Category Archives: Cost

Cost, Media, Sanctions

The Seven-Second Solution: You’re Suspended!

MP900175530 Folks, I know we have a sense of humor (otherwise, you'd be offended by half the posts I write), however, maybe it's just me, but I'm starting to think the general population doesn't.  Granted, these are tough economic times, we have wars going on, and yes, seriousness has its place.  But, knowing what you do about the reactions lately to 'attempted' humor, you've still got to do what I advised way back in the olden days; be your own filter.

Think it if you want to, just don't repeat it.  It's not worth it.  My Twit List has grown longer and longer with these examples, but look what happened to journalist Mark Halpirin yesterday.  He made a joke – and even warned everyone ahead of time that he was about to make it – yet, still was suspended by MSNBC.  Of course there's more detail to the story, but we don't need to hash out whether he regrets the decision to tell it out loud.

Last I checked, this was the land of free speech (I'll point out that this incident should not be confused with Constitutionally-protected speech, which commenters mistakenly do all the time), but with electronic devices come new problems.  Virtually everything you say or email and every destination you travel to is now being monitored by someone.

Remember Ari Fleischer?  "Americans need to watch what they say, what they do".  Who ever thought it'd come to this?!

Backup & Recovery Systems, Cost, Criminal Liability, Disaster Recovery, Education, Implementation, Law Practice Management, Scope, Strategy

#CalBar Solo & Small Firm Summit Recap

MP900439382 Yeah, I know.  The summit ended Saturday at noon.  It's been a busy week for me, but better late than never.  I had to skip the Thursday sessions, but arrived early Friday morning.  I was backing up another one of my LPMT colleagues in the tech lab, so between his presentations and mine, I didn't get to attend anyone else's sessions, which was a shame, because there were some good ones.  I did catch the bulk of Stephen Fairley's morning keynote on marketing and SEO.  I can only say this; the man is right on about what he was saying.  It was similar to the advice I received from my web guru, Clint Brauer.  Bottom line; if you're going to make a serious attempt at creating an online presence, you need to understand how your information will propagate to the 'web before you develop web sites, create accounts, etc.

I didn't know what to expect for my labs on disaster planning, but for both sessions (I did the identical presentation back-to-back) I had full houses.  The attendees asked a lot of good questions – which is the first indication they're not bored – and although we had some technical difficulties, I was able to illustrate how, in some cases, a few minutes is all it takes to create a basic backup strategy.

Day three, Saturday, I took in the morning keynote on "Multitasking Gone Mad", or, how the more we multitask, the less we accomplish.  Now, this was Irwin Karp presenting – who also preceded me on the LPMT committee – but I'll tell you, the idea of doing one thing at a time is something to strive for, but awfully hard to accomplish.

The second session should really make the eDiscovery people excited.  It covered hearsay (civil, for the most part), but guess what the starring attraction of most of the examples was?  Electronic evidence!  For example, the presenter showed a slide from a traffic camera of a car colliding with a truck at an intersection.  Another was a photo of a simple bar code (not a QR code, like the one you see on my right sidebar).  In both instances, the question was, is this hearsay?  As usual, the answer was, it depends on your jurisdiction.

The third session was one that eDiscovery professionals most likely wouldn't be attending.  It covered the activity up to and including the arrest of a client.  As you know, I also handle criminal cases, so again, this was a good refresher for me.

So, basically a quick in-and-out, and barring any changes to the schedule, my next presentation will be at Calbar's annual meeting in September.

Cost, Miscellaneous, Security, Technology

In the #Navy…You Can Sail the Seven Sins

Ship Happens
In the navy / No, you can't put your mind at ease.

I beat (not disco, usually) the privacy drum a lot because many times, the invasion is subtle.  I experienced it again with my new Droid.  The way Google would like us to sync contacts is to – among other methods – use Google Sync, sending our private information to their cloud, then delivering it to the device.  EarthLink tried to get at my contacts in a similar manner – by claiming I had to upload my address book in order to enable their custom spam filter.

My answer to both was the same – "Ain't gonna happen".  My EarthLink issue is old news; as far as the Droid is concerned, with a little time and research, I was able to sync via USB directly from the database on my local PC.

It's all about control.

I'm quite well aware that some of you think I go overboard (no pun intended, based on today's headline), but read this story from the Washington Post about the increase in Navy commanding-officer firings – and how technology is literally destroying the ranks from the inside-out – then tell me I'm overreacting.  I'm not going to pontificate.  For those who don't read the article, I'll let the following two quotes do it for me:

From the reporter, describing part of his conversation with Admiral Gary Roughead (chief of naval operations):  "He attributed the rise in part to the revolution in communications and technology, which has made it easier for sailors and their families to snoop on one another and then instantly spread the word — even from once-isolated ships at sea." (italics/bold added)

And from Adm. Roughead, himself:  “The divide between our private and professional lives is essentially gone". (italics/bold added)

Maybe that's what they meant by "Learn science technology"…

Cost, eDiscovery LOL, Media, Miscellaneous, Sanctions, Twit List!

e-Discovery LOL? Weiner Resigns

MP900444351 Normally, this would be relegated to the 'Twit List', but I'm making an exception.  A lot of people are still laughing about this issue…but is it funny?  Let's review.  A guy initiates some sexting, takes a few raunchy photos of himself and…that's about it.  Unfortunately, this guy happens to be a U.S. Congressman, but a couple of weeks ago, that was his claim to fame.  Now, look at what's changed:

  • He's disgraced himself and embarrassed his family
  • We can only imagine what his wife is going through (and a newlywed, no less)
  • He's resigned his prestigious position
  • A novelty company has created an X-Rated doll to mock him

You know what else?  He could be you.  What's the only thing that distinguishes him?

Circumstances.

Backup & Recovery Systems, Cost, Disaster Recovery, Security, Technology, Tips & Tricks

Tips & Tricks: A Password-Protected PDA May Save your Bacon One Day

MP900405586 Remember this post from precisely three months ago?  Well, I'm here to tell you; lightning does strike twice – and I mean exactly!

I'm out of town – in the same place I was three months ago – and once again, my Blackberry was working fine this morning…then it wasn't.  It was virtually the identical problem to last time (frozen solid), except for two glaring differences; 1) I haven't made any modifications to the device in a while, so there wasn't any clue as to why this happened and, 2) (this is critical) I could get to my password screen and unlock the device.  I would also like to note that I have virus software and upon reboot, was able to run a sweep before the device froze again – no sign of any contamination.

So, I went over to the same retail outlet, where some of the same people tried to do the same thing (a software repair push).  Fail!  I basically told the techs (same as last time) "I don't care if you have to wipe it out, I have no problem restoring from backup." (Yes, I have a recent backup, just like last time).  I also told them, "Whether this works or not, I have to walk out of here with a working device."

But – just like last time – no love.  They couldn't wipe the device, either.  Now, here's where it gets ugly.  Last time they had a spare Tour in stock – this time, they didn't.  So, they offered to have a new one shipped to me via overnight courier.  Normally this would be completely reasonable.  Unfortunately this happened today, and on this particular day, this device must work.  I can't forward my cell number elsewhere because I'm out of town, on the go and I need to be reachable (is that even a word?)

This is where the password-protection comes in.  With a Blackberry (not familiar with how other PDAs handle this), when password-protection is enabled, a companion security setting automatically enables a 'doomsday' scenario – and you can't turn it off (unless you disable password-protection altogether).  That's right; it doesn't just fail to unlock the device – it allows you to select the number of incorrect passwords you'll allow (from 3-10), then if that threshold is reached, the device wipes itself out.  Even the techs at the store didn't know this.  So, as a last resort, I suggested, since the only thing that did work was the password screen, try repeatedly entering an incorrect password to trigger doomsday.  Even though the device was frozen otherwise, I hoped that enough of the O/S was running in the background that it might work.

SUCCESS!!!

Most of you know I tend to be vague about my devices, but most of you also have long since figured out my PDA is a Blackberry.  The reason I mention it this time is, I'm afraid I'm worn out with them.  Just like my clients, I cannot afford to have a primary device crashing for no reason.  I lost more than half a day resolving this in the short-term, but for the long-term, I'm switching to a Droid.

Cost, Criminal Liability, Law, Technology

e-Discovery Insights Turns Bi(Coastal) to Examine Teen Sexting

MP900431786 By (no pun intended) coincidence, both the states of California and New York are addressing sexting issues by students and/or teens.  The California Senate has already passed their version, while New York has only reached the proposal stage of their version.  New Jersey is ahead of both states and has already passed a bill.

California's approach is more in the discipline arena, spelling out how students may be punished for sexting where the misconduct falls under the jurisdiction of a school.  New York's is more broad and is geared toward a diversion program for first-time young offenders.

We've seen many jurisdictions take a very hard line where sexting by and between minors is concerned.  For example, children have been charged with distributing child pornography – even for sexting photos of themselves.  These are serious felonies that could result in jail time as well as the perpetrator being forced to register as a sex offender.

Furthermore, we get into a sticky area of protected classes, which are rules designed to protect the target class of an offense.  In other words, if a statutory rape charge is designed to protect a young female against the advances of a young male, and both are caught having sex, the rule prevents prosecuting the female because she's in the class the offense is designed to protect.  I refer to it as the "Groucho Marx" Rule (you know, "I wouldn't join any club that would have me as a member"?)  The relevance here is that in many sexting cases, minors are being charged via underage rules that were designed to protect – you guessed it – minors.

I like to preface all child-related discussions with the fact that I don't have any children, so I'm not pretending to be the most qualified in the area, however, my approach is to ask current parents what they think they might have done if they'd had access to all of this amazing technology when they were young and – most likely – didn't consider the consequences of their actions?  Do they think they might have done ill-advised, accidental or – dare I say – stupid things?  Most of them would probably admit they might have; or did.  Would they want their lives – and possibly their entire futures – destroyed due to one moment of poor decision-making?  Remember, the only difference between now and then is, Twitter, Facebook and the Internet didn't exist to capture it all in real-time.

Normally, I wouldn't 'go there', but since this just happened a couple of hours ago, what do you think Anthony Weiner (D-NY) is thinking about right now?

We have to look very carefully at the facts.  If the incident was truly devoid of the intent to do harm, I have to say, I like New York's approach.

Besides, dammit, if the Internet existed when I was young, I'd be a famous rock star instead of a lawyer!

Backup & Recovery Systems, Cost, Disaster Recovery, Implementation, Strategy, Technology

EC2 Say, Amazon…Not So EC2 Do…

MP900425511

 

Folks, I'm not going to bag on Amazon.com too much for their Elastic Compute Cloud (EC2) failure; I'm sure they're getting enough flack from their customers.  However, this is why I dislike any absolute statements when we're dealing with this type of technology.  Technically, they're right.  You don't have to worry about the cloud.  You do have to worry about your cloud.

The cloud may have a backup plan for you.  Do you have a backup plan for your cloud?

Backup & Recovery Systems, Cost, Disaster Recovery, Implementation, Law Practice Management, Management, Strategy

Glossary of Excuses

MP900448581
Risk.  What is it, exactly?  Here are a few good definitions:

"The possibility of suffering harm or loss; danger."

"Product of the impact of the severity (consequence) and impact of the likelihood (probability) of a hazardous event or phenomenon."

"The quantifiable likelihood of loss or less-than-expected returns."

"The amount of statistical gamble that someone (usually management) is willing to take against a loss. That loss can for example be either in profits, reputation, market share, or franchise."

Ok…so, knowing that all of this is on the line, why do I keep hearing words like, "Underestimated", "Miscalculated", "Unexpected" and "Unanticipated" every time something goes wrong?

I'm unimpressed.

The latest is the crack (or should I say, sun roof) that appeared in the fuselage of a Boeing 737.  As either lawyers or techies, our miscalculations are bad enough, but when these people miscalculate (as in our previous study of Japan's nuclear mishap), other people die!

As a human being, I have to at least give Boeing credit for stepping up to the plate and publicly acknowledging their mistakes.  As an attorney?  Well…that's another matter, entirely.

A company I worked with many years ago hadn't implemented any disaster-planning.  When their catastrophic event occurred (prior to my arrival), they were essentially out of business for close to three weeks before the systems could be rebuilt.  In another incident, one of my direct reports was fooling around with an Exchange server and ended up accidentally deleting one of the accounts.  Too bad it happened to belong to the CEO…

Yep, disregarding risk may result in a death…but in our disciplines, it's more likely to be one of us!

Cases of Interest, Cost, Duties, Implementation, Sanctions, Scope, Spoliation, Strategy

Newton’s 3rd Law of eDiscovery

"For every eDiscovery action, there is an equal and opposite reaction."

— Sir Isaac Newton

W_newton

As I've mentioned before, my litigation hold letter – that you see over on the right sidebar – is still the most popular link on the blog (next to the actual posts, that is…).  I've also provided this template to attendees of my presentations.  A question comes up regularly:

"If we send out a letter like that, our adversary will simply replace their name with ours and send it right back to us.  We don't want that to happen!"

It's a good point.   And as I've also mentioned before, what's good for you may also be good for your adversary.  Furthermore, there's absolutely no fault in thinking about this strategically, for example, keeping your clients' advantages/disadvantages in mind when you craft your demands and responses (which, hopefully, you're doing anyway).

There are times when you want everything but the kitchen sink, but sometimes, the sink itself will do nicely.  After all, if both sides produce a gargantuan amount of product, somebody's going to have to review it – and pay for it.

Be careful what you wish for in litigation; you might get it – and get nothing.

An adversary may produce reams of product, the sole purpose of which is to either make it next to impossible to find relevant needles in the document haystack, or worse, obfuscate the fact that they didn't produce relevant documents at all.  Oracle's Larry Ellison knows a bit about this [In re Oracle Corp. Sec. Litig., 627 F.3d 376 (9th Cir. 2010)].

That's why my template is meant only as a guide.  It may be appropriate to issue a letter that simply says, "You're on notice and we expect you to preserve relevant data."  And here's the other elephant in the room to consider; are you absolutely certain that your client is completely forthcoming about their own data?  If not, we already know who'll be on the hook for it.

As for attorneys who are complicit in assisting their clients with 'hiding the football'?  As they said in the movie, Airplane, "…they bought their tickets, they knew what they were getting into. I say, let 'em crash!"

Huh?  Wrong Newton?  Don't look at me.  Go back and redo your keyword & concept searches!

Fig_newton