trial: Law enforcement subpoenas Twitter account

2012-02-21T07:29:00.000-05:00

Don’t be surprised if more courtroom bailiffs call for a tiny blue bird to take the stand.

Twitter, Inc. was recently named a witness in filings made by the Criminal Court of the City of New York, and the man behind the tweets supposes the trend will only continue.

“When I saw an email from Twitter Legal in my inbox, I figured it was spam,” Malcolm Harris tells Reuters. He found out last month that the Criminal Court of the City of New York had sent a subpoena to Twitter headquarters with a demand for them to deliver “any and all user information, including email address, as well as any and all tweets” that were related to an account Harris had registered with the microblogging site.

“Twitter had attached the subpoena, and there was my handle, called by the County of New York to testify against me, the person it represents,” Harris writes.

The request called for information limited to a brief window in late 2011 and it didn’t’ take Harris long to figure out what the city was getting at.

“My tweets were being called to testify against their creator because on Oct. 1 of last year I was one of more than 700 people arrested on the Brooklyn Bridge as part of an Occupy Wall Street action,” acknowledges Harris.

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Source: rt.com

By: Mario Anzuoni

Federal Judges Consider Important Issues That Could Shape the Future of Predictive Coding Technology

2012-02-21T07:25:00.004-05:00

Two recent cases will address important issues in the coming weeks that could help shape the future of predictive coding review technology in electronic discovery (ediscovery). The first case, Da Silva Moore v. Publicis Group et. al., grabbed headlines last week when initial reports erroneously indicated that The Honorable Andrew J. Peck, United States Magistrate Judge for the Southern District of New York, ordered the parties to use predictive coding technology. In reality, the transcript from a February 2012, status conference reveals that the parties agreed to use predictive coding technology, but they struggled significantly to define a mutually agreeable protocol. The challenges surrounding the dispute in Da Silva Moore center on the complexities of attempting to apply a new technological approach to electronic document review that is transparent, accurate, and fair to for all parties.

The second case, Kleen Products LLC v. Packaging Corporation of America, et al., involves alleged antitrust violations for price-fixing in the containerboard products industry. The case is venued in the United States District Court for the Northern District of Illinois with The Honorable Nan R. Nolan presiding over key discovery issues. Kleen Products represents a significant leap from the issues debated in Da Silva Moore because plaintiffs seek a court order requiring defendants, among other things, to use predictive coding technology to respond to plaintiffs’ document requests. The plaintiffs’ position is both novel and controversial considering predictive coding technology is a relatively new approach to electronic document review. Plaintiffs’ position is even more novel considering case law rarely, if ever, provides that one party can dictate whether or what kind of technology tools their opponent must use.

Is Predictive Coding A Substitute For All Predecessor Technologies?

Plaintiffs in Kleen Products take the position that defendants’ use of anything other than what they loosely refer to as “content based advanced analytics” (CBAA) is:

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Source: forbes.com
By: Matthew Nelson

Forensic Experts Identify Litigation Game-Changers

2012-02-20T21:11:00.001-05:00

Every piece of litigation has a game changer: A lost witness suddenly found. A video depicting the scene of the accident. A "smoking gun" memo found on the eve of trial.

Isolated events like those can mean the difference between success and failure. These days, discovery involving electronic information is often the focus of the case, leading to the game-changing event.

Using a forensic computer expert from the beginning of the litigation can help identify the game changer early on, leading to an earlier and more favorable resolution.

Whether you are the claimant or the defendant, getting a forensic expert involved at the start can make or break your case.

For the claimant, it is important to retain the forensic expert before filing a lawsuit. Courts have consistently held that when litigation is reasonably anticipated, parties have a duty to preserve relevant records and, once litigation is filed to collect and produce the information to the opposing party.

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Source: law.com
By: Mark. A. Romance

Evidentiary Objections to Email are Key to BP Oil Spill Case

2012-02-20T14:53:00.001-05:00

The Deepwater Horizon oil spill case is scheduled for non-jury trial in New Orleans on February 27, 2012. In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, (E.D.La., MDL No. 2179). This mammoth case is a consolidation of 300 law suits involving 120,000 people and businesses. Click here to see the full docket on Justia. The biggest case in the country proves, once again, that email is powerful evidence. You may recall news concerning email and the world’s largest oil spill back in 2010 when Congress publicized an email from a BP drilling engineer, Brian Morel. It warned that the Deepwater Horizon oil rig was a “nightmare well” that had caused the company problems in the past. Of course, there were more emails like this, but they did not all get into evidence as this blog will explain.

Here is how the presiding Judge Carl Barbier describes the In re: Oil Spill by the Oil Rig “Deepwater Horizon” case in a recent Order:

This Multi-district Litigation (“MDL”) arises from the April 20, 2010 explosion and fire on the DEEPWATER HORIZON mobile offshore drilling unit (“MODU”), and the subsequent discharge of millions of gallons of oil into the Gulf of Mexico. The consolidated cases include claims for the death of eleven individuals, numerous claims for personal injury, and various claims for environmental and economic damages.

Order dated January 26, 2010, Granting in Part and Denying in Part Transocean’s and BP’s Cross-Motions for Partial Summary Judgment Regarding Contractual Indemnity

The purpose of the upcoming trail is to assign and apportion blame among the many defendants sued in these cases. The main corporate defendants include BP, rig owner Transocean, and Halliburton, which provided cementing services. As a side note, BP recently accused Halliburton of spoliation by intentional destruction of computer records and has, of course, moved for sanctions. Anadarko Petroleum, one of BP’s partners in the well, is also involved in the upcoming trial. Plaintiffs include individuals and businesses, represented by a plaintiffs’ steering committee, as well as many states and the U.S. government.

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Source: e-discoveryteam.com
By: Ralph Losey

Five Tips for Saving Money on E-Discovery (Part 1)

2012-02-20T14:46:00.001-05:00

The explosion in volume of electronically stored information has changed the face of litigation. Just a few years ago, law firms sifted through boxes of paper documents relevant to their clients’ cases. Today, they rely on technology worthy of the Department of Homeland Security as they mine gigabytes or even terabytes of data stored on hard drives, servers and backup tapes.

The volumes of information are such that, if printed, they could easily fill the halls of the office or even spill out to the parking lot. The costs associated with this time- and labor-intensive process have increased in tandem—at some companies, e-discovery-related outlays now account for a large portion of the entire litigation budget.

Naturally, getting a handle on this line item is a major priority for chief compliance officers, general counsel and other executives at corporations of all types and sizes. Meanwhile, the risks associated with poor handling of e-discovery are a mounting concern, as courts continue to fine companies for delayed or incomplete compliance with their e-discovery obligations.

While the challenges associated with e-discovery are significant, with some advance planning companies can make major dents in their e-discovery outlays—without raising risk. The key is to develop smart strategies and policies for document storage and retrieval, to use workplace technology wisely and to take maximum advantage of those who can offer the technical and legal know-how needed to get a handle on these issues.

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Source: corporatecomplianceinsights.com
By: Daryl E. Shetterly

DOJ Lays Down the Law on Criminal E-Discovery Protocols

2012-02-20T14:12:00.002-05:00

Criminal law attorneys for the federal government received their own e-discovery protocol and training mission last week.

The government's Joint Electronic Technology Working Group, led by the Department of Justice, began developing a best practices guide for e-discovery in the fall of 2009. The 21-page document includes principles, specific recommendations, strategy tips, and a case checklist. It was revealed at a federal software summit in Washington on Feb. 10. Circulation began last week.

All of the department's 6,000 federal prosecutors will receive training based on the new document. The document will also be used by U.S. Attorneys, investigative agencies, judges, and various law enforcement divisions, explained Andrew Goldsmith, national criminal e-discovery coordinator.

"We've been working very hard over the past 18 months, and very closely with our counterparts in the Office of the Public Defender, as well as Criminal Justice Act appointees, to come up with this," Goldsmith said. "[Electronically stored information] was going to threaten to swallow prosecutors and defenders alike, and the judiciary for that matter."

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Source: law.com
By: Evan Koblentz

Cloud-Computing Risks: Due Diligence And Insurance

2012-02-20T14:00:00.003-05:00

Presently, there is heavy pressure to migrate company data to the cloud. Individuals already shift a large amount of their data to “the cloud” in the form of family photos, vacation videos, contact information, and music. Shifting sensitive business information to the cloud, however, brings with it more complex considerations. Should a company be sending information to a third-party cloud site that hosts data for other businesses? And just what specific information is being sent: customer information? Trade secrets? Employee health information?

Those selling cloud-computing services point to the numerous advantages of cloud computing, including claims of cost savings and enhanced data security. There has been some debate regarding the accuracy of these claims, especially involving promises of heightened data security. It is important to recognize that individuals, small businesses and large institutions opting for cloud computing give up something very important: direct control and oversight of the stored or processed information. As such, it is important that those considering cloud computing size up the risks of relinquishing that control over data to a third party. Customers, employees and co-workers will assume that safeguards and a substantial amount of due diligence will have accompanied the decision and process by which information is stored and handled externally up on the cloud.

Fueling the debate over the safety of cloud computing are two major data breaches that found their way into mainstream news accounts. One cloud provider was hacked by criminals to the tune of one hundred million customer account files (which included credit and debit card information) according to reports of the incident. The hackers infiltrated the cloud site and improperly accessed the sensitive account information. Unusually, the hackers actually had a legitimate account set up with the cloud-computing site (albeit with phony identifying information and fraudulent intentions), in contrast to the more common scenario of hackers anonymously penetrating another network or system.

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Source: metrocorpcounsel.com

By: Joshua Gold

New Google Privacy Policy: Damned if you do and damned if you don’t

2012-02-20T13:33:00.002-05:00

Google has come up with a new privacy policy which it argues is simpler than its multiple predecessor policies. Does it sound convincing? The question is not whether it sounds convincing or not, but would it really matter to an average Joe, whether there is one simple policy or a number of complicated one’s? Does it make our life easier in any way? It probably does not have any impact on our convenience, and if the policy suits anyone, it is really Google itself. By aggregating all the data that Google has been able to collect across its products, Google gets in an advantageous position as compared to its competitors. What should really concern us is that if the policy does not offer any convenience, does it complicates our lives in some ways? Is there anything worrisome about this change?

Should what you buy, where you buy, what you watch, who you communicate with and everything seemingly mundane about you interest someone? You’d probably think it doesn’t. Experts however believe that it is a matter of concern for those who bother about their privacy. In a way, this implies that most of the users would be worried about their data privacy if they have a choice. It is a ‘right’ that most liberal societies value. But then nobody is forcing any individual to use the services of such search, social networking or entertainment providing companies.

The question that data privacy merging policy of Google has raised is that do we really understand the consequences of allowing a service provider to use the data any which way they like. Anindya Ghose, visiting Professor at Wharton emphasizes that the context where our data may be used now changes from the context when we provide that data in context of Google’s announcement of revised policy.

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Source: dailydealmedia.com
By: Preetam Kaushik

Tweeting about a bad day could lose you your job

2012-02-19T13:17:00.003-05:00

Employees who tweet or update their Facebook status saying ‘I had a bad day at work’ could face losing their jobs, says a leading employment lawyer.

According to Paula Whelan, an employment partner at Shakespeare’s law firm, if an employee writes anything vaguely negative about their employer, including saying something as anodyne as ‘I had a bad day at work’, bosses are well within their legal rights, to sack the staff member.

“Employees think they are bullet-proof when they post anything on Facebook or Twitter. But if they bring their employer into disrepute, the boss of that firm is well within their legal right to sack them,” she explained.

“By posting something even vaguely negative about your work on these social media sites, it’s breaking the relationship of trust and confidence between the employer and employee and the company reserves the right to sack the employee.”

According to Whelan and other lawyers, how bosses control the use of social media by their staff and utilise it to judge job candidates, is one of the biggest legal employment issues currently on the agenda.

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Source: telegraph.co.uk
By: Emma Barnett

Google Caught Tracking Safari Users: What You Need to Know

2012-02-19T11:33:00.001-05:00

Google is in a lot of hot water over recent revelations about how it tracks user activity on Apple devices — particularly iPhones and iPads.

As reported by The Wall Street Journal, an independent researcher has discovered that Google embeds hidden software on many websites — software designed to circumvent the default settings on a web browser to record a user’s behavior.

The issue involves how Safari, the default web browser on Apple devices, deals with cookies. Cookies, of course, are the little pieces of information (such as a user ID) that a website can leave on your phone, tablet or computer and later retrieve. Cookies allow you to log in to a website such as Flickr, and return without needing to log in again.

Cookies also enable advertisers to track your behavior. By keeping track of what you’re looking at on one website, an ad network can serve you ads, based on those clicks, on another. Users can prevent that from happening via certain settings, but not all web browsers approach the issue in the same way.

So how is Safari different? What’s at stake? And what can a concerned user do about it? Read on:

What exactly was Google caught doing?

Google was using a software trick to get around a Safari setting that only allow certain types of cookies. That way the company could put cookies on a user’s device, letting it track sites visited, which in turn let Google tailor advertising to the user.

Why would it need to “trick” Safari into doing that?

By default, Safari blocks cookies from third parties. Most browsers allow users to block cookies, but don’t set it as a default. Google happens to operate many of its advertising services, including DoubleClick, from a domain outside Google.com — a domain which Safari treats as a third party. So even if a user was logged into Google, DoubleClick was blocked from serving ads to the user — unless that user approved the cookie by, say, filling out a form.

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Source: mashable.com
By: Peter Pachal

Proper Preparation for the Meet-and-Confer Pays Off

2012-02-19T11:00:00.005-05:00

In the U.S. District Court for the Southern District of California's 2011 ruling in National Association of Music Merchants Musical Instruments and Equipment Antitrust Litigation, Magistrate Judge Louisa S. Porter denied the plaintiffs' motion to order defendants (popular guitar-makers such as Fender, Gibson, and Yamaha, as well as well-known guitar retailers such as Guitar Center) to re-search their electronically stored information using commonly used abbreviations and acronyms for some of the agreed-upon search terms defendants had used. Review of the decision shows that the court decided as it did because defendants acted properly in two key ways: They cooperated thoroughly at the meet and confer and otherwise acted diligently in their searching. While cooperation made the court lean toward defendants, it was their ability to demonstrate, using their own search results, that granting the plaintiffs' motion would likely yield little additional material that ultimately persuaded the court.

BACKGROUND

The defendants initially notified the plaintiffs that they intended to use search term queries to search their ESI, and specifically solicited search terms from the plaintiffs. Initially, the plaintiffs suggested none, asserting that they could not make a meaningful contribution toward drafting proper search terms or procedures because of the defendants' "unwillingness to provide them relevant information."

Shortly before producing ESI to the plaintiffs, the defendants provided them with their search terms, at which point the plaintiffs found the terms "too restrictive and unlikely to capture some highly relevant documents." In response, the defendants agreed to modify the terms and to use terms that included other defendant names "in an effort to capture defendant-to-defendant communications."

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Source: law.com
By: Leonard Deutchman

EU court rules social networks cannot police downloads

2012-02-17T15:40:00.001-05:00

The European Court of Justice (ECJ) has struck the latest blow in the debate over internet policing, ruling on Thursday (16 February) that online social network sites cannot be forced to construct measures to prevent users from downloading songs illegally.

The court, which is the highest judicial authority in the EU, stated that installing general filters would infringe on the freedom to conduct business and on data privacy.

In a press statement accompanying its judgement, the court stated that forcing sites to police their network for illegal downloads “would not be respecting the prohibition to impose on that provider a general obligation to monitor nor the requirement that a fair balance be struck between the protection of copyright, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information.”

The case was brought before the ECJ by Sabam, the Belgian national music royalty collecting society, against social network site Netlog. In 2009, Sabam went to the Belgian Court of First Instance to demand that Netlog take action to prevent site-users from illegally downloading songs from its portfolio. It also insisted that Netlog pay a €1,000 fine for every day of delaying in compliance. Netlog legal submission argued that granting Sabam’s injunction would be imposing a general obligation to monitor on Netlog, which is prohibited by the e-commerce directive.

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Source: euobserver.com
By: Benjamin Fox

How to Reduce Medical Malpractice E-Discovery Issues and Costs

2012-02-17T15:12:00.001-05:00

As most medical malpractice practitioners know, the patient's chart is the foundation on which a professional liability case is built or defense razed, and the procurement of the complete medical record is a priority for both the patient and the defendant health care provider.

Until recently, not much had changed with respect to the creation, preservation, and production of medical records. Medical records have been on paper for centuries, and if a patient's chart is requested, it would be physically maintained in storage for retrieval.

However, the rapid nationwide push for an integrated electronic medical record (EMR) system has changed all of this. Signatures have been replaced by sign-ins, charts are stored electronically, and documentation is by keystroke instead of pen to paper. The law simply has not had enough time to keep up with these changes, and there is a dearth of legal precedent on how to handle EMR production and preservation issues in the context of medical malpractice litigation. Looking forward, there are ways to streamline medical malpractice discovery issues pertaining to EMRs to limit court involvement and keep costs in check.

NO MORE CATCH-ALL REQUESTS

It was so much easier to produce a chart in the past. A handwritten chart was a finite medium and access to the information was limited to whoever was looking at it at a given time. If someone wanted a copy of the chart, it would be photocopied and turned over. What the legal community has to understand is that the traditional concept of producing the medical record is outmoded and that a request for "any and all health information" pertaining to a particular patient can be overly burdensome and expensive to produce for the defendant, while proving cumbersome to review for the plaintiff because it will include information that is not relevant to the litigation.

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Source: law.com
By: Matthew P. Keris

Apple moves to quell concern over data privacy

2012-02-17T13:55:00.004-05:00

Apple has bowed to growing pressure over privacy, saying in a statement yesterday that it would block apps for its mobile devices that take contact data from users without their explicit consent.

Concerns have been mounting this week that some app makers, including Twitter and Facebook, collect and store users’ address book data, such as email addresses and phone numbers, without gaining their explicit approval.

The tech giant yesterday said in a statement it will be clamping down on the practise.

"Apps that collect or transmit a user's contact data without their prior permission are in violation of our guidelines," it said in a statement.

"We're working to make this even better for our customers, and as we have done with location services, any app wishing to access contact data will require explicit user approval in a future software release," it said.

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Source: marketingmagazine.co.uk
By: Sarah Shearman

Google's EDD Search Blunder in Oracle Case: the $1 Billion Mistake?

2012-02-17T13:53:00.000-05:00

On Feb. 6, the Federal Circuit denied Google's sixth attempt to claim attorney-client privilege (or confidential status) for a potentially devastating email that the company inadvertently produced during electronic data discovery in Oracle's $1 billion patent infringement suit over Google's Android platform.

Google engineer Tim Lindholm wrote the now-famous missive after meeting with the company's senior counsel and general counsel to formulate a response to Oracle's infringement claims about two weeks before the complaint was filed. The critical part of Lindholm's email said: "What we've actually been asked to do (by Larry and Sergei) is to investigate what technical alternatives exist to Java for Android and Chrome. We've been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need."

In discovery, Google withheld the last draft and the "sent" version of the email as privileged and listed the two documents on its privilege log. Those versions had been marked by Lindholm as "Attorney Work Product" and "Google Confidential," and Google's senior counsel, Ben Lee, was shown as a recipient on the "cc" line.

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Source: law.com
By: Henry Kelston

Advice From Counsel Reveals e-Discovery Maturity, Strategy

2012-02-16T18:14:00.000-05:00

Since I began covering e-Discovery in 2008, a lot has happened. Companies have been hard-pressed to come up with a cost-effective, yet manageable way to collect, gain access to and review relevant information created within its four walls and in the cloud. Companies experimented with outside counsel and in-house e-Discovery platforms. Vendors promised exciting new technologies from enterprise search to workflow management to predictive coding, aimed at decreasing cost, effort and risk, while increasing reliability, accuracy and defensibility. And yet, we still don’t always know what’s working well within the enterprise. Thanks to a new report by FTI, we have an inside look at how companies are using e-Discovery, their best practices and their expectations for the future.

My, How They've Grown

We spoke with Mike Kinnaman, senior managing director at FTI, about the report, which summarizes the advice of 31 inside counsel about how they streamline and reduce the cost of e-Discovery. What the report revealed is helpful not just to other companies that are eager to offset costs and risk, but for industry vendors that want to deliver products that meet the needs of companies.

One of the first things that one notices when paging through Advice from Counsel: An Inside Look at Streamlining e-Discovery Programs is the sentence,

The key conclusion from this year’s report is that e-Discovery is no longer a specialized skill, but a process in which every legal department must be versed."

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Source: cmswire.com
By: Marisa Peacock

Google Must Remember Our Right to Be Forgotten

2012-02-16T18:09:00.002-05:00

Last month the European Commission proposed adding a new "right to be forgotten" to privacy law. This deceptively simple idea is a ticking time-bomb in the booming internet economy. It is also essential – both for Europeans and Americans – to protect personal privacy in the age of pervasive social media and cloud computing.

The stakes are huge. Two weeks ago Facebook announced an initial public offering that could value the company at up to $100bn. Facebook is worth so much because of the data it holds on its 845m users. Yet it succeeds only to the extent it can monetise the data. If a sizeable fraction of users could easily compel Facebook to delete all their personal data, the company's value would be lower.

Google's new privacy policy, released last month, points even more firmly to the need for a right to be forgotten. The new policy is clear: it explains Google's practices of maintaining digital files on its users indefinitely; of identifying its users across all its services; and of integrating this data across all Google's digital services – search, Gmail, Picasa, YouTube, Earth, Voice, Android, Chrome, Wallet, etc.

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Source: cfr.org
By: Richard A. Falkenrath

Smartphone apps dial up privacy worries

2012-02-16T18:05:00.000-05:00

A new furor has erupted over digital privacy concerns following disclosures that Twitter Inc. and other social networking companies are reaching into people's smartphones and retrieving their personal contact information without getting explicit permission.

Twitter acknowledged this week that anyone who used its "Find Friends" feature on iPhones and Android phones was also sending every phone number and email address in his or her address book to the company, something that was not made clear to users.

The San Francisco company said it would clarify that policy, but its actions triggered fresh concerns from privacy advocates and lawmakers over what they said was an unconscionable intrusion into personal information.

"People care about their privacy, and they should be told when their information is being collected and given some choice in the matter," Rep. Henry A. Waxman, D-Calif., said in an interview Wednesday.

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Source: bellinghamherald.com
By: David Sarno

Bringing Your Smartphone to Work: Security Nightmare?

2012-02-15T15:18:00.000-05:00

Rules regarding the use of personal devices at work vary widely among companies. For many workers -- particularly the young -- having to use a clunky company-issued phone or laptop is unthinkable. But recent reports say that nearly three out of four adults fail to protect their smartphones with security software, leaving data vulnerable.

Like many employees these days, Kim Gibbons uses her own smartphone and tablet for her job at Cisco Systems. That way, no matter where she is -- including weekend soccer matches with her children -- "I'm still very much connected with everything at work," she said.

Hers is one of a number of companies that encourages this bring-your-own-device trend. But the practice is causing consternation among executives nationwide. While loath to alienate employees by being too restrictive, many fear their companies' confidential or critical business data could be accessed from poorly secured gadgets by hackers, who are attacking firms with increasing ferocity.

As a result, rules regarding the use of personal devices vary widely. Some companies permit it with tight controls that include having the ability to remotely wipe the gadgets clean of all data -- personal or otherwise -- if the machines are lost or stolen. Others bar employee-owned devices altogether or haven't figured out what to do.

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Source: cio-today.com

Multitenancy & Cloud Computing Platforms: Four Big Problems

2012-02-15T14:38:00.005-05:00

It feels a little blasphemous to type this while Cloud Connect, the cloud industry’s premier conference, takes place just 30 miles away.

But sometimes when you see a balloon rising from all of the hot air filling it, you gotta take aim with the BB gun and pop it.

As most of you know, multitenancy is the term describing when a single instance of software serves dozens or hundreds of users/customers at the same time. Anyone can see how much more efficient this is versus the old server hosting model, where the ratio of server:customer is 1:1. Even using today’s Red Hat-type virtualization, each server can cram fewer users/customers onto itself than a true multitenant service.

Besides their efficiency, multitenant services can scale easily. Both of these mean lower costs for the hosters/software vendors, and, potentially, lower prices for customers.

It’s why Hotmail and Facebook were able to grow to tens of millions of customers before any meaningful revenue began rolling in. On the business side, Salesforce.com is multitenant, as is Successfactors, which my parent company SAP just spent $3.4 billion to acquire.

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Source: forbes.com
By: Eric Lai

Cybersecurity Act Could Impact Law Firms, General Counsel

2012-02-15T10:52:00.003-05:00

Congress this week will be introduced to the Cybersecurity Act of 2012, which aims to protect crucial American computer infrastructure by giving oversight to the Department of Homeland Security. Experts say it's possible that large law firms and corporate legal departments could be impacted and find themselves reporting security procedures to the federal government, or face fines and public scrutiny.

The bill states that oversight, as evaluated by the National Institute of Standards and Technology, would apply to any agency, company, or organization at which an electronic attack "could reasonably lead to catastrophic interruption of life-sustaining services, catastrophic economic damage, or severe degredation of national security capabilities," according to summary documents on the U.S. Senate Committee on Homeland Security and Governmental Affairs site.

The bill, which has bipartisan support and is sponsored by Sen. Joe Lieberman, I-Conn., focuses on requiring crucial organizations such as utilities, financial institutions, and defense contractors to give annual reports on their security measures and breaches, and to take specific actions that would be decided by DHS and NIST.

Maria Gutierrez, a spokeswoman for the American Bar Association, said her organization's government affairs officials are not yet commenting on the bill. However, Steptoe & Johnson partner Stewart Baker, who will testify in a hearing before the Senate committee on Thursday, and who previously was a Homeland Security policy official, said it's possible that law firms could be impacted in extreme situations.

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Source: law.com
By: Evan Koblentz

FBI Says Social Media Monitoring Won't Infringe Privacy Rights

2012-02-15T10:49:00.000-05:00

The FBI today said that its proposed plans to monitor social media sites as part of a broader strategy to improve real-time situation awareness will be fully vetted by the agency's Privacy and Civil Liberties Unit.

The unit will review the legal implications of the monitoring application and ensure that it meets all privacy and civil rights obligations before it is implemented, the agency said in a statement emailed to Computerworld "Although the FBI has always adapted to meet changes in technology, the rule of law, civil liberties, and civil rights, will remain our guiding principles," the agency said.

The FBI was responding to questions about its plans to use technology to quickly gather and analyze data posted on sites such as Facebook, Twitter and on blogs using simple keyword searches and phrases.

In a Request For Information (RFI) last month, the FBI said that data posted on such sites would let it more quickly detect specific and credible threats, locate those organizing and taking part in dangerous gatherings and predict upcoming events.

It noted that social media networks have been trumping police, firefighters and news media when it comes to communicating news of developing incidents and protests. "Social media is rivaling 911 services in crisis response and reporting," the RFI noted.

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Source: pcworld.com
By: Jaikumar Vijayan

Private Property: Sedona Conference Issues International Principles On Discovery And Data Protection

2012-02-15T08:56:00.003-05:00

Multinational companies based in the United States (or with significant operations in the United States) may be subject both to the civil procedure discovery rules of the United States as well as the privacy laws of the European Union and other countries in which they operate. Complying with these potentially conflicting bodies of law may pose difficult challenges for such companies.

Recently, Working Group 6 of the Sedona Conference issued a draft document aimed at addressing this conflict entitled “International Principles on Discovery, Disclosure & Data Protection: Best Practices, Recommendations & Principles for Addressing the Preservation and Discovery of Protected Data in U.S. Litigation,” text available at www.thesedonaconference.org [the “Sedona International Principles”]. The International Principles are the product of nearly six years of work, involving representatives from the legal profession, judges, privacy and compliance leaders, academics and discovery service vendors from around the globe.[1] The Principles represent one of the most comprehensive of efforts to reconcile (to the extent possible) conflicting notions of data privacy and norms for disclosure in litigation.

Nature Of The Conflict

The International Principles aim principally at a potential conflict between U.S. and EU law.[2] Companies operating in the EU must abide by the laws of individual EU member countries as well as the EU Data Protection Directive (the “Directive”), 95/46/EC. The Directive, which took effect in 1998, required each member of the EU to pass data protection laws that comply with the Directive’s minimum standards. These standards require, among other things, that companies give data subjects (such as consumers and employees) access to correct their data, that they use personal data only for the purpose for which it was obtained, and that they not transfer personal data to countries (such as the United States) found to lack adequate data protection laws. If a company violates these data privacy laws, the Directive allows EU member governments to seek civil fines, injunctions and even criminal sanctions. In addition, some countries (notably, France in its Penal Law No. 80-538) have adopted “blocking” statutes, which are specifically designed to protect their citizens from compelled discovery of information in court proceedings outside their borders.

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Source: metrocorpcounsel.com

Survey Shows Government Agencies Bringing More Electronic Discovery In-house as Confidence Continues to Grow

2012-02-14T08:26:00.006-05:00

2011 Benchmarking Study of Electronic Discovery Practices for Government Agencies Respondents Also Report Less Concern Over Budgets

The results of the 2011 Benchmarking Study of Electronic Discovery Practices for Government Agencies Survey have been released, showing that government agencies continue to face increased workload while moving more work in-house. Almost 45 percent of projects are now handled in-house, while more than 30 percent of respondents reported that their electronic discovery burden grew "exponentially" in the past year. At the same time, budget concerns seems to be diminishing, with only 15 percent of respondents reporting budgeting as a "top concern" and confidence seems to be increasing, with 60 percent reporting they are more able to respond to electronic discovery challenges.

IE Discovery commissioned the study, which this year included 75 government attorneys, records management, paralegals, FOIA and information technology (IT) personnel from government agencies. "It is encouraging to see the growth in dedicated electronic discovery staff as well as in the knowledge base of these professionals. With this as a foundation, along with continued recognition of the issues from management, these professionals will be better poised for success," said Chris May, CEO of IE Discovery. "Of course, there are challenges as work is moved to the cloud and benefits to be realized from improvements in technology use."

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Source: marketwatch

Technology on Trial: Predictive Coding

2012-02-14T08:16:00.001-05:00

Automated or predictive coding is an evolving technology that provides litigants an alternative to the time and cost of manual review of large document sets. While the use of predictive coding is promising to reduce document sets and the cost of reivew, the technology’s reliability and defensibility have yet to determined by the courts. However, Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York is on the cusp of probing the reliability of predictive coding.

In what appears to be the first federal case to adopt the use of automated coding, Peck, in Da Silva Moore v. Publicis Groupe et al., ordered the parties to adopt a protocol for e-discovery that includes the use of predictive coding as implemented by Recommind’s Axcelerate product.

Paul Neale, CEO of DOAR Litigation Consulting and Gene Klimov, vice president of Discovery Consulting, advised the plaintiffs and the court on developing a protocol for e-discovery that used iterative sample sets of 2,399 documents from a corpus of 3 million documents (95% confidence level; plus or minus 2% variance). In effect, the parties will review from 15,000 to 20,000 documents to instruct Axcelerate on what documents are relevant in the litigation, which is no easy matter in class actions like Da Silva Moore or other cases that plead multiple issues of law and fact.

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Source: law.com
By: Sean Doherty

Technology-Assisted Review: From Hype to Reality – Thoughts from LegalTech New York 2012

2012-02-13T10:18:00.000-05:00

This year’s LegalTech New York offered a little something for everyone, from the latest iPad apps to recent developments in social media and cloud computing. And of course there was considerable buzz around electronic discovery too, especially technology-assisted review (a.k.a. predictive coding). While the latter was not unexpected, I did note a shift in the dialog.

Last year the blogosphere was alive with commentary over a New York Times report, Armies of Expensive Lawyers, Replaced by Cheaper Software (March 4, 2011). Now nearly a year later, it seems that some predictions for the demise of human reviewers were perhaps over-stated, as reported recently in Law Technology News, Human Element Critical to Computer-Aided E-Discovery (January 23, 2012).

This shift in the dialog reminds me of an earlier wave of hype in which the role of ECA as a technology was once over-emphasized, despite the fact that early case assessment had long been and still is an important litigation process. (Recall George Socha and Tom Gelbmanns’ “silver bullet” warning about ECA in their 2009 report.) I believe there is a parallel to be found in some of the media hype about “predictive coding” and its role in the document review process.

But as Judge Peck reminds us (Search, Forward, Law Technology News, Oct. 1, 2011), it is the “methodology” for discovery that is most critical. I have no doubt that technology-assisted review will result in greater workflow efficiencies, but human expertise will still be needed to make effective use of the technology. It takes people to train and validate that the coding process is achieving the desired levels of accuracy. Even then, someone needs to lay eyes on documents in order to be sure that privilege documents are set aside properly and that only responsive documents will be produced. No one is simply going to trust hitting the proverbial “Produce” button and then go off to court. Though perfection may not be required by the courts, ultimately the discovery process must be supervised by a practicing lawyer who will be responsible for ensuring it is conducted in a reasonably defensible manner.

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Source: Integreon Blog
By: Jeff Fehrman

'Big data' prep: 5 things IT should do now

2012-02-13T10:08:00.006-05:00

It's time for IT to lay the groundwork for what's being hyped as the next big strategic initiative for business.

Got your "big data" plan in place? If not, you may want to think about implementing one.

Big data is being hailed -- or hyped, depending on your point of view -- as a key strategic business asset of the future. That means it's only a matter of time before the suits in the corner office want to know IT's thoughts on the matter.

What to tell them? To be sure, handling large amounts of data isn't virgin territory for most IT departments, but beyond the hype, analysts say, big data really is different from the data warehousing, data mining and business intelligence analysis that have come before it.

Data is being generated with greater velocity and variability than ever before, and, unlike data in the past, most of it is unstructured and raw (sometimes called "gray data").

Blogs, social media networks, machine sensors and location-based tools are generating a whole new universe of unstructured data that -- when quickly captured, managed and analyzed -- can help companies uncover facts and patterns they weren't able to recognize in the past.

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Source: computerworld.com
By: Beth Stackpole

When it comes to the cloud, who gets to claim jurisdiction?

2012-02-12T15:34:00.000-05:00

A grave threat is said to be stalking Europe. No, it isn’t the financial crisis and the potential demise of the euro. It’s the “rapacious” U.S. approach to privacy — which portends, for those engaged in the development of cloud architecture, a coming “clash” of privacy laws.

According to Viviane Reding, the European Union’s justice commissioner, cloud-based companies that collect personal data are violating fundamental human rights. “We ... believe that companies who direct their services to European consumers should be subject to EU data protection laws. Otherwise, they should not be able to do business on our internal market,” Reding wrote in November. “This also applies to social networks with users in the EU. We have to make sure that they comply with EU law and that EU law is enforced, even if it is based in a third country and even if its data are stored in a ‘cloud.’ ”

Reding means what she says. Her plans are to back up EU data privacy requirements with rules that impose serious fines on businesses for violations. She noted in a December speech, “In a world of ever-increasing connectivity, our fundamental right to data protection is in this moment seriously tested. Although the basic principles and objectives of the 1995 (European data privacy law) remain valid, the rules need to be adapted to new technological challenges.”

Simply put, the fundamental question about international Internet governance over the next decade is going to be whose law dictates control — and the Europeans are making a bold play to say that the answer is “Europe’s.”

This raises a challenge for the private sector and for governments: When the user is a private-sector company, the transition to cloud storage and processing services will create difficult questions over jurisdiction. Imagine you are a company seeking to do business in Europe. What if a country outside of Europe — say, the one(s) where your servers are maintained — contends that its law also governs, and that law is inconsistent with Europe’s? And what about the law of the home country (say, the United States), where the data-storage provider is headquartered? The conflict of applicable laws will create great uncertainty; uncertainty breeds hesitancy and the loss of entrepreneurial vibrancy.

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Source: bendbulletin.com
By: Michael Chertoff

The State of Cloud Standards

2012-02-10T13:44:00.004-05:00

As cloud computing adoption rates soar, standards groups see promise with establishing aligned interfaces, rules written into RFPs and SLAs, and harmonized government legislation.

Those were prime expectations for the near-term of cloud computing from discussion topics during an update on cloud standards held Thursday between U.S. and European standards organizations. The virtual summit was led by the Open Data Center Alliance and held in conjunction with the Distributed Management Task Force (DMTF), standards consortium OMG, storage and networking standards group SNIA, and the European telecommunications and network standards group, ETSI. All of the organizations are doing their own work with end users and vendors to establish cloud standards, which are then discussed among the organizations in bi-weekly calls.

Although representatives from the five organizations stopped short of exact timelines and strict guidelines in the discussion, they each provided insight on the direction of standards in the coming year.

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Source: information-management.com
By: Justin Kern

Divorce Lawyers Love Smartphones

2012-02-10T13:42:00.002-05:00

Smartphones are offering divorce lawyers a treasure trove of evidence, according to an industry study, highlighting the lack of privacy on mobile devices.

In a survey from the American Academy of Matrimonial Lawyers, 92 percent of attorneys said they've seen an increase in the cases that use evidence from smartphones.

Though sending a text message to a spouse or partner may feel intimate, that privacy is not as protected as people think in a court of law. Those same messages are prone to search warrants in some states, and a pending law in Missouri puts cell carriers responsible for revealing phone locations of suspected missing persons.

A client who saves a series of insulting, combative or otherwise insightful text messages from their spouse can give that to a divorce lawyer to serve as evidence.

"Text messages can be particularly powerful forms of evidence during a divorce case, because they are written records of someone's thoughts, actions and intentions," said Ken Altshuler, president of the American Academy of Matrimonial Lawyers.

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Source: mobiledia.com
By: Melissa Daniels

Elliott Greenleaf Sues Ex-Partner, Stevens & Lee Over Client Files

2012-02-10T11:20:00.003-05:00

Elliott Greenleaf & Siedzikowski has sued a former partner and his new firm, Stevens & Lee, for allegedly installing software on Elliott Greenleaf's computers that allows the partner to have continued access to the firm's files through the "cloud."

In a statement, Stevens & Lee said the case was "devoid of merit."

Elliott Greenleaf said former Harrisburg office managing shareholder William R. Balaban and two associates abruptly quit Jan. 31 and Feb. 1 to join Stevens & Lee. Elliott Greenleaf said that prior to Balaban leaving the firm, he and others deleted 5 percent of the firm's backup tapes for Harrisburg client files, took 78,000 files from the firm's computer system and installed what is known as "Dropbox" software that enabled Balaban continued access to Elliott Greenleaf's computer network through remote access, according to the complaint filed by name partner John M. Elliott.

This was all done, Elliott Greenleaf alleged in the complaint, in an effort to take some of the firm's clients related to tax lien sales in Pennsylvania and direct the work to Stevens & Lee.

"Defendant Balaban, and those acting in concert with him, secretly configured this software to ensure that over 78,000 files of electronically stored and encrypted information of EGS, and its clients, were stolen and automatically transmitted to a distant 'cloud,' which is, and continues to be, accessed by them from computers outside of EGS," the firm said in the complaint. "This unauthorized software, secretly planted by defendant Balaban into EGS's computer systems, continues to allow defendants a secret, direct, ongoing electronic gateway into the confidential and propriety information and trade secrets of EGS and its clients, to secretly divert and monitor EGS's electronically stored data and information, and access and alter those files, on an ongoing basis to illegally and unfairly compete for business through defendant Stevens & Lee."

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Source: law.com

By: Gina Passarella

FBI Warns Cloud Providers About Security Requirements

2012-02-10T11:12:00.006-05:00

If you are a cloud service provider looking to contract with U.S. law enforcement agencies, of late, there has been a bit of a shift, regarding security measures. The FBI has announced that there will be no compromise in its new rule that cloud service providers comply with the agency's Criminal Justice Information Systems (CJIS) security requirements. Though the agency understands the difficulties facing vendors in attempting to implement security requirements, they insist that there is an imperative at stake. And the FBI has made it clear, if the provider can't fulfill the requirements, they can take their business contracts elsewhere.

The announcement follows fast on the heels of what happened with the Los Angeles Police Department two months ago. It was then that the LAPD and the city attorney’s office ultimately decided (two years after moving their e-mail systems to the cloud in order to save costs) that no cloud computing intervention was in sync with the federal security guideline requirements for their departments. The LAPD dropped Google Apps, with the following response by the LAPD's CIO who told the LA Times, "It will be difficult for law enforcement to move to a cloud solution until the 'security requirements' and cloud are more in line with each other."

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Source: technorati.com

By: Carole Ditosti

Applying E-Discovery Best Practices to Cloud Computing

2012-02-10T11:04:00.000-05:00

What implications will cloud computing have for civil litigation? This was the question posed by David Campbell, chair of the Advisory Committee on Civil Rules and professor Richard Marcus, associate reporter of the Advisory Committee in a June 29, 2011, memorandum to the participants of a "mini-conference" of the discovery subcommittee of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. The conference convened on Sept. 9 to discuss the possible amendment of the Federal Rules of Civil Procedure to better address issues regarding preservation and sanctions in e-discovery.

According to the minutes of the mini-conference, attendees agreed that advancements in technology since the Supreme Court approved the e-discovery amendments to the Federal Rules of Civil Procedure have led to new challenges in e-discovery and preservation. Included among those advancements is cloud computing. The conference addressed cloud computing, calling it, along with social media, a "second generation" issue. One attendee noted the move to cloud computing will likely make the preservation and collection process "more settled," and recognized that e-discovery vendors will eventually evolve to handle e-discovery in the cloud.

However, U.S. District Court Judge Shira A. Scheindlin of the Southern District of New York, known for her expertise in e-discovery, recently raised the issue of the discovery consequences of storing ESI in the cloud. As Scheindlin remarked, "everyone now is talking about cloud computing, but ... many people don't know exactly what cloud computing is."

So, how will companies storing information in the cloud fulfill their obligations under the Federal Rules of Civil Procedure? The answer is not as complicated as it seems, but as with any defensible e-discovery strategy, it requires an in-depth understanding of the cloud computing model.

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Source: law.com

By: Christine Soars

Must Parent and Attachment Files Be Kept Together?

2012-02-09T13:59:00.003-05:00

The extraordinary cost of e-discovery is well documented. The amount of ESI that we generate is exploding and the use and prevalence of technology, its ease of access, and the relatively low cost mean that trend will continue. Clients are becoming increasingly sensitive to and concerned about these increasing costs, and the ongoing economic malaise has only exacerbated the problem and hastened clients' efforts to control such costs. In doing so, parties are looking beyond macro controls such as the number of custodians, the nature of collections (full v. targeted), and filtering techniques (date limitations, keyword terms), and now look at micro controls, including the parsing of document families at a component level. A key question, therefore, becomes: If one part of a multi-component document is relevant, should all nonprivileged parts of that document also be produced?

Some answer affirmatively, that a producing party must keep parents and attachments together, for various reasons, e.g., Fed. R. Civ. P. 34(b) (as kept in the usual course of business), Fed. R. Evid. 106 (completeness supports context), secondary sources (the Sedona Conference's definition of document) and prevailing practices (production guidelines of the FTC and DOJ). Other bases exist, though, for treating parents and attachments separately, e.g., Fed. R. Civ. P 26(b)(1) (relevance) and Fed. R. Civ. P 26(b)(5) (privilege).

In Abu Dhabi Commercial Bank v. Morgan Stanley & Co. Inc., Special Master Jonathan Redgrave considered these factors in evaluating a discovery dispute concerning missing nonprivileged attachments. He noted a lack of precedent on the precise issue of relevance and moved forward with findings and recommendations, adopted by U.S. District Court Judge Shira A. Scheindlin of the Southern District of New York, without ruling on the question itself. This article outlines the issues addressed in Abu Dhabi regarding the treatment of parents and attachments. In short, there appears to be no definitive case or rule on the subject and clear tension between Rule 34 and Rule 26. Any presumption that parents and attachments should be produced together appears to be open for debate -- a debate best engaged by parties early in the discovery process.

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Source: law.com
By: Thomas J. Smith and Matthew S. Collins

Group urges FTC action on Google privacy

2012-02-09T10:12:00.001-05:00

An advocacy group went to court on Wednesday to block Google from making a policy change that could lead to the search giant assembling richer behavior profiles of people who use more than one of its popular online services.

The Electronic Privacy Information Center filed a complaint asking a Washington, D.C., district court judge to restrain Google from making the policy change on March 1. EPIC also asked the judge to order the Federal Trade Commission to enforce a standing court order that prohibits Google from misrepresenting its privacy policies.

"We believe Google went way over the line in a variety of ways," says Marc Rotenberg, EPIC's executive director.

Google spokesman Chris Gaither indicated the company has not seen the court filings. "We welcome discussions about our approach," he says.

Google recently announced that it would institute a new privacy policy applicable to anyone using any of its popular online services. The new policy would make it easier for Google to cross-reference users' activity data culled from its most popular services, including search, Gmail, Google Apps, Google+, Picasa and YouTube.

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Source: lohud.com

By: Paul Sakuma

Cranking Up the Buzz on Info-Governance, Predictive Coding

2012-02-09T10:10:00.001-05:00

Two of the hottest topics at ALM's recent LegalTech New York conference -- information governance and predictive coding, and concerns over when and how practitioners can and should deal with them -- are further amplified by results from a small survey Symantec Corporation conducted at the show. The two topics are proving to be major buzzwords for 2012, and for good reason. They're complex and intimidating, in part because of the risks and expenses associated with them, and in part because of the understandable angst felt by many in the legal industry over being among early adopters of new technology.

How complex and intimidating are these things? Take a look at the extensive ground covered in a basic definition of information governance taken straight from Wikipedia: It's a term "used to encompass the set of multi-disciplinary structures, policies, procedures, processes and controls implemented to manage information at an enterprise level, supporting an organization's immediate and future regulatory, legal, risk, environmental and operational requirements." That sounds generally accurate. It doesn't sound like something you can easily address with off-the-shelf software.

"Information governance in particular can have a kind of 'boil the ocean' stigma to it," says Dean Gonsowski, e-discovery counsel for Symantec, who came to the company through its acquisition of Clearwell Systems. Gonsowski, who attended LegalTech and was involved with the survey, points out that one challenge is that a coalition of people from different departments need to be brought to the table to address the complexity of information governance. "If not presented correctly, it can get folks' eyes to glaze over. It can be too big. What we tell folks is that it's more of a pyramid. People are already doing parts of it, like document retention programs, to build on."

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Source: law.com

By: David Snow

The View From the Bench: Opinions on E-Discovery in 2011

2012-02-09T09:57:00.003-05:00

2011 witnessed the democratization of e-discovery as new judicial voices emerged across the country.

It has been five years since the 2006 e-discovery amendments to the Federal Rules of Civil Procedure became law, and in the interim, more than half of the U.S. states have adopted some form of electronic data discovery rulemaking. Case law has rapidly evolved from the humble pronouncements of just a few technology-savvy federal judges. During 2011, we saw more opinions at the state court level and heard recommendations from EDD special masters. But even with the tremendous development of case law, some concerns haven't changed, including worries about the difficulty of effectively managing the ever-increasing volume of data and controlling the escalating costs of preservation.

POST-LITIGATION COST RECOVERY. Last year saw a significant rise in the number of published opinions related to the reimbursement of a prevailing party's EDD costs. See Fed. R. Civ. P. 54(d). This increased activity may be attributable to an EDD-friendly 2008 amendment to the federal cost-recovery statute that changed the phrase "fees for exemplifications of copies of papers" to "fees for exemplification and the costs of making copies of any materials." See 28 U.S.C. § 1920(4).

As a result, some courts have defined "copying" and "exemplification" to focus on the physical preparation and duplication of data, whether by copying paper or scanning electronic documents. See Francisco v. Verizon South, Inc., 272 F.R.D. 436 (E.D. Va. Mar. 2, 2011), rejecting requests for costs where methods employed in the case went beyond scanning.

Still other courts have defined the terms broadly to include data processing and production. For example, in Race Tires America, Inc. v. Hoosier Racing Tire Corp., 2:07-cv-1294 (W.D. Pa. May 6, 2011), Pittsburgh, Pa.-based U.S. District Court Judge Terrence McVerry granted defendant's motion to recover more than $367,000 in EDD processing costs, finding such costs are "the 21st century equivalent of making copies." McVerry noted in his decision that the parties had agreed that responsive documents would be produced electronically.

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Source: law.com
By: Cecil Lynn III

GPS, Privacy and the Supreme Court

2012-02-08T10:45:00.003-05:00

Privacy continues to be in the headlines. Companies and governments are garnering and analyzing information that they obtain through means some find questionable in unprecedented ways.

Recently, I wrote a column about Carrier IQ's business of allegedly tracking cell data. Many readers use Google (Nasdaq: GOOG) maps and rely on the Google Traffic tool to indicate whether traffic is moving or stalled, but the fact that Google uses Global Positioning System data from wireless devices is often a surprise.

Wireless devices (cellsphones and tablets) can tell others where you are at any given moment. Websites and blogs track usage including what pages users view and the time spent on each page, and other trackers even can tell whether users open email. With a user's permission, based on Google's Terms of Service, Google reads gmails electronically to pinpoint the type of advertising the writer or recipient might respond to. The list goes on.

We are now seeing lawsuits in which wireless data is critical evidence. However, there is a certain amount of public outrage, which has led to congressional hearings to address the sense of invasion of privacy that people are feeling. Companies are listening. Recently, in reaction to the public outcry about the disclosure that Carrier IQ was surreptitiously collecting user data, Sprint (NYSE: S) announced that Carrier IQ would be removed from its 26 million devices.

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Source: ecommercetimes.com
By: Peter S. Vogel

Anatomy of an E-Discovery Project

2012-02-08T10:42:00.000-05:00

"In Right-Thinking E-Discovery Project Management," I asserted that lawyers are not project managers. In fact, lawyers would find project management alien to their legal education and experience, which begs the question: What does an e-discovery project look like from the practical, logistical point of view?

The Electronic Discovery Reference Model is a good place to frame a picture and develop the structure of an e-discovery project. The EDRM has been memorialized in numerous sales presentations and committed to memory in the minds of many litigation support professionals. Therefore, it is an excellent structure for understanding the essential steps required in an e-discovery project.

Note, however, that the EDRM is a high-level view of the e-discovery process and does not address the practical logistics necessary for getting through each box, or categorical task, of the EDRM. That's why the EDRM group developed the Project Management Framework, billed as a "logical structure intended to provide a simplified, yet comprehensive representation of a complex process that is independent of the tools and methods used in any particular situation." See Figure 1.

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Source: law.com
By: Brett Burney

Florida's Emails Move to the Cloud

2012-02-08T10:33:00.002-05:00

CIO David Taylor discusses his state moving all Executive Branch agencies’ email to a private cloud — law enforcement included

Last year, Florida went live on a statewide private cloud email system for 115,000 mailboxes -- making it possibly the largest such implementation in the country thus far, says state CIO David Taylor. The most unique part about Florida's ongoing implementation: the FBI signed off on the state's planned security approach for protecting its law enforcement data. Given the security challenges that cities like Pittsburgh and Los Angeles faced in attempts to move law enforcement agencies to the cloud, Florida's ability to do so statewide is impressive. I spoke to Taylor about the Sunshine State's cloud and implementation challenges imposed in this edited transcript.

Why did Florida decide to move all statewide email to the cloud?

We had to provide an email system that would meet the business needs of all executive branch agencies and that would include law enforcement. It had to save the state money over the current cost and it had to eliminate the need for the state to retain its own email staff. When we looked into strategies to do it ourselves, it was very unlikely that we were going to get the one-time appropriation to put the entire infrastructure that we needed to stand up such a massive email system and house 115,000 mailboxes. We really felt that we had to go to a "pay-by-the-drink" model -- a utility model -- and we framed our procurement document around that. When we did that document, we didn't specify [a cloud-based system]. We were perfectly willing for a vendor to come into our own data center, build the environment and turn it over to us. It just turned out that the bidders were focused on a private class solution -- every one of them -- so that's what we ended up with, and it seemed to be a good fit for Florida.

What did that transition entail on the part of IT?

I am a believer that you need to eat your own cooking first before you subject it to anyone else. So my agency went first. It was a pretty smooth transition, though it was not without some problems and some lessons learned. I am on it right now; it runs faster than the old system and I am enjoying it quite a bit.

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Source: governing.com
By: Jessica Mulholland

The Potential Traps of Cloud Computing

2012-02-08T10:01:00.003-05:00

Should your company be taking greater advantage of the benefits of cloud computing? The promise sounds enticing: instantaneous access to seemingly infinite data storage and computing power -- as, when, and where needed, without all the cost associated with investment in hardware and personnel required to maintain peak-time computing requirements. As Charles Babcock, editor-at-large of InformationWeek, argues in "The Cloud Revolution: How Cloud Computing is Transforming Business and Why You Can't Afford to be Left Behind" (2010), the cloud represents nothing less than "a shift in how end users will do the bulk of their computing."

As companies contemplate moving their existing data, software, and/or infrastructure applications to a cloud service, whether public, private, or a hybrid between the two, potential traps lurk for the unwary. Many such challenges have been widely reported and discussed, such as issues relating to securing a company's sensitive customer data in the cloud. See "Cloud Computing Down to Earth: A Primer for Corporate Counsel," CorpCounsel, February 28, 2011.

Less widely publicized, but no less daunting, are the challenges that migrating business software to the cloud pose for companies' copyright oversight. If this is not managed properly, companies may face expensive copyright infringement liability -- simply for continuing to use a cloud-based implementation business software that the company may have previously licensed and used for years. Given the long shadow of the copyright laws, it may be far better to seek permission than forgiveness.

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Source: law.com
By: Tomothy Cahn

7th Circuit E-Discovery Pilot Program Could Have Wide-Ranging Impact

2012-02-07T08:12:00.001-05:00

The abundance of electronic information now available makes it more important than ever that litigators understand how to prepare their clients for e-discovery without letting prohibitive costs influence their clients' litigation decisions. Judges and lawyers in the 7th U.S. Circuit Court of Appeals understand this predicament and have taken preventive action by drafting e-discovery principles and implementing them, on a test basis, in hundreds of pending cases in the 7th Circuit.

HISTORY OF THE PILOT PROGRAM

Chaired and encouraged by Chief Judge James F. Holderman and Magistrate Judge Nan R. Nolan of the U.S. District Court for the Northern District of Illinois, the 7th Circuit E-Discovery Pilot Program Committee was formed in 2009. Its mission was to develop pretrial litigation principles governing electronic discovery to reduce its cost and burden.

Written largely by practicing attorneys who have handled actual cases with e-discovery issues, the 7th Circuit's e-discovery principles are intended both to be flexible and to create discovery obligations proportional to the value of the case. The principles seem largely consistent with the Sedona Conference approach and less inflexibly rigorous than obligations imposed by Pension Committee v. Banc of America Securities, the Zubulake v. UBS Warburg decisions and the like. Those decisions are mostly reactive and one of the main goals of the 7th Circuit's pilot program is to be proactive in identifying potential e-discovery problems and creating solutions, rather than allowing courts to impose rigid frameworks through case law.

Perhaps most importantly, the program's principles are in the process of a substantial test drive by the judges and lawyers in the 7th Circuit.

The first phase of the pilot program ran from October 2009 to March 2010. Thirteen Northern District of Illinois judges participated (five district judges and eight magistrate judges). The participating judges implemented the principles in 93 civil cases pending on their respective dockets.

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Source: law.com
By: Mathieu J. Shapiro and Aaron L. Peskin

Employee Social Media Access at Work Challenges the Security Pros

2012-02-07T08:10:00.000-05:00

The social media challenge arises with how to secure certain channels without blocking social media websites & services entirely

Social media, including Facebook, Twitter and LinkedIn, is used extensively by many functional areas in companies today to communicate about and promote their efforts, and to interact with their constituencies. For the marketing department, in particular, social media can help build brand awareness, improve (or destroy overnight!) the company's reputation, and engender customer loyalty. It also offers the hope of achieving the ultimate dream of any marketing professional - to see their new marketing campaign "go viral" on the Internet. When skillfully used by the HR department or a hiring manager, social media can quickly find talented new hires using an informal network of millions of interconnected people. And free social media tools are being widely used today as internal platforms for distributing key announcements as well. For example, Twitter is being used extensively to keep employees up-to-speed on important company news, "Didn't you read this morning's Tweet from the CEO."

As beneficial as social media is for business - and it surely is as organizations are beginning to realize that it also brings with it a multitude of problems. Most of these problems have been seen before, going back to the genesis of the Internet: lost productivity, misuse of network bandwidth, exposure to unmanaged content, security threats, and confidential data leakage. But some of them are unique to and exacerbated by this new social media phenomenon that has exploded onto the Internet over the past few years.

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Source: sys-con.com
By: Vincent M. Schiavo

Google on EC's Privacy Request: How About No?

2012-02-07T08:08:00.001-05:00

Google (Nasdaq: GOOG) has rejected the request of European regulators that it delay the implementation of its new privacy policies to give authorities time to review the changes and ensure that users' data will remain secure.

The European Commission's Article 29 Working Party, an independent body of data privacy regulators, asked Google to hold off on launching its new policies until after the committee could analyze the changes and how they would affect European Internet users.

The new policies, which Google announced in January, are set to go in place in March. They represent a simplification of Google's privacy regulations, according to the company. Google has multiple platforms that harvest user data -- Gmail accounts, its social network Google+, YouTube and personalized search history information, among others. The company plans to consolidate that information into a single policy.

Nothing Doing

Google replied Friday that it would not grant the "pause" authorities requested. Google informed users and regulators of the changes well before the scheduled implementation date, the company said, and when it spoke with European officials on Jan. 24, it did not receive any indication that there would be a problem with the policies.

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Source: technewsworld.com
By: Rachelle Dragani

How to Protect Your Intellectual Property in the Cloud

2012-02-06T13:18:00.005-05:00

IT professionals know that handing data over to a third-party is always risky, but cloud computing creates unique concerns for IP. Here are nine tips to protect critical corporate data wherever it goes

Around this time last year, the cloud computing contract signings were coming fast and furious -- not just for commodity work like IT management or email, but for software and infrastructure closer to the core of corporate value. Not long after that, the calls started to come in to Greg Bell, principal and the Americas service leader for information protection at KPMG.

Cloud services customers more often line of business leaders that IT executive -- were panicked as they began to realize that their intellectual property (IP) was now at risk. Some, like one client who discovered that he'd potentially exposed his company's precious formulas, had to bring the software and associated processes back in-house -- at no small expense. "They quickly went through an assessment, made very aggressive movement [into cloud computing], and then had to retreat because they were not able to put the proper controls in place," says Bell.

There's always some danger when handing over critical company data to a third party. "Cloud computing entails IP issues similar to traditional IT outsourcing in that you are entrusting sensitive data to a provider who probably won't treat it as carefully as you would," says Jim Slaby, sourcing security research director for outsourcing analyst firm HfS Research. "Your applications will be running on IT infrastructure you do not own or control."

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Source: news.idg.no
By: Stephanie Overby

Google, a super parent?

2012-02-06T08:24:00.000-05:00

Google has become as integral a part of everybody’s life like air and water are. Many people cannot live without the Internet and Internet does not make much sense for many without Google. Thus, it is no surprise that anything or everything that Google does, makes news.

Google recently announced its new privacy policy. Is it not a good thing that a company is giving a prior notice to its users about its changed privacy policy? Why are many people getting apprehensive about this soon to be implemented policy? Here’s a look at what the hype is all about.

First, the positives. Two distinguishing trademarks of most legal documents are their length and complexity of language that is full of jargons, which most people do not understand or do not have the time to read. So, here is one company that made an effort to make its existing privacy policy concise and simple to understand. Is it not something that it should be appreciated for? Is it not something that other companies should aspire to do unless of course their intent is that their customers do not actually read their policies before signing on the dotted line?

Google has not only given a prior notice to its users about the changes in its privacy policy but has also made sure that the notice is prominent. Most companies like banks send reminders about payment dues ad nauseum but when it comes to something that actually matters to the customers like changes in interest rates, one obscure message somewhere in the middle of loads of unnecessary text, is generally all that the banks can find the time for. In contrast, Google has given enough screen space for this notice and keeps sending reminders through other mediums like emails. Is this not a hallmark of a good company?

So far, so good. However, as they say, the devil lies in the details and such is the case with Google’s privacy policy. One quick read of the policy can scare even a strong-hearted person. And, the chicken-hearted are forewarned!

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Source: zeenews.india.com

By: Shobhika Puri

Plaintiff Sanctioned for Burning Personal Computer

2012-02-06T08:21:00.004-05:00

Evans v. Mobile Cnty. Health Dept., No. CA 10-0600-WS-C, 2012 WL 206141 (S.D. Ala. Jan. 24, 2012)

In this case, the defendant sought to compel the production of additional information and sanctions for plaintiff’s destruction of her computer. Following its analysis of the facts, including plaintiff’s admission that the computer used during the time of her alleged harassment had been burned and replaced, the court granted defendant’s motions and compelled production of additional ESI as well as plaintiff’s new computer and imposed sanctions, including an adverse inference instruction.

Plaintiff sued the Mobile County Health Department alleging reverse discrimination. In the course of discovery, the defendant requested production of all documents, including ESI, related to the allegations contained in the complaint. Thereafter, the court entered a scheduling order which included specific instruction for plaintiff to preserve relevant information. Initially, plaintiff made no production, but eventually produced a small number of documents at her deposition and admitted to the existence of others, including emails. Despite the fact that plaintiff would ultimately claim that her computer had been destroyed, she did not reveal the destruction at her deposition.

Following plaintiff’s deposition, defendant revived its request that plaintiff produce ESI in her possession, including information she described at deposition, and requested that plaintiff allow defendant to inspect her personal computer. When repeated requests produced unsatisfactory results, defendant filed a motion to compel. Several days later, plaintiff’s counsel revealed the destruction of plaintiff’s computer for the first time. Subsequently, plaintiff revealed that that her 13-year-old computer had crashed sometime in June or July 2011, approximately eight months after her complaint was filed. She further alleged that after taking the computer to Best Buy’s “Geek Squad” she was advised to “just buy another computer” and thus burned her computer because of the personal information it contained and the “threat of identity theft.” She also purchased a new computer. Accordingly, defendant filed a motion for sanctions and requested dismissal of plaintiff’s case.

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Source: ediscoverylaw.com

What Causes Lawyers to Over-Preserve?

2012-02-04T13:58:00.004-05:00

It's hard to persuade attorneys to accept leaner, less costly preservation protocols. Irrational fear of sanctions and spotty familiarity with information technology have so conditioned lawyers to over-preserve that when advised there's no need to keep something, they reply, "Let's keep it anyway — just to be safe."

Proportionality in preservation isn't something you get down at the courthouse. Proportionality begins at home.It begins by understanding the mechanics of preservation, helping you select the most cost-effective approaches and manage risk. For email, there are several options.

Do nothing: The cheapest, easiest, and most common approach to email preservation is to do nothing and hope that messages will be around when you are obliged to produce them. At first blush, doing nothing to preserve email seems the e-discovery equivalent of Russian roulette. Some jurists call it grossly negligent because messages will inevitably winnow away as employees purge folders and change jobs. Most parties can't do nothing!

But doing nothing is a defensible choice for those whose email systems are configured to automatically save items that fall within the scope of preservation. Litigants with message journaling or archiving systems are examples of entities that can safely do nothing once it's established that the systems hold the relevant messages and the messages aren't going anywhere. Even then, IT personnel should be made aware of the obligation to preserve the archives.

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Source: law.com

By: Craig Ball

KPMG Loses E-Discovery Appeal in 'Pippins' Labor Case

2012-02-04T13:37:00.000-05:00

Auditing firm KPMG has lost its appeal of a controversial e-discovery ruling in the Pippins v. KPMG labor case.

KPMG, one of the Big Four in its field, wanted to sample 100 hard drives for e-discovery. Lawyers for Pippins won a November 2011 ruling to use all available drives, which sparked a debate among e-discovery watchers -- how much data preservation is reasonable? The sides appeared close to a compromise last month, but no deal was reached.

"Based on Plaintiff's recollections regarding their former hard drives, I agree with [Magistrate Judge James] Cott that the hard drives are likely to contain relevant information," wrote District Court Judge Colleen McMahon, of the Southern District for New York, in a bluntly written ruling Friday afternoon.

"It smacks of chutzpah ... to argue that the Magistrate failed to balance the costs and benefits of preservation when KPMG refused to cooperate with that analysis by providing the very item that would, if examined, demonstrate whether there was any benefit at all to preservation," McMahon asserted.

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Source: law.com
By: Evan Koblentz

Big Data Forensics: What's in a Tool?

2012-02-04T13:24:00.001-05:00

In today’s ever-expanding world of big data, organizations are not only taking on considerably more responsibility for protecting information assets, but are also facing the likelihood of a continued rise in potential data incidents.

According to Dov Yoran, CEO at New York City-based cyber security company ThreatGRID, security threats have evolved so extensively in recent years that it is inevitable that incidents will occur even at mid-sized businesses. “It’s imperative to have a solid incident response process, which should include data forensics capabilities and recovery methods after the breach,” Yoran says. “Additionally, it is always paramount to have a disaster recovery plan, which normally includes recovery processes, procedures and solutions.”

All tools are not created equal

Fortunately, an array of forensic and recovery tools exists, including data integrity tools provided with the operating system, automated data recovery tools, and specialized forensic data recovery tools. The most advanced tools allow experts to recover significantly corrupted data or structural damage, partially deleted files, and forensically reassemble short fragments of files into their original form. The tools even allow an expert to document the chain of events that led to the data destruction. This all depends on the expert using the tool having an intimate knowledge of how media data structures operate, and good working knowledge of the tool itself.

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Source: bx.businessweek.com
By: Peter Fretty

E-Discovery Cost Recovery in the Digital Age

2012-02-03T06:31:00.000-05:00

E-discovery is a costly necessity of modern litigation. With the ease of email and network data-storage came a deluge of litigation expenses. But producing parties, who historically have born the majority of these costs, may now find some relief in Rule 54(d) of the Federal Rules of Civil Procedure.

Rule 54(d) provides that "costs -- other than attorney's fees -- should be allowed to the prevailing party." The awardable or "taxable" costs are listed in 28 U.S.C. §1920, and include "[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case." At first glance, this provision might not seem to encompass e-discovery costs. Since an amendment in 2008 that replaced the word "papers" with "any materials," however, courts uniformly have concluded that §1920 covers at least some e-discovery costs.[FOOTNOTE 1]

The question that remains is what e-discovery costs are recoverable. Courts confronting this question have identified five elements that a party must establish to tax its adversary with e-discovery costs: (1) the party seeking costs must have been the "prevailing party"; (2) the costs must stem from a modern equivalent of "copying"; (3) the costs must have been necessary; (4) the costs must be reasonable; and (5) the costs must be sufficiently documented to support the other elements.

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

Managing Information in Litigation: How to Avoid Spending a Fortune

2012-02-03T06:29:00.001-05:00

The costs of preserving, searching and reviewing information in litigation can be staggering. What costs a dollar to store on a hard drive can easily cost hundreds of thousands of dollars to search and review for a lawsuit. Ignoring or destroying salient information prior to or during a lawsuit can lead to losing a case—regardless of the merits of the actual claim—and spending a small fortune litigating the issue of whether you have met your discovery obligations. The solution? Take steps to budget, hire and manage information properly on the front end; corral discovery costs; and avoid Luddite lawyers.

A bevy of published articles bemoan the escalating costs of discovery -- the process during litigation in which the parties are required to exchange information. Given the informational nature of discovery, the CIO should help effectively manage information and control the associated costs.

The discovery process can be obscenely expensive if you and your data are not ready for it. Your company can spend handsomely on legal and vendor costs to muck through the preservation, search, review and production of vast swaths of electronically stored information (and occasionally spending a fortune litigating the issue of whether your company correctly preserved, searched, reviewed, and produced information). Reported cases and legal periodicals are full of horror stories of discovery costs run amok—such as more than $6 million spent to comply with a third-party subpoena in the In re Fannie Mae Securities Litigation case.

So, how do you help your company avoid hemorrhaging money on discovery costs?

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Source: cioinsight.com
By: Adam C. Losey

State Panel Adopts 'Zubulake' in Faulting Handling of E-Mails

2012-02-03T06:27:00.003-05:00

TV broadcasting company EchoStar Satellite failed in its duty to preserve relevant e-mails leading up to a $2.5 billion contract dispute with a Cablevision Inc. subsidiary, a unanimous state appeals panel ruled in imposing a sanction of adverse inference at trial.

The Jan. 31 decision of the Appellate Division, First Department, in Voom HD Holdings v. EchoStar Satellite LLC, 600292/08, written by Justice Sallie Manzanet-Daniels (See Profile), was the first by a New York state appellate court to apply the standard for spoliation of electronic evidence set forth by Southern District Judge Shira Scheindlin (See Profile) in 2003 in Zubulake v. UBS Warburg LLC, 220 FRD 212.

The Zubulake standard holds that "once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a 'litigation hold' to ensure the preservation of relevant documents."

It is "harmonious with New York precedent in the traditional discovery context, and provides litigants with sufficient certainty as to the nature of their obligations in the electronic discovery context and when those obligations are triggered," Justice Manzanet-Daniels wrote. She was joined by Justices Peter Tom (See Profile), David B. Saxe (See Profile), James M. Catterson (See Profile) and Karla Moskowitz (See Profile).

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Source: newyorklawjournal.com
By: Brendan Pearson

Privacy in the Age of Big Data

2012-02-03T06:25:00.003-05:00

A Time for Big Decisions

We live in an age of “big data.” Data has become the raw material of production, a new source of immense economic and social value. Advances in data mining and analytics and the massive increase in computing power and data storage capacity have expanded, by orders of magnitude, the scope of information available to businesses, government, and individuals.[1] In addition, the increasing number of people, devices, and sensors that are now connected by digital networks has revolutionized the ability to generate, communicate, share, and access data.[2] Data create enormous value for the global economy, driving innovation, productivity, efficiency, and growth. At the same time, the “data deluge” presents privacy concerns that could stir a regulatory backlash, dampening the data economy and stifling innovation.[3] In order to craft a balance between beneficial uses of data and the protection of individual privacy, policymakers must address some of the most fundamental concepts of privacy law, including the definition of “personally identifiable information,” the role of consent, and the principles of purpose limitation and data minimization.

Big Data: Big Benefits

The uses of big data can be transformative, and the possible uses of the data can be difficult to anticipate at the time of initial collection. For example, the discovery of Vioxx’s adverse effects, which led to its withdrawal from the market, was made possible by the analysis of clinical and cost data collected by Kaiser Permanente, a California-based managed-care consortium. Had Kaiser Permanente not connected these clinical and cost data, researchers might not have been able to attribute 27,000 cardiac arrest deaths occurring between 1999 and 2003 to use of Vioxx.[4] Another oft-cited example is Google Flu Trends, a service that predicts and locates outbreaks of the flu by making use of information—aggregate search queries—not originally collected with this innovative application in mind.[5] Of course, early detection of disease, when followed by rapid response, can reduce the impact of both seasonal and pandemic influenza.

While a significant driver for research and innovation, the health sector is by no means the only arena for transformative data use. Another example is the “smart grid,” which refers to the modernization of the current electrical grid to achieve a bidirectional flow of information and electricity. The smart grid is designed to allow electricity service providers, users, and other third parties to monitor and control electricity use. Some of the benefits accrue directly to consumers, who are able to reduce energy consumption by learning which devices and appliances consume the most energy, or which times of the day put the highest or lowest overall demand on the grid. Other benefits, such as accurately predicting energy demands to optimize renewable sources, are reaped by society at large.

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Source: stanfordlawreview.org
By: Omer Tene & Jules Polonetsky

The 7 Deadly Sins of Document Review

2012-02-03T06:22:00.005-05:00

Counsel who needs to assemble a large document-review team or hire an outside group to do so must tread carefully. Doing so requires taking responsibility for what's often the biggest cost-center in modern-day litigation. Legal budgets are tighter than they have been in years, so it's important to make every day and every dollar count. The attorney's first priority should be avoiding the most common pitfalls. Here's a quick guide to the seven (easily avoidable) sins of document review:

• Sin No. 1: Hiring overqualified reviewers. The recession has flooded the legal market with well-qualified lawyers who are willing to take on contract review work while looking for permanent positions. That may sound like a good thing, but lawyers putting together a team should consider this: Seasoned paralegals tend to have significantly more document-review experience that the average lawyer, they're more accustomed to that work environment, and they can help save on costs. They're also less likely to jump ship for a better offer.

• Sin No. 2: Failing to establish a firm time commitment. Most temporary reviewers are looking for a full-time position or a project that provides a stable income for at least several months. It's important, then, for counsel to be clear about the review's timeline in advance and to ask reviewers to make a commitment. Unplanned turnover can be a real project-killer; it eats through the budget and can delay project completion.

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Source: law.com
By: Dalton Young

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

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

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

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

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

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Source: networkworld.com

By: Ms. Smith

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

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

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

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

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

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

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Source: law.com
By: Evan Koblentz

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

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

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

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

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

NLRB warns employers about broad social media policies

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

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

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

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

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

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Source: bizjournals.com
By: Linda Chiem

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

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

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

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

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

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

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

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Source: law.com
By: Catherine Dunn

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

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

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

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

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

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Source: networkworld.com
By: Ms. Smith

Revealed: The FBI Wants to Monitor Social Media

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

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

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

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

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

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

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

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Source: mashable.com

By: Christina Warren

Opinion: Eliminating human error from data loss risk

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

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

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

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

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

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Source: computing.co.uk
By: Eoin Blacklock

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

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

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

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

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

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

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Source: law.com
By: Anne Kershaw

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

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

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

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

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

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Source: eDiscovery 2.0
By: Allison Walton

Megaupload Closure Forces Cloud Storage Questions

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

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

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

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

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

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

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Source: informationweek.com
By: Matthew J. Schwartz

Preparing for eDiscovery in Outsourcing Contracts

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

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

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

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

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

Pricing: The Small Case E-Discovery Dilemma

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

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

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

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

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

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

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Source: law.com
By: Tom O'Connor

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

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

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

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

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

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

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

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

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Source: guardian.co.uk
By: Staff

Failure to Produce Originals Could be Spoliation in Third Circuit

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

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

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

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

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

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Source: ediscoverylaw.com

Predictive Coding Gaining Acceptance As A Defensible eDiscovery Tool

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

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

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

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

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

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

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

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

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Source: metrocorpcounsel.com

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

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

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

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

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

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

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

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Source: mywebtimes.com
By: Julie Stroebel

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

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

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

What is predictive coding?

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

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

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Source: eDiscovery 2.0
By: Matthew Nelson

The Story Behind Delaware's Default E-Discovery Standard

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

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

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

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

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Source: law.com
By: Mark Michels

Reduce Over-Preservation: One Of Many Uses Of Technology

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

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

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

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

Editor: How does that relate to over-preservation?

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

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

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Source: Metropolitan Corporate Counsel

Human Element Critical to Computer-Aided E-Discovery

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

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

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

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

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Source: law.com
By: Sean Doherty

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

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

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

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

IMPETUS FOR AMENDMENT

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

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

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

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

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

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

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

EU Privacy Rules to Include Leak Disclosure Within 24 Hours

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

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

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

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

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

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Source: businessweek.com
By: Cornelius Rahn

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

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

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

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

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

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

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

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Source: eweek.com
By: Fahmida Y. Rashid

Right-Thinking E-Discovery Project Management

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

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

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

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

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

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

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Source: law.com
By: Brett Burney

What Megaupload Teaches Us About the Cloud, SOPA and Backups

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

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

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

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

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

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

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Source: mashable.com
By: Christina Warren

Get Ready for State Regulation of Social Media

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

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

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

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

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

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Source: business2community.com

By: Glen Gilmore

Why Google's new search might be illegal

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

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

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

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

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

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

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Source: money.cnn.com
By: David Goldman

State Dept., AG address EU cloud data privacy concerns

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

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

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

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

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Source: fiercetelecom.com
By: Samantha Bookman

Guidance Revamps Decade-Old Evidence File Format

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

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

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

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

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Source: law.com
By: Evan Koblentz

2012: The Year Of Technology-Assisted Review In eDiscovery

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

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

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

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

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Source: forbes.com
By: Barry Murphy