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.
Friday, January 30, 2009
Tuesday, December 16, 2008
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?
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?
Wednesday, October 22, 2008
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!
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.
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.
Sunday, September 21, 2008
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.
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.
Thursday, September 4, 2008
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!)
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.
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.
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