e-Discovery Insights

Don't Blow Sunshine Up My (Ad)Dress!

I've kvetched about cloud computing, as you well know, but underlying it all is my concern about maintaining security and privacy.  You lawyers out there are particularly vulnerable to client privacy issues. 

I was reading this really interesting article about alleged misuse of people's address books by a site called Reunion.com and the hubbub that ensued (no, really, they even say "hubbub" in the article...).  You've seen these solicitations, haven't you?  You sign up for a free email account and they tell you the great news; if you would be so kind as to upload your address book, they're only too happy to manage it for you, find your contacts on the web and generally make life easy for you.

What is my response?  No.  Every single time, no - even when it might benefit me considerably.  For example, I use Earthlink services, and if I upload my address book to them, I can use their tools to control incoming spam with a lot more efficiency.

Do I do so?  No.

Here's an idea.  Why don't you just leave your PDA on a restaurant counter somewhere?  What's the difference?  You're trusting your most prized possession to strangers and it's only as safe as the stranger's attention to security.

My PDA is password-protected.  It's an incredible pain.  I hate it.  It makes things cumbersome.  For all I know, it isn't even that effective.  But you know what?  At least I'm doing everything within my power to protect my client information.  At the very least, it will slow down a hacker while I call up my service-provider and get them to send a signal that wipes out the data (yes, they can do that).

I think my clients deserve nothing less.  How about yours?

e-Discovery: It's a Gas!!!

Tasers.  Up until now, I'd say that's the most unusual device to make an appearance in an e-discovery case (at least the ones I've reviewed).  Now, we can add one more potential device; gas pumps.  From Utah comes this story of crooks who have embedded credit/atm card skimming devices in 180 gas pumps throughout the state.

I can't really think of much to add, except to speculate on what happens when the criminals are eventually caught.  Will they receive regular or premium jail time?

Adobe Issues Critical Security Patch for Acrobat & Reader

I'm bringing these critical security patches to your attention because so many attorneys - and others - use either Adobe Acrobat or Adobe Reader to process PDF files.  Please go to this link to retrieve information and/or download the patches, or run "Check for Updates" from the "Help" tab on the Adobe File menu.

Case Got Your Tongue? Caffeine, Voicemail & 8 is Enough

Mistakes...carelessness...sanctions.  Month after month, I review a plethora of new decisions, looking for something unusual and interesting.  Do I find usually find it?  No.  Look at this summary of nine recent cases that Kroll Ontrack has compiled and what do you see?  Sleight of hand, ignorance of the rules & stall tactics.

Starbucks Corp. v. ADT Sec. Servs., Inc., 2009 WL 4730798 (W.D. Wash. Apr. 30, 2009):  In a case that harkens back to the "Jerry Maguire" case I wrote about over a year ago, the court ruled that just because your emails were backed-up on a "cumbersome old system" doesn't automatically make them "not reasonably accessible".  If that isn't enough, they also said, "...even if the information was ruled not reasonably accessible, good cause existed to order production." [italics added]

There are still people out there who seem to think that the federal rules themselves somehow determine what is - and isn't - reasonably accessible.  In fact, someone wrote a letter claiming this very fact in response to one of the articles I wrote in California Lawyer magazine.

Dead wrong.  The court decides what these parameters are, based on the facts of the instant case.

Vagenos v. LDG Fin. Servs., LLC., 2009 WL 5219021 (E.D.N.Y. Dec. 31, 2009):  The quirk in this case is, defendant was awarded an adverse inference sanction over plaintiff's failure to properly preserve a voice-mail message - even though there was no evidence of bad faith on the part of the plaintiff.  Negligence vs. intent...

Magaña v. Hyundai Motor Am., 220 P.3d 191 (Wash. Nov. 25, 2009):  On appeal, the Supreme Court of Washington applied the three-prong default judgment test (willfulness of violation, substantial prejudice to opposing party and availability of lesser sanctions) and reinstated an $8 million default against defendant.  Parties are still betting against the house; but more and more often, the house wins.

Cloud(y), with a Slight Chance of Microsoft

Microsoft is lobbying Congress to pass something they call the Cloud Computing Advancement Act.  It would modify three areas of internet policy related to privacy, security and international issues.  I'm not sure how I feel about this.  Depending on the specified language involved, this could be a good or bad thing.

Whether it's an oil refiner, automobile manufacturer or software development company, when private entities involve themselves in public policy, there's always a danger of self-interest overwhelming public interest.  Technically, Microsoft is a public company, due to its publicly-traded status, but it begs the question; who are they really trying to protect?

If and when I see the actual language of this proposed Act, I might be able to give an opinion on that.  In the meantime, I'll give them the benefit of the doubt.  After all, sometimes private and public interests dovetail.  Maybe what's good for Microsoft in this instance is also good for the rest of us.

Tips & Tricks: The Office: Lexis Partners with Microsoft

The partnership I'm referring to was recently revealed at LegalTech in New York, but the benefits won't be available until later this year.

Nevertheless, this is exciting news for anyone with licenses to both LexisNexis and Microsoft Office 2007.  Lexis will be integrated into the Office 2007 suite of products (which includes Outlook and SharePoint) and will be available for Office 2010, when it's released.  This means no more back & forth between the Web and Office when performing legal research.

The new product is aptly named, "Lexis for Microsoft Office".  One interesting item of note; many firms use WordPerfect because of its outstanding legal tools and have been understandably reluctant to migrate to MS Office.  It'll be interesting to see how this new partnership influences the future direction of law firms.

Let me give you my position.  I'm someone who, as a Consultant, is always attempting to travel the shortest distance between two points (which, as we know, is a straight line).  With that in mind, when I've gone into companies, if they have an established suite of products, unless there's a glaring need to change, I try to keep them within the same parameters.

This has absolutely nothing to do with which products I find superior; it's purely in an attempt to limit the number of vendors, and it has a practical purpose (you IT'ers out there know exactly what I mean).  To illustrate (and I'm not pointing fingers here...), how many of you have contacted vendor support for two products, say, Lotus Notes living on a Novell server and had support from both companies deflect from addressing your issue by saying "it's their problem"?

If you have Microsoft Office living on a Microsoft Server, that problem is eliminated because all they can do is point fingers at themselves.

In that context, if a firm is already heavily-invested in LexisNexis and Microsoft products, but still holding on to WordPerfect, perhaps someone in IT thinks this is the time to make a change.

Ever since I joined the executive committee of the State Bar of California's Law Practice Management & Technology Section, my thought processes have modified somewhat to thinking more about 'law practice management' along with the 'technology' aspects.

We Must Protect this House! (HR4061)

The Cybersecurity Enhancement Act of 2009 (HR 4061), introduced by the federal House Science and Technology Committee, passed February 4th.  Its stated purpose: "To advance cybersecurity research, development, and technical standards, and for other purposes."

What does it mean?  Essentially that the government will spend $396 million over the next four years to encourage cybersecurity best practices and standards.

Senate Bill S.773, the Cybersecurity Act of 2009, is Senator John Rockefeller's version, but isn't as far along.

Tips & Tricks: BarMax: California Exam Prep for iPhone/iTouch

The next presentation of the California Bar Exam begins Tuesday, February 23rd.  In sympathy with all law students who will be sitting for the exam, I happened across this nifty BarMax: California Edition application for the iPhone.  It incorporates essays, MBEs, performance tests and flash cards all into one.

Most California students use BARBRI to prepare for the Bar exam, but I didn't, save for their excellent  PMBR MBE books.  They bring new meaning to the term "Red State/Blue State", which, by the time I'd spent two months studying, referred more to my state of mind from one minute to the next than the color of the book covers.  I also used Finz for MBEs and in my opinion, they're even harder than PMBR Blue (the book cover is orange; as in "A Clockwork...").

Let's put it this way; if you have an iPhone or iPod Touch, an extra $1,000 available and excellent eyesight, this certainly could be a viable option.  When I took the exam in Ontario (that's California, not Canada), every nook and cranny in every hotel I visited was filled with students and their laptops/flashcards/books, cramming for the next session.  It'd be a lot easier to use an iPhone or other device.

I do find it amusing that the California Edition was developed by "Harvard lawyers".  No matter...just meet Buffy & Skip on the veraaaandaaah or in the yaaaaaahd for a cocktail - and don't forget your argyle...

(I was doing ok until I mentioned argyle, wasn't I?  Overkill, I think...)

Facebook Faux Pas: "Drunk (and Stupid) in Florida"

At this point, I'm about ready to throw in the towel and start a "Social Networking Idiot of the Month" post.  I try not to get into the habit of using strong verbiage like this too often, but really...

A drunk-driving 17-year-old was involved in a vehicle crash that killed her 20-year-old passenger.

Quoting directly from the The Buffalo News article:

"The Buffalo News has learned that Sullivan went to Florida a month after the crash and posted a photo on her Facebook Web page captioned, "Drunk in Florida."" (italics/bold added).

The judge found this conduct troubling, sentenced her to six months in jail and stated that posting the Facebook photo was the reason.

No further comment is necessary, especially since it would contain more strong verbiage...

[As much as I don't like to overuse 'dark humor' for something as egregious as this case, nevertheless, I have to pose the question:  How many of you clued-in to my 'half-a-brain' illustration?]

Fight On! (And While You're at it, Please Help)

This one may be the most out-of-left-field thing, yet.  I've been selected as a guest-lecturer at USC on the subject of corporate speech and the First Amendment as it pertains to the Sarbanes-Oxley Act.  Got all that?

At the moment, I'm trying to figure out how I can leverage this for tickets to a football game or two next season...

Seriously, folks, this is quite an honor - at least to me, it is.

Honestly, I'm just using this as a context to ask you for a favor.  A highly-respected associate of mine works with the USC/Norris Comprehensive Cancer Center.  As you can imagine, they can always use our support.  Perhaps you're in a position to help.

Thank you.