E-Discovery Lawyer & Attorney : Quarles & Brady Law Firm : Electronic Discovery, Data Preservation, Conversion, Computer Forensics

In my earlier post "Hosted Apps: A Source for E-Discovery" I pointed out that "hosted applications" are a good source of information when deposing 30(b)(6) representatives and drafting requests for production of electronic information. But what about information buried in portable storage devices such as USB drives, flash drives, hard drives, iPods, PDAs, CD-ROM, DVD drives and even cell phones?

These little gadgets have become very popular tools for transferring data among computer systems and networks. What would be the smoking gun that indicates the deposed party actually utilizing such devices and denied possession of them?

The Windows computer platform may be tight in security but it also contains a trail of bread crumbs that may unveil the presence of some portable devices. Take a look at the Windows registry. It is essentially a database that resides on the computer containing critical information and settings for all the hardware and operating system software, among other things. Each time a portable device is attached to the computer (via a USB, serial / parellel port), Windows grab the information regarding the device manufacturer and serial number if it has one and stores it in its registry.

The registry also keeps a date stamp associated with the last time the portable device was written. So unless the deposed party is a computer forensics expert who knows how to hide her tracks, the Windows registry would likely provide a glimpse of whether the other party is forthright with producing the content you seek.

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In recent years, the "hosted applications" concept has gained popularity among some small to medium-sized firms due to significant savings from the high costs of software and hardware maintenance.  Such applications should be considered when deposing 30(b)(6) representatives and drafting requests for production of electronic information.

Hosted applications, aka SaaS (Software as a Service), is a software application delivery model where a software vendor develops a web-based software application and hosts and operates the application for use by its customers over the Internet. Typically, customers do not pay for owning the software itself but rather for using it.

From a firm's perspective, the advantages of this type of arrangement are numerous albeit potential privacy and security issues (important/sensitive data being stored on the vendor's servers).

• Platform neutral - applications and documents can be accessed from any computer.
• No installation - reduced or eliminate software and hardware maintenance.
• No downtime - applications and documents can be accessed 24 x 7 from anywhere.

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On Feb 8, 2008 Chancellor William B. Candler III of the Court of Chancery of Delaware issued an opinion directing a third party to submit information regarding the ediscovery qualification of an information consultant.

This case illustrates that although the actual gathering of electronic information should be left for outside experts, it is also important to ascertain their qualifications since they can be called in doubt. Before hiring a e-discovery expert, there are some steps that can be taken to achieve the best results which may minimize the overall costs of litigation.

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The recent development of virtual worlds (Active Worlds, Second Life, There ViOS, to name a few) proves to be a viable storefront for the legal world. Even Judge Posner of the Seventh Circuit Court of Appeals got into the game as he "appeared" in Second Life to discuss the U.S. Constitution and intellectual property issues. And if you wonder what virtual worlds have got to do with your practice, Diane Duhaime of Jorden Burt LLP has a good article on V-Ws from the legal perspective.

Although I'm not a citizen or avatar of any of these virtual worlds, I did find a list of entities offering legal services on Second life. My sense is that law firms large and small will continue to create a stake in virtual worlds as we know it today. (For further info, listen to (MP3) a discussion of virtual law firms sponsored by the LegalTalkNetwork).

For some, virtual worlds represent a new career. For others, it's a viable source of business. As legal services begin to branch beyond the linear non-3D environment, the volume of information will inevitably increase. This virtual expansion in bits and bytes generates yet another rich source of data mining-- kind of like the Munchkinland of ediscovery. Not only does it represent a new frontier that may present complex legal issues, it also concerns how information is disclosed or retained. In the blink of an eye, you're not in Kansas anymore.

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The next time you log into your work email from the corner coffee shop on a sunny Sunday morning, or from your hotel room or a seat at the airport in the midst of business travels, this article from The Legal Intelligencer may give you pause. 

"Free" WiFi "hotspots" are springing up everywhere.  But they may cost more than we think:  when we take advantage of unsecured wireless access, the information we input does not go directly from our laptops to the nearest connection.  Instead, it floats out there in the air (I believe that is the technical term...) for a radius of up to 500 feet.  Highly tech-savvy miscreants (ok, hackers) can misroute these transmissions to their own "Evil Twin" wireless access sites, and capture the confidential information of unsuspecting users, with devastating consequences.  Of course this raises concerns about data security generally, but it also could implicate - or compromise - the attorney-client privilege and work product protections, and land attorneys in ethical trouble. 

Fortunately, the article provides some helpful tips on how to secure your computer and avoid misappropriation of your clients' - or your own - confidential data.

On a more whimsical note....I like to think that when I stopped for my morning latte in Los Angeles, dialogue from 2010's Best Picture could have been floating in the air right past my head.

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When it comes to electronic discovery, that is. A recent survey cited in a New York Law Journal article indicates that many corporate counsel lack preparation for e-discovery issues in litigation.

In a survey by e-discovery consultant Lexakos, almost 55% of those surveyed said their companies needed to spend more time developing e-discovery and litigation readiness plans. Another 52% said they needed to improve their litigation hold procedures. If you are in the 45% and 48% minorities that are already prepared for e-discovery, pat yourself on the back and go on about your day. If you are not, read on.

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The challenge of complying with e-discovery rules was illustrated in the results of two surveys released recently. A survey from Robert Half Legal, (a company specializing in attorney recruitment and placement) found that one in four lawyers in North America believe that e-discovery will have the single largest impact on the practice of law in the next five years. Why? According to Charles Volkert, Executive Director of Robert Half Legal, "the complexity and cost of the task, coupled with the associated information technology and human resource needs, make [e-discovery] a challenge."

Similarly, a survey published in eWeek.com  found that two-thirds of U.S. businesses are generally ignoring the issue of e-discovery.  According to the survey's author Michael Osterman, the companies, "are either ignoring the new federal mandates for compliance and e-discovery or are clearly not well educated on how to meet the technical requirements."

The results of these two surveys, at first glance appear somewhat contradictory. Are the majority of companies really ignoring the legal issue expected to have the largest impact in the near future? However, both surveys seem to point to the same problem, a lack of clarity in many companies on how to effectively and efficiently comply with e-discovery rules. 

The survey conducted by Robert Half indicates that e-discovery is expected to have such a large impact because of the complexity and expense of compliance. Likewise, in discussing the results of the survey in eWeek, Michael Osterman, stated that many companies are still unclear on the concept of e-discovery in general. "There really is no consensus yet on whether a company should keep all its e-mail and other docs, or whether a company should keep a finite number of years' worth of data, or whether it should keep more than 30 days' worth of data."

Time will tell whether e-discovery will be the largest issue facing the practice of law in the U.S. However, the actual impact will likely largely be effected by the current corporate response to e-discovery rules.

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