Service of Process - courtesy of Facebook

My apologies for anyone that's actually been checking in to my blog since my last post in (ahem) October. I have been tied up with a trip to England and various business activities. And now that it's no longer biking season (at least not for me), that ruled out fully half my blog topics.

But I did read a fascinating article on the BBC this morning that I thought would be of interest to some of you.

The Australian Capital Territory Supreme Court in Canberra, Australia, was persuaded by two lawyers from Meyer Vandenberg that a default judgment could be served to the defendants via their Facebook pages.

Having tried to contact the defendants in person at their last known address, by mail, and all the other usual methods, the two lawyers, Mark McCormack and Jason Oliver, did an internet search on the defendants' known email addresses, and up popped one of their Facebook accounts.

They matched the biographical information they had on the defendants with their Facebook accounts and the court deemed this sufficient to demonstrate that these were, in fact, the same people as the defendants.

Australian courts in the past have allowed people to be served via email or even text message.

I wonder when we'll see our first service-by-internet case in Canada?

A Lotus Notes resource

Lotus Notes is often misunderstood, even by those who should know better. Vendors will happily convert NSF's to PST's without once bothering to check if the NSF's are even mail files, let alone examining them for custom email fields.

Truth is, Lotus Notes is a database which is used for email, calendars, tasks and all that good stuff just like Microsoft Outlook. But it is also designed to serve as the basis for many other database-oriented applications.

Need a CRM system? Notes can do that. Need a web-based customer service centre? Yep, Notes can do that too. Or rather, Lotus Notes application developers can do that. It's not as if Notes does it all by itself . . .

Anyway, I wanted to let you all know that Intechgration now has a new sister website - www.eddnotes.com, created and carefully monitored by Intechgration's very own Steve Treible who has over a decade of experience in Lotus Notes and is both a certified Lotus Notes Administrator and Lotus Notes Developer.

So if you have any questions about your Notes-based eDiscovery, drop us a line using the form on www.eddnotes.com, and watch the site for updates!

Technology Hares and Legal Tortoises

I was at an after-work seminar this evening sponsored by Commonwealth Legal that featured the renowned Michael Arkfeld who is well-known in the litigation support community for being one of the (too few) lawyers who truly understand eDiscovery.

His presentation covered a number of points, mainly with a US focus, but one thing he touched on really jumped out at me. He was talking about the US Federal Rules of Civil Procedure, in particular Rule 26(b)(2)(B) which states "(a) party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost".

Now, many lawyers, when this rule first came out, took this to mean that there was no reason to worry about backup tapes any more. After all, we all know that backup tapes cost a small fortune to restore, index, get data off, and generally use for discovery purposes. But that was back in 2006. Since then, Index Engines has come out with technology that indexes tapes without having to go through all the pain and trouble of restoring them. (See here for an interesting blog post on their product).

In other words, Index Engine's technology has made reliance on some case law which specifies backup tapes as being "not reasonably accessible" a dangerous thing to do.

So this raises an obvious question. How can lawyers (who are rarely comfortable with technology anyway) hope to keep up with the fast pace of technology? For every problem that eDiscovery throws at the IT world (and legal professionals) someone will come up with some kind of solution to make it faster, cheaper and easier.

Michael Arkfeld's suggestion was to have some kind of eDiscovery technology clearing-house, which is not a bad idea, although perhaps difficult to implement. My suggestion, until Mr. Arkfeld gets his Technology Clearinghouse up and running, is to at least try to read industry publications (not just law firm technology publications - Information Week is also a surprisingly good source of eDiscovery trends from an IT perspective) and go to a trade show once in a while. LegalTech NY is probably the best for checking out who is doing what in the eDiscovery world.

Women in eDiscovery

How time flies when you're having fun!

I hadn't realized that my last post was way back on the 4th, and seeing as I had some unexpected free time today I decided that I'd better put together a quick post!

As some readers will know, I'm the Assistant Director of the Toronto Chapter of Women in eDiscovery. The Toronto chapter, although not (yet!) the largest, has been one of the most rapidly growing chapters, reflecting a previously unmet need for education and networking among litigation technology professionals.

We usually have around 30 members turn up to each meeting (sometimes more, sometimes less) and, now that the "formalities" meetings are over, we're starting to get into the swing of things.

Our last meeting, on September 17th, was held at Torys (thanks Ceyda!); lunch was sponsored by KPMG; and Kelly Inglese (from McCarthy's) spoke. Our meetings are going to be held on the third Wednesday of the month at lunchtime.

If you are a woman involved in litigation support, legal technology or eDiscovery, join Women in eDiscovery (it's free!) and check us out.

Bikes are not designed for stairs

I live in an upstairs apartment. I like it that way because I can't stand the sound of people tramping around above me. Trust me, I've lived in a number of places where people have lived above me and am always amazed at how many people find it necessary to walk around their apartments in hobnailed boots at 3 a.m.

But there are disadvantages to living upstairs.

Lugging bags of groceries up the stairs.
Lugging anything up the stairs.
But especially lugging bikes up stairs . . .

If I could get a stair lift thing that would work for bikes, I would. It's the only thing I dislike about living upstairs. And the only regret I have over opting for a hybrid bike over a road bike. (I have a Trek 7.2 FX. It's a great bike, but boy is it heavy!)

When Clients Go Bad . . .

A great blog on LLRX by the highly esteemed Conrad Jacoby about a client who obviously did not "get" the whole litigation hold thing.

His post covers a disaster of a case in the US (where else?); Southern New England Telephone Company (“SNET”) v. Global NAPS, Inc., 2008 WL 2568567 (D.Conn. June 23, 2008).

The short version is this: Company executives chose not to preserve electronic evidence, instead choosing to use "Window Washer" (a file shredding utility that advertises itself with the catchy slogan of "What you do on your computer is YOUR business. Keep it that way!") several times to delete and overwrite key evidence. Then they stood up in court and claimed, while under oath, that the deleted evidence (a number of key documents apparently) had never actually existed. This was in direct contradiction to earlier sworn statements made in other earlier litigations.

The use of Window Washer was picked up (of course) by the computer forensics expert, and the case was thrown out of court.

Unlike other You Have To Be Kidding Me cases (such as the notable Zubulake, and the more recent Qualcomm/Broadcom debacle), the blame for this particular eDiscovery disaster was lain squarely at the feet of the recalcitrant client.

But this one case hardly lets lawyers off the hook. Lawyers are still responsible (on both sides of the border) for informing their clients about the risks, and plain stupidity, of deliberately erasing evidence; be it paper or electronic.

So this case simply illustrates what I have often said - don't let your clients do DIY eDiscovery.

Get in an expert.

Be sure you've advised your client, in writing, of the risks associated with certain actions.

Be sure you have told them how to avoid those risks.

And then monitor, monitor, monitor for compliance with your advice.

And an introduction . . .

I've asked Steve Treible, from our company Intechgration, to do add some posts on Lotus Notes (and whatever other subjects pique his interest) from time to time.

Watch this space for his guest blogs!

The problem with Sharepoint . . .

It's been a few hectic days, so my poor blog has been somewhat neglected. Apologies to anyone that was checking it in the hopes that I'd posted some new amazing insight . . .

A little snippet for today:

In conversation with Chuck Rothman, I learned that MS Sharepoint (which I think we'll all be seeing much more of in the eDiscovery world) copies documents transferred into it, removes the original copy, changes the "date created" AND the "date modified" metadata, thus nicely removing any hope of figuring out when the document actually was created or truly last modified.

A little hiccup to be aware of . . .

A limit (of sorts) on eDiscovery?

A fascinating little snippet from the good folks at the BBC.

Apparently the next release of IE (that's Internet Explorer for those not up on acronyms) will include a "privacy mode" that will limit the information logged about where you go on the web. I can see that will limit eDiscovery in some lawsuits (assuming companies permit the privacy mode to be turned on) about who went where in cyberspace on company time.

Something I did learn from the article is that both Apple's Safari and Mozilla's Firefox already have a privacy mode! Well, well. I predict a mass conversion from IE to Firefox by corporate end-users who still have such control over their workstations.

(Incidentally, Xerobank's browser seeks to anonymize all browser history).

The ethics of real world data samples

Another interesting thread on the Yahoo litsupport group over the past few days.

Originally this was a thread about near-duping (near-deduplication); the identification of documents, in the broad sense of the word, that are similar to, but not identical to, other documents. (I'll do a post on near-duping some other time).

Someone on this thread posed the perennial problem of eDiscovery vendors and consultants "where do you get your test data from?" This is important to vendors and consultants because in order to truly test any given eDiscovery tool, you really need some "real world data" to run through it. A lot of eDiscovery software companies use the publicly available Enron dataset which has a couple of million emails in it (as I recall); but the problem with everyone using that one dataset is that it's all too easy to tailor your tool to that one, publicly available, data set.

So for vendors and consultants who are going to spend maybe $20,000 on one license for one tool, having some real-world, knarly, unpredictable data is a good thing. The problem is actually getting hold of it.

Back to the litsupport thread . . .

One person on the thread had the creative solution of buying used hard drives off eBay (as job lots), forensically recovering whatever data he could on them (as good a test for forensic tools as any), and then running the resulting data through whatever eDiscovery processing tools he wanted to test.

A creative solution for sure. But is it ethical?

Bil Kellerman argued that no, it was not. You do not have rights to the data, even if you have ownership of the media. And it's doubtful that the original owners of the data intended that the information on that hard drive be used that way. An ethical can of worms.

R. Sam Gilchrist, however, argued that it really wasn't a big deal and that it is no more unethical to use a drive you bought any more than it is unethical or illegal to readpapers you bought. His argument was that a person who sells a drive has any reason to think that the information on the drive is proprietary or private once it is sold.

An interesting conundrum . . .

Fair-weather cycling

Seeing as it's the weekend, I thought I should do a post on biking. For once this summer (which for those of you reading in places other than southern Ontario has been quite soggy) we have a dry, sunny day which is also a Saturday.

(In case you're wondering, Toronto - a mere 50 miles north across the lake - has had the wettest summer on record so far, and it's not over yet! Down here in Fort Erie, we haven't done much better . . .)

So today was BIKING day and we headed off in the early afternoon on our favourite local ride which goes from here to Ridgeway along the Friendship Trail, and then down Ridge Road to Crystal Beach where we usually stop off at the Waterfront Park. Then it's back up to Ridgeway for a fortifying ice-cream, and back home. Total distance - about 25 miles, depending on how much of Crystal Beach we pedal around.

After a few weekends of rides cut short by rain, threat of rain, actual rain, thunderstorms and so on, our 25 mile ride was a little tough on the behinds. But it was worth the pain to get out and pedal!

Laptops at the border

This document has been creating a bit of a flap here in Canada (and elsewhere). It's the official US Customs and Border Protection policy document, explaining the official policies for search of information at the border (read: your laptop, your PDA, your Blackberry, your thumb drive, your CD's . . . well, you get the idea).

Simon Chester blogged about it on Slaw, and there has been some posts on the Yahoo litsupport forum also. Someone there even creatively suggested that you store all your data on a hidden, encrypted partition on your iPod. Personally, I can't think of a better way to raise the ire of a border guard than deliberately hiding the information, but it's wise to be familiar with what the policy actually says. And don't create suspicion in the mind of a border guard unnecessarily by going to great lengths to hide your data.

Shipping it via FedEx is not an option as packages transported by couriers are as subject to inspection as it would be if you were carrying it yourself. That's not common knowledge, but it really should be.

Perhaps the safest route is to leave the data in Canada, and to access it remotely over a secure VPN.

I should add (a day later) that I cross the border almost daily, and have yet to have my laptop or anything else searched. So I don't think we need to worry too much. But it is good to be aware of the actual policies (and perhaps carry a copy with you) for when you are crossing the border with client data.

Artists' Rights for Open Source

An interesting article from the trusty BBC found in tonight's browsing around the web:

http://news.bbc.co.uk/2/hi/technology/7561943.stm

Larry Lessig (according to the article) explains that even free licences set conditions on the use of copyrighted work and if you violate those conditions, the licence disappears and you're a plain ol' copyright infringer.

As the most important currency in the open source community is attribution, this is an important ruling.

The economics of efficient legal services

Law firms, with their billable hour model, are understandably reluctant to adopt technologies that could increase their efficiency. An increase in efficiency would mean an associated decrease in billable hours, and thus a decrease in revenue.

But this is an overly simplistic view of efficiency in the law firm that misses the associated decrease in costs associated with an increase in efficiency.

For example: billing clients for routine clerical tasks performed by support staff is either difficult (at best), or simply forbidden by the client. The logic, from a client point of view, is clear. If lawyers are going to charge upwards of $300/hour for their time, it had better include their overhead costs, such as routine clerical tasks performed by support staff. Or even non-routine "clerical" tasks (is the creation of an Affidavit of Documents truly "routine" and "clerical"?)

Therefore, by targeting "overhead" costs for increases in efficiency, lawyers can reduce costs for both themselves, and their clients. And one of the best ways to be efficient is to make smart use of technology.

Using technology to increase your efficiency is not about reducing the profitability of your firm. It's about decreasing your costs and making yourself more competitive - and significant gains can often be achieved with just the software you have already.

Because when it comes to technology, it's not what you use, it's how you use it.

It's time . . .

Over the past couple of years, I've often thought of starting my own blog. After all, I rarely lack for an opinion on anything, and blogs are built for expressing those opinions to an eager (or long-suffering) audience.

So here is my new blog. all about bikes, technology and law and where they intersect (although bicycles aren't known for intersecting too often with the latter two, but I shall do my best to find examples).

More to follow . . .