The increasing popularity of cloud services and storage is making eDiscovery tricky - and expensive. Utilizing third-party data centers for storage doesn’t mean organizations are off the hook to provide information. It does mean, however, that retrieving that data often gets a lot more complicated. Here are seven ways in which cloud computing and electronic discovery are impacting each other.
1. Accessibility Challenges
With a growing number of private customers and companies storing sensitive data in the cloud, the problems associated with accessing or retrieving those digital records have become a real issue. If the cloud service provider lacks the proper backup records, or isn’t able to easily comply with the request for data retrieval, the time and effort needed to extract that data will increase exponentially.
2. Changing Estimates
The promotion of cloud storage as a faster, easier solution for keeping data secure has given rise to the incorrect assumption that getting data out of the cloud is just as easy as the initial upload process. This isn’t necessarily true, especially with regard to legal proceedings. With looming deadlines for the delivery of pertinent information, companies too often underestimate how long it will take to retrieve evidence.
3. Missing Permissions
When corporate data is hosted by cloud service providers who operate with consumer-grade services, permissions problems soon appear. Many users are accessing the cloud without the knowledge or consent of their IT team, let alone their corporate counsel. This leaves businesses vulnerable due to the individuals’ ignorance of eDiscovery compliance requirements.
4. Terms of Service
Every cloud service provider has an extensive set of terms and conditions its users must abide by. Although these may be perfectly adequate for daily operations, such guidelines often fail to support eDiscovery requirements that are common at the enterprise level.
5. Lack of Accountability
Data can’t be collected if its existence isn’t recorded anywhere, and many cloud storage providers fail to keep detailed log records indicating when and where actions occurred. Without the ability to track these actions, companies may remain unaware of the use of external cloud sources, especially by employees who are no longer with the company. This renders information undiscoverable.
6. Policy Changes
With the increase in company use of cloud storage, it’s clear that vendor policies must shift to address potential eDiscovery needs. The definitions for requiring electronically-stored information to be collected and preserved in a defensible manner have not changed, regardless of whether data is stored with a third party provider.
7. Adapting
Adjustments in the way cloud storage is handled are taking place from the ground up, as service providers begin incorporating eDiscovery requirements into their infrastructure. Even offshore data centers are not exempt from discovery.
Although cloud service providers may not have specific metrics in place which address the requirements of discovery, this is no reason for companies to absolve themselves of responsibility. Every company is still responsible for maintaining legal and compliance obligations, regardless of whether they utilize a third party. With proper planning, and a system for keeping trackable tabs on their data, companies can save time and money by utilizing the advantages of the cloud, while not getting caught out in the rain in case of eDiscovery.
Aptus Court Reporting announced its expansion today into the growing Bay Area court reporting market, led by respected industry veterans Kaitlyn Shelly and Claudia Deza.
Shelly serves the Director of Business Development for Aptus Court Reporting’s Bay Area office while Deza is the company’s Bay Area Business Manager. Both have a strong track record of surpassing sales goals and forging new business relationships. Their expert knowledge in the deposition support industry has allowed them to manage and secure TOP AMLAW Firms’ large complex litigation matters.
Shelly has helped Aptus Court Reporting grow into a successful reporting firm since the company’s launch in March 2011. Her responsibilities include identifying and pursuing new business while also maintaining and building client and firm relationships.
Deza has more than 10 years experience in the legal support industry. She
most recently served as Calendar Manager for a large national court-reporting firm, where she worked with a wide array of clients ranging from law firms to corporations. With her experience, she has also built strong relationships with the very best reporters in our industry.
“Both Kaitlyn and Claudia have built strong reputations in our industry by providing exceptionally tailored service to our clients and reporting staff,” said Derek Berg, Aptus Managing Partner and co-founder. “We’re excited to expand our services in the Bay Area and demonstrate how we manage complex litigation needs while providing top reporters nationwide.”
Aptus’ success in its Southern California locations has led to its expansion into the Bay Area marketplace.
“Entering the Bay Area market is a big step for Aptus,” said Berg. “We are excited to bring our expertise in court reporting and related services to this dynamic market. Aptus is committed to earning the trust of Bay Area clients and we know the only way to do this is to provide exceptional value, knowledge and service.”
About Aptus Court Reporting Aptus Court Reportingis the premier court reporting firm on the West Coast. It provides a range of legal support services to corporate legal teams and law firms throughout the United States, including:
- Court Reporting
- Real Time Reporting
- Trial Service
- Transcription
- Video Conferencing, Streaming and Videography
- Nationwide Conference Rooms
- Litigation Support through our Sister Company, TERIS Litigation Support
To learn more about Aptus, visit
www.AptusCR.com or follow the company on Twitter at Twitter.com/AptusCR or Facebook (Facebook.com/Aptus).
Media Contact: Ashley Walton, 619-546-9151 (office) or
awalton@aptusCR.com # # #
An increasing number of litigation teams are turning toward managed services as a way to handle the more complex facets of the litigation process. By choosing an experienced litigation support services provider, legal teams are able to focus on the core of the case, rather than spending time managing paperwork. However, as with most business tools, there are both pros and cons to the managed litigation support services model.
The Essence of Provider Services
When using managed services, the details of running your project will be turned over to your provider. This allows them to have both control and accountability over the results of that case. Since this is their full-time occupation, clients can rest assured that the project management will be as efficient as possible, saving countless work hours (and the expense of them) over attempting to keep track of the data themselves.
Litigation support is unique in that so many aspects of building a case are included by support service vendors. Most vendors will offer a range of options, from evidence collection and organization all the way up to computer forensics. Clients are able to pick and choose which services will best support the needs of any particular case, and the entire process is streamlined from start to finish.
Potential Pitfalls
Although a managed services model is extremely efficient and cost-effective, it is not a perfect system. In fact, the very thing that makes litigation support so helpful is the same thing that makes some clients nervous: it’s a lot of responsibility all in one place. Granting control over the project details to the vendor rather than maintaining internal tabs on progress requires a tremendous amount of trust. It’s vital to ensure that your service provider is capable, professional, and completely trustworthy before proceeding. Ending up with a litigation support team which is disorganized or overwhelmed by the workload you’ve offered can result in a huge waste of time and money, and may even cost you the case.
Even if your vendors are fully capable, this business model simply won’t work unless the client is willing to trust the vendor’s judgment completely, so managed litigation support services may not be ideal for anyone who is uncomfortable relinquishing control over their case.
Deciding What’s Right for You
Managed litigation support services, when used correctly, can be a tremendous benefit to any case. However, it does require a lot of trust between both parties, as well as excellent and ongoing communication. If you have the right attitude and are willing to let your vendor handle most of the fine points involved with your case, managed services could be the perfect solution for you.
According to the American Bar Association, a mere 10% of all documents created since 1999 are not digitally produced; the vast majority of existing records are now in some type of digital format. Deleting digital documents or failing to retrieve digital records when needed can increase a company’s risk of legal liability.
To minimize exposure to risk, many companies have employed a data retention process to aid in electronic discovery and computer forensics. Although both areas encompass the preservation and use of digital data, there are key differences between electronic discovery and digital forensics.
The Data Collection Process
Ediscovery is summarized as the process of collecting, preparing, reviewing, interpreting and producing electronic documents from hard disks and other forms of storage. During litigation, eDiscovery firms may be subpoenaed to give testimony on the methods a company used to collect the data. On the other hand, computer forensics involves the use of a forensic expert to protect data integrity and to bring forth the data stored on a hard disk. During discovery, forensic experts use particular software applications and may call forth analysts to provide their testimony as expert witnesses.
Reviewing and Interpreting Data
Another significant difference between both disciplines is the method used to analyze the data. Ediscovery firms typically do not analyze the data they collect. Additionally, they usually do not clarify the intent of a computer user and they generally don’t provide clients with legal advice. Ediscovery is the process of gathering all of the data and supplying the client’s legal counsel with the data and relevant tools, then allowing the client’s legal counsel to perform their own thorough review.
Forensic experts assist legal teams with producing evidence for their case. Forensic experts can also partner with attorneys to pinpoint keywords related to the case, and then cross-reference those keywords against the collected data. Forensic experts can discover encrypted information such as passwords, and they can access email messages and reassemble an Internet user’s history. An analyst will not only search for intact records, but will scan for deleted records and file fragments to attempt full recovery of the files needed to support or defend the claim.
The Roles Served by Both Disciplines
Unlike digital forensics, eDiscovery is not used to analyze or investigate data and its uses. It serves to gather and organize information that everyone can view, access and duplicate. If that data has been deleted or is unseen by the computer’s operating system, that information could possibly be retrieved with digital forensics, but not electronic discovery.
In the eDiscovery process, a computer forensic expert will need to be called upon at some point or another. An example of such a matter would be a company receiving a set of files on a hard drive. Once received, it is realized that the size of the data on the drive is less than what was anticipated and recorded. After further review, an employee is suspected of intentionally destroying information on the hard drive. A forensic specialist will be needed to determine if the claim of intentional destruction is true, and if so, how the data was destroyed by the user.
Although eDiscovery and digital forensics are very similar in nature, the key differences revolve around how the data is collected and presented, how it is reviewed and interpreted, how much data is involved, and whether professionals are needed to provide forensic data recovery. Forensics gather, preserve and restore data, and Ediscovery processes and delivers the data to the appropriate parties. Choosing a litigation support company with experience in both disciplines is crucial—technology leaders such as Teris.
ABTL Annual Seminar – September 19-23, 2012
TERIS is excited to announce that it will be one of the title sponsors – in partnership with Aptus Court Reporting – at the Association of Business Trial Lawyers (ABTL) Annual Seminar to be held September 19-23, 2012, in Koloa, Kauai, Hawaii. Established in 1972, the ABTL now represents over 4000 top California trial lawyers.
The topic for this year’s seminar is “Does your Technology Meet the Jury’s Expectations? Trying the Social Media Case with Cutting-Edge Technology.”
Aptus and TERIS will have a table at the event offering co-branded materials and SWAG. Patrick Conolly, Managing Partner at TERIS San Diego, and Ashley Walton, Vice President of Sales and Marketing at Aptus will attend this four-day event and staff the table.
For more information, please visit the ABTL website at http://www.abtl.org/annualseminar.htm.
FBA Annual Meeting & Conference – September 20-22, 2012
TERIS is also proud to sponsor the Federal Bar Association’s (FBA) 2012 Annual Meeting and Conference from September 20-22, 2012, in San Diego, California. The FBA consists of more than 15,000 federal lawyers, including 1,200 federal judges.
This year’s event will feature CLE sessions on current trends in civil, criminal, and bankruptcy law with prominent speakers including Ninth Circuit Judges J. Clifford Wallace and Mary M. Schroeder, Dean Erwin Chemerinsky, and Judy Clarke. To learn more about this event, please visit the FBA website at http://www.fedbar.org/Education/Calendar-CLE-events/2012-Annual-Meeting-and-Convention.aspx
With the advent of social media, attorneys are facing several potential game-changers. How will the impact of Facebook, Twitter, and other social media sites impact law as a whole? What kind of role, if any, might social media play for attorneys and their clients?
Current Events
The attorneys for George Zimmerman, the man charged in the Florida death of young Trayvon Martin in February, have launched a defense strategy that includes Facebook and Twitter, plus a website and an official blog. The blog states that it was created in order to dispel rumors and disseminate correct information, while simultaneously soliciting donations for his legal defense team. These platforms create a forum for communication with Zimmerman’s attorneys, as well as a place for supporters to share their voices.
When Zimmerman was taken into police custody, the news first broke via his defense team’s account on Twitter (@GZLegalCase). Within hours, the news was viral. These tweets are official and accurate, proactively nipping uncontrolled rumors in the bud.
[Photo Credit: Gary W. Green/Orlando Sentinel/AP]
Growing Concerns
The official Zimmerman legal defense team blog includes the disclaimer: "We feel it would be irresponsible to ignore the robust online conversation, and we feel equally as strong about establishing a professional, responsible, and ethical approach to new media."
This statement may be intended to explain the purpose behind the blog and other social media, should the attorneys feel the need to explain at all. However, all the explanations in the world don’t change the fact that a social media campaign runs a definite risk of tainting the neutrality of any potential juror pool.
Every state bar has publicity rules. In Florida, the rule banning any comments made by attorneys that could be widely distributed was written back in 1994. As such, it does not address social media specifically. Prosecutors in the Zimmerman case are keeping an eye on the social media campaign in case there are any attempts to influence either potential jurors or witnesses.
An Impartial Jury
In Florida, jurors chosen for trials are given specific instructions that ban electronic communication, including social media. However, these limitations are intended only for the duration of the trial. Currently, there are no existing regulations regarding the use of social media prior to jury selection.
Although jurors have always had access to the media prior to trial, the unparalleled accessibility of social media raises new concerns. Zimmerman's defense team explains in a blog post that their online presence is not intended to comment on any evidence. And yet, anyone reading the site will be exposed to unregulated and biased information from the point of view of the defense. Additionally, social media encourages strangers to share their comments and opinions, which may further bias any viewer.
Going Forward
Nicole Black, the vice president of MyCaseInc.com, wrote a book called "Social Media for Lawyers:The Next Frontier," specifically addressing the future potential of social media for attorneys. Regarding Zimmerman’s case, she says: "The social media sites are a way for Zimmerman's defense team to control the message." She feels new technology does not change the current gag rules. Instead, the pretrial conduct is the core issue. Regardless of social media, attorneys cannot discuss any case particulars pre-trial without risking contempt.
New precedents are being set right now. Social media is indeed the wave of the legal future. Or, as Zimmerman’s defense team puts it, the use of social media by attorneys "will inevitably become a standard part of the legal process."
The State Bar of California's CALIFORNIA SOLO AND SMALL FIRM SUMMIT will be held June 21-23, 2012, at the Renaissance Long Beach Hotel in Long Beach, California.
TERIS invites you to join us for our presentation: "Leveraging Technology to Beat the Big Guys in the Discovery Game," by Alexander H. Lubarsky (Director - TERIS).
Date: Friday, June 22, 2012
Time: 2:30 to 3:30PM
This presentation covers 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 even during the most complex and voluminous litigation.
To register for the CALIFORNIA SOLO AND SMALL FIRM SUMMIT, please
click here. The hotel reservation deadline is
TUESDAY, MAY 29, 2012. The pre-registration deadline is
THURSDAY, JUNE 14, 2012.
We hope to see you there!
Getting terminated from a job is never fun, even if the job is horrible. Typically dismissals happen over routine events such as an employee constantly being late or not doing the job well enough. But there are cases where employees have lost their jobs over crazy (and even funny) circumstances.
We're now hearing about people getting fired over Facebook or even wearing a certain colored shirt! It seems we've seen more unusual termination cases recently so we thought we'd highlight six that caught our attention:
Recently, several staffers at a Florida law firm found themselves in a predicament when they were fired for wearing orange shirts. ABA Journal talked about it and the employees say they all wore orange so they could find each other in a group after work during Happy Hour. One commenter said the manager was probably a Seminole fan and not a big Gator fan.
Jeffrey Cox, a lawyer in Indiana, was fired from his position during the heated union battles in Wisconsin after he told riot police in Wisconsin to use "live fire," and other controversial commentary. Of course, his profile was set to public and his tweets could be easily found, as the blog Going Paperless wrote about. Remember: think before you tweet!
Another employee termination story that grabbed headlines (and was also because of Twitter) was the case of Connor Riley getting fired immediately after being offered a job with Cisco. She went to her Twitter to tweet about the job offer with some added snark of a "fatty paycheck," and hating the work. Of course, Cisco happens to be a tech company so they monitored Twitter, saw her tweet and she immediately found herself jobless again.
The Next Web reported on the story of a woman, Vicki Walker, being terminated from her job as an accountant in New Zealand after she constantly wrote her emails and messages in all caps, bright red font, and usually in bold. However, The Employment Relations Authority found that Walker was wrongfully fired and her employer had to pay a hefty fine. Still, not writing in all caps with bold and bright font should probably be a unwritten rule in the work place.
Marion County Juvenile Magistrate Danielle Gregory in Indianapolis, Indiana found herself fired after texting while hearing cases, according to local Indiana's WTHR. Smartphones and camera phones are banned in the courtroom, but that didn't stop Gregory from texting about court hearings and she even was texting a married male co-worker while on the clock.
Another case of a Facebook firing occurred when a juror in a British court was asking for help on a case on her Facebook page, as reported by The Telegraph. The court was given an anonymous tip about her Facebook mishap and the woman was immediately removed from the jury. Ouch!
It goes without saying that in the professional world, common sense should rule when it comes to knowing what's right and wrong. But as you can see, people are not always predictable creatures and as such, we'll always have interesting employment termination cases.
The popularity of Social Media and e-discovery are both at an all time high. According to insidecounsel.com, Americans are spending 1/5 of their time online using social medial sites like Facebook or Twitter. These online platforms have now replaced email as the preferred method of communication. Also, nearly 80% of the Fortune 100 companies are using some form of social networking to market their products and reach customers and build relationships.
Even though there is tremendous value in social media marketing for companies, there is also risk. These ten simple issues we raise will give you something to consider as you map out your company's social media policies:
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Chatting about the company:
Do not allow your employees to discuss sensitive business related content online. It’s risky. If your company is involved in a sensitive deal (or litigation), then giving away any information may cause the deal to bust - or you may hear about it in your court proceedings.
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Know the law:
Often companies have attempted to bring information they’ve acquired online, yet the laws concerning social media create new headaches, and many are yet to be developed. Refer to Federal Rules of a Civil Procedure for best practices of e-discovery.
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Early Detection:
Having an e-discovery auditor is an excellent way to foresee future problems BEFORE they develop (such as an employee who “surfs the net” and loiters on social media sites or “friends” fellow problem co-workers). An auditor will help you address potentially damaging rumors or concerns before they get out of hand.
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Social Media Agreement:
In an effort to protect your company’s interests, why not have a signed agreement with employees to limit what they say about he company publicly (online and offline)? “You can’t do that!” you may think. Are you sure? Why not? All company data, and activity within the work “space” may be considered confidential. It’s worth considering.
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Its Simply Different From Paper:
Electronic data isn’t the same as paper data. It is untouchable, invisible, yet it’s there. Metadata stores the date, time and other info and can be crucial in proving your case. It can't be easily shredded or discarded like paper. Know your company devices and develop a data storage and management plan.
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Get a 2nd (or 3rd) Opinion:
Make sure you are constantly questioning your legal team about evolving social media policies and cases. As you know, this is a world that is literally changing on a daily basis. You need to make sure you have a team of experts both within and outside your company who you can turn to for advice or guidance at any given time. It's well worth the investment.
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Take It Seriously:
Just because something was written in cyber space, doesn’t mean it is not important or valid. Using a social media platform opens the user to a broad audience. When utilizing social media all employees should be aware of who could be potentially reading their posts. If the employee makes comments in a post or article that could be potentially damaging or used against them or the company in the future, it could spell trouble.
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Multiple Electronic Devices:
Devices such as smart phones, tablets, or email accounts all now can be used for social media activities – and can also contain metadata. Previously, access to this info was not always legally (or technically) readily available, but now it can potentially help (or hurt) your case.
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New Federal Laws:
We now have laws that allow the use and disclosure of social media e-discovery information and how it can be used in court. Make sure you are familiar with the latest rulings.
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Find the Right Partner:
Taking on the task of e-discovery in the new social media world can seem like a monstrous job, but there are firms (such as TERIS) who specialize in this field. We're happy to provide a no-obligation initial consultation to help you evaluate your current social media e-discovery program and determine what steps you need to protect yourself for future developments.
With the recent adoption by New York of an official standard for electronic document preservation, the legal world may be standing at the edge of a new precedent for e-discovery.
Origins of Zubulake
The proper procedure for e-discovery document preservation originates with the 2003 case, Zubulake v. UBS Warburg LLC, which took place in a New York district. The court ruled that any party which anticipates litigation must immediately cease its usual document destruction policy in order to preserve possible evidence. This ruling specifically addresses e-discovery such as emails and other virtual documentation.
Justice Sallie Manzanet-Daniels wrote that "the Zubulake standard is harmonious with New York precedent in the traditional discovery context, and provides litigants with sufficient certainty as to the nature of their obligations in the electronic discovery context" in reference to the ruling, and support of adopting this standard, which has since been implemented across all four districts of New York.
Recent Appeal Ruling
Manhattan Supreme Court Justice Richard Lowe III upheld the standard in a recent appeal, granting it more strength. His ruling confirmed findings from a lower court against EchoStar Satellite. The company in question had been sanctioned for deleting relevant emails, even after the initiation of a lawsuit against the company by VOOM HD Holdings, a former subsidiary of Cablevision.
An email from Orin Snyder, a lawyer for Voom said in an email that the “ruling confirms that EchoStar destroyed evidence in blatant violation of the law and will now be held accountable for its misconduct."
This decision is also an adverse inference jury instruction; the jury is free to assume that the emails were deliberately destroyed, and that the ediscovery, if preserved, would have provided evidence in favor for Voom. The court wrote that they agreed “with the motion court that an adverse inference was warranted because EchoStar's spoliation of electronic evidence was the result of gross negligence at the very least."
Debated Standards
A national group, the Lawyers for Civil Justice, argued in favor of EchoStar. Both insisted that the Zubulake standard is "vague and unworkable because it provides no guideline for what 'reasonably anticipated' means" and that it should not be enforced unless a lawsuit will definitively be filed. The reasonable anticipation standard could be considered subjective; it also argued that changing potential ediscovery destruction methods would put an unfair cost burden on companies who would now be forced to retain excessive data.
The First Department panel disagreed, stating that “requiring actual litigation or notice of a specific claim ignores the reality of how business relationships disintegrate." The case in question specifically resulted over a contract dispute between companies. The court wrote that EchoStar should have realized that attempting to void a business agreement was certainly likely grounds for a possible suit to be brought. In addition, emails were continuously being deleted even months after the initial filing.
Implications for National Standards
The findings of the court stated that “once a party reasonably anticipates litigation, it must, at a minimum, institute an appropriate litigation hold to prevent the routine destruction of electronic data (see Pension Comm. of the Univ. of Montreal Pension Plan, 685 F Supp 2d at 473)” and that such a hold would “preserve all relevant records, electronic or otherwise, and create a mechanism for collecting the preserved records so they might be searched by someone other than the employee.”
Now that an appeal specific to the Zubulake standard has been upheld and the standard officially adopted across New York districts, what does this mean for e-discovery procedure going forward for the rest of the country? It’s a good chance that more suits will invoke the New York Zubulake standard as case precedence, and the previous ambiguity that surrounded the specifics of e-discovery in litigation is well on its way to becoming conclusively defined.
