StoredIQ and NetApp Team Up for Information Management - Channel Insider Friday, 19 March 2010

StoredIQ and NetApp Team Up for Information Management Channel Insider Information management and e-discovery appliance maker Stored IQ has joined the NetApp Alliance Partner Program to better integrate the technologies of the ...

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There can be only one? Friday, 19 March 2010

Bow Tie Law’s blog has a post up inviting us to a discussion with  Judge Facciola hosted by D4, but the conspiracy theorist in me thinks that BTLB is planning something nefarious, seeking to be the one and only Bow Tie in the e-Discovery Universe.  Worry not, dear reader, I’m considering hiring Orly Taitz to look into the matter further.

Source: "Shared" via Dominic in Google Reader | Ed Valio

SMBs look to cloud storage services for data compliance and e-discovery - Search Storage Friday, 19 March 2010

SMBs look to cloud storage services for data compliance and e-discovery Search Storage But Forrester Research Inc. analyst James Staten said many SMBs must decide to build their own e-discovery processes or outsource because they can't afford ...

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Third Circuit student speech cases illustrate struggle to characterize communication through social media Friday, 19 March 2010

This is a lengthy post about the two recent student speech decisions of the United States Third Circuit Court of Appeals – Layshock v. Hermitage School District and J.S. v. Blue Mountain School District. The Court reached the opposite conclusion in each case, though both dealt with sanctions imposed by school boards for similar “misuse” of social media. These conflicting judgements illustrate a dialogue about whether to recognize the unique impact of harmful social media use by students.

Layshock – Physical remoteness prevails over intangible connections to the school

In Layshock, on February 4th, the Court affirmed a student’s successful First Amendment claim and rejected a school board’s argument for an exception to the “material and substantial disruption” test for enjoining student speech.

Layshock argued that he was protected by the First Amendment in creating a MySpace “parody profile” of his principal. He created the website outside of school hours using a home computer, but used a picture of the principal that he copied from a board website. The profile included various assertions about the principal regarding drinking, use of drugs and use of prostitutes. It is debatable whether Layshock’s communications were defamatory given their context, but they were vulgar and the principal testified to feeling demoralized and degraded. The judgement says word of the profile “spread like wildfire” and led to the posting of two other similar sites. The board issued a penalty that included a ten day suspension.

On appeal, the board argued that the speech itself (apart from its effect) deserved sanction because it was vulgar, harassing and directed at the school community. It faced two challenges. First, the link to the board’s interests was very intangible; aside from the copying of the picture, Layshock’s activity was clearly situated outside of the school and only linked to the school by virtue Layshock’s intent. Second, the board effectively argued for an exception to the fundamental American rule on student speech from Tinker v. Des Moines Indep. Cmty. Sch. Dist. The rule in Tinker establishes that a school board cannot enjoin student expression that does not “materially and substantially disrupt the work and discipline of the school.” The United States Supreme Court has found exceptions to Tinker, including one that permits schools to sanction vulgar expression in the name of encouraging the “fundamental values of ‘habits and manners of civility’.” The question in Layshock, however, was whether this exception could be rightly applied to conduct so physically remote from the school.

The Court was clearly uncomfortable in departing from the rule in Tinker. It said:

As noted earlier, the District’s January letter to the Layshocks advising them of Justin’s suspension reads, in relevant part, that it was punishing Justin because: “Justin admitted prior to the informal hearing that he created a profile about Mr. Trosch.” Although the letter also mentions disruption, the District does not now challenge the district court’s finding that Justin’s conduct did not result in any substantial disruption. Moreover, when pressed at oral argument, counsel for the School District conceded that the District was relying solely on the fact that Justin created the profile of Trosch. We have found no authority that would support punishment for creating such a profile unless it results in foreseeable and substantial disruption of school.

Had the board successfully attacked the lower court’s finding on disruption based on evidence about the impact of Layshock’s expression on the principal himself, the outcome would have differed. As for the exception to Tinker for vulgar and uncivil expression, the Court held that school boards have no business in sanctioning vulgar and uncivil expression outside of the school. Though it acknowledged that a school is not bounded by “bricks and mortar surrounding the school yard” it said:

It would be an unseemly and dangerous precedent to allow the state in the guise of school authorities to reach into a child’s home and control his/her actions there to the same extent that they can control that child when he/she participates in school sponsored activities. Allowing the District to punish Justin for conduct he engaged in using his grandmother’s computer while at his grandmother’s house would create just such a precedent and we therefore conclude that the district court correctly ruled that the District’s response to Justin’s expressive conduct violated the First Amendment guarantee of free expression.

By this statement, the Court suggests that student expression published through social media should be treated as private and should not be deemed to be associated with any particular school-related harms.

Blue Mountain – Majority keeps with Tinker but recognizes unique harms that flow from misuse of social media

In Blue Mountain, also issued on February 4th, a 2-1 majority of the Court reached the opposite conclusion to the Layshock panel after affirming a finding that a school board had met the material and substantial disruption test from Tinker. Though the majority paid heed to Tinker, it made some very broad statements about the unique harms that flow from misuse of social media.

The facts in Blue Mountain were remarkably similar to those in Layshock. The board suspended J.S. and K.L., two eighth grade girls, for posting a MySpace profile that parodied their principal. The site did not name the principal, but included his picture (taken by the girls from the school’s website) and asserted that he was a sex addict and pedophile. The principal, who testified that he felt upset, angry and hurt, investigated himself and then suspended J.S. and K.L. for ten days.

The majority made clear that it was deciding a different question than decided the same day in Layshock: “We decline today to decide whether a school official may discipline a student for her lewd, vulgar or offensive off-campus speech that has an effect on-campus because we conclude that the profile at issue, though created off-campus, falls within the realm of student speech subject to regulation under Tinker.” It held that the Tinker rule does not prohibit school boards from enjoining conduct that causes reasonably foreseeable harms and, in the circumstances, held that the board could act to prevent a foreseeable deterioration in school discipline.

Unlike the panel in Layshock, the majority in Blue Mountain recognized that J.S. and K.L.’s off-campus expression was harmful by its very nature:

The girls embarrassed, belittled, and possibly defamed McGonigle. They created the profile not as a personal, private, or anonymous expression of frustration or anger, but as a public means of humiliating McGonigle before those who knew him in the context of his role as Middle School principal…

Undoubtedly, students have made fun of or made distasteful jokes about school officials, free from the consequences of school punishment, either out-of-earshot or outside the school context since the advent of our modern educational system. However, due to the technological advances of the Internet, J.S. and K.L. created a profile that could be, and in fact was, viewed by at least twenty-two members of the Middle School community within a matter of days…

We thus cannot overlook the context of the lewd and vulgar language contained in the profile, especially in light of the inherent potential of the Internet to allow rapid dissemination of information. Accordingly, J.S.’s argument for a strict application of Tinker, limited to the physical boundaries of school campuses, is unavailing.Instead, we hold that off campus speech that causes or reasonably threatens to cause a substantial disruption of or material interference with a school need not satisfy any geographical technicality in order to be regulated pursuant to Tinker.

These statements are very broad. Though the majority respects the Tinker framework, it establishes a strong basis for a presumed disruption of school activity. In doing so, the majority accepts the very argument rejected by the panel in Layshock.

Conclusion

Commentators have questioned whether the conflicting rulings are justified based on the facts. In my view they are not, and the two awards illustrate a very live and significant debate about how to characterize online student expression.

Tinker aside, boards in Canada and the United States have been given a relatively broad license to control student activity within the school. Civil libertarians would like to sustain a relatively hard in-school versus out-of-school distinction because the distinction allows for free expression on a range of matters outside of the school and in private. The question, though, is whether it is proper to apply a hard distinction in assessing online student expression of the kind demonstrated in Layshock and Blue Mountain.  This question is obviously yet to be resolved.

[Qualification. I practice law in Ontario, Canada and act for educational institutions. This is a comment and not a legal opinion and I am not holding myself out as qualified to practice in matters related to American law.]

Source: "Shared" via Dominic in Google Reader | Dan Michaluk

"I'm Fred B. Ives and I want to be your Friend" Friday, 19 March 2010

"But you can just call me FBI."

Well, they've been hanging out in chat rooms for years...it shouldn't be surprising that they're doing the same with social networks.

And you thought you only had to worry about an ex checking your Facebook page...

Source: "Shared" via Dominic in Google Reader | Perry L. Segal

Leslie T. Lumpkins, Jr. to Speak at Florida A&M University College of Law - PR Newswire (press release) Friday, 19 March 2010

Leslie T. Lumpkins, Jr. to Speak at Florida A&M University College of Law PR Newswire (press release) ... Forensic and Litigation Technology Consulting group at LWG Consulting, is slated to speak on the topic "Managing E-Discovery, Making Your Client a Hero. ... and more »

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ZyLAB Enhances E-Mail Archiving and Retrieval Solution to Support Friday, 19 March 2010

E-mail Archiving Bundle Supports Lotus Notes and Groupwise Archives; Provides Expanded Capabilities for Enforcing Policies and Tracking Procedural Breaches

Today, ZyLAB announced the immediate availability of its new e-mail archiving and retrieval solution to enable organizations to integrate directly from Lotus Notes and Novell Groupwise.  ZyLAB’s e-mail archiving bundle offers users the ability to manage vast amounts of e-mail, which helps support litigation readiness, early case assessments, e-discoveries and overall enterprise information management.

 ZyLAB’s non-proprietary, flexible and open e-mail archival and retrieval solution enable users to archive e-mail in an open standard XML format, while the e-mail itself is stored as a text, HTML, MSG or RTF file.

The e-mail information such as the sender name, subject, and date is stored as key fields in XML. Any attachments included in e-mail are saved and a link is created between the original e-mail and the attachments. Non-searchable PDF files, bitmaps, compound files, “e-mails in e-mails” are automatically processed with the help of ZyLAB’s Information Management Platform and Analytics Bundle to ensure all information is full-text searchable. In addition to archiving, ZyLAB can also perform text analytics on the unstructured e-mail. Tags are added to the documents so they are automatically structured.

 This new e-mail archiving bundle offers organizations a scaleable approach to managing e-mail  whereby users are not forced to purchase monolithic, expensive “just store everything” solutions. It provides the ability to keep or destroy e-mails based on choice rather than mailbox availability or server space. In addition, ZyLAB can now support archiving, processing and discovery of e-mails in three different ways:

• User-based archiving directly from Microsoft® Outlook, Lotus Notes or Groupwise. From within the e-mail programs interface users can directly archive and search their e-mail.
•  Convert PST and NSF files into fully-searchable collections of XML, native files for the attachments, and (optional) MSG files. TIFF, PDF and all other bitmap files are separated from other electronic files, and automatically made searchable. This helps users resolve liabilities due to e-mail archives that may reside on their machines.
•  Server-based archiving copies all information that users want to archive, such as e-mails, and newsgroups from the Microsoft® Exchange Server and stored as XML files along with any additional attachments. Storing e-mail as XML guarantees compatibility with future systems without the need of expensive conversions. Information such as recipient name, sender name, date and time as key fields will be automatically added so that the archive is automatically structured.

 All our e-mail archiving and management solutions help to manage key storage issues impacting e-mail, reduce the size of e-mail databases, and address today’s requirements for litigation support and legal e-discovery, regulatory compliance and corporate governance. In this day and age where e-mail volumes continue to outpace storage capabilities, retention policies are changing and legal teams are more frequently contacting the IT department to obtain support with e-discovery preparation. Open and scalable e-mail archiving solutions are required.

 For more information:

 -       ZyLAB eDiscovery and Production System

 -       White Paper: Litigation readiness and Compliance

 -       White paper: Efficient and cost-effective e-mail management with XML

 -       Brochure; ZyLAB eDiscovery and Production

Source: "Shared" via Dominic in Google Reader | jcscholtes

Don't lose sleep over U.S. e-discovery nightmares Thursday, 18 March 2010

What, exactly, is the difference between e-discovery laws in Canada and the U.S.? Two lawyers highlight the basics for those of us who don’t work in the legal department

E-discovery has been a hot topic ever since changes made to the U.S. Federal Rules of Civil Procedure broadened the scope of electronic evidence back in 2006.

But Canadian IT departments shouldn’t lose sleep over e-discovery nightmares taking place in the U.S., according to one lawyer with experience practising on both sides of the border.

“The sky is not falling, No. 1,” said Stephen Maddex, associate in the Commercial Litigation Group at Lang Michener LLP in Ottawa, who is a member of the bar in Ontario and Texas.

“No. 2, organization is key,” he said. “The more businesses do get organized, the simpler it all becomes.”

Broadly speaking, there are two major differences between general Canadian practice and the U.S. federal rules, said Maddex.

One is the scope of discovery. “In the U.S., you can ask for pretty much anything, which is why e-mail has become such an important problem there,” he said. But Canadians “don’t have that same problem because the scope is narrower.”

To Continue Reading: Click Here
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Source: itworldcanada.com
By: Jennifer Kavur

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South Africa publishes issue paper on electronic evidence in criminal and civil proceedings Thursday, 18 March 2010

The South Africa Law Reform Commission has approved the publication of its Issue Paper on “Electronic Evidence in Criminal and Civil Proceedings: Admissibility and Related Issues” for general information and comment. The paper has attempted to draw attention to issues for law reform with regard to matters relating to admissibility of electronic evidence in criminal and civil proceedings. This preliminary research paper has set out to identify shortcomings in the evidential provisions of the Electronic Communications and Transactions (ECT) Act 25 of 2002. The closing date for comment is 30 June.


A recent survey of South African litigation practitioners revealed that less than 30% of documents produced during discovery or at trial are produced in electronic form, despite the fact that more than 90% of litigious documents are created electronically. In it’s 2009 year-end review of the world-wide electronic discovery software market, Gartner mentioned the growing need and demand of e-discovery software in South Africa. Many South African law commentators have discussed that current litigation practice falls short of best practice. All of these developments expalin the issuance of the issue paper.

To Continue Reading: Click Here
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Source: jdsupra.com
By: The Possee List

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Case Report – Order to attend assessment following employee’s aggressive outburst not discriminatory Thursday, 18 March 2010

Yesterday, the Court of Appeal for the Yukon Territory affirmed a decision of a Yukon Human Rights Board of Adjudication. The Board had held that an employer did not discriminate against an employee with a bipolar condition by suspending him pending a medical assessment. It held that the employer ordered the assessment based on an observation of objectively concerning behavior rather than on any stereotypical assumptions about the employee’s disability:

Whether Mr. March’s conduct was disruptive and inappropriate or not was a question of fact. The evidentiary facts were largely undisputed and the primary task of the Board was to resolve the conflicting interpretations and decide whether Mr. March’s conduct was disruptive and inappropriate. The issue involved an individualized assessment of particular facts. The Board heard the evidence and concluded that Mr. March’s conduct was disruptive and inappropriate and the respondents acted reasonably in the circumstances in removing him from the workplace pending a medical assessment. The action taken was temporary and responsive to the disruptive conduct and not an arbitrary reaction attributable to a discriminatory stereotyping of his disability. Instead, it was directed to ascertaining the cause of his conduct, and deciding how it should be addressed.

Though employers do have a general right to request medical information in circumstances similar to those demonstrated in this case, the employer here had accommodated the employee for years and further helped its case by making a genuine expression of continued support for the employee at the same time as making its direction.

March v. Yukon (Human Rights Board of Adjudication), 2010 YKCA 3.

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7Safe eDiscovery networking event on 15 April Thursday, 18 March 2010

7Safe is holding an eDiscovery networking event on Thursday 15 April at The Hoxton Hotel, 81 Great Eastern Street, London EC2A 3HU at 6.30pm.It is to mark the official launch of their hosting of Anacomp’s CaseLogistix, one of the document review tools which was used by Anton Valukas, the examiner responsible for the recent report [...]

Source: "Shared" via Dominic in Google Reader | Editor

Processing Is Not Processing Is Not Processing Thursday, 18 March 2010

By Laura Webster, Solution Design Architect, Fios, Inc.

 

Data processing for e-discovery requires expertise in various technologies. Electronically stored information (ESI) populations generally contain large volumes of disparate file types. For an e-discovery project to be successful, this data must be processed and aggregated quickly and reliably.

 

Your e-discovery partner should be able to help you:

• Fully inventory and uniquely identify each file in the data population for file accountability.
• Collaborate with the response team to address security and encryption methods used in email, container and other file types to ensure all appropriate decryption methods are attempted.
• Extract file content and metadata from the files, such as e-mail routing data, file property data continue…

Source: "Shared" via Dominic in Google Reader | DiscoveryResources.org Editor

ESI Culling: Trouble With Image Files - Corporate Counsel Thursday, 18 March 2010

ESI Culling: Trouble With Image Files Corporate Counsel Like many search tools, e-discovery and forensic programs often ignore image files because they cannot interpret graphic content. ...

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Public Mobile's network is LTE-ready - ITWorld Canada Thursday, 18 March 2010

Public Mobile's network is LTE-ready ITWorld Canada Don't lose sleep over US e-discovery nightmaresBy: Jennifer Kavur (3/18/2010 4:22:00 PM)E-discovery has been a hot topic ever since changes made to the US ... and more »

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Don't lose sleep over US e-discovery nightmares - ITWorld Canada Thursday, 18 March 2010

Don't lose sleep over US e-discovery nightmares ITWorld Canada What, exactly, is the difference between e-discovery laws in Canada and the US? Two lawyers highlight the basics for those of us who don't work in the legal ...

Source: "Shared" via Dominic in Google Reader | (author unknown)