Ride The Lightning

Computer Forensics and E-mail List Marketing: What Do You Do?

Recently, I've been giving serious thought to purchasing e-mail lists of attorneys for marketing. I hate reinventing the wheel, so I thought I'd ask my colleagues what they do, Most of the readers of this blog are in EDD companies, computer forensics or law firms and all potentially use this form of marketing.

I've been doing some research which I'm happy to share with readers, along with any comments that I may receive via e-mail. Here are some of my questions:

Do you purchase e-mail lists?

If so, for one time use or repeated use?

Are there companies you especially like or dislike? Why?

Do you use a one-stop company, which also does the transmission for you?

If not, how do you transmit the e-mails? Yourself? Or by using a service?

If a service, are there companies you especially like or dislike? Why?

What opt-out mechanism do your e-mails use?

What kind of e-mails do you send? Webinar invitations? White paper announcements? Product release announcement? General marketing pieces? What else?

How successful has this marketing been for you? Do you have a way to measure your conversion rate?

I've probably left out some logical questions, so feel free to answer the questions that aren't here and should be. I realize that many readers will prefer to keep such information confidential, but I've always tried (as many of you know personally) to share marketing tips and other useful information with my colleagues. When your competitors are also your friends, life is better. And it is astonishing how often collaboration results.

I'll report back next week. Thanks in advance for your thoughts.

E-mail: snelson@senseient.com   Phone: 703-359-0700

www.senseient.com

http://twitter.com/sharonnelsonesq

More on Video, How We Learn and Courtroom Technology

My recent post on using videos for EDD marketing has continued to elicit conversation. Casey Horne, an attorney with Horne & Horne (they're still working on a website or I'd link to it!), wrote to express his agreement with Ian Henderson's remarks. Casey wrote:

"Peter Drucker made the point years ago that some people learn through their eyes, others through their ears, and damned be he who fails to note the difference.

At the time, it was clear he focused on printed text versus oral speech, so the current fixation on video would be a hybrid and an open question. I find them 80% 'ear' with very little 'eye' data transmission.

I am an 'eye' person. If I hear complex instructions, I have to take notes to 'translate' the information to brain language, where it can be processed and used. Otherwise the MEGO effect controls. (Sharon: for those who don't know, that's the "My Eyes Glaze Over" effect and I am a fellow sufferer)

I know 'ear' people who can hear something once and quote it without error . . . and who can internalize the information and process it to produce action - with successful results.

I have known a (very) few who are both. Not nearly as many as those who may think they are both.

Thanks for writing Casey. And let me added some stats I read some time back (don't ask me to source it because I haven't a clue, but I must have valued the source or I wouldn't have written this information down):

We remember 10% of what we read, 20% of what we hear, 30% of what we see and 50% of what we see and hear. I'll add the caveat that this was over a short term (two weeks) because we slowly forget things over time. Although my own experience is that we forget faster with each passing year. This accompanies my conviction that mountains also grow higher with each passing year, but that's another matter . . .

John and I teach a hands-on CLE called "Kick Our Tires" in which we help lawyers understand and actually "play" with the new high tech courtrooms here in Fairfax. I always the relate to attendees the thoughts of Judge Gerald Bruce Lee (E.D.VA) who says that lawyers who have a decent case and use a PowerPoint as part of their opening at trial are more likely to win in jury cases. I think that's a confirmation of the stats I quoted above. From the very first, you've told jurors orally and visually what you're going to prove and what's significant in the case. If you then do what you said you were going to do, jurors often stay with the initial mindset that you've provided.

Needless to say, woe betide the lawyer who promises to prove things and then fails to do so.

E-mail: snelson@senseient.com   Phone: 703-359-0700

www.senseient.com

http://twitter.com/sharonnelsonesq

Yet Again, Drunk Driver Gets Jail Time After Drunken Facebook Post

Ashley Sullivan, 17, was drunk the night she crashed her car into a brick pillar. Her 20 year old boyfriend was killed in the crash.

A month later, she went to Florida and posted a photo on her Facebook page entitled "Drunk in Florida."

The judge told her flatly that her conduct after the crash had earned her six months in jail along with five years probation, during which she may not drink. The N.Y. judge also refused to grant her youthful offender status.

Add this to a long list of drunk young folks that have managed to get themselves incarcerated by posting photos which make them look anything but remorseful.

Stupid to post, stupid to drink after being responsible for the maiming or killing of someone while drunk behind the wheel. Forrest Gump was right. "Stupid is as stupid does."

E-mail: snelson@senseient.com Phone: 703-359-0700

www.senseient.com

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Court Rules Racy Voicemails, Viagra in Truck and Overnight Stay = Adultery

We don't see voicemails in evidence all that often, but Virginia offered a nice salacious opinion incorporating them recently. In Davis v. Davis, the Circuit Court of Madison County found on January 26, 2010, that the combination of explicit voicemails, Viagra kept in the husband's truck and an admitted overnight stay with the lady on the other end of the voicemails tallied up to adultery.

Absolute proof of adultery is not required in Virginia. The evidence presented must be sufficient to produce a firm conviction in the mind of the trier of fact that adultery has taken place.

The husband said (you can't make this stuff up) that he slept on the other woman's couch on the night of the overnight stay, that he had Viagra in his truck because he was humiliated to bring it into the house (though he had told his wife that he was impotent and that Viagra wouldn't help) and that the phone messages, which included a nice helping of "I love yous" and "sex talk" were just a joke.

One of the "joke" voicemails said:

"Looking forward to seeing you Sunday. Appreciate it if you would wear something I could unbutton, preferably with my teeth."

The voicemails were recorded and no doubt the commissioner had a very "blue" day listening to them.

As always, my eyebrows are scorched by what people write and say to a device they know is recording them. The case was a fun read - the tortured explanations of errant spouses fill entire filing cabinets of deposition and trial transcripts around here. I especially liked the "unbutton quote" - conjures quite the image. I like my job . . .

E-mail: snelson@senseient.com    Phone: 703-359-0700

www.senseient.com

http://twitter.com/sharonnelsonesq

From the Mailbag: The Use of Videos

I had several responses to my last post about Sensei's use of videos. Rob Rost, from Banner Health, wrote me about his company's use of video to highlight HIPAA security:

Banner Health has recently adopted Youtube.com to promote its business to people on the Internet.  In fact, Banner Health is slowly starting to adopt other Web 2.0 applications to promote and create more awareness about its’ mission, values, leadership, and services. I am pleased to announce that the Information Security department has also posted a video YouTube (http://www.youtube.com/watch?v=v3CzDU_Fflg). The video is really part of the annual HIPAA security training for all Banner Health employees.  The goal of the video was to provide answers to common questions.  We also hoped that the humor (along with the under paid actors, but well paid Information Security employees) would make our message more memorable and longer lasting.  We had a lot fun making it, and our media department was fantastic.  Naturally, I am not going to quite my day job though, unless of course, I receive an Academy  award for the best lead wannabe actor in the corporate-education-information security-under 3 minutes-comedy\drama-less than $1000 budget category.

Rob, I agree that you shouldn't quit your day job, but congratulations on making a video that incorporates excellent advice laced with humor. Every one of the "don't do this" examples has happened in the wild and these points can't be stressed enough. Data breaches have become a frightening norm - and I read yesterday that the 2009 cost of a data breach is $204 per record. Scary . . .

I also heard from our British colleague and friend, Ian Henderson of Advanced Forensics. Ian is clearly not an "instructional video" fan:

I’m obviously a Luddite, but I’m strongly against the current fad of using video to communicate everything from how to do something, to the latest marketing pitch. Don’t get me wrong, I’ve nothing against video when it’s used appropriately, but I question whether it’s the most effective way to communicate many of the topics it’s being used for at the moment. It’s just so inefficient as a communication tool, most of the time.

Let me give you an example. A few days ago I was looking for instructions on how to remove a hard drive from a particularly tricky laptop. I found a 15 minute video clip on YouTube that dealt with the issue pretty well. I also found a 1 page “cheat sheet” from the manufacturer that explained the procedure very clearly. I printed out the cheat sheet, removed all the screws as per the instructions, carefully placed them on the paper - so I knew where they came from, and finished the entire task before the video was half way through.

I see this time and time again when I look at how people operate these days. I despair about technical support departments who publish a 45 video clip, rather than a decent technical manual. As Ed Tufte pointed out in 1997 one of the reasons for the Challenger disaster in 1986 was the inappropriate use of PowerPoint-type slides to communicate complex technical information. I’m pretty sure he’d say much the same about the way video is being used these days.

I’m really concerned that the inappropriate use of Video these days is dumbing down a whole generation of people who will lose the ability to write a report, read a technical manual or perform proper research using a range of media resources. Video is fine when it’s used for entertainment, or when used appropriately as an education tool, but what I see these days wastes huge amounts of time, for very little benefit. I know a number of companies that have banned the use of Video clips from their tech support people, and insist that all reference material is properly documented i.e. hard copy or electronic equivalent.

This is perhaps one area where the increased availability of video production tools, and the reduction in cost, is not doing us any favours?

Ian, I certainly agree that there are a lot of stupid, inefficient and just plain wrong videos out there. The use of video has undergone such a radical change in the last couple of years that I think we're all exploring a new universe. Who would have thought that so many people would turn to video rather than the printed word? In a time where so many young professionals intersperse "IM Speak" with the English language, I too fear the loss of language skills, never mind the highly skilled art of technical writing. You and I may the last bastions of a dying breed, but I am hopeful that fads, including the "make a video of everything and anything" fad, will pass and that reverence for good instructional writing will remain.

E-mail: snelson@senseient.com     Phone: 703-359-0700

www.senseient.com

http://twitter.com/sharonnelsonesq

EDD Companies Let Out Their Inner Steven Spielberg on YouTube

The first EDD company video I remember seeing was one by Rob Robinson when he was working for Orange Legal Technologies. It was a little goofy, but fun, and I had to delight in Rob's passion for pushing the edge of the marketing envelope.

These days, computer forensics and e-discovery videos are all over YouTube and corporate websites. They range from the stupifyingly boring to mildly amusing to informative and imaginative to "what were they thinking?" Some of the production values are excellent and some are homemade disasters captured for all eternity on video.

If you haven't taken a spin around the EDD world on YouTube, just do a search for the obvious suspects.

Here at Sensei, I was a Doubting Thomas until last year. What finally persuaded me was the fact that YouTube is now the second most used search engine. Why would anyone NOT be there? Moreover, the costs had come down signficantly while the production values had gone up. So I put my big toe in the water and made a promotional computer forensics video simply capitalizing on the CSI appeal of CF.

I'll tell you flatly that the UVA student videographer we used (he's now a sub-contractor for Sensei) beats the pants off of many of the so-called professionals who charge a king's ransom for humdrum products. For anyone who wants to hire someone to produce these videos, caveat emptor is sound advice.

Recently, we decided to make 14 computer forensics FAQ videos, designed to answer briefly some of the questions we most commonly hear with a closing screen showing our contact information for further information. They are not even finalized yet (I'll post a link when they are), and yet they have already generated phone calls in less than 24 hours.

Was I surprised? Yup. As Gomer Pyle used to say, "Shazaam!" But I like it. :-)

E-mail: snelson@senseient.com Phone: 703-359-0700

www.senseient.com

http://twitter.com/sharonnelsonesq

Duplicate Consolidation: Ethics and E-Discovery Review

Hat tip to Joe Howie for passing along an excellent article which he co-authored with Patrick Oot and Anne Kershaw. The article appears in the January/February 2010 edition of the ACC Docket (the Journal of the Association of Corporate Counsel).

Though it has a broad title, "Ethics and E-Discovery Review" is really focused on the issue of duplicate consolidation. I am only guessing, but I speculate that the title was meant to attract the average lawyer - I can tell you for a fact that most lawyer audiences look at me blankly when I use the term "duplicate consolidation."

The article is extremely well-written and provides an in-depth look at the cost savings that may be achieved through duplicate consolidation. It also suggests something I fear to be all too true, that many lawyers prefer to keep the billable hours up rather than save clients money.

The authors open with quite a punch so I'll quote the first paragraph:

"A recent study published by the Ediscovery Institute based on a survey of leading ediscovery providers (Deduping Survey) shows that, despite the technical ability to suppress or consolidate duplicates within an electronic document population, chances are about 50-50 that your outside counsel fails to take advantage of this technology, opting instead to double-bill for reviewing unnecessary duplicates for privilege, confidentiality and relevance. The study shows that, on average, law firms that do not consolidate duplicates across custodians are reviewing 27 percent more records than needed, and in some cases 60 percent or more, raising serious ethical issues involving conflicts of interest and technical competency."

The opening sure piqued my interest - and the article delivered on the promise of its opening. Well worth reading this one.

E-mail: snelson@senseient.com Phone: 703-359-0700

www.senseient.com

http://twitter.com/sharonnelsonesq

Craig Ball and the EDna Challenge

Craig Ball's mind is an exciting but sometimes unnerving place - one of the things he most enjoys is coming up with a challenging e-discovery hypothetical and then confounding some of the lumaries of EDD with his fact scenario. He did this recently with my partner John Simek as well as many other well-respected EDD folks.

The EDna challenge involves an old school chum (yes, that would be Edna) who runs a small law firm. She wants to conduct an in-house review of ESI in a fairly small case. Craig outlines the facts, the technology available and the budget and then asks "How Should Edna proceed?"

I'm not going to spoil the fun of reading the entire article for yourself, but it really is an intellectual exercise to try to answer Craig's question without first reading the answers of the experts.

Then take a look at what the experts say (and of course Craig, who never lacks an opinion, offers his own excellent suggestions).

As Craig points out, we haven't yet bult a better mousetrap for those who want DIY ESI review. To quote from his conclusion, "Sadly, there's not that much new for those on shoestring budgets; that is, developers remain steadfastly disinterested in 85% of the potential market for desktop discovery tools."

Welcome home Craig - it's way too quiet in the EDD world when you're away. :-)

E-mail: snelson@senseient.com    Phone: 703-359-0700

www.senseient.com

http://twitter.com/sharonnelsonesq

Spoliation: How to Get Your Case Dismissed

First, a hat tip to Jason Shinn whose "Defending the Digital Workplace" blog recently carried an interesting post on Gillett v. Michigan Farm Bureau, Michigan Ct. App., No. 286076 (Dec. 22, 2009).

Though the case really sets no precedent, it does underscore what never ceases to amaze me: Folks who know better than to destroy evidence do it anyway, and then bleat about the draconian nature of the court's sanction (the lower court dismissed the case).

Plaintiff had filed suit for alleged sexual harassment by defendants in the workplace. An attorney for the defendants wrote a preservation of evidence notice advising that plaintiff should retain his personal e-mails. So of course he deletes them. He claims that the deletions were due to the uninstallation of problematic software. Sorry, fellow, the "problematic software" was still there, as the pesky computer forensics expert pointed out.

The hapless plaintiff stick to his guns, saying that if personal data had been lost, it was through the routine, good faith operation of his computer. Yeah, right. The forensics evidence showed that the defendant had deleted an average of 2000 files per month until October of 2007 (after receiving the preservation notice). In that month, more than 200,000 files were deleted. Clearly, the acrid smell of a smoking gun hit the court's olfactory senses.

Unsurprisingly, the appellate case upheld the dismissal and found no abuse of the lower court's discretion.

Hint to would-be spoliators: Massive spoliation of individual files/folders cannot be hidden from computer forensics experts. You might as well wipe the entire drive. Either way, you are probably SOL with the court.

E-mail: snelson@senseient.com      Phone: 703-359-0700

www.senseient.com

http://twitter.com/sharonnelsonesq

TWO MORE LAW SCHOOLS ADOPT ESI WORKSHOPS

In December, I blogged about the partnership between Merrill Corp. and the University of Alabama's law school creating an ESI course. I also lamented the general absence of such practical courses in law schools.

So I was delighted to hear from Michael Berman, an attorney with Rifkin, Livingston, Levitan & Silver, LLC and an adjunct professor at the University of Baltimore and University of Maryland schools of law. Mr. Berman was kind enough to let me know that, along with Chief Magistrate Judge Paul Grimm, he had designed and team-taught a three credit course (an ESI workshop) for both schools.

His note to me was informative and is printed below - perhaps it will assist others in designing such workshops. John and I were pleased to hear that our Electronic Evidence Handbook, written with noted litigator Bruce Olson, had provided some useful reference material for the course.

In the spring of 2008, The Honorable Paul W. Grimm and I developed a three-credit ESI workshop for law school students.  The class was first offered at the University of Baltimore School of Law, and it alternates each semester with the University of Maryland School of Law.  Because the goal was to teach both the current state of the law as it applies to ESI, and also to provide practical solutions, the workshop was restricted to a small number of second and third-year students. 

Much of the workshop is devoted to legal issues presented by ESI, such as pre-litigation planning involving the law governing document management and computer usage policies, what triggers the duty to preserve, how to impose, implement, and monitor a hold, and proportionality limitations on the scope of that duty.  The class also addresses litigation-related topics, such as how to request ESI in document requests; and how to appropriately respond to those requests, such as the proper technique for asserting that ESI is not reasonably accessible because of undue burden or cost.  The class also covers ethical issues, such as those involving production and review of metadata and Rule 26(g), as well as privilege issues.  It then closes with discussions of use of ESI in deposition and at trial, based on Lorraine.  Throughout, there is an emphasis on the Cooperation Proclamation and its impact, especially during the Rule 26(f) conference process.  Of course, the ESI Protocol of the United States District Court for the District of Maryland is used in that discussion.

The class is designed as a workshop.  Therefore, we decided that it was important to invite practitioners and consultants to address the class.  We invite a transactional attorney to discuss document management and computer usage policies, the chair of the State Bar Association Ethic Committee to address the ethical issues, and consultants who demonstrate indexing, enterprise, litigation support, and trial presentation software. Where possible, we download examples of videos from online resources and use them as teaching points.  We also invite highly-qualified, nationally-known forensic consultants, as well as attorneys who concentrate on ESI issues.  Because of our proximity to the D.C. area, we are able to attract nationally-known authors, and also present using web-based, distance-learning software.

Class materials are entirely posted online, allowing for frequent updates.  Students are given three short quizzes, and two “canned” papers. One of the “canned” papers involves drafting either a preservation letter or litigation hold notice, using your ABA book.  Another involves determining when litigation is reasonably anticipated in a turbulent, on-again, off-again, domestic relations situation.  The final exercise is a Rule 26(f) Conference of Parties based on a factual hypothetical describing a dispute between sophisticated  businesses.  When possible, we have coordinated with an information technology graduate school class at the University of Maryland, which is co-taught by Jason Baron, Esquire, of the National Archives, and Prof. Douglas Oard, of the University of Maryland I.T. school, so that each team of law students has real-world information technology assistance in preparing for and attending the mock Rule 26(f) conference.

Because of my interest in alternative dispute resolution of ESI issues, www.esi-mediation.com, as well as the Sedona Conference initiative, this semester will include a discussion of the use of special masters and mediation.

This year, because of other commitments, I am teaching the class solo, however, the genesis of the class, and all aspects of its design, were through Judge Grimm.

Thanks for your note - and I hope this a sign that law schools across the country are beginning to implement useful and practical courses on electronic evidence. As a raft of court opinions attest, lawyers are sorely in need of this education.

E-mail: snelson@senseient.com   Phone: 703-359-0700

www.senseient.com

http://twitter.com/sharonnelsonesq