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Watch out for dangerous data | IT PRO

May 21, 2010 By Leave a Comment

This week, an industry group was launched to highlight another area where businesses need to tread warily: e-disclosure.

According to the group, businesses need to do more than simply ensure private data remains private. They also need to keep that data in a way that allows them to find information, if a court or regulator requires it.

E-disclosure is potentially a massive problem for businesses involved in legal probes, as a court – or the other side’s lawyers – can ask for any information that is held in electronic form. Court, and regulators such as the Financial Services Authority, take a dim view on companies that cannot produce their files in a timely manner.

The problem, according to Simon Price, European director of enterprise search company Recommind and one of the people steering the project, is that too many businesses lack an overall approach to information risk.

As well as e-disclosure, the group is looking at compliance, cloud computing, insider fraud, information barriers and confidentiality management, although the focus is less on conventional, perimeter security and more focused on how businesses organise their information internally, and whether that information is a potential risk to the organisation.

via Watch out for dangerous data | IT PRO.

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Producing ESI in Compliance With the FRCP | NJ Law Journal

May 21, 2010 By Leave a Comment

PRACTICE TIPS

Practical lessons have emerged from the rules, the advisory committee notes and the recent cases.

Ask for what you really need: Don&’t ask that documents be produced in native format unless native format is needed to comprehend the documents. Otherwise, accept TIFF images with searchable text or OCR the documents yourself.

Be careful what you wish for: Don’t ask for a particular form of production unless you are prepared to deliver the same form.

Remember the “E” in ESI: Expect to produce documents that originated in electronic form electronically. Unless your adversary agrees, don’t expect to produce e-mails in paper form unless your client delivered them to you in paper.

Understand the technology: Know the attributes of each form — native, PDF, TIFF with and without a load file — and the pros, cons, burden, and expense of each.

Achieve specific agreement about the form of production: Simply going through the motions of requesting and objecting does not satisfy the requirements of Rule 34, as the cases demonstrate.

Raise your hand if you have an objection: A receiving party should object immediately if documents arrive in a form that was unanticipated and undesired. Untimely objections could constitute waiver, or could result in a cost-shifting order.

Be prepared to substantiate the reasons for your request and to resist your adversary’s expensive or burdensome requests: Some claims and defenses require metadata to succeed — for example, the ability to demonstrate the timing of certain events, or the receipt of blind copies. Be prepared to demonstrate the relevant need. Conversely, when production in a particular form will be burdensome or costly, be ready to challenge the request with facts and figures, and be prepared to offer a usable alternative.

Litigants will struggle less with the form of ESI production if they follow the federal rules by discussing the form of production and achieving agreement in their initial conference. Ultimately, common sense plays an important role — if a document originated as an electronic file, a party should expect to produce that document electronically.

via Producing ESI in Compliance With the FRCP.

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Buy Globally, Sue Locally for Products Liability | Law.com

March 27, 2010 By

In a global economy, price and convenience are valued above all else. Global consumers demand produce out of season, buy sophisticated appliances made with cheap labor and build homes with materials shipped from abroad. And yet when these products prove to be defective, they expect to be able to sue the manufacturer at the local courthouse, regardless of where it resides. After all, the product reached them — so they should be able to sue in their home court, right?

We’ve come a long way from Penoyer v. Neff, 95 U.S. 714 (1878), when a defendant’s physical presence in the forum state was required to exercise jurisdiction over him. Various U.S. Supreme Court decisions have expanded the notion of personal jurisdiction, simultaneously muddying the water as to precisely what constitutional analysis is required.

Take, for example, Asahi Metal Indus. Co. v. Superior Court of Calif., 480 U.S. 102 (1986). There, the separate plurality opinions of justices Sandra Day O'Connor and William Brennan both approved of some form of the “stream of commerce” theory of jurisdiction but disagreed on the exact formulation of the test to be applied. Although lower courts subsequently used some form of “stream of commerce” analysis after Asahi, they seldom used it as a stand-alone test. Most have always added to it some form of “minimum contacts,” “purposeful availment” or other analysis to establish that the defendant somehow intended or expected to benefit from the jurisdiction. This traditionally has been seen as required by the due process clause.

via Buy Globally, Sue Locally for Products Liability.

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