Category Archives: Implementation

v-Discovery Insights: Robert Brownstone of Fenwick & West LLP Discusses his Top 3 Concerns in Data Security

Robert Brownstone has been my friend and colleague for many years.  In fact, he was Chairman of @CalBarLPMT two years prior to me.  We recently appeared on a panel together called, "Under Fire: Defending and Challenging a Motion against Technology-Assisted Review – A mock Meet and Confer (26f) hearing".  He played the role of the Plaintiff's attorney and I the Defendant's.  Robert was a late addition to my panel and I was delighted to present with him again!

 

eDiscovery California: USDC – Northern District of California – Publishes New ESI Guidelines

MP900400507This news is so important to me – and most likely, to you as well – that I actually dropped what I was working on so I could bring it to you asap!  I wanted to make sure you’re aware of the implementation of these new ESI guidelines, which took effect yesterday.  Here’s the press release, and here’s a direct link to the guidelines page which includes a checklist and model stipulated order.

eDiscovery California: Social Media Laws Take Effect Jan. 1, 2013

CTD - LaptopWelcome back, all.  I hope you had a nice holiday and are fully rested so that you may now spend the rest of the season…at the mall!  We're getting close to the New Year and as is true each time we approach January 1st, we have a bunch of new laws taking effect.  California employers and post-secondary institutions should take note of two of them; AB 1844 and SB 1349.  Both were signed into law by Gov. Jerry Brown back on September 27th, 2012.

Although the language in each bill is different, essentially, AB 1844 prevents employers (also potential employers) from demanding, using or exploiting an employee's (or potential applicant's) social media passwords and information.

SB 1349 is substantially similar, except that it applies to post-secondary institutions; both public and private.

There is speculation in the media about the necessity of these types of regulations.  Many believe that a substantial risk of invasion of privacy doesn't exist.  Maybe not; but moving forward, I believe the risk will increase exponentially.

What's next – bionic mannequins???

eDiscovery 101: BYOD = BYOA (ASPIRIN)

MP900438810In the upcoming Calbar book, The California Guide to Growing & Managing a Law Office, I do a side-by-side comparison between the benefits and detriments of BYOD.  I'm sure the same sort of comparison takes place in meetings at all kinds of companies.  There's no doubt that on paper, many aspects of BYOD might yield productivity gains and other benefits for the enterprise.

[Note:  In the book, I lay out information in the format of pros and cons because the goal is to inform a reader of the positives and pitfalls so they can make an informed decision.]

So, what's my opinion?  If I was the consultant, in most cases, I'd likely fall into the 'against' column.  Why?  I'll get to that in a moment.

For those of you who don't know my background, at one time or another, I pretty much did every job on the operations side of IT before I ever became a lawyer.  This allows me to look at facts through a wide-angle lens.  The way my mind works, I literally imagine an issue as a 3-D photograph.  Let's apply that to BYOD:

We start by playing 'swap' for a moment.  Imagine coming into work one morning and all of the desktops are different brands and chipsets; some of them are Windows, but a mix of XP, Vista and Seven, others are Macs with various versions of the O/S and still others are Linux boxes.  Now, you may actually see that in some concerns, for good reason.  But I'm talking about literally a different box on each desk in the office.

That would be kind of hard to manage, wouldn't it?

Maybe it wouldn't seem like it to you, but again, I'm thinking very broadly.  We're not just dealing with realities, we're dealing with expectations.  What do I mean by that?

When I read most of the articles that address BYOD, they speak in terms of locking down various functions on a device, such as email, via Exchange, for example.  But that''s not how I'm thinking; and it won't be how the employees/consultants will be thinking, either.

Nope.  If it's a device supporting their job, they expect everyone up the chain to be able to support the entire device – not just components of it.  And, the enterprise should expect this as well, since a non-functioning device will ultimately affect productivity.

It means that your help-desk, field service technicians, level II (and level III) support will have to be proficient with every make and model of Windows Phone, Blackberry, iPhone and – if you'll pardon the pun – every flavor of Android.  Oh, and did anyone give any thought as to how you're going to back them up in such a manner that the company owns/controls the data?

That's what it means, Jelly Bean.

So, if you're considering BYOD, I hope the decision-makers are taking this into account and formulating policy.  Never mind that I didn't get into the fact that, if litigation arises, staff may have to turn over their personal devices for imaging or examination.  I also didn't get into how growth highly affects BYOD.  We all know the person who runs out and purchases the brand-new, untested, unpatched version of X the moment it's on the market.  Apple Maps, anyone?

I hope you bought the 1000-count bottle…

It’s Fun, Until Someone Loses an i

MP900427743Heard any negative news coming from Apple, lately?

You've got this great, new O/S, iOS6 and you've got this great, new iPhone 5 causing excitement everywhere.  And, you just happen to be on the team that developed the new 'Maps' software – which is destined to knock Google Maps off of your devices.  Oh…one more detaiL…the thing is obviously not ready for prime time.

Imagine being in the rollout meetings.  What do you do?  Are you going to be the one to tell the boss that they should hold the release?  I wonder if anyone actually tried to do that (and kept their head).  Of course, you may also enter an alternative universe in which you:

  1. Convince yourself that, contrary to the information in front of you, your product is the "Best Maps app ever!"
  2. Convince yourself that only a few people rely on Maps and it won't be a big deal if it isn't 'perfect'
  3. Ignore the issues entirely and release it, anyway

Did Apple choose door #3?  Inertia is difficult to contravene; after all, a body in motion stays in motion.  I'm pretty sure, based on the fallout, if Apple had the opportunity for a do-over, they'd seriously consider another path.  Pretty sure…they do have a history of a, "Damn the torpedoes!" attitude; but, they're certainly not alone.

Lesson #1 – Never replace a superior product with an inferior one.  Even if your product is 'adequate', customers will already have been 'spoiled' by the previous experience and expect an equal – or greater – experience (otherwise, why switch?).  This will only serve to augment the replacement product's shortcomings, as if one trained a magnifying glass on them.

Hey, I'm not a billionaire…I'm sure Apple isn't particularly interested in my opinion.  However, I did notice how quickly the company gave out the name of the manager in charge of developing the app…

As the Beastie Boys suggest, Check Your Head.

You’re Gonna Need a Bigger Boat…

 

The Federal Judicial Committee has published proposed Model Jury Instructions (re "The Use of Electronic Technology to Conduct Research on or Communicate about a Case") [link opens 2-page PDF].  I honed in on the following language, to be given before trial and at the close of the case:  "I expect you will inform me as soon as you become aware of another juror’s violation of these instructions."

As well meaning as this language may be, is it a realistic strategy?  Never mind the fact that it's next-to-impossible to know what that person across the room is tinkering with on his or her smartphone.

As Roy Scheider (Brody) said in the 1975 movie, Jaws:

 

eDiscovery California: Proposed Formal Opinion 10-0003 (VLO) is now Formal Opinion CAL 2012-184

Attorneys, please take note: The State Bar of California Proposed Formal Opinion Interim No. 10-0003 (Virtual Law Office) has been adopted as Formal Opinion CAL 2012-184 (link opens 7-page pdf).  If you missed it the first go-round, I highly recommend that you familiarize yourselves with this opinion.

I can lead you to the water (but I can't force you to make the Kool-Aid).

‘Outlook’ for Hotmail: Cooler with a Chance of Replacement

MP900385981Normally, the announcement that Microsoft is transitioning away from Hotmail to their new cloud-based Outlook interface wouldn’t register much space on this blog.  However, due to my posts about using Hotmail to emulate ActiveSync on your devices, there is a tie-in.

First, there’s the perception that having a Hotmail account is somewhat embarrassing.  Why?  Who knows.  I don’t care about how things look; I care about making use of the most efficient process to achieve the goal.  You can even replace an existing hotmail.com address with a new outlook.com address (although you were never required to use a hotmail.com address).  But, if these issues held you back from trying it, well, your problems are solved.

But here’s the better news.  Based on my assessment, Outlook is just a superior interface.  Also, if you implemented Hotmail, transitioning to Outlook takes about two mouse-clicks and doesn’t interrupt or affect ActiveSync.

So, maybe you want to revisit the process…

California AG Establishes Privacy Enforcement & Protection Unit

MP900431800The announcement of this new Unit, which is to be a part of the eCrime Unit, has drawn a lot of skepticism around the 'net.

Here's the official statement from Attorney General Kamala D. Harris' Office.

I only have one question?  Why do people always feel the need to crap on everything before they give it a chance?  Would it be better if public officials didn't at least try to address existing privacy concerns?

I suppose this is why they say, success has many parents; but failure is an orphan…