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e-Discovery 3.0: Preparing for a New Era of Forensic Collections
When a corporation involved in a high-profile lawsuit last year wanted to find an incriminating text message that a former employee intentionally deleted from his mobile phone, its legal team did not conduct a nationwide manhunt for the sender's device or subpoena his wireless carrier. In the modern era of high-tech litigation, the company's forensic specialists simply used the UFED Touch Ultimate data extraction, decoding and analysis tool from Israel-based Cellebrite Ltd.
A cultural shift in the way we access and manage information is fueling this creative use of technology. Instead of clandestinely slipping a floppy disk or CD-Rom into a PC and illicitly downloading corporate information with James Bond-like precision, today's employees can simply misappropriate trade secrets by transferring key files to their iCloud or DropBox account without any fear of being caught.
Corporate records, customer lists, protected schematics, and other items of value are fair game in an era where the surreptitious acquisition of information is almost effortless. After all, once a user places a document into DropBox, it is immediately available on any mobile device, home computer, or new employer's server creating a proverbial e-discovery nightmare.
Litigation Challenges in a Mobile World
Even innocent use presents significant challenges as individual information practices are changing more rapidly than ever before. Employees are so comfortable accessing information on their mobile devices that they are less security conscious and more efficiency focused. While they address issues more quickly and transact business with greater fluidity, they do so while sacrificing the sanctity of data within an organization.
As the world becomes exponentially more mobile, traditional methods of electronic discovery are struggling to keep pace, with forensic collections leading the charge into the next phase of digital litigation. From using social media on iPads to defend disability claims where the issue of whether a litigant is truly injured is in dispute, to sophisticated computer forensics that confirm or refute a school district's suspicion of a suspected student-teacher relationship, the development of these tools is evolving rapidly.
The Impact of BYOD and Social Media
Leading the list of concerns is how to manage this evolution when individuals expand their use of personal devices and become more socially connected. In fact, Bring Your Own Device (BYOD) is perhaps the single-most-confusing issue that those involved with corporate records and e-discovery face in the current climate. In many ways, it is an unstoppable trend, which IT leaders are struggling to control with limited success.
In a research study released last November, Ovum surveyed 3,796 full-time employees from organizations with more than 50 employees in 17 countries about their usage of personal devices at work. The report found that 57.1% of full-time employees bring their own device in some capacity. See , Logicalis Group, BYOD: An Emerging Market Trend in More Ways Than One, p. 2 (Nov. 28, 2012). Of those that do, 17.7% claim that their IT department does not know, while 28.4% think their IT departments actively ignore it. Id. at 11.
In addition to the equipment, there is a similar blurred line that applies to communication. While concerned about the implications of social media use, for example, many organizations are still encouraging their employees to visit corporate Facebook pages, join professional LinkedIn groups, update social media profiles, and engage clients or prospects in digital discussions.
The convergence of these two trends combined with the rapid pace mobile device adoption is creating an atmosphere of uncertainty, insecurity and inefficiency. Those corporate law departments and IT teams that are aware of the challenges they could face and are familiar with the best practices to approach them are most likely to navigate this shifting landscape unscathed.
Control
Control is the key element. The advantages of mandating usage of company-owned tools extend far beyond volume discounts and uniform applications. Those who issue the entire suite of gadgetry for each employee have almost complete authority over: how they access internal networks; enhanced ability to monitor prohibited usage; and increased security options during employment or upon termination.
In many ways, exercising this form of oversight gives employees the freedom to conduct operations without concern for the manner in which the company stores its records or the way in which it closes transactions. And employees commonly prefer to separate their personal correspondence from their professional interactions for privacy reasons.
Pitfalls
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.