Another example of the risks of trusting your data to the cloud:
http://hosted.ap.org/dynamic/stories/U/US_HOTMAIL_GLITCH?SITE=TXPLA&SECTION=HOME&TEMPLATE=DEFAULT
Sent from my Verizon Wireless BlackBerry
Category Archives: Backup & Recovery Systems
“IDK”
"Today, more
organizations have a policy than ever before, but only one-third have tested
their policies and nearly half do not know if their policies have been tested."
~ Kroll Fourth Annual ESI Trends Report
I hadn't even opened my copy of Kroll's new report yet; that little tidbit was in their preamble. It's an excerpt from their section, "A Decade of Discovery". [The report is free, but you're required to register]
What else disturbs me? Only 53% of companies have a litigation hold tool in place. 47% either don't have – or don't know if they have – a litigation hold methodology in place. 62% either haven't – or don't know if they haven't – tested their ESI policies. 62%. Unbelievable!
That's a lot of "I don't knows". All I keep thinking is, did the survey-respondent ask anybody before they answered these questions? If not, they're basically admitting they're part of the problem! Where's the communication!?
The other buzzword you're going to be hearing a lot more of is "ECA", aka early case assessment. A lot of my colleagues have blogged about it. You'll see it visually represented as the "ECA Funnel". The short description is a review of a particular case to determine whether it's worth prosecuting – or defending; usually based on cost analysis and/or drag on resources.
Do you hear that sound? That's the creaky door of the e-Discovery Insights vault opening to two posts from November of 2008 about proper testing. Part I covered identification & preservation. Part II covered collection.
This just goes along with my premise; eDiscovery issues are solved at
the beginning, not the end.
Q.E.D.
e-Discovery California: Don’t be EVIL, Los ANGELes…
Theory is usually easier than practice. You project managers know exactly what I'm talking about. Courses like the Project Management Body of Knowledge (PMBOK) have value, but one item tends to be underestimated; the human element. Projects always look great on paper but unfortunately, they're not executed by robots. They're executed by people with varying talent, ambition, health and – dare I say it – competence levels. Add to that the other human elements; management support or lack thereof, other duties of the team (distractions), unexpected emergencies ("Hey, I need to borrow Steve for a few hours…"), predictive miscalculations and – dare I say it, part II – the competence of the project manager.
With this in mind, it comes as no surprise that Google has missed a deadline to convert the City of Los Angeles email system to the cloud due to security concerns with the L.A.P.D.'s data. Tha-a-a-a-a-t's gonna cost 'em. Worse, they beat out Microsoft for the contract.
Ultimately, the issue will be resolved, but it begs the question – what happens when L.A. requests to retrieve data? Another cautionary tale about 3rd-party vendors…
O Canada!
Canada Day is tomorrow, July 1st. In honor of this annual event, I'd like to highlight two stories of interest:
The 1st item is a tip of the hat to firms who take preservation of critical data seriously. Roebothan McKay and Marshall suffered a catastrophic loss when the practice was destroyed by fire. Yet, it'll be business as usual for the firm. Partner Steve Marshall said that the hard drive containing client data was retrieved and that back-up
data files were also contained off-site.
What if this happened to your firm?
The 2nd item is a link to an excellent article by Clifford F. Schnier (who is also on my blogroll) about the "state of the union" of e-discovery in Canada. Of course, when Cliff learns that I used "Canada" and "state of the union" in the same sentence, I suspect he'll be in touch to give me a history lesson…
FINRA Fines Firm for Failure
I plucked this particular headline out of many as an excellent real-world illustration of the downside of failing to properly retain and archive data. In this particular instance, Piper Jaffray paid FINRA (the Financial Industry Regulatory Authority Inc.) a $700,000 fine because they were unable to produce an electronic copy of a single email message for an investigation.
Unfortunately, that's when Piper "informed" FINRA about the other 4.3 million emails they failed to retain over a period of six years. Obviously, I don't have the inside scoop as to why this occurred, but based on experience, I can tell you that $700,000 buys a lot of data protection.
As I've pontificated on many occasions, what if this involved a lawsuit or a tax issue; or a host of other issues? Does it really matter? Proper data retention and management may involve a large capital outlay, but pays for itself over and over in the long run.
If you're the person tasked with getting this done, forward this story to your bosses – or present copies at the next meeting. Eventually, someone will realize that avoiding the issue is simply penny-wise and pound-foolish.
CA Lawyer: IT from Mars, Lawyers from Venus
Folks, I'm going to trial Monday so forgive the sparse posts. I wanted to point you to this article in CA Lawyer magazine from my colleague, Robert Brownstone. He and I are both on the CA State Bar's Law Practice Management & Technology executive committee. We were amused to discover that his article would be published this month, and my next article (on the intersection of e-discovery and privacy) is scheduled for July's issue.
We're also presenting a CLE seminar along with a third colleague (for you non-lawyers, that's "continuing legal education") at the CA State Bar annual meeting in September.
In the same issue is this blurb about e-discovery coming back in-house. It's funny because I recently observed that more corporations are attempting to handle e-discovery internally to save costs and that lately all of my new clients are law firms.
Case Got Your Tongue? Caffeine, Voicemail & 8 is Enough
Mistakes…carelessness…sanctions. Month after month, I review a plethora of new decisions, looking for something unusual and interesting. Do I find usually find it? No. Look at this summary of nine recent cases that Kroll Ontrack has compiled and what do you see? Sleight of hand, ignorance of the rules & stall tactics.
Starbucks Corp. v. ADT Sec. Servs., Inc., 2009 WL 4730798 (W.D. Wash. Apr. 30, 2009): In a case that harkens back to the "Jerry Maguire" case I wrote about over a year ago, the court ruled that just because your emails were backed-up on a "cumbersome old system" doesn't automatically make them "not reasonably accessible". If that isn't enough, they also said, "…even if the information was ruled not reasonably accessible, good cause existed to order production." [italics added]
There are still people out there who seem to think that the federal rules themselves somehow determine what is – and isn't – reasonably accessible. In fact, someone wrote a letter claiming this very fact in response to one of the articles I wrote in California Lawyer magazine.
Dead wrong. The court decides what these parameters are, based on the facts of the instant case.
Vagenos v. LDG Fin. Servs., LLC., 2009 WL 5219021 (E.D.N.Y. Dec. 31, 2009): The quirk in this case is, defendant was awarded an adverse inference sanction over plaintiff's failure to properly preserve a voice-mail message – even though there was no evidence of bad faith on the part of the plaintiff. Negligence vs. intent…
Magaña v. Hyundai Motor Am., 220 P.3d 191 (Wash. Nov. 25, 2009): On appeal, the Supreme Court of Washington applied the three-prong default judgment test (willfulness of violation, substantial prejudice to opposing party and availability of lesser sanctions) and reinstated an $8 million default against defendant. Parties are still betting against the house; but more and more often, the house wins.
Case Got Your Tongue? Arrest, Lies & Videotape
Hat tip to my colleague William Hoffman…
I thought I wasn't going to find anything relevant for my usual Friday post, but Peschel v. City of Missoula, 2009 WL 3364460 (D. Mont. Oct. 15, 2009) has it all; alleged crimes, police brutality and missing video from a police cruiser. I'm pressed for time, so I ported you over to K&L Gates for a look at the details, but here are Mr. Hoffman's comments:
"Finding
that a video of Peschel’s arrest was lost as a result of the city’s
recklessness, the court granted defendant’s motion for sanctions and
“designat[ed], for purposes of the case, that the arresting officers used
unreasonable force to effect the arrest of [defendant].” What struck me
was the failure of the city to back up the data on its computer (particularly
the video) was determined to be reckless, thus paving the way for severe
sanctions."
From the case itself:
“The department failed to have any type of
back-up system in place to ensure the preservation of the video recordings. In
view of the importance of the video recordings, it went beyond mere negligence
for the department not to have adequate safeguards in place for protection of
the recordings.”
Have a good weekend.
Redux: Orly gets Sidekicked!
We're revisiting two former posts today to see how things are working out…
First, we have birther Orly Taitz. Her frivolous filings have resulted in a $20,000 sanction from judge Clay Land. She has a lot of supporters who I'm sure will raise the cash for her, so I don't think it'll serve as much of a deterrent. But maybe this will; the judge has also referred his order to the State Bar of California.
If you want to read a PDF of the judge's order, click here.
Second, we have the Sidekick smartphone and all of the lost user data. I've been following this story with interest. Microsoft has issued a recovery tool, but it only applies to contacts, not all of the other data such as photos and notes. As expected, class-action lawsuits are flying, but many will fizzle out if the recovery tool works.
At this point, there's no solid confirmation that users have recovered data – or what particular data has been recovered – but there's a moral to this story. It originally hit the news wires around October 10th and the recovery tool was to be available yesterday.
Moral #1: Can you afford to be out of commission for two weeks? When you trust your data to the cloud, make sure it isn't the kind made up mostly of vapor.
Moral #2: Always, always, back up your own data whenever possible.
Cloud BURST!
The lead paragraph from this Washington Post article says it all:
"A server meltdown over the weekend wiped out the master copies of
personal data — including address books, calendars, to-do lists and
photos — accumulated by users of T-Mobile's formerly popular Sidekick smartphone."
It's a little out of our element, but I touched briefly on the risks of cloud computing back in April. Well, T-Mobile users are getting a front-row seat to what happens when those entrusted with your data don't endeavor to properly protect it. And this isn't just any old vendor – this is Microsoft subsidiary Danger, Inc.
There isn't really much to add, except that had this happened to one of my clients under my watch, I would have been fired!