Ride The Lightning

HOW HIGH CAN WE MAKE THE WALLS? COMPUTER FORENSICS IN MICHIGAN

Readers might remember a previous post decrying both Michigan's requirement that computer forensics technologists have a private investigator's license and the requirement that a security certification be obtained in addition to a forensic certification. Since then, I've had the pleasure of speaking by phone with Adam Kelly, who had prompted the earlier post.

He was kind enough to send me some of the legal documentation from Michigan. What particularly interested me is the fact that the statute makes no reference to a security requirement. This seems to have been the brain child of the Department of Labor and Economic growth, which, in its infinite wisdom, promulated the requirement of a security certification. The statute references "computer forensics or other computer forensic industry certificated study." Doesn't seem to suggest a security certification, does it?  One wonders why the Department decided to erect an additional barrier that folks must jump in order to practice their profession.

So what are they doing in Michigan? Many computer forensic technologists are simply operating in violation of the law - many people seem quite blissfully unaware of the law. Others are making sure that there is someone with a private investigator's license in a management or partner position - that person's license can effectively "cover" the people who work under the license holder.

My advice to Adam was to find a sponsor for a bill repealing this law (using the ABA stance in support), and to gather additional support from experts across the country who would be willing to testify in favor of the repeal. This is clearly a protectionist law (and not protecting the public, but rather those who have PI licenses). If there is a desire to protect the public, a true forensic certification should be required, not a PI license and not a security certification. As Adam said, the current law keeps lawyers and businesses in Michigan from selecting the expert of their choice, irrespective of location. So go ahead Adam, do your best Don Quixote imitation and head full tilt at that windmill with your sword fully extended. En garde!

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

http://twitter.com/sharonnelsonesq

HOW CAN YOU BEAT FREE? E-DISCOVERY SUMMIT

It is Christmas in February. I just received a very nice invitation from the folks at BrightTALK for all Ride The Lightning readers. Yes, ok, I know other bloggers probably got the same offer. Still very nice. BrightTALK is hosting an e-Discovery summit on February 26, 2009 and participation is free. There are nine sessions dealing with various aspects of e-Discovery. I personally know several of the presenters and this should be an excellent summit.

You can register for one or all of the sessions by following this link. Thanks to the folks at BrightTALK for making this possible.

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

http://twitter.com/sharonnelsonesq

LOVING LOSEY: RALPH'S NEW EDD BOOK

No, I haven't read the book yet, but I love it in advance because everything Ralph writes is colorful, engaging, thought-provoking and backed by expertise. The name of Ralph's new book is Introduction to E-Discovery: New Cases, Idea and Techniques (ABA 2009).

The book is currently available at a 15% discount at the ABA's web store.

Whether you're an EDD rookie or a war-weary veteran, this is not a book you want to miss. Of course, if you've read all of Ralph's posts, you will have read much of this, but I know I will find it valuable to have the material easily at hand and organized.

Ralph is perpetually exuberant about his chosen field - and contrarian where warranted. More than once I've ready one of Ralph's postings and simply thought, "Losey's letting loose again."

Fun stuff. Buy. Learn. Enjoy.

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

http://twitter.com/sharonnelsonesq

WANT TO BE AN AUTHOR FOR THE ABA? FIND OUT AT TECHSHOW

A bit off-topic today, but the American Bar Association's Law Practice Management Section publishes a lot of books and (coming soon) digital monographs. If you are an aspiring author, or an established one looking for a new outlet, this may be an opportunity to explore.

There will be a session at ABA TECHSHOW entitled, "Special ABA Session - So You Want to Be an ABA Author?" The session will be at 5:30 on April 2nd (location will be announced in the program), and will end in time for you to join the TECHSHOW After Dark event.

As Chair of the LPM Publications Board, I will be there along with Dan Pinnington, Chair of the Law Practice Magazine Board, and Wendy Werner, Chair of the Webzine Board. All of us are looking for good authors to add to our impressive stable of writers.

And to return to the subject of EDD - we are always looking for knowledgeable authors on that subject. Beyond that, the basic focus of LPM is legal technology, finance, marketing and management. So if you can wax rhapsodic on any of those topics and provide user-friendly and informative content, this is a session you want to attend.

Register for ABA TECHSHOW before the Early Bird deadline (Feb. 28) ends at www.techshow.com. Please come and bring your questions!

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

http://twitter.com/sharonnelsonesq

AN INVITATION TO EDD AT TECHSHOW

Come one, come all. And save some money by signing up by February 28th at www.techshow.com.

John and I traditionally lead an attendee dinner at TECHSHOW, so please sign up to come with us - or at least come up and say hello if you see us at our sessions or in the halls. Because John has such a strong IT background, he often speaks on Advanced IT rather then EDD. Here are our sessions for TechShow 2009 (April 2-4).

Sharon:

E-Discovery for the Rest of Us: What You Need to Know, Now!

Capturing Quicksilver: Records Management for All That Other Stuff

John:

Security: Hardening Data in an Age of Cyber Warfare

Migrating to Vista: Necessary Trip or Dangerous Detour?

The EDD faculty is star-studded and includes Craig Ball, Browning Marean, Brett Burney, Patrick Oot, Jason Baron, The Honorable James Rosenbaum, Dan Nelson, Ronald Hedges, George Socha, Dominic Jaar, the Honorable David Waxse, Ralph Losey, David Ries and Mary Pat Poteet.

It will be a great program, so sign up soon! Hope to see you in the Windy City!

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

http://twitter.com/sharonnelsonesq

EDD IN ABA LPM: CAN YOU TRANSLATE THAT?

Well, a few of you can. But for those who cannot, the subject is Electronic Data Discovery in the American Bar Association's Law Practice Management Section. I am composing this in Boston at the ABA's Midyear meeting. By the time you read it, I'll be back in our Fairfax office. I just love technology.

What struck me at this year's meeting was how prominantly electronic data issues and EDD figure in LPM. When I first become active in the section, about 9 years ago, these subjects were barely touched upon. Now they loom large at every meeting, particularly as we try to make our CLEs as timely as possible. Not only are many lawyers and law firms not managing their own data securely, many are hapless when it comes to handling ESI. There is a growing minority that is up to speed, but still a definite minority.

It seems to me that most lawyers are past Electronic Evidence 101, but I'm curious what readers feel they need more education on: Managing litigation holds? Cost-shifting? The impact of Rule 502? Reviews of current cases? How to deal with inaccessible ESI? Outsourcing review of ESI? Cross border issues? Review and production issues? Vendor selection? Cost-cutting? The list could go on and on. As the saying goes, what's on your mind?

I'll be happy to pass along any suggestions to the LPM Section. Please e-mail me if there's content you'd like to see that you haven't found offered.

It is Valentine's Day here in Boston. Happy to report that John took me to Swarovski and that I am now, in the words of Dustin's Hoffman's Rain Man, "very sparkly." Which is most appropriate as John has arranged a lobster and champagne dinner at The Palm. How shall I reward such gallantry? The night is young - I'm sure I'll think of something.

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

http://twitter.com/sharonnelsonesq

CUTTING EDD COSTS IN THE U.K.

I am always happy to hear from Ian Henderson, a noted computer forensics technologist in the U.K.  We had the pleasure of interviewing Ian for an ABA article last year and emerged as “friends across the pond.”  Ian wrote me recently to advise me that, in addition to his usual workload, he has added two new job functions.

Given my posts this week, his e-mail fit right in. Corporations are now hiring Ian to:

1)      Negotiate costs with EDD vendors; and

2)      Manage the EDD process in the best interests of the client (from Ian’s point of view, he is plugging a gap in the client’s technical knowledge, a gap that is too often exploited by EDD vendors).

So far, he has managed to reduce EDD costs by anywhere from 20-75%, depending on the case - that’s a lot of pounds that British corporations get to keep in their coffers.

My favorite anecdote:  In his quest to serve his client well, Ian met with a big league EDD vendor, who was charging for the meeting. So there was Ian – and SEVEN people from the vendor. Ian refused to let the meeting continue unless it was clear that his client was only paying for one vendor representative. Seriously, SEVEN people? That’s a heck of a gravy train!

Ian, great idea, especially for small firms like yours and ours.  We are adding those functions to our website as well. Bravo! The next fish and chips dinner is on us.

If indeed you need someone across the pond, here is Ian’s contact info:

Ian R Henderson CCE CISA FCA

Advanced Forensics - London, UK

Telephone: +44 20 7226 0303

Mobile:    +44 7940 540 399

Email: irh@advancedforensics.com

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

http://twitter.com/sharonnelsonesq

LEGALTECH 2009: LESS BOOZE, MORE BUSINESS

I didn't make it to LegalTech this year, but I've been in touch with a number of friends who attended and their impressions have been pretty much the same. I also received an insightful Technolawyer post written by Warwick Sharp, Vice President, Marketing and Business Development from Equivio Inc.

Surprisingly, there was only a small decline in attendance at LegalTech, the economy notwithstanding. But there was a clear shift in atmosphere. Gone were many of the cocktail parties, but folks were huddled in bars striking deals. Less Broadway shows, but a lot more business.

Warwick noted a 200% increase in the number of corporation representatives who visited the Equivio booth. This is reflective of what I've seen too - corporations are intent on cutting litigation budgets and doing some very hard-nosed comparison shopping. And they are not necessary accepting their outside counsel's vendor recommendations.

I certainly agree with Warwick that the "EDD Gold Rush Days" are officially over. I also agree that many of the small firms are more efficient (and therefore cheaper) than many of the big firms. Largely, this is due to the fact that we have to be efficient because our client base is primarily small to mid-size firms, and they have ALWAYS been cost-conscious. There was a time when large law firms would recommend to their clients a vendor and the client ended up  paying costs as much as 500% (or more) over value. Pressed by clients, the lawyers are now shopping for better deals.

As Warwick states, reliability was a key factor in vendor choice before the economy tanked. There's been some shift in focus - clients now want to hear about innovation and cost containment. And woe to the vendor who does not sing that tune.

Rethinking computer forensics and EDD is key to survival. I know that's true because I am generally awake at 3 a.m. doing just that. And yes, those nocturnal musings have helped the bottom line - a lot. My extremely tall yellow lab is very happy about my absence of sleep, knowing he can reach up and kiss my face without getting yelled at so long as I'm awake. At least one of us is happy.

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

http://twitter.com/sharonnelsonesq

DOOM AND GLOOM IN EDD

Everyone in computer forensics and EDD shook their heads ruefully last week when it become public that Onsite3 had filed a Chapter 11 bankruptcy and was to be acquiried by Integreon. There was a lot of buzz at LegalTech about the absence of some vendors - and undoubtedly the same buzz will acompany ABA TECHSHOW. When lawyers are canned daily, and even major law firms dissolve, vendors are inevitably squeezed.

Recently, I received an e-mail from the President of another computer forensics firm. The subject line read simply "Doom." Kind of says it all, yes?

We've been luckier than most. More law firms are now doing comparison shopping, urged by clients to contain costs. It has been my sense that some lawyers and clients are departing big vendors with big prices and seeing if they can save some money by using smaller firms. It will shock readers to learn that I think that's a splendid idea.

Seriously, those looking for computer forensics and EDD vendors are getting more savvy. They are learning that hourly rates don't mean much and that a lower hourly rate doesn't mean the final price tag will be any less. Instead, they are focused are getting full project estimates based on the scope of work as they know it. If the scope changes, they know the price will change, but again want to have another estimate. Keeping in close contact with the client has become essential. The single biggest knock against vendors is that costs escalate without notice. No one who wants to ride out the current economic storm can afford to let that happen.

Wishing us all sunny skies and fair winds in the near future.

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

http://twitter.com/sharonnelsonesq

INACCESSIBLE ESI: WHAT ARE THE COURTS SAYING?

My friend and colleague David Isom writes terrific poetry. So I have to say that reading his recent article in the Federal Courts Law Review was not nearly as much fun as reading his poetry!

That aside, it was very informative reading and well writen, if not poetic. The article is entitled "The Burden of Discoverying Inaccessible Electronically Stored Information: Rules 26(b)(2)(B) and 45(d)(1)(D)." It was one thing to have those two rules, but quite another to see how the courts would interpret them in practice. All the time, we hear in court "The evidence is critical" v. "the burden is too great" argument, so it is very useful to have the court cases rounded up in a neat package, with some thoughtful commentary along the way.

Good job David, but give me poetry next time!

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

http://twitter.com/sharonnelsonesq