Category: industry_rants
Never mind dropping your Rs, how’s your WISP?
And no, I don’t means lisp.. How’s your Written Information Security Plan?
Vigorous identity theft regulations introduced by the Massachusetts Office of Consumer Affairs and Business Regulation (201 CMR 17.00 et. seq.) requires any person or business that owns or licenses (receives, maintains, processes or accesses) personal information about a resident of the Commonwealth of Massachusetts to meet minimum standards in safeguarding that personal information—whether in paper or electronic form. Such parties must develop and implement a Written Information Security Plan to protect personal information in a manner fully consistent with industry standards and other applicable laws and regulations.Read more
Meet Justin Kurtz, an undergrad with more than 12,000 friends. Facebook friends. 12,000?! Why the popularity? Apparently Kurtz knows how to take a “SLAPP”.. a Strategic Lawsuit Against Public Participation that is. Or at least Kurtz and his 12,000 friends hope he knows how.
The story here is about a clash of two titans—the corporate or government plaintiffs willing to litigate to force a vocal critic to back down vs. the little guy channeling the power of social networks.Read more
There’s an App for That Posted By Daniel Kaiser, Esq. on June 21, 2010
There is soon to be an app for just about everything. Thankfully, the legal community isn’t about to be left behind. Looking for a few apps that can actually make you smarter? Here are a few in no particular order that have caught my attention over the past month.
LawStack
This stack is much more fun than the law stacks you remember from law school, and the app gives you more than simply a touch of sophistication in your iPhone. The free version comes pre-loaded with a nicely indexed collection including the US Constitution, the Federal Rules of Appellate Procedure, the Federal Rules of Bankruptcy Procedure, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, and the Federal Rules of Evidence...Read more
Should Wexis Fear? Posted By Daniel Kaiser, Esq. on June 17, 2010
Maybe it’s because I’m a legal research fan, maybe it's because I like a deal, but William Manz’s recent article[1] in the New York State Bar Association Journal is pretty darn cool. The thing is, I’m not quite sure which part is the coolest.
Old, archived legal records and briefs have long been accessible only to lawyers and researchers who are willing to pay. As Manz points out, microfilm or microfiche records of New York Appellate Division cases only go back as far as the early 1970s. If you want to dig back a bit deeper, good luck! Google is working together with the Law Library Microform Consortium (LLMC) to change all that...Read more
Thinking of becoming what The American Lawyer[1] calls the Lone Wolf? Recession and all, the trend shows that many lawyers think this is the perfect time to go solo—or to go boutique. It comes down to two attractive perks: value for clients and autonomy for lawyers.
In terms of value, there’s nothing to match the experienced lawyer who decides to go small. These days even big clients are looking to capture economies in new places, and solo attorneys and start-up firms are reaping the benefits. Anchored by attorneys with field experience in larger blue-chip firms, these smaller players are becoming known for delivering conventional big-law quality coupled with unconventional flexibility in terms of billing.Read more
Recent blog posts have been popping up talking, with some alarm, about the rise of eDiscovery in ADR (Alternative Dispute Resolution). The idea seems to be that a once-friendly method for tabling business disputes is potentially being hamstrung by the encroachment of eDiscovery into the process. Granted, arbitration as an institution has developed or “matured” to such an extent that the old arguments for a faster, cheaper dispute resolution process often don’t ring true. But should the legal and business communities be alarmed?
With increasing frequency it’s becoming the reality that if you want to consider evidence at all, you’ll be considering electronic data. The argument goes that eDiscovery is today simply discovery… with an “e” appended to the front. This is easy to see when you look at the growing numbers of businesses of all sizes storing their records and communications primarily or exclusively as ESI (Electronically Stored Information). Think E-mail and spreadsheets. Enough said...Read more
Ben Bain’s article in Federal Computer Week is worthy of a read. His article highlights the Office of Inspector General’s (OIG) most recent report to Congress – a report including the ten most significant challenges faced by the National Archives and Records Administration. This top-ten list reads, for the most part, like a wish list of the skills and resources in high demand here in the world of eDiscovery...Read more
The question: Is it just a pep talk to encourage someone else to act? Or does an actual draft of the proposed bill exist somewhere in Microsoft’s corporate legal department?
In January, Brad Smith (General Counsel of Microsoft) spoke at Washington, D.C.’s Brookings Institution Policy Forum here in Washington. Mr. Smith came to Washington to speak with academics and industry leaders about something dear to Microsoft’s heart – cloud computing.[1] Urging the importance of a “safe and open cloud,” a need more recently underscored by...Read more
Choices, choices.. Trying to decide amongst all those competing SaaS Providers?
Today’s post is a direct hat tip to Joshua Poje, attorney and Research Specialist with the ABA’s Legal Technology Resource Center (LTRC), and coauthor of the LTRC’s legal technology blog “ABA Site-tation.” In January Mr. Poje brought us The ABCs of Cloud-Based Practice Tools, including this list of 18 key questions to ask a SaaS Vendor before signing on the dotted line. Several of these questions apply equally to a potential IaaS Provider. It pays to ask a few questions, so go on, get SasSy...Read more
Harmful if Swallowed Posted By Daniel Kaiser, Esq. on March 9, 2010
Have you finished digesting that data sir?
Spoliation simply can’t get much worse than this. Following his arrest outside of a bank in Queens, New York this January, Florin Necula apparently swallowed a 4 GB Kingston flash drive in an attempt to keep Secret Service agents from discovering the evidence. Facing a charge for the use of a “skimmer” to collect ATM and credit card numbers, Necula’s bizarre version of spoliation also earned him a charge of obstruction of justice...Read more
The Ten Step Rain-Dance Posted By Daniel Kaiser, Esq. on February 11, 2010
In the legal arena, regardless of how long you’ve been in the game, it always comes down to “making it rain.”
Myra L McKenzie, assistant general counsel in the Wal-Mart Stores, Inc. legal department, offers the following ten tips to rain-making in her article In Order to Make Rain, You Have to Know How to Gather the Clouds: Tips for Young Lawyers on Client Development, printed in the American Bar Association Young Lawyers Division 101 Practice Series...Read more
Do you hear that noise? No? That noise you may or may not hear is the sound of a quiet revolution well underway. The cloud computing revolution is bringing along with it a gradual but dramatic wave of change to the world of network infrastructure, IT servicing, and business models. This transformation speaks to different parties in different ways with the promise of efficiencies and cost containment on the one hand weighing in against security and hidden cost worries on the other hand.
By way of a definition, Gartner Inc., the Connecticut-based IT research and advisory company (http://www.gartner.com) offers the following five attributes of cloud computing: 1) Service-based, 2) Scalable and Elastic, 3) Shared, 4) Metered by Use, and 5) Uses Internet Technologies.
How does cloud computing affect you? Now is the time to find out and to plan your next move...Read more
Leaders Portfolio, an online and radio distributed interview show (leadersportfolio.com), invited Logik's CEO, Andy Wilson, to chat about how Logik started, what is eDiscovery, and various entrepreneurial experiences. The interview is about fifteen minutes long. Check it out.Read more
Emery G. Lee III and Thomas E. Willging of the Federal Judicial Center recently released their Preliminary Report to the Judicial Conference Advisory Committee on Civil Rules. You might be thinking to yourself, “Wow, a 191-page preliminary report.. on Civil Rules.. what’s in it for me?” A fair question, but actually this thing is pretty interesting.
To begin at the end, I was intrigued to find 77 pages of feedback from survey respondents classified according to the clients they represent: plaintiff’s attorneys, defendant attorneys and attorneys representing plaintiffs and defendants about equally. Predictably, voices from the plaintiff’s attorney sector are pointing out abuses of discovery perpetrated by defendant attorneys adversely affecting both the duration and cost of the process... while similar voices from across the isle are complaining of discovery abuse on the part of plaintiff attorneys. (Maybe these guys could get together and talk?)Read more
In our last post we had a look at the duty to Preserve. Leaving that pickle behind, today we’re moving on to the Duty to Produce. Or, as the Federal Rules of Civil Procedure would term it, the Duty to Disclose.
From a federal context, the duty to disclose has been bundled up nice and tidily in Fed. R. Civ. P. 26. Rule 26 should be examined and addressed early when facing a potential lawsuit because, absent an exemption, some of the required disclosures must be made from the very outset – “without awaiting a discovery request” – including contact details for those who are likely to have discoverable information.Read more
If you don’t want to spoliate all over yourself, it’s best to know how to do your duties.
Judge Grimm’s comments on the not-quite-twin duties of Preservation and Production in Goodman v. Praxair Services, Inc. come in the form of an easily overlooked footnote[1], but this is a sidebar worth looking into. Judge Grimm points out that there is “an important difference between the duty to preserve and the duty to produce . . . .”[2] This blog, as the first of a two-part series, will take a closer look at the duty to preserve.Read more
Would you be surprised to hear that Judge Paul Grimm, Chief United States Magistrate Judge for the U.S. District Court for the District of Maryland, holds the Parachutist Badge, the Meritorious Service Medal, the Army Commendation Medal and the Army Achievement Medal? I was. These just aren’t the usual images springing to mind when one thinks of the small handful of federal judges in the eDiscovery world who have been instrumental in getting eDiscovery’s rules of the game out there with clarity. Lawyers beware; you don’t want to be on his bad side.Read more
Loose Clicks Sink Ships Posted By Daniel Kaiser, Esq. on August 31, 2009
Need Another Reason to Review your Information Management System? You don’t think so? Here’s one anyway provided on June 4, 2009 by the U.S. Court of Appeals (8th Cir.): American Boat Company, Inc. v. Unknown Sunken Barge. This case really should be subtitled “Are You Being Served?” – although it sadly lacks in ironic humor or the English accents.
In February a towboat company called American Boat lost one of its towboats, to the tune of $3 Million in damages, in a collision with a hidden submerged barge on the lower Mississippi River. American Boat brought an action against the United States alleging negligence for failure to maintain a navigable channel. Facing a district court summary judgment for the U.S., counsel for American Boat filed a Motion to Amend Judgment or in the Alternative for Reconsideration.Read more
You may know what you’re looking for, but do you know how to look? For those who are engaged in eDiscovery, two cases touching on search methodologies that have held our attention over the past year include Magistrate Judge John Facciola’s decision in U.S. v. O’Keefe, and Magistrate Judge Paul Grimm’s decision in Victor Stanley, Inc. v. Creative Pipe, Inc.. Facciola’s harangue regarding the complex nature of ESI searches may have assured his immortality, and it is too good to resist quoting yet again:
Whether search terms or ‘keywords’ will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics... Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.Read more
Lately I've heard quite a few people in the eDiscovery industry throw around the word commodity when discussing processing.
Which begs the question, is eDiscovery processing really a commodity? I'll start. First things first, my company (Logik), does just eDiscovery processing, so I have an obvious biased response, but I think it's a logikal one.Read more
Earlier this spring, the United States Court of Appeals for the Fourth Circuit took a notable stand to strengthen the Stored Communications Act (SCA).
In Van Alstyne v. Electronic Scriptorium[1] the court broke new ground in SCA litigation by ruling that a civil litigant may be awarded attorney’s fees and punitive damages even in the absence of any proof of actual damages, although statutory damages will be withheld. In this case the court found that for more than a year a former employer had repeatedly accessed his former employee’s personal email account (as opposed to a company account with privacy waivers) – thus violating her personal privacy.Read more
Change is in the air. On March 20, 2009, an eighteen-month collaboration between the ACTL and the IAALS came to fruition through their joint-release of 29 Principles─marking the launch of a new nationwide movement to reform both federal and state rules of civil procedure. The Report includes Proposed Principles touching on eDiscovery (see specifically Principles 12 – 18), and in the coming months these two organizations, together with contributing members of the top echelon of the American and Canadian Trial bar, will be working to assist the implementation of these Principles into pilot projects in the U.S. civil justice system.
Flagging inefficiencies, disproportionate costs and delays, the Final Report emphasizes that the civil justice system is “in serious need of repair,” and that “[t]he traditional ‘one size fits all’ application of uniform rules to all cases . . . no longer works.” Many of us are left to wonder if, in fact, it ever really worked. We can watch for these 29 Principles, together with the Sedona Principles, to be instrumental in the retooling of the rules of civil procedure across the United States. Read more
ALI Stung like a Bee Posted By Daniel Kaiser, Esq. on August 21, 2009
Citing a need for flexibility of commercial law and freedom of contract, and hoping for a lighter touch, the Linux Foundation’s and Microsoft’s recent jointly sent open letter to the American Law Institute (ALI) urged a reconsideration of the ALI’s pending Principles of the Law of Software Contracts. Although competitors in the market, the two software providers came together to point out that the language of the ALI’s forthcoming Principles discriminated among business models, that it would be harmful to the climate of the law surrounding software provision and for related services and support, and that its release should be delayed to allow further input from the software development and user community.Read more
Any edition of the high-court shuffle will always attract attention. Although it is rare to see the Supreme Court ruling specifically on a question of eDiscovery, Court watchers have been interested to see how the addition of Sotomayor might influence the Court in the event of a relevant controversy. Having specialized in intellectual property while working with the firm of Pavia & Harcourt, and having at times touched on technology over the course of her more than 150 decisions, appeals court judge Sonia Sotomayer has created a record worth speculating over.
Bringing her history in intellectual property to bear, Sotomayer appeared comfortable in technology-based cases when wrote a few Anticybersquatting Consumer Protection Act cases in the early part of this decade. Examples can be found in Storey v. Cello Holdings, L.L.C. and Mattell, Inc. v. Barbie-Club.com.Read more
Our tip of the hat to Ralph Losey for his early comments on Phillip M. Adams & Associates, L.L.C., v. Dell, Inc., a recent case that has been turning heads everywhere. This case is certainly worth a read, and although it touches on a topic covered in one of our earlier posts, the outcome was surprising enough to be worth exploring again.
This was a case in which the defendant was sanctioned for not implementing a litigation hold, thus eliminating emails and data dated as far back as 1999. The catch: the defendant apparently did not receive notice from the plaintiff of a potential infringement claim until 2005, and claims to have implemented a litigation hold from that point forward. The Utah Magistrate judge reasoned that the entire computer and component manufacturing industry were essentially on notice of potential litigation (and as a result their litigation holds should have been triggered) in 1999 due to the presence of class action lawsuits against certain players in the industry in 1999 and 2000 based upon claims of defects in floppy disk controllers.Read more
I see skies of blue – and clouds of white – a bright blessed subpoena! You mean warrant, right?
Nope. We respect you for trying, but they meant subpoena. (…what a wonderful world…)
In U.S. v. Weaver, a Seventh Circuit district court addressed the question of whether a court can, via subpoena, compel an Internet Service Provider’s (Microsoft’s) production of a subscriber’s opened emails which are less than 181 days old. 2009 WL 2163478 (C.D.Ill.) This was a case of first impression for the Seventh Circuit, and it clarified Theofel v. Farey-Jones, a previous Ninth Circuit ruling. 359 F.3d 1066 (9th Cir. 2004). Whereas the court in Theofel found that circumstances called for the use of a warrant, the Seventh Circuit in Weaver said that a subpoena would suffice.Read more
Sailing the safe harbor Posted By Daniel Kaiser, Esq. on August 11, 2009
BRING OUT YOUR DEAD…documents. If your company goes to court, and your opponent’s discovery request includes dead files or electronic files previously deleted from your archives, have you secured safe harbor protections against court sanctions?
The corporate records you maintain as electronically stored information (ESI)─now including email, voice messages, proposals, sales documents, contracts, legal documents, tax records, employment records, Board minutes, and press releases amongst other important files─are both assets and potential burdens to your company. Having extensive records at your fingertips will enable smooth operations by informing you in your transactions with existing and potential clients, by allowing market analysis and company forecasts, and potentially by protecting you in the event of a lawsuit.Read more
Get ready for an acronym or two. Oh what the heck, make it seven. No Glossary Needed (NGN). In June the non-profit Association for Information and Image Management (AIIM), an official ANSI-approved Standards Development Organization, approved and released the updated 2009 version of AIIM ARP-1-2009: Recommended Practice – Analysis, Selection, and Implementation of Electronic Document Management Systems (EDMS).Read more
How do you feel about “going Dutch?” You may or may not have strong feelings about being asked to split a dinner tab, but my money says that you’ll have even stronger feelings about splitting a discovery “tab.” This is a brief look at when to expect cost-shifting in eDiscovery.
From the outset, keep in mind that eDiscovery cost-shifting is an extraordinary remedy. Court modifications of discovery requests (including cost-shifting) are not a given. In fact, the benchmark decision of Zubulake 1 points out that in many typical discovery requests a consideration of cost-shifting would be wholly inappropriate. In general, courts should deny burdensome requests for data in the absence of a reasonable prospect that the data will contribute significantly to discovery [...]Read more
These days we seem to be surrounded by various pronouncements and diagnostics on the health of the economy. Sometimes these seem to be counter-intuitive. Consecutive months of increased spending (rising 0.5%) at the same time as a 1.3% fall in personal income? (Consumer spending rose again in June.) More people are filing first-time claims for unemployment benefits, but the trend is improving? Somehow I think the idea that “the pace of decline [has] moderated” can cut both ways.Read more
Planning to use your electronic exhibits in court? On June, 29, 2009, the United States District Court for the Southern District of New York announced an interim measure that denied attorneys permission to bring their laptop computers (in addition to other electronic devices) through security and into the Courthouse short of a specific court order “authorizing a specific attorney to bring a specific electronic device into the building for a specific proceeding.”
This draconian little measure stemmed from the local judges’ concerns that laptops can contain bombs, and that personal electronic devices can make prohibited recordings during a proceeding. The new procedure came from the Southern District’s Ad Hoc Committee – superimposed upon the Court’s Local Civil Rule 1.8, reading “[n]o one other than court officials engaged in the conduct of court business [or federal prosecutors and defenders] shall bring any camera, transmitter, receiver, portable telephone or recording device into any courthouse or its environs without written permission of a judge of that court.” The big difference between the old rule and the new is that under Local Rule 1.8 it was common for judges to sign blanket orders allowing an array of unspecified electronic devices, but the interim rule requires a whole lot of specificity concerning the who, the what, and the when. Simply put, this means a good deal fewer tools in the courthouse.Read more
Some people just want it all. ESI, including metadata, is discoverable in a federal court and in state courts with similar discovery rules (thanks to Rule 34 of the Federal Rules of Civil Procedure and its state equivalents, and subject to Rule 26(b)(2)(C)’s probative value vs. burden balancing test).
But if you consider the thousands of electronic documents requested in a typical corporate suit─compounded by the hundreds or thousands of pieces of metadata within an edited document─when litigants demand “all the metadata,” do they really know what they’re asking for? Read more
An old Apple computer walks into a Chinese bar...
The old Chinese bartender computer yells "我們這裡不提供水果!"
The old Apple computer is confused...
Ancient Symbols
As information flows over cultural boundaries, issues of text encoding have become increasingly important. While I will not attempt to capture the full history of text encoding, here are the over-simplified facts...
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