Computer Forensics Show

by Cary J. Calderone, Esquire


I was able to spend limited time at The Computer Forensics Show in San Francisco this week. I understand when a show is debuting in a new city it may have issues, but the acoustics at the Herbst Pavilion at Fort Mason were pretty awful and, I am not the only one who noticed. It's too bad because the show did have some very good speakers and covered interesting DRED topics. Still, it was challenging to enjoy their presentations due to the acoustics.  Background noise notwithstanding, here are a few highlights:

Dean Gonsowski, Vice President, e-Discovery Services at Clearwell Systems, presented "Compliance in the Cloud and the Implications on eDiscovery. He provided a very nice overview of many issues that need to be considered when looking for a solution in the Cloud. Even when I asked about a tricky issue, i.e., "what to do when your data may be co-located across international borders?", he provided a thoughtful and practical approach. He had other terrific "checklists" to use when you look at Cloud solutions, but I am not listing them here. You'll have to see one of his presentations yourself.

I also enjoyed the session run by Michael Glick, Vice President of Encore Discovery Solutions "How Advances in Modern Electronic Discovery Practice are Changing Commonly Held Notions About Conflicts of Interest." He described the advantages to litigants following the Sedona Conference Cooperation Proclamation and waiving some potential conflict issues, and cooperating with adversaries during electronic discovery. There area even times when using a single provider and platform can save everybody money and hassles. I asked if Encore had protocols conflict checks for their eDiscovery clients? Much like lawyers and law firms, Encore follows high standards and protocols to ensure they do not represent parties with adverse interests. Pre-engagement conflict checking is too often an afterthought with some consulting groups in the DRED space and it shouldn't be.

On balance, I hope that this conference grows, finds a better location, and returns to San Francisco next year. If they continue with legal tracks that include good DRED discussions, I will attend again.

Attending the Computer Forensics Show

by Cary J. Calderone, Esquire
 
I will be checking out The Computer Forensics Show Nov 1 and 2 at the Fort Mason Center right here in San Francisco. (You know San Francisco, where the Giants play World Series baseball...) It is my first time attending this particular event but I expect it to be worthwhile. As my readers know, there is a very important relationship between DRED and computer forensics, so I will observe the legal tracks and hopefully learn more about when and what specific factors trigger forensic investigation, and how forensic tools may be used proactively, to avoid pain and greater costs later. 

Given some of the panel discussions they have scheduled, I am sure I will find some "blog-worthy" material.

Who are you talking to? You talking to me?

by Cary J. Calderone, Esquire

Here comes a little rant.  I try to be nice, really I do.  But it is very frustrating when my energy and efforts to help a client are thwarted or, challenged by more aggressive and "less informed" consultants and sales representatives posing as consultants.  Attorneys, sales reps and consultants usually have different education backgrounds, different experiences, and different motivations.  So I wanted to devote this blog post to summarize and distinguish these three professionals who may be employed to assist you with your DRED project. 

First, there is the sales representative who makes some or all of their salary by making a sale.  They have to get you to say "yes" to their product or service in order to earn their commission.  Accordingly, they are not the most motivated when it comes to telling you how their product might fail you or how over-simplified their "form data retention policy" might be.  Most seasoned customers recognize the motivation of the nice and helpful sales rep and view their information as potentially inaccurate. 

Next there is the consultant, (and not one that is really tied to a specific product which makes them a sales rep disguised as a consultant) offering you "best practices." The consultant needs to make you happy with the service and/or product they select so getting you to say "yes," is not always enough.  If it doesn't work out as advertised, you probably will not want to pay for it.  So, where a sales rep might proclaim a product definitely can handle your needs, the experienced consultant will hedge a bit, to avoid possible fallout later on.  I get quite a few questions from "consultants" asking me to explain some point of law to them so they can explain it to their client. I typically do not help them.  It is their intention to take complex legal points and simplify them because, "that is what their clients like." Needless to say, simple is not accurate and frequently will cause their client more harm than good.  A little information truly can be a dangerous thing.

Lastly, there is the attorney (cue dramatic background music).  The attorney is risk-adverse and picky about simple statements of the law.  We learn that words have meaning and appreciate that even when sales reps and consultants use our words or case law appropriately, they often find a way to mess up the scope or analysis of the legal principle. While attorneys are often derided for making the simple seem complex, in our defense,  frequently things that appear simple, are simply not.  And, when it comes to your legal obigations, we attorneys are the ultimate and best source to evaluate your legal hold, data retention and eDiscovery policies and procedures.  Most good sales reps and consultants agree with this.  even if they occasionally forget it while they try to "help" their client.

So, who are you talking to?   When it comes to legal points, I hope it is your very wise and well-informed attorney. Can you hear me now?

ARMA International Conference and Expo in San Francisco November 7-10

The ARMA (Association of Records Managers and Administrators) Show is coming to San Francisco November 7-10 and should be excellent.  Although I was not able to attend the show in Orlando last year, I attended the Las Vegas Show in 2008 and found the panel discussions and presentation to be very worthwhile.  The highlight for me is that the speakers are often practitioners with a gift for educational presentations, and not just sales gurus and product marketers. 

The guidelines for ARMA prohibit speakers from simply selling their services.  The end result is that they offer more "real-world" examples of tackling and succeeding with Records Management, Litigation Preparedness and e-Discovery projects.  I have participated in local ARMA chapter events in Silicon Valley, San Francisco and Contra Costa County but will just blog about this event.  The local and national organizations are a great resource for anyone interested in learning more about Records and Information Management, or DRED.  For more information you may go to their website www.arma.org.   See you at the show.

Virtual LegalTech- Neat technology but where are my t-shirts and snacks?

Last week I checked out Virtual LegalTech for the second time this year.  In brief, it employed very cool technology and some of the presentations used streaming video and the new technology very effectively.  Others, not so much.  On the bright side, a boring Powerpoint presentation can be put in a smaller window to the side and I can surf the web while the boring speaker drones on.  In person at typical conferences, escaping a boring presentation can be much more challenging.  While some features of a "virtual conference" mirror the real world experience, others are missing.  

If you loiter near a booth, or, even walk by a little to slowly, at a conference, a sales representative will jump out at you, scan your data to get you on an email list, and then strike up a conversation or try to show you their demo and maybe get you on a path towards a sale.  At Virtual LegalTech, you are only bothered by the occasional pop-out chat window asking if they can answer any questions.   Less bothersome to be sure and not a bad way to type hello to a few people you may already know.  And, they already have your name and email.  Do I believe this technology will replace live, in-person conferences?  No.  Business people will always need excuses to network and showcase their wares and trade shows are still the superior showcase.  However, I do believe this technology will reduce the frequency of the live events and perhaps dramatically so.  During the past two years during this dismal economy, everyone involved has noticed an overall decline in attendance.   Virtual conferences have to be significantly more cost effective and that alone will make them an alternative, or an add-on to marketing budgets.  I did hear some excellent presentations and received Continuing Legal Education credits for some of them.  But it is still kind of sad that I attended two of these Virtual LegalTechs and didn't get a candy bar, snack, toy, or even one single t-shirt as a memento.  Maybe as the technology improves...

Do you Tweet? Are you on Facebook? You need a policy!

Some companies have really benefited by using Twitter and Facebook accounts to grow and cultivate their customer base.  And many other companies are taking notice and making plans to do the same.  But, there are some very important precautions you should be taking before you ask your clients and friends to "Like" you online.  Do you have a policy or retention schedule that covers your social media interactions?  If not, you need one.  This type of communication is potentially "relevant" material to any matter dealing with customer representations and advertising.  Depending on your industry, you may be specifically required to manage and retain this information or, your lawyer might just suggest it as a good idea.   I know there are more lawyers who are learning about this new area of business communication, but there are still too few.  Please find one who understands it and speak with them, or, contact us so we can help. 

IQPC eDiscovery Panel-Protecting Privileged Communication

by Cary J. Calderone, Esquire

Moderator, Mark Michels, Managing Attorney, Cisco Systems, Inc.
Craig Carpenter, Vice President and General Counsel, Recommind, Inc.
Martin T. Tulley, Partner and E-Discovery Practice Chair, Katten, Muchin, Rosenman, LLP

This panel was focused on Federal Rule of Evidence (FRE) 502 which governs attorney-client privilege and work product; limitations on waiver.  502 was drafted specifically to cover electronic discovery and inadvertent disclosures.  I have had the pleasure of listening to Mark Michels at other presentations and, as an audience member, I always appreciate that he tries to make his panel discussions interesting, lively, and a little bit fun.   After sitting in on 5 or 6 eDiscovery sessions over the two days at the IQPC eDiscovery conference, I believe anybody sitting in this audience appreciated that he made the panel discussion entertaining, as well as informative.

The first hot topic was protective orders with claw-back provisions. The panel was interested in whether people had ever had a "quick peak" (i.e., noticed that your opposition sent you privileged information and had to report it to them) and made the following points:

• Mistakes will happen.  We are dealing with an enormous volume of data.  There is fear of privilege waiver but there is also significant cost in taking precautions. 
• FRE 502- Now with 2 years of precedent it is better understood.
• 502(d) limits waivers of attorney/client privilege, promotes certainty and reduces litigation risks.
• 502(e) indicates that a Protective Order is still prudent.
• There is a big presumption against broad subject waiver.

Mark asked, "when is a disclosure not a waiver of privilege?"
Martin provided a checklist of factors:

• Privilege?-Was it privileged to begin with?
• Inadvertent?-Was the disclosure inadvertent?  Some courts not-intentional equals inadvertent. Other courts have a checklist of factors to consider.
• Reasonable?-Advisory committee notes to 502 do not define it.  Rather, the Committee notes list factors to consider such as precautions and steps taken after disclosure to attempt to rectify?
• Extent of the disclosure?-Overriding issues of fairness.  Was there a defensible Records Management program?  For example, was it 4 out of 10,000 documents?  Did the disclosing party take quick action?  Court found it reasonable and therefore there was no waiver of the privilege.  
• Best practice-Always have a protective order with a claw-back provision.
• Waivers have been found where the producing party could not describe what they did...so document your procedures.
• Perfection is not expected.

It was pointed out that whether FRE 502 would be binding in state courts, has not been tested.
Citing the Victor Stanley case and Judge Grimm be prepared to answer, "did you do enough to find the privileged documents?"
   
The panel also mentioned the Amobi v. District of Columbia case where Judge Facciola discussed "inadvertent."  The Judge's analogy was paraphrased; "while 502b would allow me to round up the animals and put them back in the barn, were reasonable steps taken to avoid letting the animals out?"
One of the precedents was clear.  When the data had been produced to the expert witness for review, privilege was waived.

The panel then examined what would be considered "reasonable" efforts to find and protect your privileged information.  Keyword search alone is usually not sufficient as it finds only 25% of documents, so you should add in sampling.  The type of vendor you are working with can make a difference.  Do they understand the methodology and work flows around it.

Craig Carpenter provided an extensive list of search features that could help.  He mentioned threading, email de-duping, visualization (being able to see who spoke with whom and when on certain topics), concept search (relate documents that are substantively similar but may not share keywords), clustering-(particular set of keywords-take first few documents that relate to the category), grouping-(more sophisticated clustering-take all documents that relate to the category) automatic categorization (the tool does it for you), amd predictive coding (form of automated review).  Not surprisingly, Recommind's impressive products are capable of helping you with all of these search techniques.   Craig was in "teaching mode" and not in sales mode and his examples and explanations were excellent.


The panel discussed an instance of dealing with 2.5 million documents and the client did not want to pay for privilege review but rather, instructed outside counsel not to turn over anything privileged. LOL!  Obviously it would cost too much.   So, with client's consent, they used automated review tools with some direction from knowledgeable people.  They were able to save 3 or 4 months of processing time and several million dollars.

Mark Michels said "hypothetically," what if he was the "impecunious client?"  "How could they be reasonable and save money too?"  The panel proposed technology search with Bayesian models and sample seed sets to help cull down the data but then made it clear that "at some point, you have to put some eyes on it."  100% automated tools or 100% manual and people-powered processes have not been favored by the courts.

The last "best practice" was to re-iterate that it was critical to define "reasonableness" or, through agreement with the other party(s), take "reasonableness" out of the equation by agreeing what both parties would do for production and what would happen in the event of any inadvertent disclosure.  They closed with one of the best lessons for those who would rely solely on FRE 502 to save you from waiving privilege during disclosure:  Crediting Judge Grimm for the analogy, 502 was "like a bungee cord.  It can save you, but it is still a terrifying experience."

IQPC eDiscovery Panel-Global Issues

by Cary J. Calderone, Esquire

David C. Shonka, Esquire-Principal Deputy General Counsel, Federal Trade Commission
Benton Armstrong - Principal, Analytic and Forensic Technology, Deloitte Financial Advisory Services LLP

David Shonka stressed from the beginning, "if there is one takeaway best practice from this session-get local advice.  European Union directives are not the last bit of advice.  Each nation has its own interpretation of it.  Local law firms in Europe and Asia are much more sophisticated now and can offer better advice."

Initial considerations for global eDiscovery:

• Who has Jurisdiction?
• Who has control of the data?(maybe a 3rd party?) (Where is that party sitting?)
• Duplicate copies in the US?
• Where does the data sit?
• If you can get it, can you move it?  Lot of restrictions on transfer (personal and sensitive data)

(Source-Sedona Conference Framework for Analysis of Cross-Border Discovery Conflicts August 2008)

Companies are employing new mobile technologies to go in with a small data center to process out personal and private data, then you can negotiate for collection/transfer from that point.  For example, data sitting on server in Eastern Europe but it is Austrian employees' data.  It was treated as though they were doing a collection in the Czech Republic.  They ultimately collected what they needed but it was a very long and difficult process-got consent from the Data Privacy officer in the Czech Republic.  Since this is a relatively new phenomenon, they are being extra cautious. Multinational organizations need to anticipate this.

There can be problems when parties do not want to cooperate but ultimately they do.  Preservation process- while the consent process is going on the data is not preserved.  Employees delay and then 5000 deletions will occur just before the data is supposed to be preserved.

We are getting better and more sensitive to private data in the US but still not equal to the EU.  Convergence going on-don't think they will ever meet-but the realities of dealing with a global economy is forcing people to cooperate.  Reminder that under the EU directive, looking at data equals "processing" and there are different stages:

• Retention
• Disclosure 
• Onward transfer 
• Secondary use

There are also international collection considerations such as:

• Who collects?  Employees?  Can cause problems
• In what form?  Native or a forensic copy? Physical or logical?  Remote or direct connect?

Best practice from Benton Armstrong-"get all stakeholders together at the outset."Records Managers, Legal, IT from many if not all different offices and locations. Get the potential roadblocks out in the open early so you can plan for some of them. It will make the process much faster.

One positive thing I learned from this panel is that, since I first started this blog, the best practices for international eDiscovery have evolved. While certainly not simple and without potential pitfalls, there are now better operating procedures and protocols for negotiating this tricky area. I suspect as more and more global companies implement policies and procedures and have better trained and more experienced practitioners involved, the potential pitfalls will continue to dissipate.

IQPC eDiscovery Panel-Roles of In-House Counsel and Outside Counsel

Vincent Miraglia, Chief Counsel - Employment Litigation & Electronic Discovery International Paper
Vickie Lee Clewes, Senior Manager, Commercial Legal Affairs, Gilead Sciences, Inc.
Moderator, Wayne C. Matus, Partner Pillsbury Law Firm

Wayne Matus started the discussion rolling by asking the panel, "What keeps you up at night?"
There were two answers:

1. For things like government subpoenas and investigations, it is very hard to have processes already in place, so managing the discovery is very challenging. 
2. For inside counsel, it is very difficult to manage many legal holds and keep mindful of when they "anticipate" new litigation. 

The panel noted it was difficult to have a cohesive company-wide plan. They still had to address the individuality of each office/department while balancing the tie between discovery and risk.

Vinnie thought that "less is more" and that he does not want all of the data, just the relevant stuff.
He gave an example of PST files.  They had established a delete policy (60 or 90 days) and used legal hold and archiving tools to move and archive necessary email. 

They referred to the Zubulake case (6) and explained that since "terminating employees" could lead to litigation, a best practice would be to freeze all data for terminations for a set period of time.


Question from Wayne-What about the fact that they may get hit with a lawsuit in a new area?   The panel believes in meeting and discussing potential new stuff often with outside counsel.  They also found that, almost always, outside counsel is conservative about when legal holds are necessary. 


What keeps Wayne up is the eDiscovery process maps he creates with his clients do not say all decisions should be documented.  For example, "this is why I did or did not issue a legal hold."

Vicki thinks they do need to document more.  Since we are shooting for "reasonableness" better to show what you considered at the time.


Question from Wayne-How important is communication between inside and outside counsel?
Vinnie's response-Keep it like a working partnership so Vinnie may respond to some discovery requests and outside counsel may respond to others.  He thought that the legal bills go down with better communication.

IQPC Judges Panel on eDiscovery

by Cary J. Calderone, Esquire



Readers of this blog know that I am always happy when we have the opportunity to learn about DRED issues directly from judges.  I had the privilege of attending the Judges Panel on eDiscovery at the IQPC eDiscovery Conference in San Francisco.  This was a very worthwhile session and attendees learned some great insights about the "Real World" of eDiscovery that occurs in actual court cases.  And, by actual court cases, I mean the majority of cases you will probably never read about because they do not involve extreme examples of eDiscovery misconduct and multi-million dollar sanctions.  Hopefully, these are the cases that your legal matter will most closely resemble.  Moderated by Craig Carpenter, V.P. and General Counsel, Recommind, Inc., U.S. Magistrate Judge Robert B. Collings, District of Massachusetts, and U.S. Magistrate Judge Elizabeth D. Laporte, Northern District of California, provided updates to the law.  I am happy to report that in the 3-plus years since I have been working almost exclusively with eDiscovery issues, there has been evolution and progress, and there are now better guidelines to help keep your business or department DRED-ready.


Some of Judge Collings recommendations included:

• Reading the article by Judge Facciola-Federal Courts Law Review on privilege review   
• Urging counsel get a court order with respect to a Section 502 waiver
• Whittle eDiscovery down the the issues you have actually have in dispute
• As an Observer to the Sedona Judicial Working Group-Courts are looking for more cooperation between counsel and less adversarial posturing during the Meet and Confer process
• Parties need to be more transparent about what, how, and where their data is located
• Don't take expensive 30(b)6 depositions unless necessary
• Bring your IT experts to the Meet and Confers
• A reasonable proposal and approach will get the Judge's support
• Settling cases for purely economic reasons has always occurred -eDiscovery is exacerbating this

Judge Laporte also provided some important insights:

• There is a wide range of parties and sophistication-She has given attorneys eDiscovery homework
• Lawyers who typically do not deal with eDiscovery now have to learn it
• Client is responsible for getting it right-Courts look to see who is really engaged in the wrong-doing (citing Qualcomm case where the court found no bad faith on the part of outside counsel)
• Standard is what is reasonable at the time
• If you agree with opposing counsel as to procedures, and reduce it to writing, you should be safe from sanctions
• Get a section 502 claw-back provision embodied in a court order
• Sanction cases-Repeated misrepresentations and a failure to be careful cause most of the sanctions, regardless of the provision the Judge may cite as authority for imposing sanctions.

The best practice comments were interrupted when Wayne C. Matus,  Partner, Pillsbury Law Firm, asked a question from the audience that caused a noticeable "pause for reflection" by the Judges before they could answer.  He asked if there was ever a situation where the standard for Legal Holds was going to be always on hold?  He gave the hypothetical of a construction company that knows there will always be litigation with a certain size development project, so from the beginning, they can "reasonably anticipate litigation."  After giving it some thought the Judges, while not answering the hypothetical directly, did point to similar industries, like pharmaceuticals, and technology development, where future litigation is always a consideration.  Since I have advised clients in this area, I commented to Wayne afterward that it was almost an "unanswerable question" and jokingly asked if he had ever been banned from participating in Q&A with Judges Panels because he asked such tough questions?  The truth is, tough questions like that are the best part of these panel discussions.


Judge Collings clarified the role of inside versus outside counsel: "What is subject to legal review is the role of outside counsel."  He recognized that making money for the corporation and keeping money for the corporation (a penny saved is a penny earned) is a major goal of inside counsel, but noted they will run into problems if Legal Hold notices are not going to the correct custodians or they are not being issued on time.

Judge Laporte referred to the Pension Committee case to remind us that Circuits have different standards for issuing Legal Holds.  She also commented on Judge Shira Scheindlin's recent dicta about always issuing a written hold.  Judge Laporte observed that "when you have a small family or small business litigant, it could be a very different situation and standard.  On the other hand, why wouldn't you issue a Legal Hold?"

Patrick Oot, a well-known eDiscovery expert and Sedona Conference participant made an interesting point from the audience about wage and hour disputes and when you may not want to issue Legal Holds in the standard fashion but might choose to separate the Legal Hold policy from the class certification.

Great point from the Judges on reviewing your own Legal Hold procedures:  "Imagine if you have to explain what you are doing to the Judge later."  For example, even an email is now a written record of what you did to issue a Legal Hold and it creates a trail.  Discussing the Quan case and text messaging, there were conflicting views on what the company policy was.  The Judges recommended audits regarding private versus company usage.  Best practice, "Have a clear cut policy" and people need to know it!

I had one what I like to call "cringe moment" when Judge Collings mentioned that lawyers are going to have to learn about technology to adequately represent their clients in court.  He mentioned the long tradition and ability of lawyers to be able to learn a great deal about a particular subject matter in order to prepare for trial.  They can study and learn an amazing amount of information in order to explain the subject to a judge and jury.  While judges are never "wrong," they are only "misinterpreted," my worry is that too many techno-deficient lawyers will believe they can learn the technology and its language in a few weeks.  They can not.  To them, in addition to offering my expert services (shameless plug), I suggest a more appropriate analogy would be like trying to learn to speak French in a few weeks.  In other words, learn what you can, but bring your expert interpreter along.  Merci beau coup...

What's that up in the Cloud Part 2? Do you have a Policy?

by Cary J. Calderone, Esquire

In the first article on the subject I presented an overview of some of the risks with moving your company data and/or applications to the Cloud (link to Part 1). This article is about moving to the Cloud whether you want to or not. Let me explain. Do you think you are in control of your companies' data? Maybe, or maybe not! Companies like Dropbox, Mozy and many others are offering free cloud storage to users. And, we are talking about free gigabytes of storage. Enough to hold far too much of your important, privileged and/or proprietary company information. These new product offerings are simple to use, and extremely easy to setup in a matter of a minute or two. This means that if you do not have a policy on storing your work product off site, like on USB flash drives or tapes, then you had better at least get one for Cloud storage. USB ports can be disabled. Stopping user access to all the Cloud storage sites would be very challenging. This means all a user has to do is download a small application, setup a folder on their desktop computer, and from that point forward, anything they place in that folder gets copied to the cloud. As a warning to all my potential clients, you do not want your first knowledge of this new technology coming after you have been served with a Request for Production in a lawsuit.
Now, personally I think this is the greatest thing since sliced bread, or, at least the greatest thing since free personal email accounts. I have setup test accounts with both Mozy and Dropbox. Having the latest copy of my draft blog post available on my netbook, my laptop, or my desktop machine, is a great time saver and backup mechanism. In the past, and even though I seldom need to share my information with another person, I have wasted countless hours and email storage space moving my data from one of my computers to another of my computers via USB or email. I no longer have to do this. Additionally, if I am ever away from one of my computers, I have the option of getting to my data by using any computer that has internet access. In conclusion, two quick words of advise: 1) If your company policies do not cover Cloud storage, they should. 2) If you are a lawyer making a discovery request or taking a deposition, you should know how to ask about this stuff.

IQPC eDiscovery Summit in San Francisco coming in April

by Cary J. Calderone, Esquire

For those of you who do not think that a couple of my blog articles will be enough information for you, then consider attending the eDiscovery Summit in San Francisco on April 26-28. I plan on covering the Judges Panel on eDiscovery with U.S. Magistrate Judge, Elizabeth D. Laporte, and another session focused on Cloud Computing and eDiscovery. In 2008 I covered a keynote delivered by Judge Laporte. (link to 2008 keynote article) so I am looking forward to getting an update from her. As I have mentioned on this blog previously, it is a rare treat to be able to get eDiscovery information and education directly from judges, as opposed to interpretations by other "experts" and "pundits." U.S. Magistrate Judge Robert B. Collings is also scheduled to speak. Additionally, there will be quite a few inside counsel who will share their "hands-on" experience with eDiscovery.

Legal Tech 2010-Best Practices in Compliance and Email Management in the Cloud

by Cary J. Calderone, Esquire

The participants (listed at end) on this panel had many years of eDiscovery experience and came from a variety of backgrounds including legal, consulting and product vendor. This was like getting a "Quick Tips" guide to eDiscovery because they chose to a conversational approach instead of doing a lecture and presentation. They started off first, by agreeing with Malcolm Gladwell's keynote comment, "we are in massive information overload." Then they got right at some important distinctions for the new language describing eDiscovery and, in some cases, updated the definitions for some of the old labels. For example, they talked about the "Cloud" and basic definitions, but the panel thought it was necessary to be more specific now and gave examples:

1. Public cloud-3rd party provider
2. Private cloud-you set it up yourself
   
3. Storage Cloud-as opposed to applications
   
4. Infrastructure-the network behind the Cloud

The driving force behind the use of the Cloud is that "head count is expensive."
Peter Lesser believed that private cloud is the safest way to store and use data because then users keep it off their laptops, etc.

The panel drilled down on Infrastructure and asked about variables like:

• International considerations.
• Where is the data really stored?
• What about Virtualization?
• Can you identify and distinguish between "primary" and "backup" data?

Tom Gelbman commented that the de facto Policy might be just to keep everything forever.

They noted some of the really difficult questions. How are you going to apply your Retention Policy? Where is the data? For example, a Swiss based parent company with data kept in Arizona? Is it now subject to Arizona and US jurisdiction?

What happens when a broker-dealer uses Facebook but can't capture the Facebook data-that is a problem under the current rules. And, if Corporations think they are just going to shut these things down “they are delusional.” Between, Twitter feeds and text messages etc., even with policies in place, they may be unenforceable. "Behavior does not change because you have a policy." This author would disagree. I believe that you can change some behavior with a well designed policy and training but agree that just having a policy, is seldom enough.

They claimed that without some sort of auto-classification tool, the management of the data is impossible due to the volume. They also recognized the sobering fact that it is much easier to get money budgeted for eDiscovery than it is for Retention. No arguments from me! Oil changes and routine maintenance seem to get quickly cut from budgets, but once the car breaks down, you have no choice but to call the tow truck and prepare for a big bill from the mechanic. Is your company being "proactive," with litigation preparedness, or, will they have to be "reactive" and pay for the blown engine when litigation erupts?

Tom Allman's Cloud checklist:

• Can you suspend all auto deletion and move the data to an eDiscovery location?
• What about meta-data?
• Do you have backups to the cloud?
• Neither Google nor Microsoft will implement legal holds. There is no Microsoft product to stop users from deleting a message. Journaling is the only option. Do you have it?
  
• Does the Cloud help with cleanup of the digital landfill? Yes, it can.

Rosenthal and Lesser noted that the move to the Cloud has a positive effect in that it “Forces companies to engage in legacy retirement programs.”

Allman added one of his favorite funny-but-true tips, If you have backup tapes that are 25 years old, make sure when you sell a division, all the tapes go with it!

Weiss believed for many instances of email, you keep it 10 years then delete it, because access to it becomes more and more difficult.

Rosenthal added that legacy program are linked to applications and clients. So how would you ever be able to sample, search and analyze the data?

They posed another great question: Can you determine the value of the data?
Lesser-Storage is getting cheaper every year but the cost of the people to organize it far outweighs the cost of storage.
Brian Weiss added that yes, storage is cheap, but retrieval is expensive. Moreover, to scale up to index large amounts of data is still very expensive.

The final thoughts or hopes were that in five years from now, there would be no applications stored locally on computers and there would be much better search tools.

We shall see!

Panel participants:
Tom Gelbmann, Managing Director, Gelbmann & Associates
Tom Y. Allman, Editor, The Sedona Principles
Peter Lesser, Director of Global Technology, Skadden, Arps, Slate, Meagher & Flom, LLP
John J. Rosenthal, Partner, Winston and Strawn, LLP
Barry Murphy, Principal, Murphy's Insights
Moderator:
Brian Weiss, VP eDiscovery and Information Governance, Autonomy

Legal Tech 2010-A couple of neat new DRED products even smaller businesses can afford.

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.

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:

1. Currently, ½ of all Americans over the age of 14 use Facebook.
2. 350 million users have logged into Facebook, in just the last 30 days.
   

If you think this social networking thing might just be catching on, you are right!

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

Howey mentioned things he can't and won't do. He distinguished between when the law “allows” disclosure versus what it “requires” for civil discovery and this is a critical distinction because Facebook is dealing with huge volume.

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:

1. Fee arrangements with law firms
2. 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)
3. Flat fees that delineate responsibility
4. Companies first need to cut a deal with their outside counsel.

He mentioned some innovative firms and thought it was “insane” to pay law firms full freight. Howey also believed that the days of rooms full of people and monitors doing document review should end. He championed leveraging technology to keep costs down.

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.