Category Archives: Discovery

Apple’s discovery backflip comes back to bite them

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computer and magnify glassApple Inc has gotten itself in the bad books of a US judicial team hearing a possible class action suit against the computing giant after it was accused of violating a discovery order.

Two iPhone users are suing Apple for allegedly allowing third parties to collect geolocation information without the users’ consent. The plaintiffs are seeking class action status.

Apple had filed for summary judgement and had been fighting against handing over documents it is concerned could be damaging to the company and customers if made public. Its summary judgement request was denied after backflipping over the plaintiff’s claims that the application relied on documents that weren’t turned over during discovery. Apple’s counsel said the missing documents were versions of contracts already produced but at a hearing a few days later, she admitted there were more documents that needed to be produced.

Dragging its heel over its discovery obligations has come back to bite Apple, with the magistrate hearing the case unimpressed and taking the unusual move of ordering Apple to produce detailed evidence of its discovery process to determine if it has acted in good faith.

Email privacy under the spotlight in US Senate

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shutterstock_42943528_640x480Debate is currently underway in the US to bring the country’s electronic communication privacy laws into the 21st century.

The proposed changes have bipartisan support and include requiring the government to obtain a warrant before they can request email and other data stored in the cloud from internet and other online service providers.

The current Electronic Communications Privacy Act (ECPA), which is almost 30 years old, only requires police to obtain a subpoena – without a judge’s approval – to search opened emails or emails more than 180 days old, which are then considered abandoned. When the ECPA was originally passed in 1986, the huge growth in online storage that exists today wasn’t forecast. The now-outdated ECPA operates on the premise that emails are stored on personal or work computers and were only stored on a third party server just long enough to transfer to the receiver’s email client. As things currently stand, a US citizen has more rights to privacy with postal mail and phone calls than online communications.

Google’s director of law enforcement and information security Richard Salgado has welcomed the ECPA review, saying the lag in the law has had a negative impact on the adoption of email and other cloud services.

eDiscovery grows in leaps and bounds

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eDiscovery is growing exponentially and the statistics to prove it are impressive.

  • The worldwide legal market was worth almost $US550 billion as of 2009, most of it spent in the USA
  • Gartner predicts annual growth of 14 per cent, with the eDiscovery market due to reach $1.5 billion next year
  • Law firms are overloaded with eDiscovery work. A recent study by The Cowen Group found 70 per cent of law firms reported an increase in their eDiscovery workloads, up 30 per cent from their 2009 report.

What is causing this rapid growth?

Gartner’s 2011 report analysing eDiscovery software predicts continual growth over at least the next few years. Gartner attributes the growth to a couple of factors:-

  • A continued increase in civil lawsuits coupled with more companies investing in archiving technologies to meet compliance obligations.
  • Emerging communication mediums including social networks, which need to be stored.

How did eDiscovery become such an important part of the legal process?

In 1970, the Federal Rules for Civil Procedure (FRCP) were amended in the US to cater for the use of emerging technologies as evidence.

Another significant amendment came in 2006, when the Supreme Court amended the FRCP to include a category specifically for electronic records, naming emails and instant message chat as communications that needed to be archived in case of use as evidence in litigation.

An important case often cited as the catalyst for the use of ESI as evidence is Zubulake v. UBS Warburg LLC. The rulings in this case were ahead of its time, handed down in 2003 ahead of the FRCP amendments three years later.

Zubulake produced more than four times as many pages of email evidence as the defendant and demanded USB find the missing documents that corresponded with her own email evidence. The defendant’s request that the court order the plaintiff to pay for the cost of producing the evidence prompted the court to create a new seven point test for cost shifting. The defendant was ordered to cover the costs of producing the missing emails. A cost analysis was done only after the backup tapes were reviewed. After the seven point test was done, the defendant was ultimately ordered to pay 75 per cent of the cost of restoring and searching for data.

The seven point test for cost shifting, as well as the judge’s definitions of preserving data and accessible and inaccessible data, have been used as a reference for many cases following the Zubulake ruling.

What is the future of eDiscovery?

Predictive coding

Using computers more often to review documents looks set to be the way of the future. Once documents have been identified that are potentially relevant to the case, a lawyer will manually review a batch to train the software to recognise key phrases and information important to the case. This continues until the program creates a model that can identify the relevance of each document to the case.

It’s called predictive coding and it’s tipped to be more accurate than human review in identifying relevant documents for evidence and also significantly cut legal costs. A study published last year in the Richmond Journal of Law and Technology found predictive coding was able to identify an average of 77 per cent of relevant documents, almost 20 per cent more than humans could identify.

Earlier this year, a judge in the US approved the request of a defendant to use predictive coding to sort through its eight terabytes of preserved data. A lawyer for the defendant says using this technology will cost his client only a tenth of what it would have cost for lawyers to manually review all the documents.

Social media

While there are currently few laws detailing the use of social media content as evidence, it has already been used as evidence in court cases and the general consensus is that the law will soon catch up. Gartner predicts that by the end of next year, half of all companies will be asked to produce social media content in eDiscovery requests.

Social media evidence may prove harder to search and retrieve than other electronically stored information (ESI) as it can also include communication on employees’ private social media accounts. But that doesn’t mean courts will overlook this evidence; even if users have security settings and send their messages privately, they still forfeit their privacy as they are communicating online, which is essentially a public space.

Banning social media activity is one option favoured by employers but it’s unlikely to be very effective, especially outside of the workplace. Gartner’s vice president recommends companies err on the side of caution and treat social media communications like any other ESI. Companies are advised to use their current data management policy as a basis for establishing a social media retention policy and use the company’s code of conduct to educate employees on how they are expected to behave online.

Do you work in the eDiscovery services industry? What changes have you seen and what do you predict for its future? Please join the discussion in the comments section below.

What is eDiscovery?

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The email archiving software market is a fast growing industry. Its exponential growth supports what many of us already know – email archiving is not optional. It’s a must for businesses if they want to remain compliant while not being slowed down or swamped by the rapid growth of company email that needs to be stored.

Like many businesses you may have installed email archiving software, which is running mostly unnoticed in the background. What happens if a litigation notice disrupts the status quo? What is the next step?

Electronic Discovery – commonly known as eDiscovery – is the term used to describe the process of searching and sorting electronically stored information (ESI) for potential evidence. eDiscovery occurs at the beginning of the litigation process, when the parties involved are required to exchange evidence for review. The ESI that can be searched is wide ranging and can include emails, websites, social media, instant messaging, audio, video, images and electronic documents. It is usually analysed using digital forensics. eDiscovery can be a more time consuming and expensive process than traditional discovery because of the volume of data and the various places it might be stored and also because of the potential use of metadata as evidence.

The term eDiscovery was coined in 2006 in the US when the Supreme Court amended the Federal Rules of Civil Procedure (FRCP) to include electronic records as discoverable in a case and therefore subject to archiving. The amendment means companies are now required to place a legal hold over potential electronic evidence if litigation is anticipated.

The first step in the eDiscovery process comes long before the litigation hold notice crosses your desk. Companies need to be proactive and implement a solid records management and retention policy to ensure their data is safe and more importantly, available, should they face a legal battle. Wait until the lawsuit begins before you save and sort through your ESI and you’re not likely to receive any lenience from a judge.

Once there is reasonable expectation of litigation, or the litigation process has already begun, you are required to place a legal hold over your ESI and other documents. The big job comes next, when legal counsel and IT staff have to work together to retrieve and sort through relevant ESI before it is reviewed.
With a good email archiving system in place, you can save yourself a lot of money and stress in the retrieval stage of the eDiscovery process because ESI can be retrieved quickly and without duplication.

Have you faced an eDiscovery request? How did you handle it? Are there processes you think you could improve on? I would love it if you joined the discussion in the comments section below.

Five Compelling Business or Organizational Reasons to Hold a Facilitated Session

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Reblogged from Facilitative Leadership & Facilitator Training:

Click to visit the original post

Purpose

The most important action most people take every day is to make choices, to decide.  Productivity is amplified if decisions are properly made about when to work alone, speak with one other person, or to pull together a group of people, typically called a meeting.

The advantages to a facilitated meeting or workshop include:

  1. Higher quality results: groups of people generally make higher quality decisions than the smartest person in the group. 

Read more… 625 more words

5 great reasons for holding a meeting instead of going it alone...

The Importance of Web Archiving

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Reblogged from Osterman Research Blog:

Most IT and business decision makers are familiar with the practice of email archiving – the indexing, storage and retrieval of email content for purposes of eDiscovery, regulatory compliance, internal investigations, maintenance of business records, etc.  Roughly one-half of mid-sized and large organizations retain their email in a true archiving system, fewer retain files in SharePoint or other repositories, but very few retain Web sites or Web pages.

Read more… 514 more words

Tips for keeping passwords safe

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Yahoo members are the latest online users to find their passwords may have been posted online for anyone to access after a security breach this month. Almost half a million Yahoo Voices account login and passwords were posted online by hackers. This follows the hacking of LinkedIn passwords last month. High profile people are also not immune; US presidential candidate Mitt Romney had his Hotmail and Dropbox accounts hacked last month.

What is as disturbing as the hacking of the Yahoo passwords is the revelation that some online users still aren’t heeding warnings to create strong passwords. A security expert did some number crunching and found that the password ‘123456’ was the most popular among the list of hacked Yahoo account passwords. ‘123456’ came in second behind ‘password’ as the most popular password in SplashData’s top 25 worst passwords for 2011. Other insecure passwords making up the top 25 included 12345678, 111111, abc123, letmein, passw0rd and football.

A weak password is the equivalent of leaving your front door open to thieves in the cyber world. Creating strong passwords is essential to ensuring your data remains safe from hackers. There are a few ways you can do this:-

  • Use a combination of letters (capitals and lower case), numbers and symbols.
  • Don’t use personal details in your password, for example your name, your partner’s name, your pet’s name, your street address or the year you were born.
  • The longer the better. A great example for creating a long password that you can remember is to create a sentence and use the first letter of each word to form a password, including caps, numbers and symbols. An example is ‘Australia is famous for its beaches and koalas.’ Your password would then be A!ffiB@K.
  • Password generators can create random passwords for you, taking the hard work out of remembering your passwords.
  • Have a strong security question. It is a waste of time if you create a strong password and then have a weak security question, for example your mother’s name. If a hacker knows or can easily guess the answer to your security question, then they can change your password. If it is possible, create your own security question .
  • Never click ‘remember password’ if prompted by a website. Always log out and reenter the password each time.
  • Don’t repeat your password on multiple websites. An easy way to have original passwords for each online account is to adapt your strong password. For example, A!ffiB@K could become A!ffiB@K12, A!ffiB@K13! etc.
  • Keep your super strong passwords for websites that host your most important data, for example your online banking and email accounts. Less strong passwords would be okay for websites that don’t host your sensitive data like online news subscriptions.
  • Remembering your passwords can be almost impossible and writing them down defeats the purpose of creating secure passwords. A password manager is a great way to store your passwords securely as all you need to do is remember one password to enter into the password manager.

 

I haven’t had any online passwords hacked before but I’m sure it can be a nightmare to resolve. Has this happened to you? How do you ensure your passwords stay secure? I would love it if you joined the discussion in the comments section below.

Help! My meetings are fizzlers

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Heard any excuses similar to these lately…

“Sorry I can’t make the meeting, I MUST phone back that customer I’ve been ignoring for the past three years”

or

“Really? You sent 15 email reminders? Yesterday? Nope sorry, I didn’t see them. But I’ll be there next time.”

Meetings often aren’t seen as productive but a waste of time and convincing your colleagues that it will be worthwhile makes climbing Mt Everest look like a picnic. So what can you do to turn things around so that colleagues are so eager to make it to your meetings they arrive early, pen and paper in hand, eager to contribute?

A great meeting involves three stages:- pre meeting, the meeting itself and then follow up.

 

Preparation is the key

The first thing is to decide on an agenda. It’s best to keep meetings as short as possible so if you think your meeting could be a marathon one, move some of the topics of discussion to a later date.

Decide on a start and end time (remember: keep it as short as possible) and ruthlessly stick to it. Avoid scheduling your meeting during meal times or near the end of the working day; you’re unlikely to get the full attention of attendees if they are hungry or counting down the minutes to home time.

Make a list of who needs to be at the meeting. If all the agenda topics aren’t applicable to everyone on your list, then leave these people off the invite list. Only invite those who really need to be there.

Distribute the agenda before the meeting, letting attendees know when it will start and finish and how much time is allocated to each topic. Make sure colleagues who are required to give a presentation or provide information are given plenty of advanced notice.

Organise a meeting room. Does it have enough seating? Is it well ventilated, quiet and distraction-free? Does it have a projector, laptop, microphone or any other equipment you might need? Will you need to provide handouts, notepaper or pens for attendees?

 

During the meeting…

-Allow a few minutes of chatter to allow everyone to settle in, but keep it brief and most importantly… Start On Time.

-Kick off with a brief rundown of the agenda and how long will be spent on each topic.

-Keep the meeting on track. Discussions are great, but if they aren’t on topic then wrap them up or schedule it for further discussion at a later time.

-Give everyone a chance to contribute; don’t allow just a few people to dominate the discussion. If there are attendees who don’t speak up then ask them directly for their thoughts.

-Allow time for questions. If a question interrupts the flow of the meeting, jot it down and address it at the end.

-If a follow up meeting is needed, agree on a time and date before you wrap up your meeting.
-Ensure everyone is clear on what tasks they need to do post-meeting.

 

Once the meeting is over…

-Send out the minutes as quickly as possible, including the action items agreed on.

-Reply directly to any questions or concerns that you either didn’t have time for or didn’t have the answer available to you during the meeting.

 

Have you attended a lot of workplace meetings? What has worked for you and what do you think could be improved? I would love to hear your thoughts in the comments section below.

Sources:
http://www.examiner.com/workplace-issues-in-national/are-your-meetings-the-ones-no-one-wants-to-attend
http://www.allbusiness.com/human-resources/employee-development-time-management/11361-1.html#axzz1wJ9mcfBy

Romney emails hacked

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US presidential candidate Mitt Romney will likely be reconsidering his email passwords after his online email account was reportedly hacked.

A hacker claims to have accessed Romney’s Hotmail and Dropbox accounts after guessing the answer to the Republican candidate’s ‘favourite pet’ security question. It’s suspected Romney used the same password for more than one account.

While Romney’s camp has refused to confirm or deny the hack, it is likely to be worrying for the Republican party. Their 2008 vice presidential candidate Sarah Palin had her Yahoo email account hacked and some of the contents were published online.

Romney’s personal email address was published by The Associated Press earlier this year. Some of his private emails had been accessed under Massachusetts law because he had used his Hotmail account to conduct government business while serving as the state’s governor.

There are concerns in political circles about the risks involved with using online email accounts for government business as they are usually more easily hacked than accounts hosted on company and government servers. Government watchdogs say the practice also raises transparency concerns, as emails sent through private accounts aren’t archived with the emails sent from government accounts.

Probably the most noteworthy example was when the Bush administration was unable to produce all internal White House emails during investigations into the sacking of eight US attorneys in 2007. The White House was forced to admit that some government emails were sent via non-governmental email accounts and more than five million messages may have been either lost or deleted.

Do you use an online email account for business purposes? Do you think this is risky or does it work well for you? I would like to hear your thoughts in the comments section below.

Getting from Point A to Point B

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Sometimes the only solution you need is one that gets you from point A to point B.

The Trabant was a Soviet era car made exactly for that purpose.  It was noisy, uncomfortable, ugly and unreliable.  People spent years on a waiting list to get one, only to find the Trabant made a mechanic out of everyone who owned it.  It was the only car available,  there simply was no choice.

The Trabant 22 horse power two-stroke engine accelerated 0 to 60 mph in a mind bending 21 seconds and on to a top speed of 70 mph, amid a cloud of smoke and pollution.  Fuel gauges were a luxury, forcing most to rely on a dipstick.

Those who drove a western car thought of the Trabant as a joke.  Many people who lived behind the iron curtain today view the Trabant with nostalgia;  representing an era of strife and difficulty.  We salute you for emerging from that.

Business is serious.  Seriously competitive.  Mistakes in systems selection, can leave you with a “make work” project, instead of the cost saving,  efficient unifying solution that you had ‘hoped’ for.

Email Archiving is a serious business.  The need to manage email and its archiving, seamlessly quickly and efficiently is the bedrock of a successful business knowledge and communication system.

As with Motor Vehicles, you get a choice.  Look beyond the smoke.  Getting from A to B is the goal; but arriving late, covered in dirt or not at all is where you will ultimately be judged.

Selecting the wrong email archiving solution is not just going to blow your capital budget.  It can result in:

unhappy users, right up to the board level.

distraction for you, when you thought that by this time you would be done with the ‘archiving project’ and on to something ‘more interesting’.

dilution of your IT staff’s time and focus dealing with problems arising from poor performing software.

exposure and risk associated with inadequate compliance and lack of eDiscovery capability.

the plight of more and more cost being diverted to the email archiving project.

Make the right choice, first time.

Is there life outside of cyberspace?

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Is there anyone not online? We all know that cyberspace is a super busy place, but did you know that we could fill almost 200 million DVDs with the amount of information viewed online each day? Check out this cool infographic ‘A Day in the Internet’… the statistics are overwhelming.

A Day in the Internet
Created by: MBAOnline.com