The Two Wheel Geek

Memorial Day

2010-05-30T19:11:00.000-04:00

So here we are at the end of May already. How time flies!!

I haven't had chance to break out my bike yet, but I've been getting plenty of walks in with the surprisingly good weather we've been having recently.

One of my favorite local walks is around the cemetery just up the road from my house. There's something very relaxing about walking along the paths between the trees, grass and old gravestones away from the traffic. Me and my husband often chuckle over some of the names on the gravestones: SPACE SAMS is one of our favorites - who was the unfortunate astronaut Sam, and what did he do to deserve being spaced for it? Or how about SLATTERY - a curious mix of slander and flattery, perhaps? Not to mention the number of names that sound like they belong on big law firm letterheads.

But this weekend in particular, among the old forgotten gravestones and odd names, were many, many Stars and Stripes planted by proud, sad and thankful families.

In between the barbecues, dips in the backyard pool and mall sales, let's not forget the real reason for Memorial Day.

To all who serve: Thank you.

eDiscovery on a Shoestring

2010-05-07T13:40:00.000-04:00

On Wednesday, June 2nd, I'll be doing a free lunchtime seminar looking at low-cost eDiscovery. Topics to be covered include low cost tools to help you manage your eDiscovery, and when it's worth bringing in a vendor. Lunch will be provided.

The seminar will be held at the Ellicott Square Building at 205 Main St., Buffalo, NY in the Bearrs Stearn conference room. Please contact me for more information, or RSVP here if you're on Facebook, or here if you're on LinkedIn. RSVP's are due by Monday, May 31st.

See you then!

In the dark on e-Discovery

2010-04-27T09:29:00.000-04:00

Many thanks to Beth Bialis, paralegal coordinator at Hodgson Russ, LLP here in Buffalo, for mentioning me in her article "In the dark on e-Discovery?" in Monday's edition of the Buffalo Law Journal.

Beth quotes from an article I did a couple of years ago on Slaw.ca about the need to be proactive when it comes to eDiscovery. I'm not sure whether to be happy or sad that something I wrote two years ago continues to be relevant: I had hoped that we would have moved beyond the idea that being proactive is something unusual.

The original is available here for a limited time, or you can contact me for a copy.

Small Firm eDiscovery

2010-04-16T11:40:00.000-04:00

Back in January, Craig Ball wrote an article in Law Technology News about eDiscovery on a budget. Also known as the "EDna Challenge", Ball took a hypothetical lawyer (Edna) at a small law firm, with a bunch of ESI sent to her by her client on two DVDs. The total number of documents (including emails) was going to be no more than 100,000 by the time the case was done and she had a budget of $1,000 to spend on software and hardware, but not a penny more.

Ball polled some of the leading minds in eDiscovery to see what they could come up with. There wasn't much in the way of off-the-shelf software. But with some ingenuity you can put together a suite of tools that will help those on tiny budgets to review ESI without spending upwards of $10,000 for the "standard" suite of LAW/Discovery Cracker/etc. + Summation/Concordance/Caselogistix.

First, it's a good idea to figure out what you have on those DVDs. A large collection of zip files is going to require different handling to a bunch of regular MS Office files and PSTs (though PSTs can present their own challenges . . .). A couple of good options, both mentioned in Ball's article, for figuring out what you have are Karen's Power Tools ($30), which includes utilities for listing directory contents and hashing files, or FTK Imager (FREE!). FTK Imager will not only inventory what you have, but export it along with file system metadata and hash values to a csv file which can be loaded into your review tool of choice.

dtSearch was mentioned a number of times in Ball's article and is a relatively inexpensive option at $199 per license for robust keyword searching. It has fuzzy, phonic, wildcard, stemming and thesaurus search options and will provide you with search reports showing you the hits in context. Plus it has forensic indexing and searching tools (always a good option to have).

dtSearch can be used to search within PST files, but only if that PST is available through an Outlook profile. An easier approach would be to use either Aid4Mail (about $50) or Trident Lite (FREE!)

A license of Quick View Plus will run $46 and not only saves you the trouble of having to purchase software you don't have just so you can view ESI in that format, but also saves you having to open & close umpteen programs as you conduct your review. Or having numerous programs open with numerous evidentiary documents of various formats open within them. Either way, you're saving yourself a time and money hog.

For reviewing all the data, Edna could use either MS Excel (about $200 if you don't have it) or MS Access (also about $200 if you don't have it). Of the two, MS Access is probably the better choice thanks to its more powerful search features among other reasons, but in a pinch, MS Excel could be used.

So what is Edna's total cost here?

FTK Imager: FREE
dtSearch: $199
Aid4Mail: $50
Quick View Plus: $46
MS Access: $200

Total expenditure: About $500. And that's assuming she doesn't have MS Access, which, is included in MS Office Professional 2007.

So what should Edna do with that extra $500 (or $700) in her budget? She should buy an independent eDiscovery consultant's time. $500 should buy you about four hours with a consultant which should be enough time to put together the all important process documentation and get a decent MS Access database set up for reviewing the documents.

Having the right tools is certainly helpful, but understanding the right way to use them is even more important. This is what I do for my clients on a budget - get them the inexpensive tools they need, but also help them figure out the best workflow for their case. A botched workflow can lose a case; using one good tool over another rarely makes a difference.

Back soon . . . !!

2010-02-16T20:10:00.002-05:00

My poor blog has been sadly neglected, but I do have a good excuse! I moved country. Well okay, I moved about 10 miles from Fort Erie, ON, to Buffalo, NY. But it was a lot of work even so - something about that international border inbetween.

I promise I'll be back soon with more insightful blogs. I have some exciting things planned for this year and I'm looking forward to telling you all about it!

Awful story out of Toronto . . .

2009-09-01T21:41:00.002-04:00

Well, I hate to make my first "two-wheel" post of the year a report on this story, but events beyond my control have made it the first newsworthy biking news of the year. It involves both bikes and the law, but not (as yet) technology.

Apparently Ontario's former Attorney General, Michael Bryant, has been charged with a variety of vehicular homicide charges for his alleged involvement in the death of a Toronto bike courier, Darcy Sheppard near one of Toronto's busiest intersections - Bloor and Bay. Sheppard had a baby boy who is now without a father.

This is a dreadful example of who loses when there is an altercation between a motorist and a cyclist.

To all of you out there on two wheels: be safe.

Hitchiker's Guide to the (Blog) Universe article in ALSP's newsletter

2009-08-14T08:01:00.002-04:00

Quick blog post this morning after something of a hiatus (I wish I could tell you I've been doing lots of biking as an excuse, but I haven't - long story).

I have an article at ALSP's website for their e-newsletter all about finding your way around the blog universe. I've invited comments here and on Twitter asking for which eDiscovery blogs you like to read as I'm sure there are many I don't know about.

You can find the article here, but be aware that you'll need to log into the site once this month's issue is archived by ALSP. To log in, you'll need to be a member of ALSP (which I highly recommend, by the way)

Comment away!

New column on Slaw

2009-05-14T19:59:00.002-04:00

In case you haven't seen it yet, I have a new column out on Slaw.ca, the Canadian legal/tech collaborative blog website.

In this column I highlight something that is concerning a number of people in the eDiscovery world: the need for basic research to determine just how effective our eDiscovery tools and methodologies are.

Why is this important?

Well, I think in all the excitement (for us geeks, anyway) over how cool the technology is, it's easy to forget that the end point of all this whiz-bang technology is to find the relevant evidence and get it admitted in court. For something to be admissible you need (to a greater or lesser extent) to be able to demonstrate that the evidence is what it purports to be.

Without some basic research, there is a danger that we will all just assume that Tool X or Process Y does what we think it does because no-one has ever really checked to see if it really does do that or not.

The TREC Legal Track project is a good example of the kind of much-needed research that should be performed. I hope to see much more like it.

Summation Tip of the Week #2

2009-05-05T13:42:00.004-04:00

This originally went out by email in mid-April.

Using Summation for tracking undertakings

This week’s tip explains a simple way to use Summation to help you track undertakings – both yours and those of opposing counsel.

How does it work?

If you are fortunate enough to have electronic copies of transcripts in Summation-ready format, you can use Summation’s searching abilities to help you find undertakings quickly.

First you import the transcript into Summation, and then use Summation’s search features to help you find the undertakings.

By searching on the word “undertaking” or “undertake”, or even words like “give” and “copy”, you will be able to find most instances of where either you or opposing counsel have agreed to undertakings. Once you’ve found an undertaking, you can create a transcript note to mark the spot and help you track the status of the undertaking.

In the transcript note itself, you will be able to:

Add any additional comments (such as the bates number of the document or the status of the undertaking)
Add issue codes to the note (such as “undertaking”, “refused”, “our undertaking”)
Add a link directly to the document in question if you have it in your Summation case or on your network in electronic format

Pros and Cons

Some advantages of tracking undertakings this way include:

Being able to quickly locate undertakings in one or more transcripts
Being able to run reports from issue codes to find undertakings and their status
Tracking of additional information that you include in your transcript note (such as the date of the request, and who asked for it)
Having quick access to the document in question directly from the transcript
Being able to quickly run a report and provide it to opposing counsel

Some things to bear in mind with tracking undertakings this way:

Not everyone will actually use easily identifiable words when referring to an undertaking. A lawyer might just say “we can get that to you” – and so you should be aware that simply searching the transcript with typical keywords might not be enough.
You have to keep the transcript notes up-to-date for them to be the most useful to you – you might find this more trouble than it’s worth.

Hope you all find this useful! If you want to get these tips by email, drop me an email at dtwestwood (at) intechgration (dot) com.

Leg@lIT 3.0, upcoming articles, and other news . . .

2009-05-02T13:02:00.004-04:00

I've been busy the past few weeks!

First was my second CompTIA A+ exam, which I passed with flying colours: I am now a certified A+ IT technician which basically means I now know not to change out the memory in my laptop unless I'm wearing leather soled shoes and cotton clothes, standing on a rubber mat in an environment that is not overly dry, and have an anti-static wrist strap on. Okay, I know a little more than that, but studying for it did help plug a few of the more annoying gaps in my learned-on-the-job IT skills.

Then it was preparing for the LegalIT 3.0 conference in Montreal where I was giving a presentation on the "Virtual Road to Trial" with Sharon Redding of Bell Canada and Kelly Inglese of McCarthy's (Nicholas Trottier stood in for Kelly at the last minute). (I also have a white paper that I did for the conference on the use of technology throughout litigation which has not yet been published - contact me for a copy). I tweeted live from the conference which was kind of fun, although I'm sure I missed some of the points made in the presentations as a result.

After I got back from Montreal, I jumped straight into doing some actual client work, and I've also been preparing some presentations and articles ("eDiscovery Mythbusters", "eDiscovery - what it means for you" (for a US paralegal association) and an upcoming Slaw post).

All of which is a long winded way of saying that's why I haven't posted anything to the blog in a while, and for those of you that get my Summation Tip of the Week, that's also why you haven't had one for a couple of weeks!

Summation tip of the week

2009-04-13T19:15:00.003-04:00

I've started sending out weekly tips for using that ol' stalwart of litigation technology - Summation iBlaze. As not everyone likes having their email cluttered with yet more stuff, even if it is high quality, informative, educational material like I send out (ahem!!), I thought I'd put them up here as well.

For those of you that have had my weekly tip via email and would rather read it here (or not at all), just email me with "Unsubscribe - Summation Tip of the Week" and I'll be sure that you're taken off that email list. Be sure you let me know if you'd rather never hear from me again (in which case I'll head off into a quiet corner to sob) or just don't want to get the Summation Tips.

Summation Tip of the Week No. 1

Using Summation for electronic exchange of documents

This week’s tip explains a simple way to use Summation to exchange documents electronically with opposing counsel.

How does it work?

A Summation Briefcase will take the documents you want to send to opposing counsel (usually as an Affidavit of Documents) and package up the images, along with their document information from the columns that you choose into one file. You can then burn the file to CD or (if it’s small enough) send it via email to opposing counsel for them to import into their own Summation case database.

Pros and Cons

Some advantages of using a Summation Briefcase include:

No need to print out all your documents, or make copies
Reduces postage costs
You can redact the images if necessary and Summation will permanently apply the redactions in the Briefcasing process
You can select which columns (and therefore what information) to send to opposing counsel
You can give your documents new, consecutive numbers that disguise any “gaps” in the Bates numbers
Opposing counsel can integrate your Briefcase with their own documents in Summation, or view it in a separate Summation database

Some things to bear in mind with Summation Briefcases:

You need to have Summation iBlaze to create and directly access Summation Briefcases
Summation Briefcases are only good for up to 20,000 images or so – you might not be able to create or view ones that are larger than this
If you’re going to use Summation Briefcases to exchange Affidavits of Documents, get opposing counsel’s agreement ahead of timeTry to match the way you enter information in the columns with opposing counsel. You can discuss this at your Meet and Confer or include it in your Discovery Plan
Be careful about including OCR - it can reveal text in a redacted document

2009-04-06T08:38:00.003-04:00

Great article from the ABA Journal Magazine this month on a research project being conducted by the Text Retrieval Conference Legal Track (http://trec-legal.umiacs.umd.edu/). In short, as the article's title suggests, they're "in search of the perfect search", which translates to "just how many documents are missed with the various search technologies".

The answer (so far) is sobering:

Legal Track showed Boolean keyword searches using commands such as and, or
and within so many words across a range of different hypothetical topics
found only between 22 and 57 percent of all relevant documents cumulatively
retrieved through a variety of alternative search methods. But the Boolean
search was no better or worse than other more sophisticated search methods
tested, and it still represents the current standard.

Wow. That's pretty bad.

Slightly better news is that different searches find different documents, so if you combine several different types of searches, you're able to find up to 78% of the documents. As it says in the article (and as I've said to clients): ". . . No one off-the-shelf method will solve all of your e-discovery efforts."

So, in practical terms, what does this mean?

Well, for smaller data sets where you can feasibly (if expensively) look at every single document you are not as reliant on search technology to find the documents - you can categorize them as you see fit (usually by issue coding) and that, along with the bibliographic information coded into the review database is usually going to be enough to find your documents.

The big issue with this approach, of course, is consistency. Many highly-trained lawyers and legal staff just don't code the same (or similar) documents the same way. Use of near-duplicate technology, for example, can help with this, but you will still find variance in coding between documents that are similar in theme, if not content.

For larger data sets where it would take years for even a large team of people to look at every document, you have to rely on searches of the electronic data (or even OCR, which is a whole other post in itself).

The key takeaway is that you shouldn't rely on just Boolean searches, or just Concept searches, or any other kind of searching to do it all. Expect to use several kinds of search technology. Expect to come up with a smart set of search terms in the first place. If you're looking for documents about cars, don't just search on "autos" and "cars", search on "Ford" and "GoodYear" and "Mechanic" and "battery" and "gas" as well. These terms will pull up documents that are all about cars, but may never actually mention the magic word "car".

Thanks to Ralph Losey's Tweet which led me to the article in the first place.

2009-04-02T18:19:00.004-04:00

From time to time, there is evidence of some angst among lawyers that their jobs will disappear - and not necessarily due to the economy (particularly in the US). Paralegals/law clerks (depending on which side of the border you are) were once considered something of a threat to lawyers. Then it was outsourcing. And now it's technology.

These last two are concurrent concerns right now and have been exacerbated, thanks to eDiscovery, by the exponential growth in "potentially relevant" information that has to be reviewed by someone (or something) before deciding if it really must go to opposing counsel. Not to mention figuring out if it is privileged or not.

Lawyers may be interested in knowing that it's not just their own profession feeling the pinch of technology taking over the world. Some scientists may find this article from the trusty BBC a little worrisome: a robot which can not only perform certain experiments, but also plan further experiments to verify its hypothesis.

Imagine how that might look in the legal world!! Not only would WhizBang EDD Soup to Nuts edition manage, identify, preserve, collect, process, review, analyze, produce and present your data, it even figures out if your theory of the case has to be modified, and drafts the appropriate motion/modified Statement of Defence or Answer to Complaint for you!!

Lawyers would be reduced to little more than rubber-stampers (perhaps a new use for Bates Stampers?) of relentlessly logical legal arguments created by their AI equivalents. Best of all, these Litigation AIs (LAIs) wouldn't require absurdly inflated salaries right off the bat, and could work around the clock, pushing up their billables while reducing overhead dramatically. Clients around the world would breathe a sigh of relief knowing that their litigation matters were being handled in a low-cost, logical, perfectly fair and balanced manner.

As Ralph Losey would have it - the practice of law is an art, not a science, and I doubt we're really going to see robots take over lawyers' jobs any time soon.

But it's fun to think about :-)

eDiscovery is not a static thing

2009-03-13T09:00:00.004-04:00

Thought you'd all like to see my latest offering at Slaw.ca which takes the 100,000 foot view of how eDiscovery is changing in Canada (and will continue to change).

I think one of the most serious mistakes that can be made in eDiscovery is to assume that once you have wrapped your head around eDiscovery 101/Summation/LAW/managing email/electronic trials/etc. that the job of getting to grips with eDiscovery is done. Unfortunately that's not the case. Technology is ever-changing and the challenge of being in this field is staying on top of broad technological advances and their impact on eDiscovery.

For example: some companies are now embracing Web 2.0 technology (what's that?). How does one capture wiki content? Or blogs? What about your key custodian's Facebook page? Are any of these important in your litigation?

Yes, complexity is here to stay in eDiscovery. Unfortunately there are many in the legal field who believe that all they need to do is get to grips with the concepts of metadata and PSTs and that's all they need to know. Not so. Although it may not be necessary for every person on the legal team to understand all things technical, a general awareness of the technological trends and their impact, and willingness to listen to their experts on how it affects their case, are essential.

How much data?

2009-02-19T19:07:00.003-05:00

Back in the day when computers like these (my first computer!) had data storage in the megabyte range, no-one thought of storing anything other than, well, numbers and text on them. Perhaps some basic graphics. Well, okay, you could do a fair bit with 80MB of space.

Nowadays, of course, you can fit 1TB of data into something that's a quarter the size (more or less) and we store our entire lives on there - photos, scanned documents, movies, music, finances, games, spreadsheets, slideshows, emails, contact lists . . . . Oh, and work stuff too. This exponential growth in data storage capabilities is known as Moore's law.

But in the future, we may see that external 1TB hard drive shrink down to the size of a quarter. Thanks to some pretty nifty techniques from nanotechnology, we can look forward to our entire lives being stored on something the size of your average USB thumb drive. Or even smaller. After all, this technology claims that it will provide 1TB of storage on the surface area of a quarter.

Pretty impressive, huh?

Just imagine the eDiscovery of the future. Instead of a litigation with a couple of terabytes being considered on the large side, we'll be looking at petabytes of data. One hopes that search technologies are vastly improved for these oversized haystacks . . .

Although I do have to wonder just how much data can be created by just one person, or just one company.

Hope for Obsolete File Types

2009-02-13T13:11:00.007-05:00

While reading the news on BBC's website about the Continental plane crash, which happened only a few miles from where I live, I found this article tucked away in the Technology section.

A number of researchers across Europe are involved in a project called Keeping Emulation Environments Portable (appropriately "KEEP" - there must be people out there that have a full-time career creating project names that result in catchy acronyms). The goal of the project is to create emulators that can read whatever obsolete file format you might have floating around.

It's a bigger problem than you might imagine: the number of unreadable documents in archives is beginning to mount up. Britain's National Archive estimates that it holds enough information to fill about 580,000 encyclopedias in formats that are no longer widely available; and research by the British Library estimates that the delay caused by accessing and preserving old digital files costs European businesses about £2.7bn a year.

It will be interesting to watch this project as it develops. Imagine being able to take your Wang word processor files and read them in true native format thanks to an emulator (after carefully preserving them and making evidentiary sound working copies, of course).

Could this finally mean the widespread adoption of technology at law firms?

2009-02-02T18:28:00.002-05:00

Well, probably not. But this article at the NYTimes suggests that the demise of the billable hour is, if not imminent, at least more likely than it has been for a while.

I've long maintained that the billable hour promotes inefficiency and is not conducive to the long-term interests of law firms. It's nice to see that clients are actually demanding fee structures that promote efficiency (the flat fee) and reward performance (such as a flat fee plus a bonus for achieving a quick settlement).

Perhaps now, law firms will take the adoption of serious technology a little more to heart.

There is a "but" however. As I'm fond of telling my clients, it's not just the technology, it's also the workflow you build around it, and the people using it. (As our logo says - it's People Process Technology - in roughly that order.)

All the best whiz-bang technology in the world will not make you more efficient if you don't train your people on how to use it properly and haven't thought through the process that the technology is supposed to enhance.

So before any lawyers reading this rush off to buy the latest-and-greatest piece of technology, plan how it's going to fit into what your firm actually does, who will use it, and how much you're willing to spend on training.

Otherwise you'll end up with just more really cool-looking shelfware . . .

2009-01-30T20:47:00.002-05:00

A fascinating snippet from Slate today that nicely demonstrates that if your company has yet to put together a decent records management policy, you're not alone.

Apparently US federal electronic archiving policies are next to non-existent. Oh yes, everyone in the various branches of federal government understands the paper archiving policies, but electronic records are left out in the cold. (Speaking of which, will winter ever end? I'd like to get back to biking).

A 2005 report by the National Archives and Records Administration stated that "electronic records are generally not disposed of in accordance" with federal regulations. In particular, many e-mails are "being destroyed prematurely". For followers of eDiscovery issues, the reasons for premature destruction and failure to follow supposed records policies will be familiar:

1. Use of personal computers to write emails, and subsequent failure to turn in those files.
2. Electronic records are less tangible than paper records and they are often not considered to be records needing to be filed and retired properly.
3. The job of records custodian is left unfilled, and when filled the holders of the position are not properly trained in their record retention obligations.
4. The National Archives' technology branch (which is the entity responsible for retaining appropriate records) is so antiquated that it cannot process common file types such as Microsoft Word documents and PowerPoint slides.

This last reason for failure to archive records properly may not seem to be immediately relevant to most companies. However, it's not unusual for companies to have a mirror-image of this problem: an inability to read records because they are stored in a format that is simply too antiquated to be of any use. (Anyone have any 51/2 inch diskettes left? What about the hardware to read them?)

Although this article is slanted towards the need for federal agencies to respond to Freedom of Information Act requests, but could equally apply to companies needing to deal with eDiscovery demands.

Service of Process - courtesy of Facebook

2008-12-16T09:38:00.004-05:00

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

2008-10-22T21:56:00.002-04:00

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

2008-10-22T21:31:00.003-04:00

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

2008-09-21T15:08:00.002-04:00

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

2008-09-04T20:35:00.005-04:00

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 . . .

2008-09-04T20:08:00.005-04:00

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 . . .

2008-08-31T10:06:00.002-04:00

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 . . .

2008-08-31T10:01:00.002-04:00

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?

2008-08-21T20:15:00.002-04:00

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

2008-08-18T08:53:00.004-04:00

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

2008-08-16T18:15:00.004-04:00

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

2008-08-15T19:02:00.005-04:00

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

2008-08-14T20:53:00.003-04:00

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

2008-08-14T16:10:00.000-04:00

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 . . .

2008-08-14T13:05:00.001-04:00

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 . . .