Category Archives: Privacy

Test-Driving Windows 10: What You Need to Know Before You Upgrade

[…and what to do if you’ve already upgraded]

Windows-10-wallpaper
Windows 10 was released in late July to a lot of fanfare.  Even as a ‘tech-guy’, my rule of thumb is to never install an upgrade to a Windows operating system until Service Pack 1 is released.  But, as is true with many other users, Windows 8.1 (and Windows 8.0 before it) was a big disappointment to me and I figured anything would be better than standing pat.  So, under the dual-philosophies of, “Tech, Heal Thy PC” and “Document it for my readers”, I installed Windows 10 as soon as it became available.

Good thing I know how to fix my technology.  On the plus side, you get to learn from my pain.

LOOKING UNDER THE HOOD

Do I regret doing it?  No.  Was it a successful upgrade?  Yes and no.  First of all, there are a lot of tweaks that must be dealt with, but other than being time-consuming, they weren’t particularly difficult.

What was difficult was that Bluetooth support disappeared.  What do I mean by disappeared?  I mean that, not only did it not work, the entire module was missing as if that feature didn’t exist on my PC.  It can be blamed on both Microsoft and Toshiba, my PC manufacturer.  As I found out later, Toshiba didn’t release Windows 10 compatible drivers until about a week after the upgrade was available (which strengthens my advice never to rush to upgrade).

But that was a week later.  I had a problem to address now.  I dug out my old usb mouse (my current mouse is Bluetooth) and got to work figuring it out.  When it comes to troubleshooting these types of problems, patience is a virtue.  There’s always an answer, but it may take time to find it.  In this case, the answer was simple: my driver didn’t work and I had to find one that did work.  The fix, on the other hand took time.  I visited both the Toshiba and Intel sites for support, but being unable to find drivers that specifically identified as being compatible with Windows 10 (or my PC model), I simply started with the next version up from my driver and continued a pattern of install/reboot/remove/reboot, install/reboot/remove/reboot until finally, Bluetooth miraculously reappeared!

Of course, I had to try a lot of drivers – and had a lot of other work to do – so that process took two days.  Not that bad; but the real reason I needed to repair it was that I connect to my smartphone via Bluetooth for other purposes.

Remember, I was willing to take the risk, so I’m fine with the results.  Are you?

LOCKING YOUR DOORS

As you’re already aware, some very talented people all over the Internet have written articles about functionality and features, but I want to focus on what attorneys need to know, and the most important item is that Windows 10 poses serious risks to your privacy – and the confidentiality of your client information.

You’ll want to start with the privacy settings (which can be located – predictably – under Settings > Privacy) but be warned, depending on your configuration, there will be approximately thirteen separate modules of privacy that you must review, and you’ll have to spend some time in each one (see below):

Windows 10 Privacy

In short, you’re going to find yourself turning a lot of features off.  For most users, this will be sufficient.

For those who wish to go a step further, there are other settings referred to as Telemetry, which Windows 10 has embedded in the software.  It automatically sends your information to them – and it doesn’t provide a means to turn itself off.  I know what you’re thinking.  “I’m staying with my current version!”  That’s not going to work, because just recently, Microsoft began backporting its telemetry software to both Windows 7 and 8.

All is not lost, however.  There are tools available that will mitigate the problem. Personally, I recommend the aptly-named, “Windows Tracking Disable Tool”, which does exactly what it says.  This is a third-party program so as always, practice due diligence and be sure you understand what you’re doing as you’ll be installing it at your own risk.

TUNE-UPS

There’s a lot of debate about installing various patches provided by Microsoft.  I fall squarely in the camp of installing them.  Over the past month, there have been several patches to Windows 10 and I can honestly say that just over a month out, it’s working much better than on day one.  And that brings us full circle around the track to where we began:  Service Pack 1.

Did I say service pack?  That’s the old nomenclature.  It’s not called a Service Release anymore – it’s called Threshold 2.  The best estimates say it’ll likely be available sometime in October.  That’s a fairly rapid turnaround for a service release, compared to the old days.

For those who ‘do as I say; not as I do’, I guess you’ll be idling at the red light a few weeks longer.

My Analysis of Calbar Formal Opinion 2015-193: eDiscovery & ESI? “Don’t Be Stupid”

The last three words from this short Beverly Hills Cop video clip sum up my analysis of the opinion:

I wrote public comments to COPRAC (The State Bar of California Committee on Professional Responsibility and Conduct) re their interim versions of the opinion and, in a rare step, I’m posting a verbatim excerpt because my assessment of this opinion remains unchanged.  One modification – I bolded a quote, because the Committee adopted my definition verbatim in their opinion (page three, footnote six):

“I’m seeing a very common thread in COPRAC’s reasoning that afflicts those who understand technology at a more surface-level; the tendency to think of it in physical, rather than ethereal terms.  In other words, the Committee has focused on the word evidence, instead of the word electronic.  Take water, for example.  Whether it exists in a lake, a bathtub, or a glass, it’s still water.  It’s the same with evidence.  Whether it exists as writing on a tombstone, a paper document, or in electronic form (e.g. sitting on a flash drive), it’s still evidence.  It’s the medium that should distinguish it for your purposes.  That’s the contrast missing here.

Whereas the Committee has done a better job of defining parameters such as clawbacks and laying out accurate mistakes by our hapless attorney, once again, it descends into conduct that isn’t eDiscovery-based; but competence-based.  This opinion relies too much on unrelated reasoning, such as “assumes”, “relying on that assumption” and “under the impression”.  That’s not an eDiscovery problem; that’s a general competence problem.  It’s also not what the audience needs.  If they’re attorneys licensed in California, they’ve presumably passed both a Professional Responsibility course and the MPRE exam and know – or should know – their duty of competence.  It’s not as if an attorney retains a med-mal case, then immediately “assumes” or is “under the impression” that s/he’s a doctor and can read an x-ray.  But I could intertwine those facts with this opinion and make it about medical experts.  What attorneys specifically need to know is how their actions, or lack thereof, in the procurement, assessment and handling of electronic evidence morph into a violation.  This is a highly specialized area unto itself.  See my previous example.  The x-ray is electronic evidence.  Proper acquisition is one matter; analysis, forensic or otherwise, is quite another.  That doesn’t just include the adversary’s evidence.  It also includes the Client’s evidence.  In this scenario, one is seeking to exculpate the Client through all available means – not just via the adversary.

Contradictions also exist in Footnote Six on page three that states, “This opinion does not directly address ethical obligations relating to litigation holds.”.  I respectfully submit that the opinion goes on to do exactly that.  Perhaps this is due to the criteria set forth in Footnote Six being inaccurate as defined.  In a legal setting, Attorney is charged to know what the Client does not, and this may involve issuing litigation hold instructions to their own Client; not just third parties or adversaries.  If attorney was interacting with the CIO or CTO (The “Information”/”Technology” chiefs, perhaps s/he could reasonably reply on their assessments.  But here, attorney is interacting with the CEO who likely has no intimate knowledge of what goes on in the IT department.  It should read, “A litigation hold is a directive issued to, by or on behalf of a Client.”  Otherwise, how does the competent Attorney protect a Client who, in good-faith, endeavors to do the right thing or protect themselves when a Client, in bad-faith, engages in intentional spoliation?  One of those scenarios exists on page two, when the eDiscovery expert, “tells Attorney potentially responsive ESI has been routinely deleted from the Client’s computers as part of Client’s normal document retention policy”.

Understanding these nuances and acting on them is the very definition of competence as applied to an eDiscovery attorney – or an attorney who engages the services of a third-party eDiscovery vendor.  In this arena, eDiscovery is like a game of falling dominos; once competence tips over, the rest (acts/omissions, failing to supervise, and confidentiality) will logically follow.  As they say, timing is everything.”

Conclusion:  The opinion does a good job of explaining fundamentals of the eDiscovery process, but in my opinion, doesn’t go nearly far enough.

v-Discovery Insights: CYLA 10 Minute Mentor

CYLA 10MinuteMentorBetter later than never.  At last September's State Bar of California Annual Meeting in San Diego, I and about fourteen other experts recorded videos for the California Young Lawyers Association's kick-off of their "10 Minute Mentor" program.

That was the easy part.  Many of you may not know this, but the Bar is very strict about complying with the Americans with Disabilities Act (ADA), so the videos couldn't be posted until subtitles were added.

Well…the time has come.  Check out my presentation, "Today's Technologies and Maintaining Client Confidences 101":

 

 

LTWC 2015: From LA to SF!

 LTWC 2015
Have you heard?  Big changes are afoot for Legaltech West Coast 2015:

  1. The dates are July 13-14, 2015
  2. It's relocated to the Hyatt Regency
  3. That's the Hyatt Regency…in San Francisco!

How accommodating of them to move it to my new city.  I didn't realize I had that much pull.  Actually, it was great news when I found out about it a few weeks back because in 2014, I had to skip the conference for the first time in years – and it was looking the same way for 2015.

Registration is open.  Mark your calendars…and see you there!

The Exchange: Cyber Security

TGCIHot on the heels of Today's General Counsel and Institute's eDiscovery-based, "The Exchange" comes something new:  "The Exchange: Cyber Security.  This is not a 'tour'; it's only held in two locations.  Thankfully for me, one is – once again - at The Bar Association of San Francisco, April 27-28, 2015.

Any guesses where the second one will be held?  Hmmm….where is this kind of thing prevalent?

Washington, D.C., of course!  That conference isn't until November 2015 – you have time.

I attended most of day one of The Exchange yesterday and it's as robust as ever.  Still a great choice if you want to get the big-picture view from every corner of our profession. 

Registration is open, but be warned; it's almost completely full and the rules are different this time.  You may use the same free code to register if you're my corporate readers only:

TGCICOMP

Sorry law firms – you still have to pay.  Also, this is a vendor-sponsored event, so no outside vendors allowed.  

P.S.  I'd like to give a shout-out to my good friend from TGCI, Neil Signore, who has graciously provided complimentary admissions.

Calbar 87th Annual Meeting: Upcoming Program(s)

Calbar 87th AM Banner
I just took a look through this top page.  I've only posted ten times (including this one) in almost an entire year!  I've got to try to step up my game, but honestly, it's going to be difficult as I get busier and busier.  I'll do my best; in the meantime, here are my upcoming program(s) at the State Bar Annual Meeting in San Diego (I used the (s), because for one program, I'm making a guest appearance but am supposed to be in two places at once!):

* * * * * * * * * * * * * * * * * * * *

Leveraging Technology to Win the Discovery Game:  Program 31

Thursday, September 11, 4:15 p.m. – 5:15 p.m.

This is tentative.  There's a meeting of the Council of Sections simultaneously with this program and since I will be assuming the role of Co-Chair at the conclusion of the Annual meeting, I need to be there.

I'm hoping to make my way to this session and appear for the last thirty minutes or so.  But be warned; if I'm delayed, I might not make it.  My colleague, Alex Lubarsky is presenting, so either way, I encourage you to check it out as he's extremely knowledgable.

This program will cover the rules and new technologies governing electronically stored information (ESI). Learn about cutting edge litigation technology advancements that will result in cost savings and streamlined management of ESI.

CLE: 1.0 Hour of Which 0.5 Hour Applies to Legal Ethics

* * * * * * * * * * * * * * * * * * * *

The National Security Agency and Attorney Confidentiality: How to Protect Your Clients:  Program 63

Friday, September 12, 2:15 p.m. – 3:45 p.m.

The National Security Agency (NSA) has been heavily featured in the news. While the agency collects our data, how does it use it?  This program will address the NSA’s data collection and the unique challenges it presents to lawyers. Learn how to protect yourself and your clients' confidence.

CLE: 1.5 Hours of Which 0.5 Hour Applies to Legal Ethics

As you can imagine, questions about the NSA come up a lot in my presentations when I discuss attorney confidentiality, but with the outright panic I'm starting to see due to all of the misinformation out there, I feel it is time to address the issue in-depth.  We're going to spend ninety minutes exploring attorney ethical obligations, what the NSA says they do vs. what they really do and how you can best protect client confidences – hopefully without experiencing a meltdown in the process.

That's it for this year.  Hope to see you in San Diego!

Love in an Elevator: Jay Z, TMZ & the Death of Privacy

 

Do Not Use

If you've been anywhere near the media recently, you won't have avoided hearing about a certain confrontation in an elevator.

Now, true, an elevator isn't exactly private – and there were security cameras.  Still, I'm pretty sure we'd all agree that having our antics recorded and sold to TMZ violates a bright line.

I'm sticking to my earlier assessment; assume you're being recorded wherever – and whenever – you are…

Calbar Solo Summit 2014: So Much for Cutting Back!

Solo Summit 2014

 

Hi All – hope things are going well with you.  I said I was planning to cut back on presentations, but somehow I was selected to do two programs at the upcoming State Bar of California Solo & Small Firm Summit in Newport Beach (note that's a change from the usual location, Long Beach).  So, without further adieu, here's my schedule:

 

Solo Summit 2014 - Friday

Friday Lunch Program:  11:30 a.m. to 1:00 p.m.

(Program 17, June 20th)

Junior Associate to Senior Partner: Confidentiality, Privacy and Technology Governance

Generally speaking, senior attorneys tend to be intimidated by technology. On the other hand, junior attorneys tend not to be intimidated enough!  This program strikes the balance and answers the burning question, “Am I doing enough to protect the privacy and confidentiality of both my practice and my client information?”

MCLE: 1.0 Hour Ethics

[I was awarded one of the coveted plenary sessions for the first time.  Normally, we break into three concurrent MCLE presentations, but the plenary sessions have all 250 attendees.  I'm going to have to be on my toes for this one…]

 

Solo Summit 2014 - Saturday

11:00 a.m. to 12 noon

(Program 32, June 21st)

Leveraging Technology to Beat the Big Guys in the Discovery Game

Panel presentation of the rules and new technologies pertaining to ESI (electronically stored information) that will level the playing field to allow a solo or small firm attorney to “go toe-to-toe” with a large law firm throughout the discovery process — even during the most complex and voluminous litigation. The speakers discuss cutting edge litigation technology advancements which translate to cost savings and more streamlined management of electronically stored information. New technology trends discussed include computer assisted review, analytics, the latest trends with computer forensics and automating litigation hold policies among others.

MCLE: 1.0 Hour Ethics

Hope to see you there!