Sanctions Ordered Against Ga. Developer for Wiping Evidence

Forsyth County Superior Court Chief Judge Jeffrey S. Bagley has ordered sanctions against Pulte Home Corp. for destroying e-mails and other electronic evidence in an environmental lawsuit.

The sanctions, which will be determined in a hearing March 31, include paying attorney fees for plaintiffs suing the developer.

"We expect that attorney fees and costs will be in the range of $400,000 -- making it the largest award of sanctions for willful spoliation of electronically stored information in Georgia history," said Michael P. Carvalho, attorney for Adele and Tim Simerly, who are suing Pulte over stormwater runoff from the Fieldstone subdivision.

Pulte's attorney, W. Gordon Hamlin Jr. of Bryan Cave, responded to questions about the case by e-mail with a prepared statement approved by the company's in-house counsel. "Pulte produced an enormous quantity of documents to counsel for the Simerlys," the statement said. The plaintiffs did not request documents that would have included e-mails "other than a few distinct categories." Furthermore, "none of the deleted e-mails" are relevant to the lawsuit.

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Source: law.com
By: Katheryn Hayes Tucker

Social media and intellectual property risks

The ever increasing adoption of social media by business begs the question: What if any legal risks are attached to social media adoption by business?

Heard of Facebook, Twitter, My Space, LinkedIn or Flickr? Collectively, these refer to (primarily) internet and mobile based publishing technologies that allow you, me, our friends and anyone else really, to share information in various forms with each other and the general public.

Traditionally most social media tools were a means of personal social interaction. More and more however, businesses are using social media as a marketing/brand building tool and as another communications platform for engaging with their client or potential client base.

The ever increasing adoption of social media by business also begs the question: What if any legal risks are attached to social media adoption by business?

Considering the multitude of audio, text and images shared by businesses, the most significant legal risk must be the ensuing blurring of intellectual property rights over the content published on such social media sites.

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Source: mybroadband.co.za
By: Pria Chetty

Cloud Computing Down to Earth: A Primer for Corporate Counsel

Cloud computing is the most exciting evolution in information technology today.

Defined by the National Institute of Standards and Technology ("NIST") as "a model for enabling convenient, on demand network access to a shared pool of configurable resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider intervention," cloud computing represents a fundamental change in the way that corporations conduct business today, a shift that is well underway.

Gartner Group predicts that spending on cloud computing applications worldwide will increase at an annual rate of 20 percent for years to come, thereby growing to a market of over $150 billion by 2013 — a staggering figure.

Corporate counsel must understand cloud computing.

They must master relevant law and protect corporate interests contractually. They must learn the language of the cloud so as to be prepared to advise senior management as to the myriad legal issues related thereto. And they must understand how certain cloud-driven business imperatives may affect their relationships with C-suite colleagues such as the chief information officer and others who support such strategic initiatives.

These topics and others were recently the subject of a highly informative webinar hosted by the International Technology Law Association and moderated by Jon Neiditz, a senior partner at Nelson Mullins Riley & Scarborough and the expert founder of the firm's Information Management Practice.

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Source: Corporate Counsel
By: Ben Kerschberg

Six challenges of governance, risk management, compliance

Corporate governance, risk management, and regulatory compliance (GRC) are no longer the exclusive province of Sarbanes-Oxley. Powerful market forces - globalisation, increased mergers and acquisition activity, heightened regulatory scrutiny, tight operational budgets, and escalating environmental concerns - are all pushing your company to develop and implement a comprehensive GRC initiative to protect itself, while remaining agile and competitive.

Successful GRC initiatives demand an integrated and enterprise-wide view of risk and compliance. As a result, your business requires access to all its data, regardless of where it resides and the form it takes

It must be available to users and applications when, where, and however needed. And your business needs to be confident that its data is available, complete, accurate, consistent, auditable, and secure.

Challenges

* Limited visibility and transparency. Your enterprise data is located in different systems and unconventional formats and unstructured files, such as PDFs and PowerPoint presentations. You need to increase visibility into and transparency of GRC activities across the enterprise, but you lack a comprehensive, cross-enterprise view of GRC-relevant information.

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Source: itweb.co.za

MD Backs Down After ACLU Threatens to Sue MD over Social Media Policy

The state Division of Corrections (DOC) backed down Tuesday after the Maryland branch of the American Civil Liberties Union threatened to take legal action if the government agency did not rescind a policy asking for the login information to job applicants' social networking website accounts.

DOC suspended the policy allowing interviewers to ask job applicants if they use any social media and use the applicant's login information to scan the account for posts, emails, photographs or other information to ensure that the candidate is not involved in illegal activity or connected with a gang, said Deborah Jeon, the legal director for the ACLU of Maryland.

"It's illegal under federal law," Jeon told 630 WMAL News.

The ACLU was ready to file suit on behalf of Robert Collins, a DOC officer who was asked to provide a DOC investigator with his Facebook username and password during a job interview.

"One of the real problems with the government having somebody's password for Facebook is that then they can review not just the materials relating to the employee, but all the employee's friends," she added.

In a letter dated January 25 to Gary D. Maynard, secretary of the state Department of Public Safety and Correctional Services, Jeon asked him to revoke the policy that allows the DOC to ask for social media account information. The letter also requested that the login information and any data garnered from Collins' Facebook page be destroyed.

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Source: wmal.com
By: Amanda Gaines and Jen Richer

Facebook Feature Could Ease Cloud-Based EDD

Remember those Staples "Easy Button" ads? In e-discovery, lawyers long for that big, red easy button to help us meet our client's duty to preserve electronically stored information. Especially in the emerging areas of cloud computing and social networking, the growing sense is that electronic data discovery is getting more difficult.

So, here's some unexpected good news: Cloud computing will make e-discovery easier -- a prediction lent credence by Facebook's offer of a one-button preservation tool for capturing user content.

You haven't heard about this? You are not alone. It should have been one of the most talked-about developments closing out 2010; but hardly anyone in EDD circles seems to know about it.

At a half-billion worldwide users, Facebook is the reigning sovereign of social networking. When Facebook concedes that users need an easy way to capture and collect the bulk of their Facebook account content offline, that's pretty remarkable. More, it tends to establish an industry benchmark that other social networking offerings can't ignore.

Last fall, Facebook quietly added a feature to Account Settings called "Download Your Information." Users wanting to collect a copy of their Facebook wall posts, photos, videos, messaging, friends lists, and other personal profile content can click a link and request that it all be neatly packaged in a Zip file for download.

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Source: law.com
By: Craig Ball

Understanding 'Watson' and the Age of Analytics

By now, I’m pretty sure you’ve heard the news that IBM’s computer, Watson, bested two of the greatest human champions of the game show "Jeopardy!" Even though Watson blundered on one question on the first day, and mishandled the Final Jeopardy question on the second day, it has demonstrated that it can successfully compete with the two most successful players the show has ever seen. Any of us would lose to either of them.

The question is: What’s under Watson's hood? IBM isn’t saying much about the technical side of things, except that the company built the computer "on commercially available POWER7 systems [which] ensures the acceleration of businesses adopting workload optimized systems in industries where knowledge acquisition and analytics are important." Some are calling it a "super search engine." But Watson’s success is a fine reason for me to tell you more about what IBM has said about Watson, and to explain the concept of “concept search.”

Let’s walk through the "Jeopardy!" process. At the top of the show, the categories are revealed and verbalized by host Alex Trebek. The game starts when a contestant chooses a category, and a clue is revealed. For those of us at home, that’s when the clue is shown on screen. We read the clue while we listen to Trebek read it to us, which takes about three seconds.

According to Dr. Eric Brown, an IBM research manager who works with Watson (whose core technology is called “DeepQA,” for “deep question-answering”), Watson is not listening to Trebek when he’s reading the clue. So speech recognition is not involved. Instead, Watson is taking a snapshot of the clue when it’s revealed and processing words. Now doesn’t that sound familiar? (You can read the Kurzweil website interview with Brown, from which the quotes in this article are taken, here.)

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Source: law.com
By: Nick Brestoff

Cloudy outlook for businesses

Cloud computing may be a way of saving costs but how can firms be sure data is kept safe and complies with the law?

According to Google the future is in the cloud – soon we may all have information about us kept there, wherever "there" is. Organisations no longer have to store data, including personal data, on their own servers in their own premises; economies of scale coupled with relatively straightforward technology mean that if there is storage space available for the data I control and process over there, somewhere, I can store it over there, using space on a server that would otherwise be left empty.

Very simply, that is what the "cloud" is and enables. It is not (yet) any server that we can use to store our data, but any server that is opened up to us, under a cloud computing agreement. And the cost saving, inevitably, is very attractive to the company whose data storage needs exceed its ability, or willingness, to invest in ever bigger data storage for sole use.

The data security implications have been a cause for concern in the European Union, which is involved in regulating the way our private information is handled. Data protection law requires businesses to protect personal data from unauthorised or unlawful processing and against accidental loss, destruction and damage. In addition, personal data must not be transferred outside the European Economic Area unless it goes to a country that has adequate protection for the rights and freedoms of individuals in relation to the way it is processed and stored.

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Source: guardian.co.uk
By: Adam Rose

E-Discovery from Social Networks Becomes the Norm

Just over a year ago, I talked to HP's information management solutions director, Patrick Eitenbichler, about the importance of archiving and managing Web 2.0 content for purposes of e-discovery and regulatory requests. At the time, he said:
There are business records stored on SharePoint, whether that's meeting minutes, contracts, calendar entries, or even blog posts that the executives have written. [N]ot treating those as business records ... creates a lot of business risk. If there's a compliance audit or a discovery request, [the company] may not have access to the information, or even if they have the information, it may not be searchable.He then took the opportunity to explain how software offered by the company could help customers avoid such compliance headaches.

In the ensuing 12 months, the scope of Web 2.0 content has expanded to include not only content posted to collaboration platforms, but also content shared on social networks. For companies that have yet to address the compliance issues created by such content, their task has become progressively more difficult.

According to research recently released by Gartner, that trend is not expected to stall out or even slow anytime soon. In fact, the research firm projects that half of all companies will have been asked to produce social networking site content in e-discovery requests by the end of 2013.

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Source: itbusinessedge.com
By: Lora Bentley

Do Attachments Need To Be Produced With Email Messages?

One of the things we do as analysts is take inquiries from readers, typically either in a half hour call or via an email response. Recently, a good inquiry came in, but there was no contact information to send an answer to, so I thought it would be a good idea to answer it here (with the hope that the answer gets to the person that had the question). The question read, “If we have a corporate email solution that strips attachments from emails and replaces them with download links, what are our e-discovery responsibilities? Do we need to be able to produce the attachment, or just the email with the links?”

This question gets to the heart of email archiving and it’s role in eDiscovery. The goal of archiving is multifold: get email off the production mail server to minimize backup windows and reduce storage costs and create a repository of record for long-term preservation (a single source to search, so to speak, for legal). Archiving solutions provide access to email for end-users in a variety of ways. They might strip attachments and leave behind links to them, or leave behind stubs to them.

When it comes to eDiscovery and a company’s obligation, the attachment is a critical part of the message and needs to be produced with the message. I suppose a company could have a policy whereby it disposes of attachments after a certain amount of time and keeps the message longer, but that wouldn’t make a whole lot of logical sense. The beauty of an email archiving solution is that it keeps the attachments in relation to the message, so when searching for keywords, a message will come back even if the keyword is only found in the attachment (a good archiving solution will, anyhow).

To answer the question, “yes, you do need to produce the attachment, not just the email with the links.” Based on the solution outlined, it should not be difficult to do that; it sounds like the solution mentioned would be able to export out both messages and attachments. It’s a good example of the types of things you want to be sure your archiving solution can do before you buy it. Can it produce attachments? Can it search messages and attachments together? Can it single-instance store attachments while still relating the attachment back to all the emails it is associated with?

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Source: eDiscovery Journal
By: Barry Murphy

Scheindlin's 'Day Laborer' Decision: Much Ado About Metadata

A year after her opinion in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC. fueled debate over document preservation and discovery sanctions, Southern District of New York Judge Shira Scheindlin has issued a "must read" decision on the production of electronically stored information.

While shorter and less sweeping than Scheindlin's opinions in the landmark Zubulake v. UBS Warburg, and in Pension Committee,[FOOTNOTE 1] the Feb. 7, 2010 decision, National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, 2 011 WL 381625 (S.D.N.Y. Feb. 07, 2011) provides concrete guidance on important subjects, including (1) the format of production of ESI, including the extent to which parties must produce metadata; (2) e-discovery standards applicable to the government, particularly in response to Freedom of Information Act requests; and (3) the need for cooperation among litigants engaged in electronic data discovery.

In Nat'l Day Laborer, plaintiffs sought to compel four federal agencies to comply with their FOIA requests, and a dispute arose regarding the format of defendants' production.[FOOTNOTE 2] Defendants had failed to agree or otherwise respond to a protocol suggested by plaintiffs, which, among other things, called for the production of responsive documents in individual files, the production of Microsoft Excel documents in native format, and consecutive Bates numbering. Instead, defendants produced materials in five unsearchable PDF files consisting of "indiscriminately merged" documents that had been stripped of all metadata and lacked load files.[FOOTNOTE 3] Plaintiffs argued that the production was unusable in this form and moved to compel production consistent with their proposed protocol.

In adjudicating plaintiffs' motion, Scheindlin held, as a preliminary matter, that FOIA requests are subject to the production requirements of the Federal Rules of Civil Procedure.[FOOTNOTE 4] In her view, Rule 34 of the FRCP, which establishes procedures for determining the form in which documents must be produced,[FOOTNOTE 5] "surely should inform highly experienced litigators" -- at least as a matter of common sense -- "as to what is expected of them when making a document production in the twenty-first century."[FOOTNOTE 6]

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Source: law.com
By: Jennifer Rearden and Farrah Pepper

Know your social media strategy

Social media disrupts the long-standing rules of business in many ways, but crafting a social media policy is premature unless the designers of the policy answer seven critical questions first, according to research firm Gartner.

"Social media offers tempting opportunities to interact with employees, business partners, customers, prospects and a whole host of anonymous participants on the social Web," says Carol Rozwell, vice-president and analyst at Gartner.

"However, those who participate in social media need guidance from their employer about the rules, responsibilities, 'norms' and behaviours expected of them, and these topics are commonly covered in the social media policy."

Organisations need to ask what their strategy is for social media. According to the research firm, there are many possible purposes for social media. It can be used for five levels of increasingly involved interaction (ranging from monitoring to co-creation) and across four different constituencies (employees, business partners, customers and prospects, and the social Web).

“It is critical that social media leaders determine the purpose of their initiatives before they deploy them and that those responsible for social media initiatives articulate how the organisation's mission, strategy, values and desired outcomes inform and impact on these initiatives.”

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Source: itweb.co.za
By: Staff Writer

Search-Based Applications: Smoke and Mirrors or Real Innovation?

Most enterprises already have enterprise search, BI and production reporting technologies along with relevant specialists to use them. But enterprise search technology has evolved to address a new class of information access applications that encompass vast amounts of content that can impact the enterprise like never before as they seek new ways to differentiate themselves. Here's how it's done.

Bold claim: Search-based applications (SBAs) are the next generation of search technology to enhance productivity and customer value for specific business processes by streamlining delivery of critical information.

Skeptical response: Yeah, but don't most enterprises already have enterprise search, BI and production reporting technologies along with specialists capable of delivering these technologies?

Considered reply: Yes they do, but enterprise search technology has evolved to address a new class of information access applications that encompass vast amounts of content that can impact the enterprise like never before as they seek new ways to differentiate themselves. SBAs can provide that differentiation. Read on for how it's done.

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Source: ecommercetimes.com
By: Paul Doscher

Social Media Access May Cause Governance Problems

Gartner claims half of all companies, fearing prosecution, may attempt to block social networking site access

A Gartner report has warned that many organisations could fall foul of governance regulations through offering open access to social media sites like Facebook and Twitter.

Under governance regulations, companies could be called on to provide information stored on these sites under e-discovery requests. Pleas of privacy for these sites is no argument in court, it appears.

Keep Policies Simple
The Social Media Governance: An Ounce of Prevention report concludes that by the end of 2013 half of all companies will have been asked to produce material from social media sites for e-discovery.

Debra Logan, vice president and distinguished analyst at Gartner described the legal landscape around social media as a patchwork. This stems from overlapping, conflicting and contradictory laws and regulations, mixed with processes imposed by national and international legislative and regulatory bodies.

She pointed out that governance rules exist for certain vertical markets, such as the US Securities And Exchange Commission’s regulations for brokers/dealers (SEC Rule 17a-4), but for most markets there are no clear rulings. It is up to individual organisations to decide how to use and govern social media, she said, and pointed out that Gartner does not expect there to be clear guidance coming from the courts or regulators in the near future.

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Source: eweekeurpe.co.uk
By: Eric Doyle

Apersee Searches E-Discovery Products and Services

The founders of the Electronic Discovery Reference Model, George Socha and Tom Gelbmann, have gone high-tech, launching Apersee, a web-based tool designed to help firms and individuals make educated decisions about which e-discovery vendors to approach. The tool works with most web browsers without any plug-ins or additional software, and is compatible with Microsoft's Internet Explorer 7 and above, as well as Safari, Firefox, and Chrome.

"Apersee comes from the French word aperçu, meaning an immediate understanding or insight," they explain on the product's website: "That's exactly what we want you to find here. With minimal time and effort, the Apersee Selection Engine can give you insight into the e-discovery products and providers who can address your unique needs and priorities."

The search engine "draws heavily" from both the EDRM and the Electronic Discovery Survey material that Socha and Gelbmann formerly produced and published. The co-authors have been monitoring electronic data discovery vendors since 2003. They conduct exhaustive research, publish a summary of the results every August in Law Technology News, and make drill-down information available to subscribers.

Through 2008, their LTN report included both analysis and detailed charts, ranking vendors both for overall achievement, and comparing vendors within specific areas (e.g., identification, preservation, collection, etc.). But in 2009, the pair decided to end the tradition of ranking, because, ironically, it had become way too successful. Instead of doing appropriate due diligence, firms, individuals, even investors would simply rely on their survery rankings -- which chilled the two consultants, because doing so defeated the whole purpose of their research: to help folks evaluate vendors, not just grab a list.

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Source: law.com
By: Monica Bay and Sean Doherty

Half Of All Companies Will Have Been Asked To Produce Material

Although the use of social media in enterprises is on the rise, many organizations do not have comprehensive governance policies in place for its use, according to Gartner, Inc.

By the end of 2013, half of all companies will have been asked to produce material from social media websites for e-discovery, so enterprises need an overall governance strategy for all applications and information, and this strategy should include content created on social media.

"Social media content is like all other content that is created by companies and individuals and is subject to the same rules, laws and customs," said Debra Logan, vice president and distinguished analyst at Gartner. "Policymakers need to keep policies simple when it comes to what should and should not be done online. A good rule of thumb is that whatever the company code of conduct is for in-person encounters, and whatever the rules are for general good behavior and common sense apply in the online world as well."

Ms. Logan said that the legal landscape around social media remains a patchwork, due to overlapping, conflicting and contradictory laws and regulations, in addition to the procedural rules propagated by national and international legislative and regulatory bodies. Since there is no guarantee of absolute safety, the safest option is to have a consistent policy and apply it consistently.

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Source: efytimes.com

Short, Sweet and Simple: For Social Media Policies, Simpler Is Better

I'm often asked to draft corporate policies or suggest best practices for social media interactions between employees and customers. In this column, I'll explore such policies and practices and suggest that many policies are far more complicated than need be and actually create unintended liabilities that could be easily avoided.

Social media activities by employees create any number of concerns for companies managing their workforce — employees' discourse with one another, employees interjecting themselves in a company's marketing communications with consumers, and employees' online chats and postings unrelated to their jobs — but that may be associated with their employer.

As brand owners spend more than $24 billion annually on advertising online, it's clear that online activities, including social media, are key tactical tools in virtually every major corporation's marketing arsenal. It's also clear that consumers of every age are comfortable with online purchasing, despite reported privacy concerns.

At the same time, social media has become an amazing vehicle for social debate and change. What's unfolding in the Middle East with the fall of Egypt and Tunisia is only the beginning. There are at least eleven other totalitarian regimes believed to be targets for change.

All of this online activity has caught the global attention of billions of people. It's how we communicate, whether through the Internet or mobile media. We log on, we post, and we Tweet. Peers, more than any other source of information, are motivating not just individual consumers, but entire nations.

With all this change comes an increasingly unpredictable marketplace. Make a mistake and countless consumers will attack your executives, brands, and companies. Try to suppress online speech, and millions of citizens of the Internet Nation will bring a government down.

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Source: law.com
By: Douglas J. Wood

Gavel to Gavel: Employers and ‘in-your-face’ Facebook

What happens when you cross a work force that increasingly uses social media with a federal employment agency determined to increase investigations and legal actions against employers? A potentially rocky road for employers in the future.

Like a lot of employers, American Medical Response of Connecticut includes in its employee handbook a blogging and Internet posting policy. Among other things, the policy prohibits its employees from making “disparaging, discriminatory, or defamatory comments when discussing the company or the employees’ superiors, co-workers, and/or competitors.”

Medical tech Dawnmarie Souza became angry with her supervisor. While at home one evening and using her home computer, Souza posted on her personal Facebook page entries about her supervisor, comparing him to a psychiatric patient and using two expletives. Co-workers who read Souza’s Facebook page added posts supportive of Souza’s comments.

The following day, when she was called in to be interviewed about her Facebook posting, Souza’s request for a union representative during the investigative interview was denied. Shortly thereafter, American Medical Response fired Souza for violating its blogging Internet posting policy.

The National Labor Relations Act protects the right of employees to discuss the terms and conditions of their employment, including wages, benefits, and management. This legal protection applies to unionized and non-unionized employers.

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Source: journalrecord.com
By: Charlie Plumb

E-Discovery Issues Might Grow Inside the Cloud

Retrieving deleted files just one challenge of online data storage

Cloud computing is alive and flourishing. It has become the popular technology tool for many who want to shift from local PC/Network computer storage and processing to external computers in "the cloud" (on the internet) handling these types of services.

E-mail, word processing, and financial systems are all examples of information that may no longer exist at a company's physical site and reside somewhere in cyberspace. Cloud computing technologies, however, can significantly impact how and where electronically stored information resides, thus impacting the traditional e-discovery model.

Everyone seems to have their own definition of cloud computing. Simply put, cloud computing is typically considered a subscription-based or pay-per-use service that is provided through the internet. This also extends to the concept of software as a service. This includes software applications (e-mail, word processing, etc.) that are provided as a service to company employees via the internet. Their information is stored on third-party network servers and not on in-house computers. Typically access to these applications is through a standard web browser, allowing a user to access the information from virtually any location.

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Source: law.com
By: Jeffrey Ziplow

Is Your Cloud System Safe From the Law?

This is a guest post from Software Advice, which originally appeared at this location: Is Your Cloud System Safe From the Law?

There are no legal precedents concerning transnational laws and trade agreements with respect to cloud computing. Due to this lack of regulation, companies in smaller nations are vulnerable to foreign governments seizing their data when it’s hosted internationally in a cloud-based system. While this shouldn’t encourage paranoia, companies should seriously consider where they host their data in the cloud. A good solution is to host data on the same shores, or at least in a country with clear and trustworthy regulations.

Cloud computing introduces new levels of information globalization. For instance, a company in Sweden might use Salesforce.com, one of the leading cloud suppliers of CRM systems. Most of that company’s data centers are in the U.S. As a result, the Swedish company will usually connect to U.S.-hosted servers via Internet lines running through a number of different countries. When I connect to Salesforce.com from my current location, the data travels from Sweden to the UK, to the Netherlands, and finally to the U.S. The image below shows how the system is accessed.

This process raises two main questions. First, which country’s laws apply to the stored data? And secondly, which country’s laws apply to the data being transferred?

Let’s say the company in question works with high-tech weapons manufacturing. The company uses Salesforce.com to store highly sensitive data concerning Cuba as a potential customer. Sweden doesn’t have any trade restrictions with Cuba, but it’s another matter completely in the U.S. – especially with arms trade. Hence, the CIA, FBI, NSA, or Department of Homeland Security might suspect this relationship and subpoena the CRM database directly from SalesForce.com. The recent events concerning the U.S. Department of Justice, Twitter, and Wikileaks shows that U.S. legislation can give the investigating authority very broad liberties. Putting the court order under “seal,” for instance, wouldn’t even inform the Swedish company about the intrusion.

The Swedish company could be unknowingly placed in a threatened situation in which their entire CRM database, containing information about customers and other business opportunities, falls entirely into unknown hands. Large deals in the high-tech weapons industry can give a country strategic advantages by helping the domestic arms manufacturer’s efforts in research and development (R&D). Hence, in the nation’s “best interest,” the government could share the entire database with a U.S.-based competitor. There’s no substantial evidence that this has ever happened and no country would admit to doing it, but it’s certainly possible. There are rumors of the Echelon project being misused for this very reason.

A single person overseas can cause huge amounts of damage as well. For instance, an individual conducting this investigation with the FBI could share it with his uncle at Lockheed Martin. It’s illegal, of course, but this FBI employee has no incentive to safeguard the data; he has no interest in the commercial success of a Swedish high-tech arms manufacturer. An employee working with this information could also find notes on bribes or other suspicious information and share it with Wikileaks, causing major damage to the company. It’s important to reduce the number of people with access to such information to reduce the risk of leaks.

Even when a cloud-based system is hosted in a country that respects the customer’s integrity, the data can still travel through other countries that could intercept and misuse it. Much of this communication is based on SSL and other heavily-encrypted connections, but countries like the U.S. and UK have the resources to break most common encryption techniques. Large amounts of resources have been spent on scanning the Internet and other communication channels, as in the Echelon project example. These resources would be wasted if there weren’t any decryption mechanisms.

Cloud computing holds tremendous promise, but there are some aspects of this model that must be considered before jumping on board. Hosting a system in the same country at least makes it clear which laws apply. For companies within the European Union (EU), I suggest hosting within EU borders. Then there’s at least some common law for the EU that could be used in the courts. Hosting in countries with strict views on data integrity, like Switzerland has in banking, might also be an option. But when a company keeps its own data storage, it can at least be prepared when someone breaks down the door with a court order.

By: Gustaf Westerlund

Cloud computing contracts: tread carefully

A panel of lawyers at RSA Conference 2011 on Tuesday told attendees to be careful when negotiating with cloud computing service providers, but also offered a reality check on the odds of service providers agreeing to an array of provisions in cloud computing contracts for data security.

Organizations shouldn't be clicking through a service provider contract online without negotiating it, said Scott Blackmer, a founding partner of the InfoLawGroup LLP. Cloud services need to be subjected to careful due diligence and governance systems; if they're not, "it's likely going to haunt you," he said.

"Legal and compliance risks can't be shifted to the cloud vendor," said Thomas Jackson, a partner and chair of the technology practice group at New York-based Phillips Nizer LLP. The ultimate responsibility remains with the enterprise that's contracting for the cloud services, he said.

The provisioning of cloud services is becoming a competitive environment, which gives organizations a basis for negotiating key contract provisions, Nizer said. He listed several critical provisions for cloud computing contracts, including:

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Source: searchcloudsecurity.techtarget.com
By: Marcia Savage

Using the cloud for data migration: practical issues and legal implications

The hype about cloud computing is everywhere so it is important to distinguish between the perceived benefits, actual benefits and associated risks.

Cloud computing has been around for years, albeit in different guises, but the technology has now allowed it to gather sufficient momentum to allow greater flexibility and versatility – a fact echoed by Guy Mucklow, the managing director of Postcode Anywhere.

Postcode Anywhere, which offers web services and software to look up UK and international addresses, has been using the cloud for several years in its service offerings and its latest use is its MyServices suite of cloud service offerings, which can be used to facilitate data migration between legacy and replacement systems through the cloud.

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Source: computing.co.uk
By: Jagvinder Kang

E-discovery: How a Law Firm Slashes Time and Costs

It's no secret that corporations are drowning in data. IDC estimates the volume of computer data worldwide will reach 1.2 million petabytes during 2011. A November, 2010 Gartner study found data growth was one of the top three challenges for data center managers at 47 percent of large enterprises.

That usually prompts worries about the cost of data storage, but the data itself poses dangers that most companies are not managing well, according to Katey Wood, information management and e-discovery analyst at Enterprise Strategy Group.

Despite the additional costs that unstructured data like e-mails, spreadsheets and word processing documents add to compliance processes, most companies do little to hem in sprawling data, Wood says.

The annual cost of litigation (excluding settlements) was more than $1 million for half of U.S. companies in 2010, prompting far more to investigate alternate ways to pay for legal protection, and 40 percent of large companies to plan increases in spending on e-discovery during 2011, according to surveys from legal-information services firm Fulbright & Jaworski.

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Source: networkworld.com
By: Kevin Fogarty

Could Your Firm's E-Mail Policy Run Afoul of the Federal Wiretap Act?

Once seen only in the shadows of the war against organized crime, the Federal Wiretap Act should now be moving steadily and rapidly toward the top of the corporate compliance checklist. Robust civil remedies, recent court decisions and technological developments have transformed the act's risk profile from a non-event to a statute worthy of significant attention.

Although principally a criminal statute, the Federal Wiretap Act is unique among privacy laws in that it provides for substantial monetary damages without proof of actual harm.

Under the act, an aggrieved party can recover a minimum award of $10,000 or $100 per day of violation -- whichever is greater, or, actual damages, plus punitive damages, attorneys' fees and costs. Comparing recent class action litigation involving security breaches with potential class actions involving the Federal Wiretap Act demonstrates the significantly pro-plaintiff aspect of this remedial scheme.

To date, the vast majority of security breach class actions have been dismissed, or resolved in the defendant's favor on summary judgment, because the plaintiff failed to plead or prove that the security breach at issue proximately caused any cognizable damage to class members.

By contrast, under the Federal Wiretap Act, proof that the violation proximately caused cognizable harm is unnecessary, and each individual plaintiff can recover a minimum of $10,000 even in the absence of actual damages.

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Source: Law Technology News
By: Phillip Gordon

N.Y. Courts Grapple With Discovery of Social Media Posts

Use of social media tools such as Facebook, MySpace, Twitter, and LinkedIn, as well as many lesser-known or more specialized online media services, has become pervasive throughout every segment of society. For example, in excess of 500 million people around the world are registered with Facebook, and there are over 100 million tweets on Twitter every day.[FOOTNOTE 1]

Social media allows users to post their photos and videos online, and discuss their lives, health, and interests. Indeed, Facebook recognizes that "one of the primary reasons people use Facebook is to share content with others. Examples include when you update your status, upload or take a photo, upload or record a video, share a link, create an event or a group, make a comment, write something on someone's Wall, write a note, or send someone a message."[FOOTNOTE 2] Sharing this personal information can be virtually instantaneous and, of course, worldwide.

That, as might be expected, can lead to a host of litigation issues, including whether information that parties to a lawsuit have made available via social media is discoverable.[FOOTNOTE 3] The recent decision in Romano v. Steelcase Inc.[FOOTNOTE 4] sheds significant light on that issue under New York law.

Analysis of the discoverability of social media content begins with CPLR 3101, which provides for full disclosure of all nonprivileged matter that is both material and necessary to the defense or prosecution of an action. Generally speaking, trial courts have broad discretion when supervising pretrial discovery, including in determining what is "material and necessary."[FOOTNOTE 5]

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Source: Law Technology News
By: Shari Claire Lewis

Speed Limits in Document Review

"Cluster" is a word legal professionals in e-discovery hear a lot. It's not difficult to discern its meaning. Search technologies use software algorithms to group similar content together, into clusters, to speed document review. Preface the word with "concept," however, and it becomes a means to find what people say -- and mean -- in documents, and group them accordingly.

For example, New Jersey Legal, a regional provider of e-discovery services, recently announced an alliance with Hot Neuron, an information retrieval software and services company, to use Hot Neuron's Clustify software to, among other things, provide concept clustering to partners and clients.

Clustify groups related documents into clusters and labels the clusters with keywords. Document review managers can then assess the concept clusters and assign documents for review. But the technology does not have to stop there.

Hot Neuron's software can automatically categorize new documents as the EDD project progresses. Clustify can compare new documents to documents already processed and, based on sufficient concept similarity or near-duplicate similarity set by a user, automatically apply a category. Some call this "predictive coding."

Once concept clusters are formed, you can further winnow document sets by document type to speed review. It's easier to speed through a set of contracts and not have to slow down to read a calendar item or e-mail message. But be careful and mindful of the March Hare's reproach to Alice in Alice in Wonderland: "Then you should say what you mean."

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Source: Law.com
By: Sean Doherty

Surviving e-Discovery With the Department of Justice’s Antitrust Division

The Department of Justice (“DOJ”) has aggressively requested the electronic production of corporate data over the past decade. The Antitrust Division is a perfect example, having experienced exponential growth in the amount of discovery and information that it receives in response to Second Requests. In turn, the Division’s spending on electronic storage capacity has increased in order to accommodate a six-fold increase in necessary memory between 2003 and 2010 alone.

The Antitrust Division is also a part of an internal DOJ working group that addresses e-discovery issues in civil matters. Every civil section and its respective litigation support staff participates in the group in order to uncover and implement best practices. The working group is designed not just to provide internal guidance to DOJ staff attorneys responsible for negotiating Second Requests and Civil Investigative Demands (“CIDs”), but also, according to DOJ “to provide detailed guidance to law firms and their electronic production vendors about the optimal way to produce electronic data and documents to the Division . . . to ensure that parties can avoid producing data multiple times and that the production is in a format that [can] be reviewed promptly.”

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Source: blogs.forbes.com
By: Ben Kerschberg

Get Off of My Cloud

Businesses remain deeply skeptical about the benefits of the cloud, especially when it comes to security.

As the much-hyped next big thing in information technology, the cloud in cloud computing seems almost too apt as a metaphor. Constantly moving and changing, impossible to pin down and the closer it gets, the harder it is to distinguish from fog.

It has divided opinion. On one side are those who believe the cloud represents nothing less than a revolution that will bring a golden age of cheap, efficient and agile computing on tap. Lined up against them are skeptics who have seen variations on these promises for decades, which have never been fully delivered. However, the single biggest concern weighing on the minds of those chief executives looking to embrace cloud technology is security. Once businesses are happy their data is truly safe in the cloud, only then will this technology transform the world.

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Source: online.wsj.com
By: Nick Clayton

Corporate social media use 'must be guided by employers'

Businesses seeking to use social media for marketing and advertising purposes should consider a number of factors when formulating policies for usage of the channel, it has been claimed.

Analyst firm Gartner has warned companies they may derive only limited benefit from the use of networking websites such as Twitter, Facebook and LinkedIn, should they fail to prepare properly and communicate the marketing strategy to employees.

Gartner noted that there are many possible purposes for social media and it can be used for five levels of increasingly involved interaction ranging from monitoring to co-creation.

The channel can also be utilised across four different constituencies: employees, business partners, customers and prospects, and the social web.

"It is critical that social media leaders determine the purpose of their initiatives before they deploy them," Gartner claimed.

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Source: ashdowngroup.com
By: John Lynes

Pension Committee Retrospective – Second in a Series of Guest Blogs: Kevin Brady, William Butterfield, and Maura Grossman

This is the second in a series of guest blogs on Judge Shira A. Scheindlin’s landmark decision, Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F.Supp.2d 456, 465 (S.D.N.Y.2010). The articles were all originally published together as a white paper in the Legal Hold Pro™ Signature Series, Pension Committee Revisited: One Year Later, edited by Brad Harris and Ron Hedges. The first blog in this series introduced the paper and reprinted the lead article by Craig D. Ball. This second reproduces the next three articles by more top experts: Kevin F. Brady, William P. Butterfield, and Maura R. Grossman. There are six more articles yet to come in future blogs by Browning Marean, Jonathan Redgrave, Paul Weiner, John Jablonski, Denise Talbert, and, oh yeah, me.

This is an outstanding series of articles and I suggest you study each one carefully. This series not only facilitates an in-depth understanding of Pension Committee, but also provides an interesting glimpse into the many attitudes, styles, and points of view of leaders in this dynamic area of the law.
_______________________________

Rekindling the National Debate on Preservation Best Practices
By Kevin F. Brady

The legacy of Judge Scheindlin‘s decision in Pension Committee will not be the substance of what is contained in the 88-page scholarly analysis on issues about whether there should be a bright line test for negligence, gross negligence or bad faith behavior or whether there should be a requirement for written legal holds. Instead, Pension Committee will be seen as the spark that reignited a national debate regarding best practices for handling ESI and refocused the attention of the legal community on the issue of preservation and the need for effective policies and procedures for preserving ESI irrespective of the circuit where the lawsuit is pending.

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Source: e-discoveryteam.com
By: Ralph Losey

Juror's tweets raise ethical, legal questions

PITTSFIELD -- Social media has given a megaphone to people across the globe -- facilitating democratic uprisings and providing a window to the minutiae of daily life.

But Wednesday's dismissal of a local man from a Berkshire Superior Court jury shows that the rapid rise of new technologies also presents a host of questions about their legal and practical implications.

Great Barrington resident Seth Rogovoy was discharged Wednesday as a member of the jury for the child rape trial of priest Gary Mercure in Berkshire Superior Court.

Rogovoy, the editor of Berkshire Living magazine, was removed from the jury by Judge John A. Agostini after mentioning his jury duty several times on Twitter. The removal happened the day before Mercure was found guilty.

It was Rogovoy's final posting -- "I am in contempt of court, de facto if not de jure" -- that was brought to Agostini's attention by the Berkshire District Attorney's Office and led to the juror's discharge.

In an interview with The Eagle on Thursday, Rogovoy said the post was nothing more than a creative play on words, but in discharging him the day before, Agostini told Rogovoy he had violated specific orders regarding communication of any kind about the case.

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Source: berkshireeagle.com
By: Trevor Jones

Judge backs social media in courts (Australia)

TWEETING is to be allowed as courts begin a slow embrace of the digital age but don't expect live television coverage of proceedings any time soon.
The role of social media such as Facebook and Twitter, as well as restrictions on releasing information, were discussed at a conference on the Gold Coast yesterday.

News Limited chairman and chief executive John Hartigan outlined reforms that would lead to more "open justice'' but Queensland Chief Justice Paul de Jersey argued courts were not "out of touch".

Justice de Jersey referred to the recent Julian Assange bail application in London where journalists were allowed to email stories from inside court.

"In Queensland courts, laptop computers which do not communicate via a cellular network may be used in court proceedings, so tweeting is permitted, though not by jurors.

"The capacity obviously facilitates the earliest online publication of court proceedings."

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Source: couriermail.com.au
By: Paul Weston

What's There to Hold On To? An Enlightened Approach to Data Preservation in the Era of the Legal Hold

Data drives everything in today's business world, and it would be hard to name a more important concern for today's corporate arena than data preservation.

The growing urgency of this matter, until last year a novelty to most attorneys, touched off a flurry of rulings in the area of legal holds in 2010, with several major court decisions redrawing the map in what had been virtual terra incognita.

Beginning with the landmark Pension Committee decision by U.S. District Court Judge Shira Scheindlin in January 2010, the judiciary became hyper-focused on this area with opinion after opinion coming down for the rest of year. (Rimkus v. Cammarata, Crown Castle v. Nudd Corp, Merck Eprova v. Gnosis, Jones v. Bremen High School, and Victor Stanley II.)

Clearly corporate counsel can no longer function without developing the judgment to distinguish what must be preserved, the knowledge to negotiate and lucidly communicate the scope, and the skills and tools to select and instruct on reasonable and effective methods of preservation.

Implementing a reasonable, defensible legal hold need not be a complex or overwhelming task. The standard is not perfection, but reasonableness and good faith coupled with competency.

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Source: law.com
By: Brad Harris & Craig Ball

Sanctions up for e-discovery

Sanction motions and awards for e-discovery violations across the country have climbed dramatically in recent years and have now hit “historic highs,” according to a study published in the Duke Law Journal.

The study identified 401 cases filed in federal court before Jan. 1, 2010, with written opinions involving sanction motions or sanction awards. It found that not only have e-discovery sanction cases climbed annually since 1981, the increase in both sanction motions and awards since 2004 has been “significant.”

In 2009, there were more sanction cases (97) and more sanction awards (46) than in any previous year.

Lawyers say the study, the most comprehensive effort they have seen attempt to quantify trends in what is a rapidly expanding and increasingly complicated area of litigation, confirms much of what they have witnessed in their own practices.

“E-discovery is a big issue, it’s an enormous undertaking and it’s incredibly expensive,” said John A. Tarantino of Adler, Pollock & Sheehan in Providence, R.I. “Even if you proceed in good faith, you still can have problems.”

Violations prompting the most sanctions were a failure to preserve evidence, which was cited in 131 of the 230 cases in which sanctions were handed out, followed by a failure to produce evidence, cited in 73 cases.

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Source: wislawjournal.com
By: Christina Pazzanese

Conn. Courts' Lack of E-Discovery Rules Raises Questions

Unlike most other states, Connecticut does not have e-discovery rules similar to the federal rule amendments adopted in 2006. Is this a cause for concern? No. The costs of e-discovery are simply too high to justify anything but a careful and thoughtful approach to adopting rules that potentially could change the playing field for parties and lawyers alike.

The risks of adopting e-discovery rules without a thorough analysis are obvious: e-discovery expenses should not be the gatekeeper that determines which litigants have a day in court. For example, certain parties and law firms may be deterred from bringing contingency fee cases involving terabytes of electronically stored information because they lack the financial resources to bear the expense of collecting, processing, reviewing, and producing ESI in the absence of cost-shifting.

Even without specific e-discovery rules, Connecticut state courts have been applying existing statutes, rules, and causes of action to address e-discovery issues. Yet, the relatively low number of cases involving e-discovery issues, which are published or available on electronic databases, raises significant questions.

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Source: Law.com
By: Jill M. O'Toole

Companies need to carefully plan social media policy say Gartner.

Gartner has identified seven critical questions that designers of social media policy must ask themselves:

“Social media offers tempting opportunities to interact with employees, business partners, customers, prospects and a whole host of anonymous participants on the social web,” said Gartner analyst Carol Rozwell.

What Is Our Organization’s Strategy for Social Media?

There are many possible purposes for social media. It can be used for five levels of increasingly involved interaction (ranging from monitoring to co-creation) and across four different constituencies (employees, business partners, customers and prospects, and the social Web). It is critical that social media leaders determine the purpose of their initiatives before they deploy them and that those responsible for social media initiatives articulate how the organization’s mission, strategy, values and desired outcomes inform and impact on these initiatives. A social media strategy plan is one means of conveying this information.

Who Will Write and Revise the Policy?

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Source: sourcingfocus.com

Cloud computing: An opportunity and a legal maze

The migration of computing into a cloud of massive data centres spread all over the world is giving regulators a headache as they find themselves on the back foot of an industry-driven trend.

Milestones
20 Nov. 2009: European Network and Information Security Agency (ENISA) issues report on security risks and benefits of cloud computing.
26 Jan. 2010: European Commission outlines future directions for cloud computing research in Europe.
19 May 2010: Commission's 'Digital Agenda for Europe' suggests developing EU-wide strategy on cloud computing, notably for government and science.
Dec. 2010: Commission 'Study on security and privacy regulatory challenges in the Cloud'.
Dec. 2010: Commission review of economic impact of cloud computing.
May 2011: Commission to consult stakeholders on regulation for cloud computing.
2012: Commission expected to propose EU strategy for cloud computing.

Policy Summary
The term 'cloud computing' describes a whole range of infrastructure, software, data or applications residing in the 'cloud' – that is to say, off your own premises and accessed via the Internet.

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Source: euractiv.com

Documents in FOIA Requests Must Be 'Searchable,' Federal Judge Rules

The federal government must provide documents "in a usable format" when it responds to Freedom of Information Act requests, a federal judge in Manhattan has ruled.

Southern District of New York Judge Shira A. Scheindlin, after faulting the government for offering "a lame excuse" for delivering non-searchable documents, ruled for the first time that federal agencies must turn over documents that include "metadata," which allows them to be searched and indexed.

Scheindlin also ruled that "common sense dictates" that the handling of FOIA requests should be informed by "the spirit if not the letter" of the Federal Rules of Civil Procedure, which govern the handling of electronic information stored in computers.

Writing more broadly, Scheindlin noted that "even highly respected private lawyers, government lawyers and professors of law" need to comply with judges' expectations that adversaries "meet and confer" to minimize the cost and delay often associated with e-discovery.

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Source: Law.com
By: Daniel Wise

How Do You Sample Electronically Stored Information (ESI) in E-Discovery?

When confronted with an almost impossible data analysis problem, a tried and true technique to solve it has been the use of sampling. The mathematical analysis behind sampling is something that has been studied for quite a number of years. Also, sampling has also been put into practice for well over seventy years, in many fields from predicting results of elections and assessing quality of electric bulbs. Why not do the same for certifying your ESI productions, while also addressing defensibility and reasonableness?

Sampling as a way to assess quality is something the Electronic Discovery Reference Model (EDRM) Search Group authors covered in detail, with a strategy in a comprehensive EDRM Search Guide (see Section 9.5 and Appendix 2). And, while much of that work is still to hit the mainstream litigation scene as a general practice, I was pleasantly surprised to see it receive attention from a fellow blogger and litigator, Nick Brestoff, who highlighted this in a very thoughtfully crafted article in Law.com, titled A Strategy to Sample All the ESI You Need. I commend his article for helping the community understand the practical difficulties in getting a certifiable result that attorneys can stand behind. And, it is highly likely that the current practice is to certify your electronic discovery without a real measure of validity behind it.

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Source: eDiscovery 2.0
By: Venkat Rangan

Benefits of Prioritization Technology for Document Review

The last few years have seen the acceptance of early data assessment tools designed to reduce the volume of data that is collected, processed, reviewed, and ultimately produced. Subsequent successes in this area have led to wide, mainstream usage and their adoption continues to reduce costs in the most expensive segment of the process, document review.

These technologies prioritize documents based upon trained relevance ratings and allow lawyers to estimate the value of those documents and organize them in a way that optimizes the review process, while simultaneously giving the case team early access to key information. These applications represent one of the most transformative trends in e-discovery technology. Whether you are responding to a second request or reviewing documents for litigation, you should make it a point to familiarize yourself with what is happening in this area.

The past 12 to 18 months have been a time of gaining confidence in the use of these new technologies, but 2011 will be the year in which their utilization will become more prolific in the legal community. These software applications not only provide a way of substantively assessing the collected material by identifying which documents are most likely to be responsive and relevant to a case (and correspondingly, identifying more likely non-responsive material), but they can also provide the means to structure the review workflow in order to maximize benefits.

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Source: law.com
By: Mary Ann Benson and Chris Janak

Settlement with govt in Facebook firing case sends a message to employers

Employers should think twice before trying to restrict workers from talking about their jobs on Facebook or other social media.

That's the message the government sent on Monday as it settled a closely watched lawsuit against a Connecticut ambulance company that fired an employee after she went on Facebook to criticize her boss.

The National Labor Relations Board sued the company last year, arguing the worker's negative comments were protected speech under federal labor laws. The company claimed it fired the emergency medical technician because of complaints about her work.

Under the settlement with the labor board, American Medical Response of Connecticut Inc. agreed to change its blogging and Internet policy that barred workers from disparaging the company or its supervisors. The company also will revise another policy that prohibited employees from depicting the company in any way over the Internet without permission.

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Source: latimes.com
By: Sam Hananel

The Perils of Data Collection in High Stakes Litigation: Which Approach Is Right For Your Organization?

Many organizations involved in litigation, investigations, or audits struggle to meet deadlines for collecting and producing electronically stored information (ESI) from employees without breaking the budget. The biggest challenges are typically faced by large organizations with multiple offices and large numbers of employees. However, even smaller organizations with few offices face challenges if they have remote employees or employees who travel frequently, aka road warriors. In this first of a two-part series, I’ll discuss when and why organizations should choose a manual collection process. Part two will discuss the advantages of two automated data collection approaches.

In each situation, the organization is faced with a request for ESI and some portion of the potentially relevant ESI is located in remote offices or on laptops used by road warriors. Preserving and collecting ESI across multiple systems such as email and file servers, archival systems, Microsoft SharePoint, and personal computers can be challenging whether these systems are located centrally or in the cloud. Common challenges include:

■ Pressing deadlines
■ Risk of data loss or deletion

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Source: eDiscovery 2.0
By: Matthew Nelson

The Argument for Smaller Email Inboxes

The release of Microsoft Exchange 2010 substantially increased the maximum database size that can be handled by its core messaging engine to 16TB (Terabyte). This is 10 times more than the 200GB (Gigabyte) supported in Exchange 2007, and must appeal to companies looking to support more users or larger mailbox quotas. Of course, the maximum supported size does not necessarily conform to best practice sizes recommended by Microsoft, for which the Microsoft Exchange team has released a detailed spreadsheet documenting the various scalability limits here. (You will need Excel 2007 and later to open it)

Regardless of the Exchange Server version in use, enterprises have a number of techniques to support the needs of their organization. What I want to talk about today however, are some considerations that email administrators and IT managers should evaluate prior to upping the limits on their corporate inbox.

Computing the storage cost

The most obvious argument against large mailboxes would of course be the dollar cost that acquiring additional storage space will incur. While hard disk storage has plunged in recent years, assigning 10GB inboxes instead of 2GB or even 5GB ones does add up to a hefty amount. In addition, there is also a need to factor in the cost of data mirroring technologies too, which can result in a doubling of storage space if RAID1 is used, for example. Factor in the corresponding increase necessary for offline or archival storage, and the storage requirements goes up higher still. Clearly, performing a linear computation multiplying users with their mail quota is not an accurate way to determine the true cost of any increase in quota

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Source: The EmailAdmin
By: Paul Mah

NIST Issues Cloud Security Guidelines

The government standards body has launched a wiki to get feedback on its draft policies for securely deploying cloud computing.

Organizations implementing cloud computing should think about security first before deploying a production environment, according to the National Institute of Standards and Technology (NIST).

The advice is one of several guidelines NIST has issued in one of two draft documents on cloud computing, which offer the first set of guidelines for how the federal government manages security and privacy in the cloud.

Government agencies look to NIST for guidance in deploying technologies, and the standards body sets security requirements for technology the government uses under the Federal Information Security Management Act (FISMA).

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Source: Informationweek
By: Elizabeth Montalbano

Backing Up Virtual Machines

Virtual machines are increasingly the workhorses of the enterprise data center, and no backup strategy is complete without a plan to protect them.

While VMs are, at heart, simply a collection of disk files combined with a configuration file, there are some challenges. First, VM disk files tend to be huge. While having an exact copy of every machine on a backup medium is a fantastic way to recover from a bare-metal standpoint, you have to consider the amount of storage required. And, given the 24/7 nature of today's data centers, we have to back up our VMs while they run and serve clients. Regardless of the hypervisor platform in use, this is accomplished via the creation of a VM snapshot. When a snapshot is made of a VM, the hypervisor stops writing to its existing disk file and creates a new disk file to write changes to. If the machine is live, it also saves the contents of running memory to a separate file. The backup software can copy the snapshot while allowing the VM to continue operating.

In the normal course of a disk-level backup managed by a third-party product, the snapshot will be taken immediately prior to the backup and deleted immediately thereafter. This process requires that any backup product you use be able to do three things: communicate with the hypervisor before, during, and after the backup to request the creation and deletion of snapshots; gain access to the raw VM disk files; and quickly and efficiently move data from the virtual infrastructure out to a storage medium without disrupting the current workload.

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Source: Informationweek
By: Jake McTigue

Finding DuPont committed ‘fraud on the court’ by discovery abuses, Florida state judge strikes pleadings, leaving giant exposed in high-stakes case

In a state where judges have no direct authority under court procedure rules to impose sanctions for e-discovery violations, as do federal judges, a state circuit court judge in Miami, inflamed by what she describes as a "fraud upon the court justifying the severest of all sanctions," has resorted to the equivalent of the judicial sanctions atomic bomb by leaving chemical giant DuPont defenseless in a never-ending, contentious suit.

An order by South Florida Circuit Judge Amy Steele Donner striking DuPont's pleadings means that whatever the 75th-ranked Fortune 100 company has asserted as defenses, in motions and other court documents, are extinguished. They will form no part of the trial on the merits. It is as if DuPont never answered the complaint of numerous plant nurseries nearly 20 years ago alleging serious harm and damages to crops from use of the DuPont pesticide, Benlate.

The ruling by Donner effectively finds DuPont liable, and takes the case directly to a determination of the damages suffered by the plant nurseries.

Dupont’s scheme to conceal evidence was "unconscionable," court finds
The court’s extreme reaction was amply justified on the record she cited in her order, which says DuPont extracted and concealed 34,000 pages from a required disclosure and production in discovery. Donner, who has been hearing the case since 1997, found that many of the unproduced documents were "highly relevant" and concluded that DuPont was guilty of "a fraud on the court" by its "unconscionable" scheme to conceal relevant documents.

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Source: aceds.org
By: Isabel Arias

Hey, You, Get Off of My Cloud

Where do the cloud and privacy meet?

That was one of the main subjects of a two-hour conversation over lunch late last month. And even though the participants were experts in eDiscovery and cloud computing, answers to that question were as elusive as, well, one of those white fluffy things.

By all accounts cloud computing is growing exponentially. More and more companies, individuals and government agencies work with programs and data that reside on the Internet. In other words, they're stored on remote servers maintained by third parties — that's all cloud computing is. And we do it without even knowing it. (Can you say Facebook?)

What's driving many companies to join the cotton-ball revolution is a simple matter of money. Patrick Oot said a company that uses cloud computing could pay a quarter of what it would otherwise cost to store electronic data on its own servers. Oot was one of the participants in the session in the Manhattan restaurant organized by Recommind, the San Francisco-based software company that's a major provider of eDiscovery services. He's co-founder and GC of the nonprofit Electronic Discovery Institute in D.C. (and formerly eDiscovery director at Verizon).

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Source: law.com
By: David Hechler

Monitoring communications? Know legal pitfalls

Employers that want to monitor their employees' electronic communications, regardless of whether the workers are on the clock or using company equipment, must proceed with caution, attorneys say.

They point out that case law is still developing in this area as courts struggle to adapt longstanding law to new technology with regard to employees' expectation of privacy.

But precisely worded policies covering workers' use of e-mail while on the job, respecting employees' First Amendment rights and avoiding any effort to inappropriately access nonpublic forums can significantly mitigate employers' liability risk, observers say.

Observers note that in most cases, state laws, which vary, apply to privacy issues. Federal laws that may apply include the Stored Communications Act, which imposes penalties for clandestinely accessing information held in electronic storage; the Electronic Communications Privacy Act, which makes it illegal to intercept or retrieve electronic communications in certain instances; the federal Wiretap Act, which governs the privacy of oral and wire communications, and the National Labor Relations Act, which covers collective bargaining and other employer and employee rights.

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Source: businessinsurance.com
By: Judy Greenwald

E-Discovery: Wisdom Or Worry: State Courts Lack E-Discovery Rules

Judges apply existing statutes, Practice Book passages in making decisions

Unlike most other states, Connecticut does not have e-discovery rules similar to the federal rule amendments adopted in 2006. Is this a cause for concern? No. The costs of e-discovery are simply too high to justify anything but a careful and thoughtful approach to adopting rules that potentially could change the playing field for parties and lawyers alike.

The risks of adopting e-discovery rules without a thorough analysis are obvious: e-discovery expenses should not be the gatekeeper that determines which litigants have a day in court. For example, certain parties and law firms may be deterred from bringing contingency fee cases involving terabytes of electronically stored information (ESI) because they lack the financial resources to bear the expense of collecting, processing, reviewing, and producing ESI in the absence of cost-shifting.

Even without specific e-discovery rules, Connecticut state courts have been applying existing statutes, rules, and causes of action to address e-discovery issues. Yet, the relatively low number of cases involving e-discovery issues, which are published or available on electronic databases, raises significant questions.

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Source: ctlawtribune.com
By: Jill M. O'Toole

E-Discovery: Cloud Computing Complicates E-Discovery Issues

Retrieving deleted files just one challenge of online data storage

Cloud computing is alive and flourishing. It has become the popular technology tool for many who want to shift from local PC/Network computer storage and processing to external computers in “the cloud” (on the Internet) handling these types of services.

E-mail, word processing and financial systems are all examples of information that may no longer exist at a company’s physical site and reside somewhere in cyberspace. Cloud computing technologies, however, can significantly impact how and where electronically stored information (ESI) resides, thus impacting the traditional e-discovery model.

Everyone seems to have their own definition of cloud computing. Simply put, cloud computing is typically considered a subscription-based or pay-per-use service that is provided through the Internet. This also extends to the concept of Software-as-a-Service (SaaS). This includes software applications (e-mail, word processing, etc.) that are provided as a service to company employees via the Internet. Their information is stored on third-party network servers and not on in-house computers. Typically access to these applications is through a standard Web browser, allowing a user to access the information from virtually any location.

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Source: ctlawtribune.com
By: Jeffrey Ziplow

How Social Media Can Prevent Information Overload

The other day my son was sitting next to me while I did some work on the computer.

He started pushing icons on my screen with his finger. My computer doesn't have a touch screen like my iPad, so nothing happened, but it demonstrated an expectation my son is growing up with.

He expects to get the media he wants, when he wants it at a touch of a button. When I was a kid (not very long ago) the only options for watching cartoons were right after school and Saturday morning. I wouldn't ever think of sleeping in on Saturday mornings or I would miss Transformers, HeMan and possibly even The Smurfs re-runs. I was completely at the mercy of the TV schedule.

My son will likely never have to deal with this constraint. He can simply watch Cartoon Network all day every day, or the History Channel, ESPN or Seinfeld re-runs. I had to search through libraries to find content as a child; for my kid, finding content will be as simple as a Google search.

This search capability presents a problem, referred to by many as information overload. "I don't have time to answer my e-mails every day — how will I find time to use social media?" complained one attorney. "I just can't handle sifting through any more information," complained another. What these lawyers don't realize is that as this technology progresses, so does its ability to organize information.

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Source: law.com
By: Adrian Dayton

A measured approach to social media

Ethical issues related to the practice of lLawyers are into LinkedIn and blogging.

Twitter, Facebook and YouTube, not so much.

As professionals of all types try to figure out social networking, attorneys are treading extra cautiously into the social media revolution.

Research on lawyers’ adoption of social media is limited, but anecdotally it’s clear that while legal professionals are getting their toes wet, for most the big dive has yet to happen.

Lawyers have specific concerns, bound by rules against disclosing confidential information, dispensing legal advice to strangers, and taking positions that could jeopardize future cases. Typically a risk-averse group, attorneys are trying to balance those potential pitfalls with the opportunities to use social media to gain client referrals, recruit associates, boost search engine results, demonstrate expertise and further strengthen their reputation.

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Source: bizjournals.com
By: Kelly Johnson

CBA in hot water over social media policy

A legal expert says start-ups can learn from the mistakes of the Commonwealth Bank, which has been criticised by the Finance Sector Union for introducing an “unfair and unworkable” social media policy.

The two-page policy states employees cannot “comment on, post or store any information about bank-related matters”, or speak negatively about the company. A policy breach could result in termination.

The policy also requires employees to report any “inappropriate or disparaging” comments made about the bank on social media sites. Staff are also require to help the company remove or delete material deemed inappropriate.

According to the FSU, the policy misrepresents workplace rights as it fails to acknowledge employees’ statutory rights under the Fair Work Act and Equal Opportunity legislation.

The CBA said in a statement that inappropriate content on social media sites could affect the company’s brand image and customer expectations. According to the bank, its social media policy enables it to better help customers

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Source: startupsmart.com.au
By: Michelle Hammond

eDiscovery Institute Launching Technology Assisted Document Review Study

Patrick Oot, General Counsel and Co-Founder of the Electronic Discovery Institute (“EDI”) called today for providers to participate in a study to evaluate the effectiveness of solutions that automate or expedite manual review in litigation, using a document set provided by Oracle. According to Oot, “Oracle is enabling EDI to conduct the technology assisted document review study by providing a large set of its records that have already been reviewed manually in litigation. Hogan Lovells, the firm that conducted the initial review and production, will assist. That assistance will be invaluable since they are already familiar with the documents.” Orrick, Herrington & Sutcliffe is also participating. Wendy Curtis, chair of Orrick's ediscovery working group, asserts "counsel, courts and clients need a common understanding of what these tools can accomplish and how they support the requirements of FRCP 1."

Oot went on to say that, “A substantial portion of the ever-escalating amounts of money that companies spend on litigation is spent reviewing electronic records to select those that are responsive to discovery requests. When that is done with a manual, document-by-document review, the costs can be staggering. Technology assisted document review has the potential to dramatically lower the costs of selecting records for production and speeding the litigation process. This study provides independently reviewed metrics on the quality and costs of various technology assisted document review solutions compared to manual review. This could speed the acceptance of technology assisted review methodologies by courts and by corporations.”

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Source: prlog.com