e-Discovery Insights

#ABA Seeking Comments Re: Loosening Restrictions to Cross-Border Practice

The ABA has cited a deadline of November 30th, 2011 for comments on several proposals to make it easier for attorneys to practice across multi-jurisdictional lines.  The proposals may be viewed on the ABA's "Ethics 20/20" Commission web page, however, comments may only be submitted via email.

These proposals should be of particular interest to eDiscovery professionals, especially now that cross-border issues are more prevalent than ever with the explosion of cloud computing and other technological advances.

As a Consultant and Attorney, I'm constantly bending over backward to make sure potential clients understand that I'm licensed in California, while at the same time I'm free to consult anywhere.  The tension arises when an out-of-state project or case begins with a consulting agreement, then is in danger of meandering into law practice.  Clients can't always tell the difference; but I can, and it means having a further conversation to clarify my role.

Heck, the disclaimer on this blawg exists for the same reason!

Any modification to the Rules that would ease this burden would be highly beneficial to eDiscovery professionals.  Of course, in my case, I must still defer to the California Rules, but you gotta start somewhere...

Let your voice be heard.  Send your comments to the ABA by November 30th, 2011.

The Right to be Forgotten...

In the United States, privacy is sometimes described in legal circles as, "The Right to be Let Alone".  Of course, if you're a public figure, among other criteria, that right is seriously curtailed.  In Europe, they're charting their own course where privacy is concerned.  They refer to it as, "The Right to be Forgotten".  The major difference is, they're much more strict about enforcing the concept.

e-Evidence Insights: Social Media Doesn't Distinguish Between Good and Bad Riots

In the "Be careful what you wish for!" category, first we had the Arab Spring, which was considered to be a positive development for the Middle East - in the West, anyway.  Now we have the UK riots - and the reaction is entirely the opposite.

With the Arab Spring, social media was hailed as a catalyst to facilitate needed change.  And with the UK riots?  Social media is being disparaged as - you guessed it - a catalyst to facilitate anarchy.

That's the problem with revolutions; perspective is skewed based on which side of them you're on.

What's more interesting to me is the difference between the vehicles of change.  With the Arab Spring, it was Facebook, Twitter and YouTube.  With the UK riots, it's Blackberry Messenger (as if Blackberry doesn't have enough public-relations issues right now, including losing yours truly as a customer).

What's driving this decision?  Economics, for one (Blackberries are cheaper in that region) and secrecy (BBM is private).  I don't want to belabor the point - people died in both riots - but we should endeavor to understand these issues.

If this were happening in the United States, we'd be arguing whether this was a Constitutional violation of the Brandenburg standard.  And while we argued, the FBI would be accumulating electronic evidence.

You may consider yourself to be on the 'right' side of the revolution, but make no mistake; either way, someone is tracking you.  This will make a big difference if, in the end, you find yourself on the 'wrong' side.

Cascades: Good for Mountains, Bad for News Orgs

First things first.  My beloved Cubs rewarded my visit with a 13-3 loss to the Marlins, marking this as the most lopsided score over the 15+ years I've been making this journey.  Now, firmly ensconced in San Francisco - and with my state bar duties dispensed with for the week - we can return to more pressing matters...

How many of the execs swallowed up in the News of the World Scandal thought they'd ever be arrested in their lifetimes?  None.  In fact, a high percentage of the general public would agree with them.  But people-who-you-normally-wouldn't-expect-to-be-arrested are arrested.  And some of them eventually go to jail.

While you watch the slow and painful erosion of the Murdoch empire - and the collateral damage causally connected to it - I hope you consider one ingredient to add to your schadenfreude; you're watching a large-scale version of how your criminal or civil matter will unfold if you don't deal with it when it's manageable.

Of course, yours won't likely be this big or this public - or this expensive - but this is how it'll start; a molehill that, over time, grows into a mountain.  Or, in this case, a mountain range.  eDiscovery rules & regulations, litigation readiness programs and early case assessment are all designed to staunch the bleeding and, if instituted early enough, prevent the wound altogether.

You have to be willing to take the pain.  Like they always say, the first cut is the deepest.

News of the World Buries the eDiscovery Lede: Spoliation

For those who aren't familiar with the term, "burying the lede" refers to an article that fails to express the most important issue in the 1st sentence or paragraph.

Obviously, by now you've heard about the News of the World phone-hacking scandal.  If you're an eDiscovery professional, then you'll find the lede buried all the way in paragraph nineteen:

"On Saturday, the Guardian newspaper, which has led the reporting on the scandal, said Scotland Yard was investigating evidence that a News International executive may have deleted millions of internal e-mails to obstruct the phone-hacking probe. The company denies the allegation." [italics/bold added]

If the allegation turns out to be true, I only have one question.  When will they ever learn?

We the Twitter of the United Facebook, in Order to Form a More Perfect YouTube...

Anyone who still doubts the power of social media should take note of this story.  Iceland is re-writing its Constitution, which would be a big enough deal on its own, however, they're inviting public comment on Facebook, Twitter and YouTube.  Think about the implications of this for a moment.  A process normally reserved for the elites of society, accessible to the general public.

Now, if I can just find a way around the 140-character requirement...

Don't Lie to Our ATM, Comrade...

In a New York Times story, awakening fond memories of the Cold War, Russia's largest retail bank is experimenting with an ATM that incorporates a lie detector.  This would be a target-rich environment for jokes if the implications weren't so serious.  Nevertheless, I expect we'll see cartoons about this in our weekend newspapers.

Meanwhile, from the, "we just don't get it", department:

“We are not violating a client’s privacy,” he said. “We are not climbing into the client’s brain. We aren’t invading their personal lives. We are just trying to find out if they are telling the truth. I don’t see any reason to be alarmed.”

Yeah...what could possibly go wrong???

Asian Tiger, Paper Tiger

The World Economic Forum published their annual study this past week.  Two years in a row, the U.S. ranks 5th in its use of technology and communications.  Canada was in 8th place.  Not bad, right?

More troubling are the U.S, math and science educational rankings.  52nd place.  Dismal.

So we're using technology, but for what, exactly?

"Welcome to what feels like the 17th Day of LegalTech"

If you were following my tweets from LTNY, I posted that quote from Jason Baron Tuesday afternoon.  But no, it wasn't day 17, it was day two - or for Logan's Run fans, last-day for me since I had to catch an early flight home Wednesday.  And that leads me to my first comment.  Drat!  Yeah, it's a word.  There was a "government" track on day three, but I couldn't stay to attend.  Worse, one session was on the contrast in ediscovery rules between civil and criminal investigations - right up my alley.  But, we make choices, and I couldn't be in two places at once, so let me settle for giving you my summary of day two...

As mentioned prior, by the time I got to my hotel room Monday night, I'd been awake about 35 hours.  The Tuesday keynote involved United Nations war crimes investigations with Gonzalo de Cesare.  I was fortunate enough to be attending the Zylab reception for Mr. de Cesare at the close of the day, so I elected to catch up on some zzz's and skip the keynote.

I started my 1st session back on the international track with 75 minutes on Multinational Discovery.  It was great.  Unlike the "overview" feel to all of my Monday sessions, this was loaded with in-depth information. 

In terms of looking at a map, North Americans tend to think of borders vertically (Canada, down to the United States, down to Mexico), but in Europe, thinking horizontally or vertically, one may hop in their car and cross several borders in a single day - and violate privacy laws in each and every one along the way.  The speakers handled this smartly.  They understood that the bulk of the audience were americans (or US-based), so they illustrated the risks both from the standpoint of moving data between EU countries, among others, but also from the standpoint of moving it to/from the United States.  Considering the limited time, they accomplished the goal.

* * * * * * * * * * * *

I stopped in to see my friends at Iron Mountain, then caught the last half of the federal judges session on the federal rules and where things are headed.  Whether you're in technology or law, I urge you to learn as much from judges as you can.  People question judges about ediscovery issues, but a lot of times the answer is, "It depends on the particular facts."  That's the problem.  A snapshot today will serve as a guide, but ediscovery law is a rapidly-changing discipline.  I like to 'get inside the heads' of the judges to try to understand what they're thinking about the future.

* * * * * * * * * * * *

Later, I moved on to a Kroll session on Data Breach & Security (something I may have written about once or twice).  The problem with a successful lecture of this type is, you learn a lot, but you leave with a knot in your stomach because they made you think about what you don't want to think about; all the security risks you haven't thought about.

As I've stated before, the goal is to be proactive in the interest of avoiding having to be reactive.  This session certainly covered the former, but what was fascinating is that they really got into the latter; how do you react once a breach (perceived or actual) has occurred?  The answers aren't as simple as they appear, and here's why:

1. Should we call an outside source (e.g. if the CEO is informed, is he outside the breach parameters, or does he become a part of the breach?)
2. Is the breach as serious as we think it is?
3. Who within the company should we tell?
4. Who outside the company should we tell?
5. Who outside the company are we obligated to tell (customers?)
6. Who should we not tell?

You get the idea.  Regarding points four through six, there are conflicting laws in this area, so doing what you perceive to be the right thing may - by law - be the wrong thing.

* * * * * * * * * * * *

Ralph Losey: "So...Predictive Coding...for or against?"  Having run into Mr. Losey a couple of hours prior to his late afternoon session on the subject, I faced that question.  For the answer, stay tuned for my 3rd and final LTNY post.

An Inauspicious Anniversary

Sorry, folks...it's year-end for corporations and I've been buried this week getting out the last-minute reports and preparing for LegalTech NY.  However, I did want to share something of interest with you for a late Friday afternoon.  Twenty-five years have passed since the accidental creation of the computer virus.

I know what you're thinking.  What does this have to do with e-discovery?  A lot, actually.  This isn't just about annoyances or stealing individual accounts and/or passwords; although that in itself is bad enough.  If you take it to the extreme, the issues are much more serious.

Have you heard of Stuxnet?  I've personally seen relatively benign viruses like "I Love You" bring corporations to a screeching halt, let alone one that specifically targets Iran's centrifuges.  Many corporations underestimate the danger - especially when it comes to the security of their data, since many viruses exist to open tunnels in security systems.

It's a dangerous way to lose safe harbor protection.