All posts by Perry L. Segal

eDiscovery California, Education, Law Practice Management

Upcoming Presentations: eDiscovery Fortunes & the San Francisco Exchange!

00443095

Beware the Ides of March…(or technically, four days afterward)…

March 19, 2013 – 1:00 P.M. to 2:00 P.M.:  I'm presenting a co-branded webinar for both the State Bar of California's LPMT and Intellectual Property Law Sections, entitled: "Discover
a Fortune Hidden in a Computer: A Practical Guide to E-Discovery".

As we know, depending on the results of any forensic exam, it might result in misfortune for one side or the other.

March 26, 2013 – 8:30 A.M. to 6:00 P.M.:  I'm also delighted to be added to the faculty of Today's General Counsel's, "eDiscovery for the Corporate Market", aka "The Exchange".  On the first day, I'll be one of the moderators of two panels; Session 2: "21st Century Considerations: Data-Security, Social Media and the Cloud", and Session 6: "Effective and Efficient Project Management".

I'm surrounded by some impressive heavy-hitters on this one and as I've stated in the past, I really like the roundtable approach, which fosters great participation and discussion (which is why I was happy to join the faculty).

Hey, at least I didn't say, I liked it so much, I bought the company…

California Lawyer, Criminal Liability, Duties, Education, Implementation, Law Practice Management, Scope

Calbar Looking at Limited Law Licenses: It’s all about Standards

MP900341927An article in the February 2013 issue of the California Bar Journal states that the Calbar Board of Trustees is examining the possibility of creating a class of "limited-practice licensed" individuals.  Among the reasons provided as the catalyst (e.g. lower cost to consumers, path to eventual Bar passage), ostensibly, the Board also believes this would circumvent instances of unauthorized practice of law (UPL).  UPL (Rule 1-300) falls outside of the Bar's jurisdiction and is normally addressed as a misdemeanor charge via a criminal complaint.

A form of certification already exists within the Bar (or at least, it used to), called "Certified Law Clerk".  I know it well because I was one when I worked at the L.A. County D.A.'s Office during law school.  From memory, some of the criteria to be certified included being a 3L and having already passed the Evidence course, among other things.  Certification allowed me to perform more duties than a standard law clerk.  Obviously, I see some benefit to the idea.

However, I also see detriment, and the first one that comes to mind is expectations.  What level of expertise will a client of this class of legal professional believe they are – or should be – receiving?  Who will guard the line between limited-practice and unlimited practice to ensure that the provider doesn't cross it?  Who is at fault if the provider doesn't meet the standards the client believes they should meet?

Is a new tort called "Limited-Malpractice" going to spring out of this plan?  Will it ultimately 'dilute the brand' of what being a lawyer means?

Considering that I'm Chair of the Law Practice Management and Technology Section Executive Committee, if this new class is ultimately created, my Excom will likely be front and center during the implementation process.

Either way, I'll say this; the Board has their work cut out for them!

Science, Spoliation, Technology

Solid State, Spoliation, Stochastics, Shrodinger’s Cat & Wyatt Erp

MP900401975Last year, I was presenting at the Calbar Solo Summit and the issue of gleaning evidence from solid state drives (aka SSDs) came up.  From a technological standpoint, SSDs are highly efficient; from a forensics standpoint, they can be a nightmare.

The problem one faces with being queried about this issue is that it results in a very common answer I have to give when faced with a one-hour presentation and little time to explain; it depends.  Of course, on this blog, I’m not time-constrained.  Furthermore, I don’t re-invent the wheel when others have so elegantly explained the issue.

But, for a basic overview, let’s break down the data recording patterns into three possibilities:

  1. Random data is written to an open area.  When data is marked for deletion, it is not deleted immediately, but in the future, when a need arises to utilize that space.
  2. New data is written to an area containing existing data that is marked for deletion, thereby overwriting that data.
  3. Data marked for deletion is actually erased, then other data is written to the same area at a future time.

If you asked most people what happens when they record something on magnetic tape, most believe that there’s simply one ‘head’ that records onto the tape while simultaneously recording over anything that already exists on the tape.  Not so.

This is where “ERP”, comes in.  It’s just a simple mnemonic that stands for “Erase”, “Record” and “Playback”.  There are actually three separate heads, in that order, so when the tape passes over them, the first head erases any data, then the second head records new data.  In playback mode, obviously, the other two heads are bypassed and the playback head is used.

The reason I mention it is that most people also believe that deleting data on a drive is instantaneous, when normally, as illustrated from the examples above, it is not.  However, SSDs are closest to that process through an operation called ‘self-corrosion’.  Very soon after data is marked for deletion, that data may be gone; and I mean, really gone and unrecoverable.

Add that to the long list of challenges faced by data forensic investigators.

Miscellaneous

50/50

MP900426632Remember when I used to update you prior to being away?  Well, I started by going home to celebrate my mom's 90th birthday (quite an achievement!) and ended with three days of State Bar meetings.

Oh yeah, and I turn 50 tomorrow…

Nevertheless, I'm back and will pick up where I left off soon.

Admissibility, Constitution, Law, Technology

California’s SB 1303 Shines a Red Light on Challenging Traffic Camera Evidence as Hearsay

MP900401489Folks, I think this post is as simple as having you read this excerpt from Senate Bill 1303(3):

“(3) Existing law,
known as the hearsay rule, provides that, at a hearing, evidence of a
statement that was made other than by a witness while testifying at the
hearing and that is offered to prove the truth of the matter stated is
inadmissible, subject to specified exceptions. Existing law provides
that a printed representation of computer information, a computer
program, or images stored on a video or digital medium is presumed to be
an accurate representation of the computer information, computer
program, or images that it purports to
represent.
This bill would provide
that this presumption applies to the printed representation of
computer-generated information, video, or photographic images stored by
an automated traffic enforcement system. The bill would expressly state
that the printed representation of computer-generated information,
video, or photographic images stored by an automated traffic enforcement
system does not constitute an out-of-court hearsay statement by a
declarant.”
California Lawyer, Duties, Law Practice Management, Media, Social Media, Technology

Calbar Formal Opinion Interim No. 10-0001 (Social Media/Attorney Advertising) is Now Formal Opinion CAL 2012-186

MP900423020Happy New Year!  Some of you may recall when I wrote about this proposed opinion back in early June.  It addresses when a social media post by an attorney might cross the line from a statement to an advertisement, thereby triggering additional state bar rules.  In late December, apparently with little fanfare, the opinion was formalized as CAL 2012-186.

California Lawyer, Law Practice Management, Miscellaneous, Technology, The Bench

AB 2073: eFiling Requirements for Orange County, California Superior Court – Effective 01-01-13

MP910220916Happy New Year, All!  I've been taking a little bit of a break from blogging, combing social media, etc.  However, this tidbit on AB 2073 crossed my path yesterday.  I'm posting the information verbatim from the Orange County Superior Court website:

PUBLIC EFILING NOTICES:  Effective January 1, 2013, pursuant to amendments
to Code of Civil Procedure section 1010.6 and Orange County, California
Superior Court Rule 352, all documents filed in limited, unlimited, and complex
civil actions must be filed electronically unless the Court rules otherwise.
After January 1, 2013 any document that is electronically filed with the court
after the close of business shall be deemed to have been filed on the next
court day. “Close of business” means the time at which the court no longer
accepts filings at the court’s filing counter (e.g., 4:00 P.M.). Although not
ready for immediate implementation, the court is working towards extending the
electronic ‘filing window’ to midnight, at which point all documents filed
before midnight on a court day will deemed to have been filed on that court
day, and documents electronically filed on or after midnight will be deemed
filed on the next court day.

Cost, Duties, Education, Implementation, International, Law Practice Management, Metadata, Privacy, Privilege, Sanctions, Scope, Social Media, Strategy, Technology, Zubulake

Summary of Executive Counsel Exchange – Day One

Last week, I attended day one of the Executive Counsel Exchange in Los Angeles, as has been my custom the past three years.  Just to clarify, this conference is sometimes referred to as the Executive Counsel 'Institute', but the actual program is called, "The Exchange" and the theme is, "e-Discovery
for the Corporate Market".

This year, the primary moderators were Browning Marean III of DLA Piper, my old pal Robert Brownstone of Fenwick & West and David Kessler of Fulbright & Jaworski.  This is one of my favorite programs because it's a roundtable.

The reason this particular conference is so beneficial is that attendees share their day-to-day experiences confronting the many eDiscovery challenges we know so well.  I've always considered the practical much more important than the theoretical – mostly because people, situations and budgets don't tend to comport to the (IMHO) wishful thinking that appears in many overly-optimistic project plans.

Take a look at the agenda.  If these look like the kinds of issues you see, think about attending.  The next event will be held in late March in San Francisco.

Cases of Interest, Cost, Law, Management, Sanctions, Social Media, Technology

Did Netflix CEO Violate Regulation “FB”?

MP900422415If you've already seen the headlines, you know that Reed Hastings, CEO of Netflix, has received a Wells Notice from the SEC.  They're considering taking action on a violation of Regulation FD due to an alleged 'material' disclosure on Facebook that Hastings posted to his 200,000+ subscribers back in July 2012.

The gist of the issue?  The SEC claims that those subscribers received an unfair advantage because they had access to the information in advance of the general public; and presumably traded based on that information.  Naturally, Hastings' view is contra.

Is it a violation?  I dunno.  We're going to see more of these issues arise as social media continues to wend its way into the corporate mainstream.

Related articles
Netflix Gets Wells Notice Over CEO Hastings' Facebook Post