by Cary J. Calderone, Esquire
Let me start by hedging a bit. I am not recommending these products. I played with only demonstration versions. I do not test and review products unless I have been specifically hired by a client to help them decide what product they should purchase for their particular needs. However, at this past Legal Tech Show I was happy to demo two new products that smaller companies could afford to use. This is good news because in the DRED space, most of the initial products released targeted large clients and installations and had pretty large price tags. It is hard to imagine a smaller business working with a product that starts at 300k to solve a retention or eDiscovery problem. The two products I noticed: 1)Legal Hold Pro by Zapproved and 2) BitFlare by SunBlock Systems.
These are both products that may help many smaller businesses. Legal Hold Pro allows a customer to track Legal Holds, and more importantly, all the communications around the Legal Hold (LH). There are many challenges with issuing LHs. The obvious issues involve when the LH should be issued and what it should cover. However, it is also critical that the LH is adequately communicated to the correct custodians and that you can validate the communication for compliance with your LH policy. Legal Hold Pro is a SaaS product (in the Cloud) that helps users track not only the initial distribution of the LH but also, subsequent updates. I think the best feature may be that it helps users remove the LH when it is no longer necessary. This is an issue that has not been discussed as much. Even those who are proficient at the initial LH process will admit that they are much more disorganized when it comes to removing the LH. And, if you are holding data, whether you need to be or not, it now may be subject to a new discovery request and/or a new LH. So the product may help you legally "clean house" a little better.
Similarly, BitFlare gives smaller companies the ability to lock down computers for LH or data forensic purposes. There are other forensic tools, some of them more affordable than others, but the focus of BitFlare is that a non-techy can follow simple instructions and secure data on a computer, in a fashion that Bitflare claims (I do not know if it has been tested in court) will preserve the chain-of-custody and accordingly, preserve its use as evidence. BitFlare is not a Cloud or SaaS product, but rather is a software product that comes on a bootable CD disc and can be run on any laptop or desktop computer (not sure about Operating System limitations).
They have an interesting pricing schedule. You can download the software for free and use it (provided you know how to burn an ISO cd) but then if you want the spreadsheet that lists the content on the computer, it will cost you $250. My hunch is they use this approach so when you think you might need contents for a LH you can lock it down. Then, and only if and when you need to analyze the data, you can pay $250 to see what is actually on the computer.
Once again, I have not used either of these products other than the demo versions, so you will need to test and verify that they will work for you. Still, it is very nice to see a few products capable of helping smaller companies tackle issues around DRED law. Let's hope this is just the beginning and there will be more affordable products to help companies become and stay DRED ready.
Showing posts with label Legal Tech. Show all posts
Showing posts with label Legal Tech. Show all posts
February 25, 2010
February 16, 2010
Legal Tech Keynote by Mark Howitson of Facebook-Social Media and eDiscovery
by Cary J. Calderone Esquire
I had the pleasure of listening to Mark Howitson (aka Howey), Deputy General Counsel of Facebook, Inc. deliver the keynote address on Day 2 of Legal Tech. He started off with some staggering facts about Facebook:
Howey came to Legal Tech to talk about Social Media and eDiscovery or, as he described it, dealing with Social Media and the information that he provides for discovery requests. He divided his presentation into two responsibilities of managing data at Facebook:
1) Social media and discovery
In this regard, Howey relies heavily on the Electronic Communication Privacy Act (ECPA) and the Stored Communications Act (SCA) CA 18 USC 2701 for wire intercepts, and Section 2702a for “covered provider,”“remote computing,” and “electronic communications services.” He noted that there is an issue of when Facebook may provide information to a requester under Section 2702b and the substantial legal necessity of having “lawful consent.” Customer Records would be covered by Section 2702c for example, if a subpoena is asking about User X and all communications. In that instance, even with a subpoena, Facebook can only give basic subscriber information.
Howey is “itching for a fight” as he wants user information to be declared “content” and therefore completely protected from disclosure. The SCA was created in 1986 so Howey believes it is time that the Federal Court clarifies the rules with case law that involves present day fact patterns and current technology.
He discussed the Colgan Air case involving Workers Compensation (WC) for a flight attendant. The WC appeals board sanctioned Facebook $200 a day for not providing the data about the flight attendant to Colgan Air but the appeals board later backed off because they recognized that Facebook was never provided the required consent.
Howey really had the audience pondering the question of what is “lawful consent?” For example, was compelled consent of parolees adequate under the SCA? And what about students subject to random drug testing?
There was also a case from Bozeman, Montana where job seekers were wrongfully required to list their social network screen names so they could be searched! And he talked about another case in Houston where they where the interviewers asked for the interviewee's Myspace password in order to review their Myspace page. The interviewee sued and won.
He believed the way to circumnavigate this law would be for a interviewer to ask the applicant to, “be my friend on Facebook?” This would appear to be a lawful approach as long as it is not coerced.
2) Managing Discovery at a Communications Company
As a basic precaution to protect your privacy, he mentioned, “don't connect your business email to your Facebook account.”
When it came to the second item, “Managing all this Content” he had the following suggestions:
One of the high points of the entire conference for me was that Ms. Zubulake of the seminal eDiscovery decisions was in the audience. I have personally been involved in many debates about the correct pronunciation of her name. To his credit, once Howey found out she was in the audience he asked her. It turns out the first syllable sounds like “zoo” and the last syllable rhymes with “cake.” Lawyers and judges who read this may now rejoice!
On balance, Howey gave a very fun and informative keynote. He provided some answers and supporting authority and most definitely raised awareness to many of the critical issues going forward with eDiscovery and Social Media.
I had the pleasure of listening to Mark Howitson (aka Howey), Deputy General Counsel of Facebook, Inc. deliver the keynote address on Day 2 of Legal Tech. He started off with some staggering facts about Facebook:
- Currently, ½ of all Americans over the age of 14 use Facebook.
- 350 million users have logged into Facebook, in just the last 30 days.
Howey came to Legal Tech to talk about Social Media and eDiscovery or, as he described it, dealing with Social Media and the information that he provides for discovery requests. He divided his presentation into two responsibilities of managing data at Facebook:
1) Social media and discovery
- Social media is going to be all around us-There is already an application (Forceware) that uses the iPhone GPS to provide live location reporting
- The technology is everywhere
- The technology is here to stay
In this regard, Howey relies heavily on the Electronic Communication Privacy Act (ECPA) and the Stored Communications Act (SCA) CA 18 USC 2701 for wire intercepts, and Section 2702a for “covered provider,”“remote computing,” and “electronic communications services.” He noted that there is an issue of when Facebook may provide information to a requester under Section 2702b and the substantial legal necessity of having “lawful consent.” Customer Records would be covered by Section 2702c for example, if a subpoena is asking about User X and all communications. In that instance, even with a subpoena, Facebook can only give basic subscriber information.
Howey is “itching for a fight” as he wants user information to be declared “content” and therefore completely protected from disclosure. The SCA was created in 1986 so Howey believes it is time that the Federal Court clarifies the rules with case law that involves present day fact patterns and current technology.
He discussed the Colgan Air case involving Workers Compensation (WC) for a flight attendant. The WC appeals board sanctioned Facebook $200 a day for not providing the data about the flight attendant to Colgan Air but the appeals board later backed off because they recognized that Facebook was never provided the required consent.
Howey really had the audience pondering the question of what is “lawful consent?” For example, was compelled consent of parolees adequate under the SCA? And what about students subject to random drug testing?
There was also a case from Bozeman, Montana where job seekers were wrongfully required to list their social network screen names so they could be searched! And he talked about another case in Houston where they where the interviewers asked for the interviewee's Myspace password in order to review their Myspace page. The interviewee sued and won.
He believed the way to circumnavigate this law would be for a interviewer to ask the applicant to, “be my friend on Facebook?” This would appear to be a lawful approach as long as it is not coerced.
2) Managing Discovery at a Communications Company
- We now live in a world with chat and Wikis which need policies written and enforced company-wide.
- Howey described the basic tenets of discovery when it came to corporate material, which is a “yes” for discovery, versus personal material and items protected by the SCA, which would be a “no.”
- There are still some gray areas, like email notification about Facebook communication which is residing on your computer system. Is it covered by SCA or not?
As a basic precaution to protect your privacy, he mentioned, “don't connect your business email to your Facebook account.”
When it came to the second item, “Managing all this Content” he had the following suggestions:
- Fee arrangements with law firms
- Single discovery counsel for all firms (I found this interesting but would really like to know how this could work given conflicts of interests and competition amongst law firms)
- Flat fees that delineate responsibility
- Companies first need to cut a deal with their outside counsel.
One of the high points of the entire conference for me was that Ms. Zubulake of the seminal eDiscovery decisions was in the audience. I have personally been involved in many debates about the correct pronunciation of her name. To his credit, once Howey found out she was in the audience he asked her. It turns out the first syllable sounds like “zoo” and the last syllable rhymes with “cake.” Lawyers and judges who read this may now rejoice!
On balance, Howey gave a very fun and informative keynote. He provided some answers and supporting authority and most definitely raised awareness to many of the critical issues going forward with eDiscovery and Social Media.
February 2, 2010
Legal Tech 2010 Begins-First Keynote
By Cary J. Calderone, Esquire
This is the first post from Legal Tech 2010 in New York. Russell Stalters delivered the first keynote entitled "Don't build your E-Discovery Program on a Digital Landfill." Mr. Stalters discussed some of the very real-world issues that occur when companies try to manage their data better. More and more, companies realize their attorneys and IT professionals do not have the necessary skills to manage data from the other's perspective. They often lack an understanding of the technology, law or the business reasons and realities around information management. Mr. Stalters believes companies would be wise to create a new C level position specifically in charge of RIM. Others have commented that Discovery Counsel or Information Czar types of positions are critical to success but he insists that they be at the C Level to get the job done well. He claims that even CIO's have had a different focus than what is necessary to apply best practices to managing information company-wide. He gave a brief overview of the Greenfield approach and how it can be employed. In conclusion, he never mentions the word "easy" but he insists that a fully compliant and functioning system can be achieved.
This is the first post from Legal Tech 2010 in New York. Russell Stalters delivered the first keynote entitled "Don't build your E-Discovery Program on a Digital Landfill." Mr. Stalters discussed some of the very real-world issues that occur when companies try to manage their data better. More and more, companies realize their attorneys and IT professionals do not have the necessary skills to manage data from the other's perspective. They often lack an understanding of the technology, law or the business reasons and realities around information management. Mr. Stalters believes companies would be wise to create a new C level position specifically in charge of RIM. Others have commented that Discovery Counsel or Information Czar types of positions are critical to success but he insists that they be at the C Level to get the job done well. He claims that even CIO's have had a different focus than what is necessary to apply best practices to managing information company-wide. He gave a brief overview of the Greenfield approach and how it can be employed. In conclusion, he never mentions the word "easy" but he insists that a fully compliant and functioning system can be achieved.
Subscribe to:
Posts (Atom)