Category Archives: Technology

Cases of Interest, Education, Law, Law Practice Management, Metadata, Privilege, Scope, Security, Spoliation, Strategy, Technology

The Exchange – San Francisco Wrap-Up


MP900387819Today's General Counsel Institute (Formerly the Executive Counsel Institute) held the San Francisco stop of their "eDiscovery for the Corporate Market" series, nicknamed "The Exchange".  Prior to this, I'd only attended in Los Angeles – and only the first day – but I was on a couple of the panels this year, so attended the entire one-and-a-half-day event.  The moderators for this location were Browning Marean III, Robert Brownstone and David Kessler.

This format is still working for me, folks.  The roundtable approach and ability for all attendees to participate is simply a great way to info-share, and as I've mentioned in prior summaries, the vendor attendees do not overpower the conference with blatant pitches.

Most importantly, I learn something new every single time I attend; and that's the point, isn't it?  Let me share with you the sessions that were covered this year:

  • Polling the audience (Pain points, role, expected outcomes)
  • Data security, social media and the cloud (with a healthy portion of BYOD included)
  • Dealing with challenges of legal holds
  • Recognize/reconcile the ethical and contractual tensions that can arise between I/C, O/C and providers
  • Importance of day-to-day processes, management skills, swimming upstream, info management and governance
  • Effective and efficient project management
  • Recalibrating the program – unaddressed issues
  • Resources and tools
  • Search technologies and forward thinking

And most importantly, several coffee breaks…

Every flavor of eDiscovery professional is represented at these conferences, from lawyers to techies to support staff; and each brings to the (round)table their real-world perspective of what they see on a daily basis.  Practical information, not theory!

I encourage you to check it out the next time the conference is in your area.

Implementation, Miscellaneous, Security, Technology

Int-Elect Required to Defeat Cyberattacks on Voting

MP900402417Sometimes, it's not easy thinking about disaster-planning all of the time.  Not incorporating enough caution means you get it wrong and somebody will be angry with you.  Incorporate too much caution and everyone thinks you're paranoid (insert usual joke here about you all watching me…).

So, how alarmed should we be to hear about the first documented case of a cyberattack on a U.S. election?  If you're in disaster-planning, you would have been concerned about it years ago, prior to election functions like registration migrating to the 'Net and voting machines using touchscreens and tabulating via software.  And to think; recently 'they' were suggesting voting by email…

I can't think of anything more critical than preserving the integrity of the electoral process, but here's some food for thought to all of the factions currently bickering over Voter-ID laws:

While you're bickering over how to guard the front-door, perhaps you should send someone 'round back…

Education, Implementation, Law, Law Practice Management, Science, Scope, Strategy, Technology

ReInventLaw Silicon Valley: GoldenState & the Three Bears

RILSC 2013
What the hell was that???

I’m speaking of the all-day ‘experiment’ (that’s what I’m calling it), ReInventLaw Silicon Valley 2013 conference this past Friday.  Is that a criticism?  Not at all.  This was the kickoff event of a collaborative effort; law students, professors, technologists, investors, inventors, attorneys and everything in-between, all convening in one place (The Computer History Museum in Mountain View, California, to be exact) to talk about the future direction of law practice.  Approximately 40 speakers in all.  You read that right; 40 speakers in a single day (enough to make an LPMT Chairman cry).

And what did we see?  Good talks, bad talks, decent talks, shameless sales pitches, moderately-shameful sales pitches.  Terrible speakers with outstanding messages, outstanding speakers with terrible messages & mediocre speakers with mediocre messages.  Speakers who went on too long, speakers who didn’t go on long enough and speakers who were juuuust right (yes, this was the LPMT-equivalent of the Three Bears…).

And of course, live streaming Tweets hosted on a PC with an IP-address conflict (DHCP, my friends; old school!).  There were funny tweets about there only being five ties in the room (I happened to be one of them).  My response was to create the hash tag, #thesmartesttiesintheroom.

In other words, I had a great time!  It’s very easy to criticize something like this, I suppose, but the organizers were able to land many hard-to-attain speakers while simultaneously coaxing approximately 350 people (by my rough count of how many actually showed up vs. the 500 tickets that were distributed) to convene in one location for a healthy exchange of ideas.

I gotta go…my porridge is getting cold…

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.

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