For attendees of the LACBA conference looking for the e-mail forensics software I mentioned...

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it can be obtained through Paraben.  The product is currently known as Network Email Examiner (Nemex), version 3.0.  I under-priced it a bit.  It is listed currently as a $799 purchase.  Still cheap when you consider what it does.  The feature list is as follows:

  • Supports GroupWise information stores up to 7.03
  • Supports Microsoft Exchange information stores 5.0, 5.5, 2000, Exchange 2003 & 2007 (.EDB)
  • Supports Lotus Notes information stores 4.0, 5.0, 6.0, 8 (.NSF)
  • Easy to use interface
  • Advanced searching options
  • View one or all individual e-mail accounts in information store
  • View all meta-data within individual messages
  • Complete Bookmarking
  • Export data for review in Paraben's E-mail Examiner
  • Summary HTML reporting
  • Export to PST files
  • NEW Output to MSG & EML format
  • Supports Deleted--Deleted recovery with Exchange

Imagine the ability to view and export one complete e-mail account from a massive Exchange information store.  Brilliant! 

The product page lists "free one year subscription" with purchase, but this pertains to the right to receive free updates.  When the year is up, you can still use the version that you have. 

CLE: The Thirtieth Annual Labor and Employment Law Symposium

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On March 31, 2010, the Labor & Employment Law Section of the Los Angeles County Bar Association will present the Thirtieth Annual Labor and Employment Law Symposium:

The 2010 Labor and Employment Law Symposium provides practical advice and cutting-edge panel discussions on labor and employment law issues of critical importance to attorneys, judges, neutrals, government practitioners, union representatives, in-house counsel, and human resource professionals. The Symposium provides a unique intellectual experience allowing the panelists, all of whom are recognized experts in their fields, to share new perspectives, ideas and information. Each panel discussion covers opposing viewpoints, interpretations and strategies, and will encourage audience questions and participation.

The location details:

Biltmore Hotel
506 South Grand Ave. 
Los Angeles, California

I will be speaking on the panel entitled "20 Tips for Successful Navigation of e-Discovery Requirements," with Moderator Angela Robledo, Hon. Carl J. West, and Heather Morgan.

E-Discovery: Outside Law Firm and One Of Its Partners Stung By Fees And Expenses For Not Producing Native Formatted Database

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California is making a second attempt to revise the Civil Discovery Act to address the unique issues surrouding e-discovery.  On March 3, 2009, Assembly Bill 5 passed the Assembly Judiciary Committee.  Assembly Bill 5 is almost identical to Assembly Bill 926 that was vetoed by Gov. Arnold Schwarzenegger on Sept. 27, 2008.  The only new provision in Assembly Bill 5 is the inclusion of an urgency provision that would make the proposed law effective immediately upon signature by the Governor.  (See David M. Hickey and Veronica Harris, California Rules to Amend Inaccessible ESI (March 27, 2009) www.law.com.)

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Acrobat 9: The 10,000 mile review - Part 1

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Box_acrobat_9_pro_112x112It has been a long time coming, but The Complex Litigator has completed its review of Adobe’s latest version of Acrobat, which is version 9. Because of the length of this review, it will be posted in separate parts, over several days.

The Family of Acrobat 9 Products

According to Adobe, the Adobe Acrobat 9 product line includes 4 distinct products: Adobe Reader, Adobe Acrobat 9 Standard, Adobe Acrobat 9 Pro, and, at the top of the line, Adobe Acrobat 9 Pro Extended. Adobe Reader remains the free program used to view, as opposed to create, digital documents in the pdf format. Adobe Reader is not discussed in this review. As for the rest of the product line, I will focus this review on features that are more likely to be of interest to legal practitioners.

Executive Summary

Everyone is busy. I know that I often jump to the end of product reviews to get to the heart of the reviewer’s conclusions and findings. To make things simple for everyone, I am putting my concluding thoughts at the top of the review. Readers who want more detail about certain features can read through the series of posts that will discuss my impressions of this software.

I whole-heartedly recommend that attorneys using Acrobat upgrade to Acrobat 9. I also strongly recommend that you invest, at minimum, in the Pro edition if you haven’t yet jumped in as an Acrobat user. All variations of the 9.0 Acrobat series add tools that are valuable additions to law office workflow. For example, the ability to split large pdf files by file size, pages, or bookmarks cannot be properly valued until you or your support team have attempted to upload a 50MB pdf file to a court electronic filing system with a 10MB (or smaller) size limit on file sizes. Other features, such as shared document reviews with remote parties via acrobat.com, are likely to be adopted first by the tech-savvy but deserve your attention.

At the higher end of the product line, Acrobat 9 Pro offers additional tools of interest to legal professionals, such as advanced support for the new PDF Portfolio feature. This tool allows the creation of what amounts to an electronic document collection, with cover pages and layout templates. The collection is encapsulated in a PDF wrapper, like a zip file, but with interactive properties for the recipient. In addition, the PDF Portfolio tool can be used to organize and review case documents as a cost-effective alternative to major case management software, such as Concordance or Summation.

Acrobat 9 Pro Extended offers, as a major feature, the ability to covert PowerPoint presentations into a flash-embedded PDF document, complete with narration if desired. The value of this approach is that presentations can be made available online to clients, potential clients, or other professionals as a downloadable PDF that will play the presentation in the newest version of Reader. The incremental cost of choosing to upgrade to Pro Extended is minimal, and I would just spend the extra $40 or so for the Extended version upgrade. If you do not presently have Acrobat, consider whether the PowerPoint conversion feature matters in your professional activities as you choose between the $399 Pro version or the $629 Pro Extended edition.

I also recommend Acrobat 9 for the massive load time improvement. While I will discuss this issue in detail below, it is sufficient for this summary to note that the load time in my experience is probably three times faster. Slow-loading software is irritating. Acrobat 9 significantly corrected a source of irritation that had existed with several of the prior version of Acrobat.

My one word of caution is a consequence of the many features in all versions of Acrobat 9. If you’ve never used Acrobat, jumping into version 9 would probably seem like using MS Word 2007 as your first word processor or Excel 2007 as your first spreadsheet program. Acrobat 9 is a mature software product. I could not begin to relate the number of option settings for various features through Acrobat 9. I suspect that this program would seem somewhat overwhelming to a new user interested in moving beyond default settings. For example, a new user would not easily discover how to activate the ClearScan text smoothing feature when running OCR on a document (Go to Document>OCR Text Recognition>Recognize Text Using OCR, then select Edit and choose ClearScan option). There is nothing that can be done to eliminate this issue. Acrobat 9 is organized well, and has good support features built into the product. Beyond that, you may wish to explore Adobe’s Acrobat for Legal Professionals blog for legal industry-specific tips.

Highly Recommended by The Complex Litigator.

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Governor Schwarzenegger issues veto of e-discovery reform bill, AB 926

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Last week, California Governor Arnold Schwarzenegger issued a veto of the much anticipated e-discovery reform bill, AB 926, despite the passage of the bill without a single "no" vote (I didn't check, but maybe somebody voted "present").  After the Governor issued similar vetoes for over 300 bills, it has been speculated that the vetoes are intended to encourage the legislature to pass a budget that deals with the deficit problem in California (as an aside, if we tied every legilator's ability to run for any state office or receive any pay or benefits to the passage of a [projected] balanced State budget, what are the odds that we'd have a balanced budget every year?).  (Cheryl Miller, Schwarzenegger's Veto: A Raw Deal for E-Discovery? (October 3, 2008) www.law.com.)  The new rules tracked the federal rules and would spell out how and when records from fax machines, computer databases, e-mails and cell phones should be exchanged in litigation. They also set up procedures for settling disputes over data that one party contends are trade secrets or privileged attorney work-product.  Legislators promise to reintroduce the bill when the Governor isn't as cranky.

[Via ElectronicDiscovery]

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e-DISCOVERY: New e-discovery blog offers resources for e-discovery professionals

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I've just learned about a relatively new e-discovery blog, called ... wait for it ... ElectronicDiscovery.  David Jordan, the site creator, has this to say about this online resource:

“Welcome to Electronic Discovery. This e-discovery website is meant to provide free e-discovery resources to people seeking information about ESI (electronically stored information), computer-based evidence, e-discovery technology news, changes in e-discovery law, and more.Electronic Discovery is a little site I put together to keep track of my own ESI knowledge and possibly help visitors (mostly attorneys or corporate counsel) who want to learn E-Discovery 101.

ElectronicDiscovery has already helped me by pointing out a bit of e-discovery news that somehow slipped my attention last week.  I'll add this one to the e-discovery blogroll for ease of reference.

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e-DISCOVERY: Adverse inference sanctions imposed due to Oracle's mishandling of electronic evidence

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In a long-running class action against Larry Ellison, founder of Oracle, and other executives, U.S. District Judge Susan Illston, of the Northern District of California, found that executives either destroyed or knowingly failed to preserve evidence in a suit asserting that Ellison and other Oracle executives misled investors about the company's financial strength.  (Brandon Bailey, Judge says Oralce mishandled evidence (September 3, 2008) www.mercurynews.com.)  Judge Illston indicated that she will infer that the evidence was incriminating. Those inferences will apply when she rules later on the substance of the case, and she will instruct a jury to make the same inference if the case goes to trial.

Judge Illston refused to go beyond the evidentiary inference, despite request by the plaintiffs for additional sanctions and summary judgment based on spoliation of evidence. However, the Court did not rule out further consequences and asked for added briefing.  (Pamela A. Maclean, Judge Orders Oracle Sanctioned Over Ellison E-Mails (September 4, 2008) www.law.com.)

It is a little surprising to me that major corporations, counseled by major law firms (in this case, Latham & Watkins), continue to believe that the substantial developments in e-discovery rules and subsequent decisional authority won't bite them if they don't comply.  Then again, the same thing happened when the world ran on paper, so I suppose there will always be another party to litigation that gambles on not getting caught spoliating or withholding key evidence.

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Google and Viacom agree to "anonymize" YouTube user data

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The Viacom v. YouTube discovery order saga continues, but this time in a way that may mildly alleviate concerns of privacy advocates.  Recently, Viacom, feeling the heat from public outrage over its discovery victory, began a PR campaign to convince members of the public that it wasn't seeking to identify YouTube viewers.  But that assertion simply didn't square with the terms of the Order sought by Viacom.

Perhaps motivated by public scrutiny, Viacom and Google announced that they have reached an agreement to "anonymize" the viewer identity data in the Goolgle database.  (Eric Auchard, Lawyers in YouTube lawsuit reach user privacy deal (July 15, 2008) uk.reuters.com.)  This is a good lesson in how to salvage a position when a discovery victory turns into a massive PR failure.  Had Viacom pressed the issue of obtaining the unredacted viewership database, it risked alienating a large block of consumers.  If Viacom is really sincere that it isn't interested in viewer identities, then "anonymized" viewing data is fully sufficient for Viacom to make its case against Google and YouTube.

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Viacom in frenetic spin-control mode as public outcry over privacy rights reaches fevered pitch

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Unless you've been shielding yourself from any source of Internet news, it was hard to miss the coverage of the Viacom v. YouTube discovery order that resulted in the disclosure of YouTube's database of video views, complete with the IP address of the accessing machine, the login ID of the use, and the time the video was viewed.  The Complex Litigator won't repeat the discovery order details, which were covered a few days ago.

The latest development is a result of the public outcry over this Order. Viacom is now in full PR mode.  “Viacom has not requested any personally identifiable information from YouTube as part of the litigation,” the company asserted on a YouTube Ligitation website. “The personally identifiable information that YouTube collects from its users will be stripped from the data before it is transferred to Viacom. Viacom will use the data exclusively for the purpose of proving our case against You Tube and Google.”

However, as also noted on Digital Daily, Viacom's assertion is inconsistent with the Order it sought and obtained:

“Defendants’ “Logging” database, that contains, for each instance a video is watched, the unique “login ID” of the user who watched it, the time when the user started to watch the video, the internet protocol address other devices connected to the internet use to identify the user’s computer (“IP address”), and the identifier for the video.

(The Complex Litigator.)  Many IP addresses change over time, but in most broadband connections, they change slowly.  Coupled with login ID's, Viacom could make highly reliable associations between viewer location and viewer identity.

All the public can do now is hope that unified pressure will push Viacom to agree to accept a "scrubbed" set of data that does not allow detection of viewer identity.

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Google offers e-discovery resources (this time as a Defendant)

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Complex litigation is a matter of degree.  A matter can be complex because of the number of parties (e.g., construction defect cases), procedural intricacies (e.g., class actions) or the novelty of legal issues involved.  But sometimes a matter becomes complex just because two juggernauts are litigating over stakes so large that everything in their litigation is larger than life - litigation on steroids.

The complex nature of an action isn't always self-evident; however, one occasionally encounters a lawsuit where the briefest summary of the action is enough to indicate that the matter will probably be complex:

“Plaintiffs in these related lawsuits (the “Viacom action” and the “Premier League class action”) claim to own the copyrights in specified television programs, motion pictures, music recordings, and other entertainment programs. They allege violations of the Copyright Act of 1976 (17 U.S.C. § 101 et seq.) by defendants YouTube and Google Inc., who own and operate the video-sharing website known as “YouTube.com”.

(Slip op., at pp. 1-2, footnote omitted.)  In the Viacom action, the Plaintiffs moved to compel Google (and its business YouTube) to produce electronic information that shocks the conscience in its scope and grandeur:

“Plaintiffs move jointly pursuant to Fed. R. Civ. P. 37 to compel YouTube and Google to produce certain electronically stored information and documents, including a critical trade secret: the computer source code which controls both the YouTube.com search function and Google’s internet search tool “Google.com”.

(Slip op., at p. 4.)  In addition to requesting Google's heart on a platter (its search code), which, according to submitted evidence "is the product of over a thousand person-years of work," the Viacom Plaintiffs sought other, highly confidential trade secret information from Google, including:

  • The computer source code for a newly invented “Video ID” program wherein copyright owners to furnish YouTube with video reference samples from which YouTube can use its proprietary search code to locate video clips in its library that have characteristics sufficiently matching those of the samples as to suggest infringement. 
  • Copies of all videos that were once available for public viewing on YouTube.com but later removed for any reason. 
  • The “User” and “Mono” databases that contain information about each video available in YouTube’s collection, including its user-supplied title and keywords, public comments from others about it, whether it has been flagged as inappropriate by others (for copyright infringement or for other improprieties such as obscenity) and the reason it was flagged, whether an administrative action was taken in response to a complaint about it, whether the user who posted it was terminated for copyright infringement, and the username of the user who posted it. 
  • The schemas for the “Google Advertising” and “Google Video Content” databases. (A schema is an electronic index that shows how the data in a database are organized by listing the database’s fields and tables, but not its underlying data. 
  • Copies of all videos designated as private by YouTube users. 
  • And, perhaps most significantly, Defendants’ “Logging” database, that contains, for each instance a video is watched, the unique “login ID” of the user who watched it, the time when the user started to watch the video, the internet protocol address other devices connected to the internet use to identify the user’s computer (“IP address”), and the identifier for the video.

The Court granted significant portions of the motion to compel:

“(1) The cross-motion for a protective order barring disclosure of the source code for the YouTube.com search function is granted, and the motion to compel production of that search code is denied;

(2) The motion to compel production of the source code for the Video ID program is denied;

(3) The motion to compel production of all removed videos is granted;

(4) The motion to compel production of all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website is granted;

(5) The motion to compel production of those data fields which defendants have agreed to produce for works-in-suit, for all videos that have been posted to the YouTube website is denied;

(6) The motion to compel production of the schema for the Google Advertising database is denied;

(7) The motion to compel production of the schema for the Google Video Content database is granted; and

(8) The motion to compel production of the private videos and data related to them is denied at this time except to the extent it seeks production of specified non-content data about such videos.

(Slip op., at pp. 24-25.)

Privacy concerns have been front and center since the issuance of the Order.  (See, e.g., Rob Pegoraro, Court Invites Viacom to Violate YouTube Users' Privacy (July 7, 2008) www.washingtonpost.com; Kenneth Li and Eric Auchard, Court order on YouTube user data fans privacy fears (July 4, 2008) www.reuters.com.)  In theory, data about IP addresses would allow a reconstruction of the history of video viewing at each computer on the Internet.  In practice this would be more difficult in many (but not all) instances, since most Internet users have dynamic IP addresses (IP addresses that change), at least at home.

Complex?  Undoubtedly.  Any discovery Order that requires the production of terabytes of data is sufficient to define an action as complex.  But Google isn't known to be bashful, so the fireworks may have just begun.

The full Order is embedded below:

 

You can also download the Order directly.

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