Ascending to the Cloud Creates Negligible E-discovery Risk

Cloud computing platforms (a set of pooled computing resources that are powered by software and delivered over the Web) have been generating quite a bit of press in the last year. Indeed, just recently computing giant Microsoft launched its Microsoft 365 cloud computing platform, designed to rival Google’s "mega-cloud" platform, which launched in May 2010. Since the release of the first commercial cloud computing platform by Amazon in 2006, cost-conscious companies have been racing to evaluate the pros and cons of moving their computing operations to “the cloud.” According to the Booz, Allen, Hamilton technology consulting firm, “Cloud computing may yield:

Life cycle costs that are 65 percent lower than current architectures

  • Benefit-cost ratios ranging from 5.7 to nearly 25
  • Payback on investments in three to four years."

Notably absent from that cost-benefit analysis, however, is the effect cloud computing may have on the costs and risks associated with conducting electronic discovery. Those engaged in such activities may well ask the question, “Will the savings companies expect from moving their data to the cloud be absorbed by the additional costs/risks created by conducting e-discovery in the cloud?”

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Google Docs Ready for (Legal) Primetime?

Today's predominant word processors are Microsoft Word and Corel WordPerfect. MS Word is also offered as a web-based application or Saas (Software-as-a-Service).  However, there is a newer type of document collaboration, where numerous people have access to the same document so that they can all contribute and monitor changes made by others.  These types of applications are becoming more common.  For example, Google has begun to offer its own Google Word Processor called "Google Docs" -- which allows users to share and collaborate on documents. 

What does it matter which type you use in your business?  Here's one comparison between the Google and Microsoft web products.  But there's much more when it comes to the battle between WORD v. GOOGLE DOCS.

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Digital Voicemail in E-Discovery -- or Dealing with Cerberus, the Three-Headed Dog from Hell

You have one new voice message. First message: Monday, 4:45pm --

I must have just missed you, Vice President Joe.
It's Mike van Dyke, your CEO.
Remember that complicated widget invention --
Our best-seller you copied from the Widget Convention?
The one in your job interview that you mentioned,
And stole from your last boss for withholding your pension?

Well, they've sued us for patent infringement and such,
And theft of trade secrets -- it's really too much.
So I need you to shred all the documentation:
The tech drawings you stole; design specifications.
And that memo you wrote, before everything,
Saying that they had a patent, worth copying.

And yes, it goes without saying, too, Joe --
Please immediately delete this voicemail also.

End of new messages.

A lawyer who finds a copy of this voicemail buried in the other side's electronic document production will immediately splurge on champagne and party hats. And who can blame him? But here's the question: would this message be captured in the net of responsive material, or would it slip through the cracks? The answer may depend less on the skill of document retrieval experts, and more on how your company (or client's) voicemail system works.

It's old news that voicemail systems have graduated from analog to digital. Now, while the self-contained answering machine is still around, the digital era has also ushered in various types of integrated systems. The most complex, like the famed mythological dog Cerberus guarding the gates of Hell to prevent the dead who cross the river Styx from escaping, have three heads: the company telephone system, e-mail system, and computer system. And while a message on a self-contained machine can be difficult for a company -- let's call it Hades, Inc. -- to track and easy for an individual employee to get rid of, life with Cerberus is akin to life in the underworld: there is no escape, and nowhere to hide.
 

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The Ringmaster or the Clown? Dealing with the E-Discovery Elephant in the Room

It is rare to find one of those shared tenets that defy all cultural, geographic, and chronological boundaries -- some fundamental underpinning of life found everywhere from the days of the caveman to the modern age. One we can all agree on, however, is that a professional's worth is and always has been commensurate with his or her experience. The senior dragon slayer of King Arthur's round table received a shinier suit of armor than the new guy. The master caveman's time and worth rose above the apprentice's. And in present day law firm culture, the value of the Associate is often dwarfed by that of the Senior Partner in the cozy corner office.

Electronic discovery, however, has turned this fundamental dynamic on its head. In most areas of the law, change is effected in small increments, opinion by opinion and statute by statute. Sage senior lawyers add to their existing knowledge by keeping up on recent developments -- no fundamental change in thinking is required. Electronic discovery, however, has forced a radical, qualitative change in almost every aspect of how discovery is conducted. Heck, an entire Federal Rule of Civil Procedure was rewritten to account for it. And the dreaded "it" -- that virtual elephant in the room -- is everywhere. As Judge Shira Scheindlin of the Southern District of New York observed in an interview, "We used to say there's e-discovery as if it was a subset of all discovery. But now there's no other discovery."

This ever-expanding nature of e-discovery is carving out a unique dynamic in the three-ring circus that is the Law Firm and the in-house legal department. In short, the problem is that the two parts of the equation needed to master e-discovery (expertise in discovery law and procedure, and expertise in electronic media) are currently located in two separate circus rings: the Ringmaster's and the Clown's.
 

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Google to the (E-Discovery) Rescue?

Recently I came across a doubleclick.com digital marketing piece touting Google's latest search technology, Google Search Appliance 6.0. The inviting web ad promised:  "Google brings Findability to Enterprise Search".

The list of oohs and aahs includes:

  • Dynamic Scalability to thousands, millions, even billions of documents.
  • Linking multiple search engines (federated searches) separated across departments or geographies to provide a unified set of results.
  • Syndicated searches of up to 30 million documents.
  • Fine-tuning relevancy by using latest technologies in search algorithm and search result ranking.
  • Customizable security.
  • User-centric search enhancements such as "User-Added Results" and "Query Suggestions."

While the new Google Search Appliance (GSA) represents another hopeful step towards the Holy Grail of Search, it is also a potential antidote to the current state of e-discovery -- at least from a strategic perspective.  The cost of litigation appears to be at a breaking point where containment hinges on effective ESI searches and collaborative e-discovery maneuvers.  Although Google's search technology may be primarily designed for Intra/Extranet implementations, GSA could also serve to reduce litigation costs by helping lawyers cull through exabytes of electronically stored information.

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ESI Storage Blues

If you're like me, when I run out of space in my house, I sort through things, toss them out, give them away or hold a rummage sale. Even then I end up with items that not even Goodwill will accept-- in the trash they go. Unfortunately, you can't do that with your client's or your own corporate data.

So what to do when you run out of storage for the all important bits and bytes? Two options: buy more storage or rent disk space. Sounds simple enough but both of which can have a significant impact on e-discovery data management and retrieval. I will briefly examine both options.

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Best of the Blogs: Law.com Blogger Debunks Data Recovery Myth

Blogger, trial lawyer, and self-described computer forensics/EDD special master Craig Ball has boldly traveled the “back roads of listservs and blogs”, and lived to blog another day.  We are lucky that he survived; in a highly entertaining and informative read, Ball eviscerates the “flea bitten claim” that forensic examiners can recover overwritten data; apparently, threats to recover such data are mere puffery.

Ball’s blog, “Busting the Multipass Erasure Myth,” was posted March 26 on Law.com. In it, he traces the origin of the “myth” that data cannot be overwritten to a paper published in 1996 by Peter Gutmann. Ball reports that Gutmann developed a 35-pass overwriting process to eliminate data -- the “Gutmann Method erasure.” Not one to mince words, Ball pronounces that method “all a lot of hogwash.”  There is no need to take 35 passes, says Ball, or anything close to it.  Indeed, Ball goes so far as to say that only one overwrite is needed:  “No tool and no technique extant today can recover overwritten data on 21st century hard drives. Nada. Zip. Zilch.” 

So, contrary to popular belief, data really can be erased.  But Ball's readers should make no mistake:  Overwriting data is different than simply pressing "delete."

SharePoint has a Sibling: E-Discovery Blessing or Curse?

Back in January 2008 a Network World article indicated that Forrester Research analysts predicting Microsoft SharePoint grabbing a huge share of the Web 2.0 market-- and they were right!

According to a recent Byte and Switch article, Microsoft's SharePoint had an adoption rate of about 55 percent by the end of 2008. Most if not all companies deploy MS Sharepoint as an enterprise portal technology to replace their static Intranet and enhance work collaboration. Naturally it generates tons of content that all need to be organized, stored, and retrieved in some fashion.

Since SharePoint content management is atypical of organizing and retrieving emails and files stored in a document management system (DMS), that translates into another layer of complexity when it comes to e-discovery- at least from a technical perspective.

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Digital Medical Records: The Cure for What Ails?

The debates concerning President Obama’s plan to computerize medical records within 5 years have tended to focus on a few key issues. Those in favor of the plan suggest that it will create jobs, improve treatment, reduce errors, and reduce costs. Those opposed argue that it will be too costly and burdensome to implement and that it will be compromise the security of patients’ private information.  But what about the effect on e-discovery?

As Craig Ball notes on Law Technology News’ EDD Update blog, "medical records are evidence." They are often sought and produced by parties to all kinds of lawsuits, including cases involving malpractice, personal injury, insurance disputes, employment law issues and disability claims. Because medical records are evidence, digital medical records will be subject to the rules and procedures regarding electronic discovery.

If you don’t immediately catch the significance of the proposed change in terms of litigation expenses consider this: Assuming you knew what you were looking for, how long would it take you to read several boxes full of your doctor’s hand-written notes written on whatever form your doctor happened to be using at the time? Compare that to the amount of time it would take you to run a keyword search of a single field (e.g. “Prescriptions”) of several uniform digital forms. If you were billed for the time spent running the searches, for which would you rather pay?

 

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Cirrus, Stratus, Cumulus - What's in Your Cloud?

It's official. The Big Blue (a/k/a IBM) joined other technology behemoths such as EMC, Cisco Systems, and Sun Microsystems by creating a Cloud Computing Division to handle the increasingly complex digital information environment, as reported by eWeek.

Not only is this a significant business development for technology companies that span the globe, but it is also a recognition of the importance of a single point of contact in terms of managing data centers to supply infrastructure for cloud-type services.

Although cloud computing is as pervasive and complex as the classification of clouds in atmospheric terms, it can be summed up as computing from anywhere at any time, as IBM articulated in its overview of cloud computing. Despite this massive web of interconnectivity, it can also be cohesive, if it is well-managed.

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Love Doesn't Conquer All - in Cyberspace

Ah, l’amour. With Valentine’s Day upon us, our thoughts turn to hearts, flowers, chocolate and….texting? When George Bernard Shaw said, “The perfect love affair is one which is conducted entirely by post,” one doubts that Mr. Shaw could have ever imagined that the “post” would evolve to allow electronic, nearly instantaneous, communication about affairs of the heart, nor is it likely he would consider the dangers of electronic communication romantic. 

One couple’s use of text messages to communicate during their affair led to public humiliation, fines and jail time. Tresa Baldas, writing in the National Law Journal, reports that on Tuesday, January 7, Christine Beatty - the former top aide to Detroit’s ex-mayor Kwame Kilpatrick - was sentenced to 120 days in jail and ordered to pay $100,000 in restitution for her role in a text-messaging scandal that put her boss - and alleged lover - behind bars. Mayor Kilpatrick’s administration had been accused of retaliation against police officers who discovered Ms. Beatty’s and Mayor Kilpatrick’s affair. Text messages between the two were admitted into evidence and proved that Kilpatrick and Beatty had lied about their affair and that they sought to mislead the jury regarding the retaliatory actions taken against the police officers. The trial cost the City of Detroit $8.4 million, and both Beatty and Kilpatrick were ultimately charged with felonies including perjury and obstruction of justice. Their text messages were published in the Detroit Free Press.

 

Text messaging is discoverable, as lamentably learned late by the amorous couple. If it’s something you wouldn’t want your mother to see - or wouldn’t want published in the Detroit Free Press or anywhere else - think twice before texting it.   As Earl Warren said, “The fantastic advances in the field of electronic communication constitute a greater danger to the privacy of the individual.” Don’t be the one whose secrets in the area of “l’amour” are front page news, fodder for the water cooler gossip groupies, or worse - a source of humiliation and liability.

Not Just Another "Auld Lang Syne"

On New Year's Eve, we typically gather in a glitter-and-confetti whirl to toast the New Year with champagne…or maybe you're a stay-by-the-fire-and-watch-Times Square type. Whatever your preference to usher in the New Year, you may be interested to know that the singing of the Scottish folk song "Auld Lang Syne" at midnight is not as traditional as you believed - it did not come to yearly use until 1929, when Guy Lombardo's orchestra played it at midnight at the Hotel Roosevelt in New York City, then released a record of it and continued playing it every New Year's Eve afterward.

By the same token, a century from now law firms will no doubt wonder at our tizzy in getting used to electronic document discovery instead of our "traditional" means of producing documents via hard copy. But for now, clinging to the old ways and not making sure that document retention policies are not only up to date but adhered to is costing our clients a mint. As reported by Sheri Qualters in The National Law Journal on December 17, 2008, Kroll Ontrack analyzed 138 reported cases from January to October 2008 and reported that ONE QUARTER of the reported electronic discovery opinions in that period resulted in sanctions issues, while 13 percent addressed preservation and spoliation, 12 percent involved computer forensics protocols and experts, 11 percent, admissibility, and 7 percent, privilege considerations. In one case in the Northern District of California, defendants were sanctioned to the tune of more than a quarter million dollars. Keithley v. The Home Store.Com Inc., No. 3:03-cv-04447 (N.D. Calif., Aug. 12, 2008). That buys a LOT of champagne!

 

It's clear that doing things the way they were done in "old times past" - the literal translation of Auld Lang Syne - will get legal clients in trouble with the Court and could result in heavy financial sanctions. The Court has no "cup of kindness" when it comes to electronic discovery issues. So this New Year, no matter your celebratory preference, resolve to pay attention to your document retention and e-discovery policies, or if you do not have such policies, it's a New Year - a great time to implement a formal policy.

Cloudy Days Ahead for E-Discovery

When it comes to e-discovery, your IT department and forensic experts may be ill-equipped to search, organize, and produce electronic files and documents that are outside the realm of the firm's internal network infrastructure.

The proliferation of vendors that offer web-based computing solutions compounds this problem. Commonly referred to as "Software as a Service" (SaaS), they range from simple email accounts to office suites to whiteboarding and other types of collaborative tools.

This technological alphabet soup in turn facilitates cloud computing and/or utility computing. Basically, it translates into a user's ability to access services from the Internet without having control over the technology infrastructure that supports them. From the IT management perspective, it's like the Wild West of computing. Here's a brief discussion on cloud vs. utility computing.

Lawyers are increasingly mobile due to the shear number of devices, applications and services that connect people, ideas and places. Invariably in-house software may be viewed as inadequate due to various reasons-- system downtime, malfunctioning, subpar performance, and even personal preference. Much to the chagrin of IT staff, users quite often resort to applications that fall outside of the firm's offerings. After all, no firm can acquire and support a large number of applications without a significant drain on IT resources.

Without evolving laws dealing with this type of computing environment, significant barriers will present themselves in the context of e-discovery. First, SaaS providers typically do not have document retention schedules nor are they obliged to initiate litigation holds. Second, information stored on 3rd party systems (databases and server farms) may require subpoenas for retrieval.

In the foreseeable future, e-discovery will no longer involve solely the litigation parties and their respective technical gurus. A multitude of Internet services and ASPs could conceivably be targets of discovery and the cost could escalate with no relief in sight.