eDiscovery Software: A Presumption of Ignorance

eDiscovery Software: A Presumption of Ignorance

Author: Eric Everson, MBA, MSIT-SE. J.D. Candidate 2013*

Over the past five years, the cost of eDiscovery has skyrocketed.  With litigation support services and software in this area proliferating, a lack of technology sophistication among attorneys has become the keystone of what might be seen as price gouging. 

Taking a quick survey of the eDiscovery software market, it is easy to see that there are an abundance of software vendors fighting for market share.  With vendors taking a multitude of approaches to achieve supremacy in this niche, these companies are lining their pockets by preying on a lack of technology sophistication in the legal profession.

How can lawyers keep the costs of eDiscovery under control?  Here are three first steps that will help keep the costs of eDiscovery manageable: 

Learn the Lingo:  Anyone who has spent any time in the IT department knows that computer people speak their own language.  In order to optimize the expenditures of technology spending, it is paramount to understand fundamental concepts that are driving the eDiscovery environment.  Comfort with terms like SaaS (Software as a Service), COTS (Commercial Off The Shelf), Gigabytes, Terabytes, Predictive Coding, Freemail and Social Media Collection, Culling, Hash Values, Filetype, and many more are paramount to navigating this environment successfully.  eDiscovery presents the chasm where cutting edge technology intersects the practice of law.  Taking the time to learn this new language today is the key to winning the cases of tomorrow.                  

Ask More Questions:  What separates good attorneys from the rest is often their ability to ask the right question to the right person.  Software sales hinge on selling miracle solutions, but it is by identifying the limitations of software that we expose its true value to our business.  To begin with, understand that there is no one size fits all eDiscovery software.  It is not uncommon to use several different software tools in the execution of an eDiscovery project.  Make sure the questions you are asking fit the needs of your eDiscovery team.  Start getting familiar with the terminology and see what charges apply to which services.  Start frame cost negotiations through the lens of cost per gigabyte, rather than by document or word count.  Start asking about the entering variables of the software algorithms; if you understand how the software works you can better gauge its value to your organization.

Embrace the Technology Law Department: The term “technology law” is confounding to many attorneys because it sounds like such a broad concept.  The truth is that the most effective organizations are going to be those that embrace a technology law department in their organizational structure.  Technology law is the umbrella that various tech-focused teams fall under.  Some of the teams that you may see within a technology law department might include the following teams: eDiscovery, Privacy Compliance, Intellectual Property, Social Media Governance, Cyber Crime, eBusiness Transactions, and more.  Fundamentally, the most productive technology law departments are those organized as profit centers rather than cost centers to the organization.  By adopting a technology law department, law firms centralize the technological expertise and consolidate the technology expenditures of the organization.  With centralization, there is more opportunity to leverage technology costs that law firms face considering a future hinged upon technology competence.   

Remember also that the eDiscovery market is full of vendors and they are willing to fight each other for your business.  There is no one size fits all eDiscovery solution, so do not hesitate to ask for trial versions and cost quotes that you can compare against others in this niche.  Buying the right eDiscovery software for your law firm is like buying a new car; it can be a sizable investment, but the more informed you are the more leverage you have to negotiate.  The vendors prevail in a market where a presumption of technology ignorance overwhelms. 

#eDiscovery #infosec #bizlaw #ITLaw #TechnologyLaw #IPLaw #software

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About the Author:  *Eric Everson is a 3L law student at Florida A&M University – College of Law.  He currently serves on the Board of Governors for The Florida Bar Young Lawyers Division Law Student Division and is the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law. Prior to law school he earned an MBA and Masters in Software Engineering while serving ten years of executive leadership in the U.S. telecommunications industry.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  Follow @IntleDiscovery.        

Profits Over Portability: Shame On You Apple!

Profits Over Portability: Shame On You Apple!

Author: Eric Everson, MBA, MSIT-SE, J.D. Candidate 2013

As a software engineer turned law student, I spent nearly ten years in IT before making the transition into technology law.  Those who’ve followed me from MyMobiSafe and the mobile security blogosphere know that there have been times in the past when “ole Uncle Steve” (aka Steve Jobs) and I have had very different opinions about the direction of Apple technologies (and on occasion these heated disagreements have played out in right before the eyes of the public).  Now that my dear adversary Steve Jobs is no longer here to joust with in the name of technology, I assuredly know that he would hold a passionate position on the latest iPhone 5.  I won’t call this one another “ugly baby”, but I will say freely that the Apple Corporation has clearly elected profits over portability for this new device.

The iPhone 5 as a whole comes to the market with strikingly beneficial upgrades, but one area it is gaining rapid criticism (and rightly so) is with its new charging port.  Here is the issue, since 2003 Apple has devised all of its products to accommodate a 30-pin connector, now with the release of the iPhone 5, Apple loyal’s are being forced to change to a smaller 19-pin version.  What’s the big deal, just get the $29 USD adapter and quit complaining already, right? Not so fast!  The underlying crux of this decision has nothing to do with the thinner diameter of the device as Apple purports, but everything to do with that extra $29 adapter.  The 30-pin technology is even used in the smallest of Apple devices and as a result an entire aftermarket industry based on the 30 pin design has blossomed.  If you are going to go to a new charging port, why not go to something more universal like the microUSB?

In the European Union for example, all Apple devices will be sold with a microUSB port, but only because the regulators require it.  For all other markets, Apple can charge a premium on this fancy little adapter, which clearly puts profits ahead of portability for Apple users throughout the world.  This executive decision (not a design decision as claimed) is aimed at profits and as Apple loyal’s are protesting, this is a slap in the face.

As I’ve said, Steve Jobs and I have disagreed in the past, but as technologists we could always whittle our disagreements down to matters of aesthetic preference; it was never a disagreement based on profit or corporate greed.  Apple has overstepped here and I join the rest of the Apple community and call this one.

How could Apple make it right? Temporarily, they should include the adapter with the iPhone 5 (they are already making a huge profit margin on each device they sell) and recalculate their projected numbers ever so slightly.  In the long term, Apple needs to move toward a more universal solution like the microUSB and put portability (the essence of the iPhone) before the profit.

 

#Apple #iPhone5 #MAC #eDiscovery #infosec #bizlaw

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About the Author:  Eric Everson is a 3L law student at Florida A&M University – College of Law.  Prior to law school he earned an MBA and Masters in Software Engineering while serving ten years of executive leadership in the U.S. telecommunications industry.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  Eric Everson currently serves as the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law.  Follow @IntleDiscovery        

When in Doubt, Don’t Delete: A Lesson for Everyone in eDiscovery.

When in Doubt, Don’t Delete: A Lesson for Everyone in eDiscovery.

Author: Eric Everson, MBA, MSIT-SE, J.D. Candidate (May 2013)

The legal community is well aware of the growing mountain of case law that stresses the importance of preserving versus destroying digital documents.  As the recent post via IT-Lex.org reminds us all, whether you are in the legal community or not, do not delete.

Recently, the artist that created the famous HOPE poster for the first President Obama election survived an entangled web of legal pummeling for deleting key files relevant to a civil litigation case involving his now famous artwork.  Deleting these computer files resulted in a guilty plea to criminal contempt and the artist (Shepard Fairey) got two years of probation and 300 hours of community service.  The moral of this debacle is to preserve rather than delete your files.

As a software engineer turned law student, I can attest that the very essence of computer mechanics and physical data storage establishes that digital files are never really deleted.  In fact, while data may be inscribed in one data storage registry, secondary evidence of the file is often archived throughout the hard drive.  Even software created to clear hard drives for retiring computers does not actually destroy the files, but rather hides them in the recesses of the hard drive.

Let us all learn from this digital document blunder, that deleting files can have profound consequences.  For commercial computer users especially, a proper data preservation strategy should always be at the forefront of retiring technologies.

#eDiscovery #infosec #bizlaw #ITLaw #TechnologyLaw #IPLaw #Obama

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About the Author:  Eric Everson is a 3L law student at Florida A&M University – College of Law.  Prior to law school he earned an MBA and Masters in Software Engineering while he serving ten years of executive leadership in the U.S. telecommunications industry.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  Eric Everson currently serves on the Board of Governors for The Florida Bar Young Lawyers Division Law Student Division and is the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law.  Follow @IntleDiscovery        

Apple v. Samsung: The Largest International eDiscovery Spoliation Case Yet?

Apple v. Samsung: The Largest International eDiscovery Spoliation Case Yet?

Author: Eric Everson, MBA, MSIT-SE, Juris Doctorate Candidate May 2013

In one of the most public battles of International eDiscovery to date, Apple recently won, what many are calling a landmark victory over Samsung in their ongoing patent dispute (See: 2012 WL 3627731).  For those involved in International eDiscovery, this case stands to reaffirm an international duty to preserve.

As the previously noted case citation reveals, despite the patent death match that was so readily publicized in the media, the battle of spoliation was one less sensationalized by the mass media.  What is spoliation? As Scott Lefton recently noted, “Spoliation of evidence is the intentional or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal proceeding.”  As it turns out in Apple v. Samsung, both sides cast the finger of spoliation, however Apple won the upper hand, “Apple sought a finding that Samsung spoliated evidence, and as a sanction for such conduct, an adverse inference jury instruction “to the effect that: (1) Samsung had a duty to preserve relevant evidence, including emails; Samsung failed to preserve large volumes of relevant emails and other documents; Samsung acted in bad faith in failing to preserve the relevant documents; and the jury may presume that the documents that Samsung failed to preserve would have been favorable to Apple's case and unfavorable to Samsung; and (2) if the jury finds infringement of any Apple patent, trademark, or trade dress, that jury may infer that the infringement was intentional, willful, and without regard to Apple's rights.”

So in other words, Samsung did not archive their emails therefore resulting in bad faith which allowed for a favorable presumption to Apple.  Let us not forget that Samsung is a multinational enterprise based in Seoul, South Korea.  From this latest decision, the message is clear, if your corporation is going to do business in America, you must observe the American duty to preserve, or you will pay! 

This case is just one of a number of recent decisions that are shaping the international business environment and the way businesses must handle and preserve digital records.

#eDiscovery #infosec #bizlaw

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About the Author:  Eric Everson is a 3L law student at Florida A&M University – College of Law.  Prior to law school he earned an MBA and Masters in Software Engineering while he serving ten years of executive leadership in the U.S. telecommunications industry.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  Eric Everson currently serves on the Board of Governors for The Florida Bar Young Lawyers Division Law Student Division and is the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law.  Follow @IntleDiscovery