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August 2011

August 29, 2011

8,000 Menacing Posts

An August 28  article by Somini Sengupta highlights the intersection between free speech and social media. The New York Times article, "Case of 8,000 Menancing Posts Tests Limits of Twitter Speech,"  involves efforts by William Lawrence Cassidty to harass a woman, Alyce Zeoli, by posting thousands of threatening and defamatory Twitter posts. He was charged with online stalking, on the theory that his posts caused emotional distress to the victim. 

Cyberstalking laws are, accordingly to the article rarely enforced. The prosecution in this case raises a question about the precise nature of information posted on social networks -- are they better viewed as private communications between parties, or public statements like newspaper articles. 

Continue reading "8,000 Menacing Posts " »

August 26, 2011

Are E-Discovery Vendors Ready for Big Data?

We are quickly going from gigabytes to terrabytes to petabytes and beyond re the amount of ESI that is being searched and processed for review. E-discovery is entering the world of "big data".  

Most vendors today use legacy MySQL, SQL, Oracle, etc. database structures for processing data and advanced analytics.  As data sets grow exponentially, vendors must throw more hardware at the data which eventually can cause latency, performance problems and bottlenecks.

To solve this problem, federated search and targeted culling at the point of collection using technology like EnCase eDiscovery has helped considerably.  Additionally, using meta data to quickly find information and speed queries has has also helped minimize elapsed times and speed up search. We are already starting to see new sophisticated data analytics that can handle big data like advanced data visualization. 

However, as data sets grow with new discovery sources such as social media, next generation database structures will be needed to handle the exponential growth of electronically stored information. 

It is time that vendors look at migrating to next generation database structures, such as  - NoSQL / Hadoop that can handle processing of large data sets in a distributed computing environment. Otherwise, big data will turn into big bottlenecks for e-discovery.

Disclaimer: I previously worked for Guidance Software, the creator of EnCase eDiscovery.

August 25, 2011

George Rudoy Gets New Gig

Rudoy2 Our colleague, George Rudoy, has a new gig, as a partner at Hagen, Streiff, Newton & Oshiro, which offers forensic technology and accounting consulting. 

Here's Brendan McKennan's report. 

Image: Monica Bay 

ID Scanners Present Privacy Concerns

To gain admission to your favorite watering hole, you may soon have to allow your driver's license to be scanned and at some places, your picture taken too!  Hand-held scanners that read your driver's license are taking off. Bars around the country are using this device to scan customers in order to weed out the troublemakers and check IDs. The information collected can easily exported to excel and/or shared with other bars and vendors via the internet. To be able to freely share someones name, age, date of birth, address,  drivers license number, and associate drinking habits is a cause for concern.  

Driver In fact, some states don't consider your driver's license information private. Under the rational of public safety, the state of Florida made $63 million last year selling the personal information in the DMV database. It is interesting that judges and law enforcement officers can request to be excluded; yet regular citizens can’t make the same request.

Because there are currently no regulations re collecting and/or sharing this type information (some states do restrict it), the privacy and identity theft concerns are real. Additionally, it is a new data source for law enforcement too. I ran into this in Las Vegas recently and declined the offer to be scanned and photographed and instead choose an establishment that respects privacy.


Interview: Andrea Kuperman, U.S. Judicial Conference


On Sept. 9, the Civil Rules Advisory Committee of the U.S. Judicial Conference will meet in Dallas to consider changing the Federal Rules of Civil Procedure on evidence preservation and sanctions related to electronic discovery.

As part of the discussion, the committee — made up of judges, law professors, and attorneys — will consider an exhaustive report prepared by Andrea Kuperman, chief counsel to the rules committee (left).

For the report, the committee asked Kuperman — who previously served as the rules law clerk for U.S. District Judge Lee Rosenthal of the Southern District of Texas in Houston—  to look at existing case law on evidence preservation and sanctions issues. If the committee approves the rule changes, there is a six-month comment period. Texas Lawyer senior reporter John Council e-mailed Kuperman some questions about the report. Her answers are here, edited for length and style



August 23, 2011

A New Spin on Predictive Coding: Predictive Policing

Police The New York Times reported that the Santa Cruz (Calif.) police began testing a new computerized prediction method for crimes called predictive policing.

Just like predictive coding in e-discovery, data is fed into a computer and by analyzing and detecting patterns in years of past crime data, it generates crime projections about where crime is likely to occur in the future.

Sound like the PreCrime unit in the movie The Minority Report is closer than we think!  Whats next in e-discovery after predictive coding - search "precogs"?


Is E-discovery Technology Changing How Lawyers Think?

The BBC came out with an interesting article When Algorithms Control the World on how new advanced algorithms are reaching into all aspects of our lives on many subtle levels.  For example, Google's search algorithms have slowly reorganised the way we remember things.

With all the new advanced analytics causing a revolution in how we search and identify potentially relevant ESI, I am sure these new search algorithms are also subtlety impacting how lawyers practice law and think about evidence. 

With E-discovery leading the product charge at ILTA, I wonder about the human factors of how legal technology is affecting how lawyers approach a case and the electronic evidence that will potentially support it.  A good topic for discussion at New York LegalTech 2012!

August 18, 2011

EDRM Model Code of Conduct: Public Comment Request

Feedback The EDRM Model Code of Conduct (MCoC) is now available for public comment at

Published on July 9, 2011 and available at both and, the MCoC addresses five key principles:

  1. Professionalism,
  2. Engagement,
  3. Conflicts of Interest,
  4. Sound Process, and
  5. Security and Confidentiality.

Each principle focuses on the duties of service providers and is accompanied by a corollary focusing on corresponding expectations for their clients.

This initial draft of the MCoC is open to all for public comment through September 30, 2011.

You may post comments at

All feedback will be reviewed by the EDRM MCoC team at the EDRM Mid-Year meeting, held in Saint Paul on October 19-20, 2011. The first version of the MCoC will be published in January 2012, prior to the LegalTech NY conference.

- Regards, on behalf of the EDRM Model Code of Conduct team.


How Long Can Gov't Keep DNA?

Dna A recent article in the Virginia Law Review caught my eye and is interesting reading for anyone concerned with long-term data preservation. 

The article, by Penn State Professor David Kaye, is titled, “DNA Database Trawls and rhe Definition of a Search in Borian v. Mueller. 

As most people know, the government collects DNA profiles from convicted offenders (and, in some cases, when people are arrested), and stores those DNA profiles in large databases. The databases are searched for matches against DNA samples recovered at crime scenes. The article addresses the question:  how long can the information be kept in the database?  In other words, “Is there no way an offender can escape ‘lifelong genetic surveillance?’ ”

The First Circuit Court of Appeals held that there is essentially no limit to how long the government can keep DNA information in databases.  That case was Borian v. MuellerThe article observes that the First Circuit concluded that a check of the database does not constitute a “search” within the meaning of the Fourth Amendment and, accordingly, is not subject to any constitutional limitation.  This is because, under this interpretation of the Fourth Amendment, once the government acquires the DNA information, every review of the database constitutes only a minimal invasion of a person’s privacy. 

The broader e-discovery issue involves reuse of data.  Once the government lawfully acquires data, can the government reuse that data?  Kaye suggests that, in most instances, the answer is usually “yes.”  He writes:  “a simple rule allowing reuse of data works well enough as long as the additional interests in the privacy of the information are either outside the scope of the Fourth Amendment or too tenuous to justify the usual need for individualized suspicion or warrants.”


HP to Buy Autonomy? Details Tonight ....

Bloomberg is reporting that Hewlett-Packard is acquiring e-discovery giant Autonomy for $10 billion, and that the news will be announced in HP's third-quarter earnings call at 5:00 ET / 2:00 PT today. Autonomy confirmed that it is "in talks" with HP. Assuming the Bloomberg story is correct, then it's HUGE news for the legal technology industry, and it automatically makes we media types wonder what's next -- as we here at LTN have already done. This news dwarfs the Symantec deal for Clearwell at a now-meager $390 million. Stay tuned!

Editor's Update: Here is Evan's Friday report. —M.B. 

LEDES E-Discovery Codes See Initial Vendor Adoption

Bridgeway Software, Datacert, Mitratech, and TyMetrix are the first wave of law technology companies to endorse the LEDES/UTBMS e-discovery billing codes -- that's the latest from Cathi Collins of Bridgeway, who chairs the group's e-discovery subcommittee. The codes were ratified last month, posted online this week, and will be discussed in detail at next week's International Legal Technology Association conference in Nashville. The LEDES organization itself is also on the ILTA discussion agenda.

August 16, 2011

Minimizing Risks of Mismanaged Contract Review

There's been a lot of debate kicked off by the allegations in J-M Manufacturing Co. v. McDermott Will & Emery about the use or mis-use of contract attorneys for document review projects.

In her latest posting to the website of the Corporate Counsel Committee of the American Bar Association Litigation section, Anne Kershaw offers in-house counsel practical advice on how they can minimize the risks of mismanaged review projects by amending their outside counsel guidelines.

The site is available without registration:

August 15, 2011

Maryland Decision Raises New Cell Phone Issues

Cellphone A recent decision from a Federal District Court in Maryland raises new issues about the ability of the government to obtain location data from cell phones without a warrant.

The case is In Matter of an Application of United States of America for an Order Authorizing Disclosure of Location Information of a Specified Wireless Telephone

In this case the issue before Magistrate Judge Susan Gauvey was whether the government could acquire from cell phones to aid in the apprehension of the subject of an arrest warrant. Significantly, the government did not claim that the subject of the monitoring was attempting to flee, or that the information would be evidence of any crime.

I have written a bit about warrantless GPS tracking used to solve crimes.  (See here and here, for example.)  But this is different. The court described this effort as something new: “the government asks to use location data in a new way — not to collect evidence of a crime, but solely to locate a charged defendant. To some, this use would appear reasonable, even commendable and efficient. To others, this use of location data by law enforcement would appear chillingly invasive and unnecessary in the apprehension of defendants. In any event, there is no precedent for use of location data solely to apprehend a defendant in the absence of evidence of flight to avoid prosecution.”

The court concluded that if the government seeks to use a particular cellular telephone as a tracking device to aid in execution of an arrest warrant, the government must obtain a warrant. This is because the tracking would infringe upon a person’s privacy interest both in his location as revealed by real-time location data and in his movement where his location is subject to continuous tracking over an extended period of time. The court was especially concerned that the electronic surveillance would reveal locations in private locations, like a home, and would go beyond what could be obtained by “physical surveillance or tracking techniques.” 

Continue reading "Maryland Decision Raises New Cell Phone Issues " »

August 12, 2011

Jack Halprin Expected to Jump to Google

Halprin Jack Halprin,
who recently resigned from his post as Autonomy's vice president, e-discovery and compliance, is expected to land at Google to manage its electronically stored information, for both legal and information governance purposes, in its Apps/Postini wing, according to the 9TO5Google blog.

What's the significance? LTN editorial board members Tom O'Connor, Craig Ball, Ralph Losey, Robert Owen, and George Rudoy analyze the move here.

Image courtesy of the Digital Government Institute. 

Federal Circuit Affirms $500K Sanction for Litigation Misconduct

Broken_piggy_bank128 Spoliation sanctions, to no one's surprise, continue to be a hot topic in our community, as the case law develops.

On July 29, defendants in a patent infringement suit were awarded  $500,000 in attorneys fees, in part, because the patent licensing entity destroyed inventor records. See the entire article about Eon-Net LP v. Flagstar Bancorp, at today's Law Technology News website, here.

Editor's note: Please welcome Mark Michels to EDD Update. He is the former litigation manager and discovery counsel at Cisco Systems. E-mail:


August 09, 2011

Legal Intelligencer Series on EDD

Whale Our colleague Gina Passarella at The Legal Intelligencer in Pennsylvania has launched a weekly series "examining the effects e-discovery has had on the practice of law." 

The first article sets the stages, as Passarella discusses the tension between "ever-expanding forms of data" and the ever-changing technology and knowledge to manage that data.

"Attorneys have said e-discovery can eat up between 50 to 80 percent of a litigation budget. Even on the low end, that verges on the minnow that ate the whale."

You can check out the first installment here (registration may be required). 


August 08, 2011

ACEDS & OLP Announce New Partners

Teach The Organization of Legal Professionals, and the Association of Certified E-Discovery Specialists have both announced new partnerships:

ACEDS has partnered with the Georgetown University School of Continuing Studies Center for Continuing and Professional Education (CCPE). Students who complete CCPE's Certificate in LItigation Technology and Legal Project Management "will be eligible to apply for the certification examination leading to the awarding of the Certified E-Discovery Specialist credential and receive one year of professional membership in ACEDS," reports the Miami company. 

OLP has announced that it has formed a "strategic alliance" with the Ritter Academy "to deliver new online, on-demand, self-study programs that address the fundamentals of e-discovery. The courses, designed by the Ritter Academy, introduce a new learning technique — using innovative visual information maps — RitterMaps." 


The Ethics & Effectiveness of Contract Attorney Review

Work The  complaint in J-M Manufacturing Co. Inc. v. McDermott Will & Emery filed on June 2, 2011, in Los Angeles Superior Court (Case BC462832) has ignited several discussions in the legal community, including a 50-comment debate on the ABA Journal website under Debra Cassens Weiss' article,"Malpractice Suit Targets Quality of BigLaw's Temporary Lawyers." (See also, Corporate Counsel's "E-Discovery Nightmare: Client Cites McDermott's Use of Contract Lawyers in Malpractice Suit.")

According to the  First Amended Complaint  the firm allegedly produced 3,900 privileged records out of a production of 250,000 records — its second try after having been put on notice by the government that the initial production had included a number of apparently privileged records. Note that there has been no judicial determination that the 3,900 records were actually privileged.

As can be seen in the ABAJ comments, much of the debate centers on how contract lawyers are managed — or not managed — by law firms. J-M's allegations of improper mark-ups on the contract lawyers fees were dropped from the accounting claim in the First Amended Complaint but J-M asserts claims for legal malpractice based on failing to supervise attorneys and vendors, and billing for work not needed, poorly performed, or not performed.

The ABA Journal comments, none of which were tied to McDermott, include several by contract attorneys who recite multiple instances of poor management of contract review work and/or significant markups of contract lawyers fees. The comments also suggest long working hours under sometimes demeaning circumstances with minimal opportunties for advancement.

In Law Technology News' 2008 article "Can You Adapt?," Monica Bay observed that e-discovery "can be a gold mine for contract lawyers who for various reasons want short-term or part-time job commitments, but contract lawyering (especially in law firms) comes with strong caveats. By definition, staff and contract attorneys are second-class citizens, say many observers, who also worry about the effect these posts have on career opportunities for minority attorneys. According to ALM's Minority Law Journal ... a high percentage of staff attorneys are minority lawyers — filling posts where they make less money than full-time associates, receive fewer (if any) benefits, and have little job security or real advancement opportunities. 'Document review pits are a modern plantation,' one anonymous attorney commented on Joseph Miller's JDwired blog."

We wonder: Are the ABAJ comments just "sour grapes" by relatively few ex-contract attorneys — or do they reflect an endemic problem with selection, supervision, career path opportunties, motivation, and billing practices?

Let's hear from the contract attorneys — what are the actual conditions out there? Has it improved since Monica's report in 2008? Who are the best and worst law firms and agencies to work for and why?

If you'd rather not do a public posting you could send your e-mails to me at I will not disclose your name or e-mail without your prior approval.

August 06, 2011

Blackhat Conference: Beware of a False Sense of Security

Code Last week Blackhat held its annual information security conference in Las Vegas. The conference brings together security experts, researchers, analysts, and hackers (the good ones) for briefings and training on tomorrow’s information security landscape and threats. 

The vendors attending are all about monitoring, detecting, testing, and defending corporate and government computer assets against the latest cybersecurity threats and terrorism. These so-called "advanced persistent threats" include data manipulation, eavesdropping, data theft, sabotage, and denial of service. 

Founder and director Jeff Moss provided the opening remarks, observing that while cyber threats are increasingly sophisticated, complex, and volatile, there is a raised awareness among organizations and international governments about the necessity of cybersecurity.  In fact, McAfee reported that 49 of the 72 hacked companies during the last five years were in the United States — and that's the tip of the iceberg! It is agreed that currently the attacker has the advantage.

The keynote speaker on day two was DARPA's Peiter "Mudge" Zatko, program manager, information innovation office, at the Defense Advanced Research Projects Agency. Zatko made an interesting point that over the last decade, the lines of code used to defend against security breaches has grown from a few hundred to more than10,000; while the lines of code hackers use has remained constant — in the low hundreds. Our response to cybersecurity threats needs to be completely overhauled, if we are going to stay ahead of increasingly sophisticated hacking groups saturating the internet, he said.

In a briefing on Microsoft Windows' vulnerability, it was pointed out that every time you install new software on your computer, you weaken your computer and increase the vulnerability of the system. In other words, adding more software increases the landscape for a hacker to play in and find system vulnerabilities. Even security tools used to harden systems can provide nice rabbit holes for hackers to hop into and gain access to your system.  

Continue reading "Blackhat Conference: Beware of a False Sense of Security " »

Ball in Your Court: "Cloud Cover"

Clouds In the August edition of Law Technology News, our e-discovery columnist Craig Ball says "the cloud is re-inventing electronic data discovery in marvelous new ways while most lawyers still grapple with the old. The cloud will make EDD easier and cheaper while improving the quality and efficiency of preservation, search, review and production."

Check out the article, here.

Do you agree? Disagree? Hit "Comment" and let us know!


Tom Allman Update

Fios is offering an "state update" from Thomas Allman, which can be downloaded here. It addresses the impact of the 2006 FRCP amendments; identifies key EDD issues; and offers an appendix detailing rulemaking activities in the states and D.C.

Also: Check out our video with Allman (former chair of the Sedona Conference's Working Group 1) where he discusses the Duke Law School conference on civil litigation in federal courts, organized by the Judicial Conference Advisory Committee on Civil Rules.


August 05, 2011

Judicial Support Brewing for Predictive Coding?

Judge Predictive coding is already the EDD buzzword of 2011.  In my recent article in the LTN August issue, "Robot Review," I analyze the kind of judicial support we have seen thus far for use of predictive coding in document review.  Add one more judicial voice to the chorus of support, based on online reports about U.S. Magistrate Judge Andrew Peck’s keynote speech about predictive coding at the Carmel Valley eDiscovery Retreat that have surfaced.  As one report by Chris Dale put it, Judge Peck’s keynote was “one of the clearest statements yet by a judge that the use of new technology like predictive coding is an acceptable way to conduct search in appropriate civil litigation cases.” 

Can we reasonably expect to see some of our active e-discovery jurists wade into the predictive coding waters, not just at conferences, but also in written opinions (perhaps with some enlightening dicta)?  Or is waiting for a judicial pronouncement in an opinion about the validity — or lack thereof — of predictive coding akin to waiting for Godot?  Let us know your take in the comments.

August 03, 2011

What if a Software Bug Renders My Product Unusable?

Hello EDD community! I am crafting a commentary/story companion to Evan Koblentz's recent coverage of the Adobe Acrobat trials and tribulations. For the commentary, I am looking to include responses to the following questions:

1) What can a law firm/lawyer do if key software has been rendered unusable due to a software bug?

2) What problems have you personally run into when it comes to legal technology (if any) and what was the response from the company like -- positive or negative -- when you tried to resolve your concerns?

3) If you were a technology company (or if you actually represent one), how would you resolve customer concerns?

Looking for responses by 3 p.m. EST today, and you can e-mail me directly ( as well as post a comment here.

August 01, 2011

Sham Exam?

C1pLTN070811_6x8[1] Our August issue of Law Technology News is now up and our cover story package is already causing quite some buzz.

"Sham Exam: Do your homework before you pay for e-discovery certification" is a package of four articles exploring the controversy about e-discovery certification courses and exams:

• Patrick Oot leads off, outlining critics' concerns that the courses/exams may be exploiting the most vulnerable members of our community — contract lawyers and paralegals — and may present ethics dilemmas for attorneys.

• Albert Barsocchini reviews the for-profit Association of Certified E-Discovery Specialists course and test, coming to the conclusion that it's a step in the right direction, if imperfect.

• Monica Bay (moi) profiles the non-profit Organization of Legal Professionals, led by Chere Estrin, and its certification courses and exam; and also outlines Ralph Losey's E-Discovery Team Training, which is not a certification program but is a four-level series of courses that includes testing.

All three of us talk about the controversy in the August edition of my Law Technology Now podcast! Check it out!

Where do you stand? Hit comment below and let us know!

8/5 Update: With thanks for thoughtful feedback from the community, we have restructured LTN's August issue web edition presentation of the four stories so that you can access each component directly from the main Table of Contents. We have also added a fifth component, Reader Response, where we will post letters — the first being a statement from ACEDS with further information about its program.


Cover image: Mick Wiggins

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