Newsfeed – E-Discovery – Law – Technology


What Causes Lawyers to Over-Preserve? Saturday, 4 February 2012

It's hard to persuade attorneys to accept leaner, less costly preservation protocols. Irrational fear of sanctions and spotty familiarity with information technology have so conditioned lawyers to over-preserve that when advised there's no need to keep something, they reply, "Let's keep it anyway — just to be safe."

Proportionality in preservation isn't something you get down at the courthouse. Proportionality begins at home.It begins by understanding the mechanics of preservation, helping you select the most cost-effective approaches and manage risk. For email, there are several options.

Do nothing: The cheapest, easiest, and most common approach to email preservation is to do nothing and hope that messages will be around when you are obliged to produce them. At first blush, doing nothing to preserve email seems the e-discovery equivalent of Russian roulette. Some jurists call it grossly negligent because messages will inevitably winnow away as employees purge folders and change jobs. Most parties can't do nothing!

But doing nothing is a defensible choice for those whose email systems are configured to automatically save items that fall within the scope of preservation. Litigants with message journaling or archiving systems are examples of entities that can safely do nothing once it's established that the systems hold the relevant messages and the messages aren't going anywhere. Even then, IT personnel should be made aware of the obligation to preserve the archives.

To Continue Reading: Click Here
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Source: law.com
By: Craig Ball

Source: "Shared" via Dominic in Google Reader "Shared" via Dominic in Google Reader | Jeffery Fehrman

KPMG Loses E-Discovery Appeal in 'Pippins' Labor Case Saturday, 4 February 2012

Auditing firm KPMG has lost its appeal of a controversial e-discovery ruling in the Pippins v. KPMG labor case.

KPMG, one of the Big Four in its field, wanted to sample 100 hard drives for e-discovery. Lawyers for Pippins won a November 2011 ruling to use all available drives, which sparked a debate among e-discovery watchers -- how much data preservation is reasonable? The sides appeared close to a compromise last month, but no deal was reached.

"Based on Plaintiff's recollections regarding their former hard drives, I agree with [Magistrate Judge James] Cott that the hard drives are likely to contain relevant information," wrote District Court Judge Colleen McMahon, of the Southern District for New York, in a bluntly written ruling Friday afternoon.

"It smacks of chutzpah ... to argue that the Magistrate failed to balance the costs and benefits of preservation when KPMG refused to cooperate with that analysis by providing the very item that would, if examined, demonstrate whether there was any benefit at all to preservation," McMahon asserted.

To Continue Reading: Click Here
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Source: law.com
By: Evan Koblentz

Source: "Shared" via Dominic in Google Reader "Shared" via Dominic in Google Reader | Jeffery Fehrman

Big Data Forensics: What's in a Tool? Saturday, 4 February 2012

In today’s ever-expanding world of big data, organizations are not only taking on considerably more responsibility for protecting information assets, but are also facing the likelihood of a continued rise in potential data incidents.

According to Dov Yoran, CEO at New York City-based cyber security company ThreatGRID, security threats have evolved so extensively in recent years that it is inevitable that incidents will occur even at mid-sized businesses. “It’s imperative to have a solid incident response process, which should include data forensics capabilities and recovery methods after the breach,” Yoran says. “Additionally, it is always paramount to have a disaster recovery plan, which normally includes recovery processes, procedures and solutions.”

All tools are not created equal

Fortunately, an array of forensic and recovery tools exists, including data integrity tools provided with the operating system, automated data recovery tools, and specialized forensic data recovery tools. The most advanced tools allow experts to recover significantly corrupted data or structural damage, partially deleted files, and forensically reassemble short fragments of files into their original form. The tools even allow an expert to document the chain of events that led to the data destruction. This all depends on the expert using the tool having an intimate knowledge of how media data structures operate, and good working knowledge of the tool itself.

To Continue Reading: Click Here
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Source: bx.businessweek.com
By: Peter Fretty

Source: "Shared" via Dominic in Google Reader "Shared" via Dominic in Google Reader | Jeffery Fehrman

February 4th weekend edition of “Top 20 … plus more” compendium of e-discovery news Saturday, 4 February 2012

Our weekend edition of the “Top 20 … plus more” … a snapshot of some interesting e-discovery blog/web site posts, vendor news/views on a wide range of electronic discovery related issues, and other tech developments from the past week.    It is compiled by Master Sensei Social Media Guru Rob Robinson who is Vice President of Marketing for Orange Legal Technologies, a company that is a long-time member and sponsor of The Posse List and The Electronic Discovery Reading Room.

Rob compiles the information from online public domain resources and highlights key electronic discovery related stories, developments, and announcements.  This is supplemented by the editorial staff of The Electronic Discovery Reading Room.

eDiscovery News: Content and Considerations

  • 7th Circuit Pilot Program Could Have Wide-Ranging Impact – bit.ly/yTa1Uq (Mathieu Shapiro, Aaron Peskin)
  • A Reply to Information Scientist’s Critique of “Secrets of Search” Article – bit.ly/wsSZOR (Ralph Losey)
  • Applying E-Discovery Best Practices to Cloud Computing – bit.ly/z4IWEi (Christine Soares)
  • Budgeting for #eDiscovery: Exploring your Approach to Cost Control and Transparency – bit.ly/AlmKZB (@eDiscoveryBeat)
  • Chris Paskach, Partner at KPMG Forensic Technology Services, on Statistical Sampling – bit.ly/AieW3E (@LXBN)
  • Cost-Shifting Could Be a Pleasant Surprise After Litigation – bit.ly/ABkOJy (Kevin Brady, Jill Agro)
  • Discoverability and Spoliation in Online Social Networks – bit.ly/yl0tnV (Sean Sullivan)
  • DLA Piper’s Browning Marean on E-Discovery Proportionality – bit.ly/zocGzr (@LawTechNews)
  • eDiscovery Judges in Charlotte: Advice, Technology, and Specializations – bit.ly/wRUmgi (Cat Casey)
  • Electronic Discovery: It’s Just Technology, Right? bit.ly/z7uZyE (Daryl Shetterly, Howard Reissner)
  • LegalTech Panel Examines eDiscovery Challenges in Europe – bit.ly/AvthGo (Evan Koblentz)
  • Microsoft’s John Frank Examines eDiscovery’s Impact on Global Ethics – bit.ly/yMtKmi (Evan Koblentz)
  • Must Parent and Attachment Files Be Kept Together? bit.ly/w1LMYO (Thomas Smith, Matthew Collins)
  • NLRB Report Challenges Validity of Many Commonly Used Social Media Policies – bit.ly/xCfcda (Philip Gordon)
  • Obtaining Discovery in China for Use in US Litigation | China Law Insight – bit.ly/yJtH08 (Meg Utterback)
  • Plaintiff Sanctioned for Burning Personal Computer – bit.ly/ykkVqe (K&L Gates)
  • Printing ESI & Scanning It Is Not OK – bit.ly/xryUK2 (Josh Gilliland)
  • Proposed EU Privacy Rules Add to the Burden on International Businesses – bit.ly/xa04Sz (Gibson Dunn)
  • Ralph Losey of Jackson Lewis on Predictive Coding and Transparency in E-Discovery – bit.ly/y9Dw8m (@LXBN)
  • Rules Road Map: A Quick Guide to How eDiscovery Rules are Updated – bit.ly/ybA4Ez (Patrick Oot)
  • Smart Sampling in eDiscovery – bit.ly/zFvZpz (Tom Turner, John Tredennick)
  • State Panel Adopts ‘Zubulake’ in Faulting Handling of E-Mails – bit.ly/w431Zy (Brendan Pierson)
  • The 7 Deadly Sins of Document Review – bit.ly/w7jucJ (Dalton Young)
  • The Case for Meaningful, Rule-Based Guidance on eDiscovery Matters – bit.ly/xjQ4k1 (Michael B. Hayes, Stephen Grossman)
  • The Document from Hell–aka The “Privilege Log” bit.ly/zzTkPX (Katherine Gallo)
  • The Democratization of eDiscovery: 2011 The Year in Review – bit.ly/xJD4Lk (Cecil Lynn)
  • The NLRB Updates And Illuminates Its Social Media Stance – bit.ly/ADPD1j (Michael Schmidt)
  • The Safe Side Isn’t – bit.ly/zsNZWh (Craig Ball)
  • True Grit: Scrapping for eDiscovery Clients, Firms Seek The Right Mix – bit.ly/xcztz4 (Robyn Weisman, Monica Bay)
  • Why Cleantech Investors Should Get Ready for eDiscovery – bit.ly/yInfal (Gaston Kroub)

Reports and Resources

  • A Proactive Approach to eDiscovery (Infographic) – bit.ly/ya0qsV (EMC)
  • Cowen Group Survey Predicts Big Revenue Spike for Litigation Support – bit.ly/A1xips (Monica Bay)
  • Hart-Scott-Rodino Antitrust Thresholds Revised for 2012 – bit.ly/ywcjKZ (@JDSupra)
  • Iron Mountain Survey: Law Firms Closing the Gap Between Paper and Electronic Records – bit.ly/xvKoG0 (Business Wire)
  • Kelso on Standards of Review & Proportionality, Congruence, & Symmetry – bit.ly/w9IpPk (Randall Kelso)
  • LTN Technology Vendor Survey Shows Strong Optimism in 2012  – bit.ly/zrs3Gv (David Snow)
  • Mergers and Acquisitions in 2012 – hvrd.me/xfaMpm (Adam Emmerich)
  • New Zealand: Overhaul of High Court Discovery Rules – bit.ly/zJ6Lxr (ILO)
  • NIST Issues Guidelines on Public Cloud Security, Privacy – bit.ly/Ath3my (Michael Beder)
  • Statistics and Sampling for eDiscovery: A Glossary and FAQ – bit.ly/A2VMur (Herb Roitblat)
  • The Cost of a Case: How Much Difference Does eDiscovery Make? (Graphic) bit.ly/zjkvCm (The National Law Journal)

Technology and Tactics

  • 5 Common Outlook Errors and How to Fix Them – bit.ly/ykPVVq (Jeff Orloff)
  • 20% of IT Workers Now Using Apple | Computer Business Review – bit.ly/AyrlfH (Allan Swann)
  • Elephants Never Forget – bit.ly/A16VpL (Robert Ambrogi)
  • Email Service, Technology Providers Creating Security Standard – bit.ly/wFc7x2 (ProofPoint)
  • Finders, Keepers: Improve Business by Tailoring Websites to Visitor Needs – bit.ly/zaXZsj (Tam Hebert)
  • Google Study: Social Media Enhances Privacy – bit.ly/x2FKbY (Thomas Claburn)
  • HDFS: Coming Soon To An Array Near You – bit.ly/yK4BRv (Chuck Hollis)
  • Information Governance and ROI – bit.ly/AABeCV (James Amsler)
  • Is Homeland Security Watching You Online? bit.ly/wHn9zu (Eric Sinrod)
  • Upcoming Compliance Deadline for Massachusetts Service Provider Contracts | Hogan Lovells – bit.ly/w00pPH (Kate Abramson)
  • U.S. Cybersecurity Efforts Trigger Privacy Concerns bit.ly/xkE92t (Lolita Baldor)
  • VMWare and Citrix Square Off in “DropBox for Enterprise” as Tablets Evolve VDI – bit.ly/yjydxa (Joshua Konkle)

Vendor Views: the Industry Landscape

  • A Look Behind the Curtain – bit.ly/xRJVF2 (Evan Koblentz)
  • Acuity Managed Document Review from FTI Consulting – bit.ly/wrnFul (PR Newswire)
  • Am Law 200 Polsinelli Shughart Chooses IPRO Eclipse as Firm-Wide Review Platform – bit.ly/xc7H2E (Marketwire)
  • Announcing the NEW Summation! With Support Update – bit.ly/xopg8j (Tim Leehealey)
  • Autonomy’s Market-Leading Meaning-Based Solution Unifies and Simplifies eDiscovery – prn.to/AfASyW (PR Newsire)
  • Clustify 3.0 Adds Integration with a Broad Range of Databases and e-Discovery Tools http://bit.ly/zTltkb (Press Release)
  • CommVault Unveils New Simpana Software Innovations – bit.ly/y6ZnPJ (Press Release)
  • Discover Ready: 2012 Prediction: Predictive Coding Arrives, Ready or Not – bit.ly/yDSpc4 (James Wagner)
  • DTI and Perpetually Announce Strategic Partnership – bit.ly/xuPc84 (@LegalIT Professionals)
  • eDiscovery Expert Phil Iantosca joins Boston’s Leading Litigation Support Service Key Discovery – bit.ly/zFYJFn (PR Web)
  • First Advantage Litigation Consulting Announces Addition of Key Executives – bit.ly/Ace5bn (RealWire)
  • GGO Introduces ‘Review-Ready’ Fixed-Fee ESI Processing for E-Discovery – bit.ly/AdZ9Xd (PR Web)
  • Guidance Software Expands EnCase eDiscovery Cloud Support – bit.ly/zsIutJ (Business Wire)
  • Index Engines Announces New Octane Forensic Archive for Litigation Hold at LegalTech NY – bit.ly/wOF41w (Press Release)
  • LegalTech Hit by Tidal Wave of Product News – bit.ly/zrMhlS (Evan Koblentz)
  • LegalTech New York 2012: Breakdown of Vendors – bit.ly/w2uMhZ (Joanne Forshee)
  • Merrill Corp. Revs Up Its eDiscovery With Index Engines Partnership – bit.ly/wOzyWy (Michael Roach)
  • More eDiscovery Announcements From LegalTech New York 2012 – bit.ly/zftr57 (Marisa Peacock)
  • New Product Highlights for LegalTech New York – bit.ly/Afny1M (Sean Doherty)
  • New ZyLAB Cloud Collectors Retrieve Messages, Calendars & Contacts from Office 365 & Other Web Email – bit.ly/ywBEcJ (Press Release)
  • Nuance Introduces eCopy Legal Solution Pack, Streamlining Paper-to-Digital Workflows in Law Firms – bit.ly/AgSVIw Business Wire)
  • OrcaReview Expands Feature Set for eDiscovery Review on the Fly – bit.ly/xsGUn9 (PR Web)
  • Ricoh to Acquire HSSK Forensics, Inc. – prn.to/zn2S6A (PR Newswire)
  • Rebirth of Summation – bit.ly/zQqGkT (Devin Krugly)
  • Record Number of Firms Sign with Venio – bit.ly/wClRUr (PR Web)
  • Ricoh Enhances eDiscovery for Legal Users – bit.ly/wuhNtB (PR Web)
  • Roetzel & Andress Chooses Relativity for In-house e-Discovery bit.ly/waU5Sh (Press Release)
  • TransPerfect Legal Solutions Announces Release of Integrated Machine Translation with Relativity – bit.ly/wettB0 (Business Wire)
  • Wave Software at LegalTech New York 2012 – yhoo.it/x9OosH (PR Web)
  • What is the “Right Sourcing” of eDiscovery? (Google+) bit.ly/xMcCN8 (@OrangeLT)

2012 eDiscovery Events

MARCH

LegalIT Business Show
March 6 – 7, 2012
London, UK
Click here for more information.

IP Counsel Forum
March 7 – 8, 2012
San Jose, CA
Click here for more information.

AIIM 2012 Conference
March 20 – 22, 2012
San Francisco, CA
Click here for more information.

The Sedona Conference Institute’s 6th Annual Program on Staying Ahead of the eDiscovery Curve
March 22 – 23, 2012
St. Louis, MO
Click here for more information.

ABA TECHSHOW 2012
March 29-31, 2012
Chicago, IL
Click here for more information.

APRIL

ACEDS 2012 Conference
April 2 – 4, 2012
Hollywood, FL
Click here for more information.

12th Annual Super Conference
April 23 – 24, 2012
Chicago, IL
Click here for more information.

For questions, comments and suggestions you can always email us at: manager@theposselist.com.

A few words about our sponsor, Orange Legal Technologies …

Orange Legal Technologies is a full service e-discovery provider that delivers core e-discovery capabilities with its proprietary OneO® Discovery Platform.  Delivered under a SaaS model, the OneO® Discovery Platform is a fully integrated, web-accessible electronic discovery platform that enables users to analyze (early data assessment), process, and review electronically stored information online, from the security of a hosted centralized repository.

Launched nationally in 2008, Orange Legal Technologies has a strong history of proven performance in complex e-discovery support to include matter expertise such as:

* Clinical Trial Litigation
* Employment Litigation
* Government and Regulatory Investigations
* Patent/Trademark Litigation
* Product Liability Litigation

Having served over 500 clients since inception and with over 50 clients leveraging the OneO® Discovery Platform since its introduction, Orange Legal Technologies has worked with some of the world’s most well known corporations and law firms.  To learn more about Orange Legal Technologies, visit www.OrangeLT.com.

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

SCC issues comprehensive third-party information exemption decision Saturday, 4 February 2012

Yesterday the Supreme Court of Canada issued a comprehensive decision on the third-party information exemption in the federal Access to Information Act. Although the third-party, research based pharmaceutical company Merck, lost its appeal, the decision establishes decent procedural and substantive protection for third-parties.

The matter – about a Health Canada access decision

The matter involves a request made to Health Canada for records related to a New Drug Submission and Supplementary New Drug Submission. Health Canada disclosed some records without providing notice to Merck and gave notice to Merck regarding parts of others with a note that it was “unable to determine” whether the mandatory exemption for third-party information in section 20(1) of the ATIA applied. This led to a Heath Canada decision to disclose numerous records that Merck challenged by way of judicial review. It took issue with the process by which Health Canada administered the request and its decision not to apply section 20(1).

The relevant provisions – the third party information exemption

Section 20(1) is the “third-party information exemption.” It protects the interests of third-parties whose information is under the control of federal government institutions. The three subsections at issue in yesterday’s decision read as follows:

20. (1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains

(a) trade secrets of a third party;

(b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;

(c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party

A head has a duty to refuse to disclose a record containing information fitting within any one of section 20(1)’s three subsections, subject to a duty to sever and disclose non-exempt information that can “reasonably be severed.” A head also has a duty to give notice to an affected third-party (and hear submissions) when the head, “intends to disclose any record requested under this Act, or any part thereof, that contains or that the head of the institution has reason to believe might contain…” information that is exempt under section 20(1).

The majority decision – eleven principles

Justice Cromwell wrote for the six judge majority. He endorsed the following 11 principles (my list) about the scope of the third-party information exemption and the procedure for dealing with requests that engage the exemption:

  1. Most generally, the duty to provide access to government information is equally important to the duty to protect third-party information: “when the information at stake is third party, confidential commercial and related information, the important goal of broad disclosure must be balanced with the legitimate private interests of third parties and the public interest in promoting innovation and development.”
  2. The threshold for giving notice to a potentially affected third-party is low: disclosure without notice “is only justified in clear cases, that is where the head, reviewing all the relevant evidence before him or her, concludes that there is no reason to believe that the record might contain material referred to in s. 20(1).”
  3. A head must give notice to a third-party even in the absence of a firm intention to disclose, including when “in doubt” about the application of section 20(1): “the institutional head ‘intends to disclose’ a record that might contain exempt information if the head concludes that he or she cannot direct either refusal or disclosure without notice.”
  4. A head, however, must make a “serious attempt” to apply the exemption and not simply shift the onus of review to a third-party.
  5. On judicial review of a decision to disclose, a third-party must establish application of section 20(1) on a balance of probabilities. It is an error of law to hold a third-party to a “heavy burden.”
  6. Section 20(1)(a) applies to information that meets the traditional legal test for a “trade secret.” It is an error of law to associate the definition with any particularly restrictive meaning.
  7. Section 20(1)(b) applies to information supplied to government that is “not available from sources otherwise available to the public or obtainable by observation or independent study by a member of the public acting on his or her own.” The information need not have inherent value (as a client list would, for example).
  8. For the purposes of section 20(1)(b), information is not “supplied” if it is “collected by government officials’ observation.”  In general, judgements or conclusions expressed by government officials are not “supplied.”
  9. The reasonable expectation of harm that triggers the application of section 20(1)(c) exists when there is “considerably more” than a “mere possibility of harm” and “somewhat less” than a likelihood of harm. It is an error of law to demand harm that is “immediate” and “clear.”
  10. In general, it will be hard to demonstrate that harm will flow from the disclosure of publicly available information and, as a matter of principle, difficult to establish that harm will flow from the misunderstanding of disclosed information.
  11. Declining to sever and produce information from an otherwise exempt record will be justified when the non-exempt information has little meaning on its own or when a cost-benefit analysis otherwise weighs against disclosure.

These principles are likely to have at least some significance to the handling of matters under statutes other than the ATIA. Principle 9, in particular, has the potential to calibrate the handling of harms-based exemptions and promote a uniform standard for proof of harm under all Canadian access statutes.

The dissent – differs on a non-substantive issue

Justice Deschamps wrote for the three judge minority, which would have deferred to the application judge’s findings. The minority did not differ with the majority on any of the 11 principles noted above, and expressly agreed with the majority’s views on the duty to provide notice and on the standard of proof.

Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3.


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

Hitting the 'Like' Button for X1 Social Discovery Friday, 3 February 2012

X1_discovery_logo400With Facebook membership passing 800 billion and Twitter at more than 300 million users, that's a lot of data to rummage through. Small wonder that social media discovery is an emerging area of interest for e-discovery practitioners and providers.

Enter X1 Discovery with its flagship product X1 Social Discovery, which was on display at the exhibit hall at LegalTech New York a few months after its October launch.

As John Waters writes, the software was "designed specifically to collect, index, search, and preview social media content generated by the three most popular systems: Twitter, Facebook, and LinkedIn." Among its vaunted features are its ability to preserve chain of custody with social network content and to capture and preserve its metadata.

Waters takes the product for a test drive in his article for LTN, "X1 Social Discovery Collects Data in Social Networks."

Image courtesy of X1 Discovery

Source: "Shared" via Dominic in Google Reader "Shared" via Dominic in Google Reader | Michael Roach

The Recapitulation Theory and The Lifecycle of Legal Knowledge Management Friday, 3 February 2012



I attended a meeting of legal knowledge management professionals earlier this week.  By tradition, the speakers (except consultants) are anonymous.

The first topic was "Ontogeny recapitulates Phylogeny," a concept from biology also known as "Recapitulation Theory" that refers to the parallel between the embryonic development of organisms (specifically mammals) and evolution. 

The speaker has started knowledge management systems four times.   He addressed the bumpy "curve" of interest, excitement, and profile that naturally occurs when knowledge management programs progress.

First the law firm recognizes that they have a problem.  They see that they'll need to talk to people and develop something.  You slay the sacred cows, enlist the aid of people previously concerned with knowledge management, and then conceive of a grand plan.  After a lot of hard work, an "immortal" result is achieved, and people are astonished.  Most were unaware that the work was going on.

From here the slope of interest and ability to make remarkable changes is downward.  People suggest changes that may or may not be useful or easy to accomplish.  The amazing achievement becomes "background", expected, and credit or recognition slacks off. It's a hard slog to regain the level of immortality again.

Has the field of legal knowledge management followed the same curve?

For instance, enterprise search in legal was a moment of immortality, "god's gift to legal knowledge management."  The next hoped-for trick was the "best practice," which is not a simple add-on but an entirely different approach.  Does KM seeking to solve "everything" lead to KM risking becoming nothing?  Ideas like social media and document assembly may have a low probability of success and clearly require much more work and structure than the earlier successes.  KM staff are helping with project management, financial analysis, task-based process management, and so forth, but legal kmers not necessarily the best people to do that.

So how can legal KM practitioners get back to the moment of immortality?  Switch jobs?  Repeat the process at organizations that haven't navigated the curve?  It's up to us.

Source: "Shared" via Dominic in Google Reader "Shared" via Dominic in Google Reader | David Hobbie

KPMG Loses Appeal in Controversial Pippins E-Discovery Case Friday, 3 February 2012

KPMG has lost its appeal in the controversial Pippins case. Judge McMahon said KPMG must preserve all possible plaintiffs' drives. Look for the full story at lawtechnews.com later tonight.

Source: "Shared" via Dominic in Google Reader "Shared" via Dominic in Google Reader | Evan Koblentz

2012 Legal Tech EDI Dinner - The Social Side of E-Discovery Friday, 3 February 2012

94 E-Discovery Thought Leaders + Fabulous Italian Cuisine + Copious Amounts of Wine = Camaraderie
February 3, 2012

By Patrick Burke, Senior Director & Assistant General Counsel

Yes, Legal Tech New York 2012 is all about innovation, expertise, and, at times, competition.  But one of the nicest aspects of the e-discovery industry is that it has maintained a culture that encourages a sense of camaraderie and, frankly, a sense of humor.  Case in point – the E-Discovery Institute’s  (http://www.ediscoveryinstitute.org/) annual dinner at Legal Tech, held this year at Lidia Bastianich’s famed Becco on Restaurant Row in NYC.  The event was kicked off by an in-person greeting from Lidia Bastianich herself – who declared “Tonight, no e-discovery!”  Of course neither delicious food nor wine could keep this voluble group from talking a bunch of shop. 

 

Becco



The E-Discovery Institute – brainchild of Patrick Oot and Anne Kershaw – is a non-profit research and educational organization dedicated to identification of effective legal technologies and processes and teaching lawyers and judges about their use.  No wonder so many judges were among the revelers:  US Magistrate Judges Andrew Peck, David Waxse, Frank Maas, and Jay Francis.  Look one way and you find yourself talking to some of the very best law firm practitioners including John Rosenthal of Winston Strawn, Amor Esteban of Shook Hardy, Anthony Diana of Mayer Brown, Maura Grossman of Wachtel Lipton and Jay Brudz of Williams Mullen as well as e-discovery gurus such as Ashish Prasad, George Rudoy and Chris Dale.  Turn another way and you’re meeting many of the very best in-house e-discovery practitioners including Anthony Knappen of Chevron (co-author of an excellent white paper on Data Breach & Cybersecurity distributed at the dinner), Christian Zeunert of Swiss Re, Glenn O’Brien of Liberty Mutual, Farrah Pepper of GE, Andrew Drake of Nationwide, Dawson Horn of Tyco and Jennifer Hamilton of John Deere and two score others. 

Congratulations to the E-Discovery Institute on bringing together such an esteemed collection of e-discovery thought leaders for an evening of camaraderie and good cheer.

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

Text Messages From a Blackberry Friday, 3 February 2012

A potential client recently asked what the chances were of getting text messages recovered from a Blackberry smart phone. The caller represented a company that had lost an employee under circumstances leading them to believe their customer list and other data had been compromised. They had the employee’s laptop and Blackberry. This scenario is a common one that plays out

Source: "Shared" via Dominic in Google Reader "Shared" via Dominic in Google Reader | e-Forensic

76 percent of business executives would pay a salary premium for Certified Information Professionals Friday, 3 February 2012

We just released the results of an independent market survey of more than 200 business executives, attesting to the value of certification for information professionals.

The net-net:  Executives are willing to pay a premium for both internal staff and external consultants with the Certified Information Professional (CIP) designation.

Conducted in January 2012, four months after AIIM launched the Certified Information Professional program, the survey shows that:

  • 64 percent of business executives would prefer to hire a Certified Information Professional (CIP) versus a non-certified candidate.
  • 76 percent of business executives would pay a CIP a salary premium. Of these, 45 percent indicated that they would pay more than a 10 percent salary premium.
  • 61 percent of business executives would prefer consultants that hold the CIP designation over those who do not.
  • 62 percent of business executives think having CIP-certified staff would enhance the perception of their organization in the industry
  • 60 percent of business executives would prefer CIP-certified IT staff.
  • 66 percent of business executives think having CIP-certified staff would improve their ability to find, manage and exploit their information assets across the enterprise.

Debra Logan , vice president and distinguished analyst at Gartner Research, and Regina Casonato, managing vice president at Gartner Research, confirmed the need for a professional designation for the emerging information professional, a role distinct from current IT skill sets. “An 'information professional' will not be one type of role or skill set, but will in fact have a number of specializations,” wrote Logan and Casonato in the 2011 Gartner “CIO Alert: You Need Information Professionals .”

The Certified Information Professional designation was developed by a team of subject matter experts in conjunction with AIIM, in accordance with ISO 17024 methodologies. The purpose of the certification is to establish a core body of knowledge relevant to the needs of content and information professionals. The certification exams are independently administered by the global Prometric testing centers. Free certification prep kits and sample exam questions are available now from AIIM.

Get certified now.

 

Source: "Shared" via Dominic in Google Reader "Shared" via Dominic in Google Reader | John Mancini

512 - Des solutions d’affaires et des logiciels libres pour la gestion des documents d'activité Friday, 3 February 2012

Vous me permettrez de diffuser exceptionnellement ce communiqué de presse concernant un projet qui innove dans la manière d'aborder la mise en place des systèmes de gestion des documents d'activités (voir aussi l'article publié dans le journal Le Soleil de Québec et dans Direction informatique) :

COMMUNIQUÉ

DocuLibre inc., éditeur des logiciels libres IntelliGID RM, IntelliGID ECM et Constellio, ainsi que Gestar, Experts en gouvernance documentaire sont fières d’annoncer la mise en commun de leurs expertises respectives en un consortium (Consortium Doculibre Gestar) qui offrira désormais des solutions logicielles libres pour la gestion intégrée des documents (GID), documents d'activité en format papier et technologiques en lien avec des solutions systémiques, des outils et des méthodes s’inspirant du modèle d’affaires des logiciels libres.

Regroupées physiquement dans les mêmes locaux, les deux entreprises agiront en synergie dans une offre de services axée sur la gouvernance documentaire privilégiant la transmission des savoirs et des savoir-faire, l’accompagnement et le soutien des utilisateurs de documents afin de favoriser le développement de leurs compétences en gestion intégrée des documents et assurer la pérennité des solutions retenues.

DocuLibre a lancé récemment la première communauté de logiciel libre gouvernemental en gestion intégrée des documents autour de sa solution IntelliGID. Pour sa part, Gestar, chef de file en gestion documentaire depuis plus de 25 ans remet son logiciel OmniDok® Entreprise à la communauté IntelliGID.

« Le versement du code source d’OmniDok® à la communauté est un signe de confiance de la part de Gestar et une contribution importante au niveau de notre logiciel », mentionne Rida Benjelloun, président-directeur général de DocuLibre. De plus, « tous les besoins des utilisateurs des solutions de Gestar seront pris en compte et comblés par la nouvelle version d’IntelliGID prévue à l’hiver 2012 », confirme celui-ci.

« Nous lancerons une communauté de pratique autour des schémas hiérarchiques de classifications de documents, dans l’objectif de rendre disponible une arborescence de classification normalisée libre, évitant à toutes les organisations de réinventer une solution à un besoin commun », mentionne Michel Roberge, président et chef de la direction de Gestar : « Une innovation qui s’appuie sur plus de 25 années de recherche et de développement de plans de classification dans plusieurs centaines d’organismes publics et d’organisations du secteur privé ».

De plus, le consortium créera une autre communauté sur la gestion du cycle de vie des documents. Gestar contribuera à une banque de règles de conservation libres qui aidera les organisations à établir leurs calendriers de conservation.

Enfin, le groupe compte aussi mettre à la disposition de la communauté la méthodologie DocumentFaire™ développée par Gestar et dont l’objectif premier est d’assurer la réussite de la conception, du développement, du déploiement et de la maintenance d’un système de gestion documentaire qui intègre les documents à la fois en format papier et technologiques.

Tous ces outils et méthodes seront intégrés dans la solution IntelliGID et seront tenus à jour avec les nouvelles versions du logiciel.

Nos solutions implémentent les technologies du Web sémantique (Web 3.0), l’intelligence d’affaires (Business Intelligence), la collaboration (Web 2.0), les données ouvertes (OpenData) et le forage de textes (text-mining). De plus, nos applications se connectent à Sharepoint, Documentum, FileNet, Livelink, Liferay, Alfresco, Drupal ainsi qu’à toute autre application compatible avec la norme CMIS (Content Management Interoperability Services).

Par la création de cette alliance stratégique, DocuLibre et Gestar offriront les meilleurs outils, méthodes et logiciels afin d’assurer le succès des projets de GID au sein des organisations. Le tout enchâssé dans un programme de certification professionnelle (volet métier et volet logiciel).

Rida Benjelloun - président-directeur général, DocuLibre
Michel Roberge - président et chef de la direction, Gestar

Source: "Shared" via Dominic in Google Reader "Shared" via Dominic in Google Reader | Michel Roberge<br>Expert en gouvernance documentaire

E-Discovery Cost Recovery in the Digital Age Friday, 3 February 2012

E-discovery is a costly necessity of modern litigation. With the ease of email and network data-storage came a deluge of litigation expenses. But producing parties, who historically have born the majority of these costs, may now find some relief in Rule 54(d) of the Federal Rules of Civil Procedure.

Rule 54(d) provides that "costs -- other than attorney's fees -- should be allowed to the prevailing party." The awardable or "taxable" costs are listed in 28 U.S.C. §1920, and include "[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case." At first glance, this provision might not seem to encompass e-discovery costs. Since an amendment in 2008 that replaced the word "papers" with "any materials," however, courts uniformly have concluded that §1920 covers at least some e-discovery costs.[FOOTNOTE 1]

The question that remains is what e-discovery costs are recoverable. Courts confronting this question have identified five elements that a party must establish to tax its adversary with e-discovery costs: (1) the party seeking costs must have been the "prevailing party"; (2) the costs must stem from a modern equivalent of "copying"; (3) the costs must have been necessary; (4) the costs must be reasonable; and (5) the costs must be sufficiently documented to support the other elements.

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Source: law.com
By: H. Christopher Boehning and Daniel J. Toal

Source: "Shared" via Dominic in Google Reader "Shared" via Dominic in Google Reader | Jeffery Fehrman

Managing Information in Litigation: How to Avoid Spending a Fortune Friday, 3 February 2012

The costs of preserving, searching and reviewing information in litigation can be staggering. What costs a dollar to store on a hard drive can easily cost hundreds of thousands of dollars to search and review for a lawsuit. Ignoring or destroying salient information prior to or during a lawsuit can lead to losing a case—regardless of the merits of the actual claim—and spending a small fortune litigating the issue of whether you have met your discovery obligations. The solution? Take steps to budget, hire and manage information properly on the front end; corral discovery costs; and avoid Luddite lawyers.

A bevy of published articles bemoan the escalating costs of discovery -- the process during litigation in which the parties are required to exchange information. Given the informational nature of discovery, the CIO should help effectively manage information and control the associated costs.

The discovery process can be obscenely expensive if you and your data are not ready for it. Your company can spend handsomely on legal and vendor costs to muck through the preservation, search, review and production of vast swaths of electronically stored information (and occasionally spending a fortune litigating the issue of whether your company correctly preserved, searched, reviewed, and produced information). Reported cases and legal periodicals are full of horror stories of discovery costs run amok—such as more than $6 million spent to comply with a third-party subpoena in the In re Fannie Mae Securities Litigation case.

So, how do you help your company avoid hemorrhaging money on discovery costs?

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Source: cioinsight.com
By: Adam C. Losey

Source: "Shared" via Dominic in Google Reader "Shared" via Dominic in Google Reader | Jeffery Fehrman

State Panel Adopts 'Zubulake' in Faulting Handling of E-Mails Friday, 3 February 2012

TV broadcasting company EchoStar Satellite failed in its duty to preserve relevant e-mails leading up to a $2.5 billion contract dispute with a Cablevision Inc. subsidiary, a unanimous state appeals panel ruled in imposing a sanction of adverse inference at trial.

The Jan. 31 decision of the Appellate Division, First Department, in Voom HD Holdings v. EchoStar Satellite LLC, 600292/08, written by Justice Sallie Manzanet-Daniels (See Profile), was the first by a New York state appellate court to apply the standard for spoliation of electronic evidence set forth by Southern District Judge Shira Scheindlin (See Profile) in 2003 in Zubulake v. UBS Warburg LLC, 220 FRD 212.

The Zubulake standard holds that "once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a 'litigation hold' to ensure the preservation of relevant documents."

It is "harmonious with New York precedent in the traditional discovery context, and provides litigants with sufficient certainty as to the nature of their obligations in the electronic discovery context and when those obligations are triggered," Justice Manzanet-Daniels wrote. She was joined by Justices Peter Tom (See Profile), David B. Saxe (See Profile), James M. Catterson (See Profile) and Karla Moskowitz (See Profile).

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Source: newyorklawjournal.com
By: Brendan Pearson

Source: "Shared" via Dominic in Google Reader "Shared" via Dominic in Google Reader | Jeffery Fehrman

My Google Profile Friday, 16 July 2010

Check out my new Google profile.

Source: Dominic's shared items in Google Reader Dominic's shared items in Google Reader | (author unknown)

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