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What Lawyers Can Learn from Google About eDiscovery

15th May by Jason Krause
Category:
eDISCOVERY

, the company that keeps track of everything people search for on the Internet, doesn’t want you to know how they search for information. At least, that’s what is happening in the ongoing Apple v. Samsung, saga, where Google—a non-party in the case—has been ordered to reveal the search terms it has used to find documents related to the matter.

Google’s search technology is one of the most closely guarded secrets in the business world. So it’s not really surprising that it is putting up a bitter fight in court to keep its search strategies under wraps.  attorneys want to know how Google found the documents it has produced for this intellectual property matter after being underwhelmed by the volume and quality of the information Google has produced. According to the court’s order, argued for the production of Google’s search terms and custodians in order “to know how Google created the universe from which it produced documents.” The court noted that sought such information “to evaluate the adequacy of Google’s search, and if it finds that search wanting, it then will pursue other courses of action to obtain responsive discovery.”

Ediscovery search

 

The Magic Bullet is a Blank

pundits like to think that they can just throw new search technology at data sets and magically retrieve all of the relevant documents in a matter. Everyone hopes through the magic of technology, machines will suddenly be able to review a collection of data and produce evidence to all parties. But lawyers should note that Google, the King of Search, relies on the of use of search terms to find data, not advanced algorithms and black box technology.

There are two important lessons in this ruling:

1. eDiscovery review is still dependent on good search terms. Even Google, the world’s most successful search company can’t find everything if it uses inadequate search terms.

2. Open and transparent search and review processes is essential to meaningful, cost-effective discovery. The court, citing the precedent DeGeer v. Gillis, noted, “[s]electing search terms and data custodians should be a matter of cooperation and transparency among parties and non-parties.”

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8 Ways Social Media Gets Lawyers in Trouble

7th May by Jason Krause
Category:
PRESERVE

We get it. Social media is not something most lawyers think about every day. According to the most recent ABA Legal Technology Survey Report, only 11 percent of attorneys use Twitter professionally. But as social media is now central to more and more matters, lawyers need to think about the ways Facebook, Twitter, and other sites affect their case, or suffer irreparable damage. Here are the most common social media mistakes, oversights, and blunders that could destroy your case— or even put you and your client in danger of sanctions or jail.
Social Media Trouble for Lawyers

 

1. Leaving Social Media in the Hands of Your Client.

Alcohol makers tell their customers to give up their car keys. Lawyers need to take their clients’ social media keys.

In the recent case Gatto v. United Air Lines, Inc., (D.N.J. Mar. 25, 2013) the court sanctioned a plaintiff for deactivating and deleting his Facebook account. The important question is, why was this man still using his Facebook account? The parties had established it was going to be an important piece of evidence in this matter, so why didn’t they make a forensic copy of the data?

According to the court ruling, this is how the parties planned to conduct their : the plaintiff agreed to change his account password to “alliedunited” (the corporate names of the defendants) and and turn the login information over to opposing counsel. However, the plaintiff claimed he didn’t think that would mean anyone would actually be accessing his account, and couldn’t figure out why someone else was logging into his Facebook page. Instead of changing the password or trying to figure out what was going on, he deleted the entire account.

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Understanding eDiscovery in the Cloud

30th April by Jason Krause
Category:
eDISCOVERY

Nextpoint is a trial company at heart, so we love powerful graphics that make your case. We’ve been talking for years about why its important that our services are -based, Software-as-a-Service applications, but it’s not easy to explain succinctly. Here’s one of the few great graphics we’ve found that illustrates the issue clearly.

As more software companies jump on the cloud bandwagon, it’s hard to separate what is a true, Software-as-a-Service cloud application, or to explain what the heck Infrastructure-as-a-Service or Platform-as-a-Service means. Kevin Remde, a technology evangelist at Microsoft published this nifty chart that breaks it all down.

SaaS eDiscovery

The range of options runs from old-fashioned client-server software that demands an experienced, in-house IT staff, to services that offer some infrastructure, all the way to Software-as-a-Service (). As Kevin puts it, should require no “maintenance or updates or hardware other than your connectivity to the online service you’re purchasing.” That’s what we believe every law firm should look for in cloud software.

We at Nextpoint pay Amazon Web Services to use their infrastructure, and then we build out the rest of the software, features, and functionality on top of that. All you have to do is sign up, sign in, and start using the service. We offer training to help new users learn to take advantage of the service, but after that, the software is there for you to use as needed.

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Failure to Preserve Facebook for Litigation is Sanctionable. ‘Nuff Said.

24th April by Jason Krause
Category:
eDISCOVERY

We’ve been saying this for years, but not everyone was ready to listen — social media is now an essential part of litigation. In case you still have some doubts, the courts have now made it abundantly clear that a failure to archive Facebook and other social media content is a sanctionable offense. It will kill your case and destroy your client’s chance for justice.

Recently, we commented on an employment dispute, EEOC v. The Original Honeybaked Ham Co. of Georgia, Inc., in which the court hammered a federal agency for failure to produce social media in a timely manner. Now, in a Gatto v. United Air Lines, Inc., (D.N.J. Mar. 25, 2013) the court has sanctioned a plaintiff for deactivating and deleting his Facebook account despite a clear duty to preserve it.

Failure to preserve Facebook

As part of a personal injury suit, the plaintiff turned over passwords and login information to his Facebook account to opposing counsel. However, after opposing counsel logged into the account they found that the plaintiff had deactivated the account. He tried to claim that he had been involved in a contentious divorce and was afraid that someone who didn’t like him was hacking into his account. After 14 days, Facebook obliterated all data from a deactivated account, as is their policy. However, the court was not buying the angry ex-wife excuse, and issued an adverse inference against Plaintiff for failing to preserve his Facebook account and intentional destruction of evidence.

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eDiscovery Case Law: A Little More Wiggle Room

17th April by Jason Krause
Category:
eDISCOVERY

If companies have one complaint about case law, it’s that they are forced to preserve too much data for litigation. In 2011, Microsoft estimated that the ratio of the data it preserves to the data it actually uses in litigation is 340,000 to one. That’s why defining the duty to preserve documents in litigation is a big concern to corporate general counsels. Until recently, the duty to preserve was pretty clear — the moment litigation is possible, your company should stop automated destruction policies and begin preserving all potentially relevant information from relevant parties.

eDiscovery Case LawHowever, that standard is shifting for the first time in a decade. The groundbreaking UBS v. Zubulake case in the early 2000′s is still the most important precedent in this area. In a series of five separate rulings across hundreds of dense pages of balancing tests, U.S. District Judge Shira A. Scheindlin outlined what electronic evidence was discoverable in in litigation. (Judge Scheindlin also tightened and updated on that standard in Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010). Those cases, and many others that followed, held that the duty to preserve documents, including electronically stored information (ESI), arises when litigation is ”reasonably anticipated.”

For the most part, courts still follow the and Pension Committee standard closely. For example, in Voom HD Holdings, LLC v Echo Star Satellite LLC , (N.Y. App. January 31, 2012) New York State Court’s First Appellate Department applied Sheindlin’s Zubulake standard almost word for word.

A Crack in the Foundation

However, in Chin v. Port Authority of New York and New Jersey, (2d Cir. July 10, 2012) the Second Circuit  softened the standard a bit, arguing that a failure to preserve evidence as soon as litigation is likely is not always immediately sanctionable. The case pits several Asian Americans police officers against the Port Authority of New York in an employment discrimination based on race. During discovery, the plaintiff found that the Port Authority had destroyed human resources records regarding promotions even though litigation was imminent. In the past, the Zubulake standard would have almost certainly meant immediate sanctions were warranted. But because the files were considered relatively unimportant, the court reasoned sanctions were not necessary. Read More >

Cloud eDiscovery and the Law of the Cloud

15th April by Jason Krause
Category:
CLOUD

Since Nextpoint introduced Trial Cloud in 2007 and Discovery Cloud in 2009, one of the main questions we get from law firms regarding our -based litigation software is about security.

We’ve pointed out as often as possible that cloud applications like ours offer inherent security advantages over traditional, locally installed litigation software. That’s because cloud providers like Amazon, Microsoft, and Rackspace invest billions of dollar each year in research and development for cloud platforms. Microsoft recently announced it spent 90 percent, or $8.64 billion, of its $9.6 billion R & D budget on cloud services. , our partner, spends several billion each year on R & D and even more maintaining its security network.

That message might be slowly taking root. At the recent ABA Techshow, we spent a lot of time listening to lawyers talk about using the cloud for . For the most part, it seems that the security of data is not the primary concern anymore. Instead, it seems to have morphed into a more specific concern about ethical obligations in the cloud. That is, can lawyers give data to cloud providers if that data might cross international borders or otherwise leave their control?

Cloud-based eDiscoveryThe Ethics of

The  most recent ABA Legal Technology Survey found only 21 percent of respondents reported using cloud applications in their practice. (We suspect that number is actually higher, given that many people use cloud applications without knowing it. But that’s another post.) We agree that lawyers must consider the ethical implications before transferring data to a third party. But that only means that attorneys give cloud-based applications the same thought and care as with any other application. The preliminary questions for a cloud provider may be different, but the fundamental concern is the same as always: can you assure me that my client’s confidential information is secure and will not be improperly disclosed to other parties?

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