Ride The Lightning

Telling a Client to Clean Up His Facebook Page Earn Court Sanctions

The title refers to a recent wrongful death case where an attorney was sanctioned for telling a client to clean up his Facebook page because "we don't want blowups of this stuff at trial." He also instructed his client to deactivate the account. It's a squirrelly story worth reading, involving a husband who didn't appear to be distraught over his wife's demise - drinking, wearing a lusty "I love hot moms" tee shirt and the like.

Here's what prompted me to write about it. The case was discussed in one of the online groups I belong to and one attorney actually suggested it would be malpractice NOT to advise the client to clean up his Facebook page and deactivate the account as long as no discovery requests had been received.

As inconceivable as might seem, there are still many attorneys who do not understand litigation holds, when they attach and what they mean. The deliberate instruction to spoliate evidence in an ongoing case absolutely warranted the sanctions which were awarded. But it is obvious that we still have a long way to go to educate lawyers who don't understand that it is not discovery requests that trigger a litigation hold but knowing that a lawsuit exists or reasonably anticipating that one will be filed.

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

www.senseient.com

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Is Information Security Hard and Expensive?

We recently wrote an article for the Canadian legal blog SLAW in which we said that information security was hard and expensive. We were surprised by a comment which basically suggested that this was fear-mongering. Mind you, there is plenty of fear-mongering in infosec, but we stand by what we said.

Think about the paper world. You locked up documents and you were done. The greatest risk was often that you'd lose your briefcase and the documents it contained.

There are all sorts of hazards in the digital world - and most of them are poorly understood by lawyers. Lawyers are very busy folks and often not very sophisticated about technology. We have consistently found that lawyer audiences describe infromation security as "hard."

It is absolutely true that there are many free and inexpensive things lawyers can do to protect their data and we harp on these all the time. Strong passwords are critical. Keeping up with patches is critical. But in an era where the overwhelming majority of states have data breach laws and most law firms don't carry cyberinsurance which would cover data breach investigations, notifications, credit monitoring and remediation, it is now the recommendation of most experts that firms have periodic information security assessments and then fix the problems that are uncovered. The assessments and remediation are generally not cheap - and these items have not been in traditional law firm budgets, especially the budgets of small law firms.

It is also true that cheap and free solution are often worth what you have paid for them. Not all solutions need to be expensive, but the desire for free or cheap can get you in trouble. It is also often true that, no matter what solutions are used, lawyers tend not to know how to properly configure them. Sadly, a lot of IT support folks don't seem to know either.

With that explanation, we stand by our words. Education is certainly pivotal to helping lawyers with data security and it is no surprise that some variation of "Protecting Your Data" is our most requested seminar. Audiences do indeed give us feedback that the seminar is "scary" but they also feel more educated about the nature of the dangers and how to safeguard against them. Forewarned is forearmed - and we need more practical seminars identifying the reasons for data loss and how to stop these losses.

Too often, lawyers believe "it can't happen here" - until it does.

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

www.senseient.com

http://twitter.com/sharonnelsonesq

Virginia Lawyer Hit with Record Sanction for Hiding an E-mail

When a lawyer hides a critical e-mail advising a client to hide Facebook postings that will hurt his personal injury case, you have to wonder what he was thinking. Matthew Murray knew what he was doing and clearly knew he had violated his ethical duties - what other reason could there be for suppressing such a damning e-mail?

Virginia Lawyers Weekly reported that a judge has imposed a $542,000 sanction against Murray. Murray has brought shame to his profession - or what used to be his profession. He not only left his law firm (Allen, Allen, Allen and Allen) but also the practice of law. To be fair to his former firm, there is no evidence that it was aware of his misconduct.

Did he think he wouldn't get caught? Was it hubris? Was it zeal to win and win big? We may never know.

I can only tell you that I am mortified that a Virginia attorney would stray so far from his ethical obligations. Some readers may know that I will become the President-Elect of the Virignia State Bar in June of 2012. One thing I hope to achieve during my years of leadership is renewing a strong commitment by Virginia lawyers to the integrity of our profession, something all of us should hold dear. Our ethical rules are not in place to be followed when convenient.

Given the choice between taking the high road and losing a case or the low road and winning it - well, there just isn't a choice at all, is there?

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

www.senseient.com

http://twitter.com/sharonnelsonesq

Taking Down the Bad Guys Takes a Team: Operation Ghost Click

There has been so much yammering about "public-private partnerships" to fight online crime that we've all become jaded. The partnerships often seemed in name only and without a lot in the way of accomplishments. But I believe the future of effectively fighting online crime does indeed require teamwork so I was delighted to read in Dark Reading about Operation Ghost Click.

This extraordinary collaboration between international law enforcement agencies, private industry and non-government organizations led to the charging of seven Estonian and Russian citizens over a global click fraud scheme that had, unbelievably, infected more than 4 million computers and raked in more than $14 million for the criminals.

The group allegedly infected computers with DNSChanger - malware that changed the systems' domain-name servers, redirecting requests for website addresses through a network of criminal-controlled hosts. For four years, the group allegedly created false advertising clicks to businesses that paid affiliate fees, defrauding the firms.

In a Who's Who of good guys, the FBI worked with the Estonian Police and Border Guard, the Dutch National Police and NASA's Office of the Inspector General. The private sector good guys included Georgia Tech University, the Internet Systems Consortiuim, security firm Mandiant, the anti-spam group Spamhaus, the security intelligence firm Team Cymru, Trend Micro, the University of Alabama and an ad hoc group of subject matter experts called the DNS Changer Working Group.

With a flip of a switch, the rogue DNS servers wre replaced by legitimate ones run by the Internet Systems Consortium.

Way to rock the house guys and pave the way for future "online posses."

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

www.senseient.com

http://twitter.com/sharonnelsonesq

Oops! Fairfax Courtroom Sticky Note Blunder

Readers will know that John and I lecture throughout the country on information security and courtroom technology. Last night, we were teaching a CLE in one of our high tech courtrooms. John was assisting in resolving a tech problem and walked up to the bench, where he found - you guessed it - a sticky note on the monitor with the user ID and password.

C'mon guys! There is no rule of infosec so fundamental as not having sticky notes with the keys to the castle on the monitor, under the keyboard, in the drawer, etc.

Maybe we need to have a data security CLE for the judges?

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

www.senseient.com

http://twitter.com/sharonnelsonesq

Judge Orders Divorcing Couple to Divulge Social Media Passwords - Really?

Social media has spawned some rogue judicial decisions and Forbes reported last week on yet another one.

Apparently, Judge Kennth Shluger in Connecticut ordered the attorneys for a divorcing couple to exchange their client's Facebook and dating website passwords. He also ordered that the parties not delete anything or atempt to prank each other by visiting the other's website and posting message pretending to be from the other party.

But seriously, where did he get the authority to ask for the keys to the social media sites? The other side has the right to be provided with responsive, non-privileged material only. When one business sues another, it is given the responsive, non-privileged data by the other side. You can't go fishing through all the file cabinets of the other party's office.

So why the divergence from well settled law? It seems to me that this is an unwise departure from precedent - we are on a slippery slope when we open up entire social media accounts for an adverse party to comb through. If it is isn't relevant, the right of privacy should be protected.

Our zone of privacy is growing ever smaller.

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

www.senseient.com

http://twitter.com/sharonnelsonesq

How "Dark" is E-Discovery Pricing?

I read a thoughtful article by Evan Koblentz on Law Technology News entitled, "The Dark Side of E-Discovery Pricing." Evan had been approached by an e-discovery company offering an interview with its CEO - the subject line read "The cuplrits cheapening the eDicovery industry" and her message was that lowering prices would impact the quality of e-discovery. She would not disclose her own company's pricing. Evan very appropriately declined the interview.

Evan is correct that when you ask for pricing, you'll often hear "it depends" - and sometimes with good reason. Here's my beef though. It you can give a vendor a pretty clear scope of work, most of the "it depends" should go out the window.

Our own company, like many others, uses a pricing estimator that is darn accurate. Given the scope of work to be done, the estimator works very well - if the scope changes, so does the estimate.

I agree that pricing is often very foggy to clients and I think this is a disservice. It is true that some companies will so undercut the pricing to get the work that you know doggone well that either their service will be inferior or the pricing will change mid-stream, a tactic which I deplore. And it is true that e-discovery, well done, will command a certain amount of money.

However . . . most of our small cases close at under $10,000 and most of the medium size ones are under $25,000. Not inexpensive, but not upwards of the six figures mentioned in the article either. I think we have to recognize that quality work can be done at lower pricing than in the old days, partially aided by advances in hardware and software - and partially a result of the fact that clients were paying upwards of 500% of true value in the gold rush days because the market cheerfully bore it. The faltering economy brought that curtain down with a thump.

Smart companies these days will work to make their pricing value-based, fair and transparent, with any change in scope quickly reflected by a new written estimate so that the client is never caught by surprise with a severely escalating bill. That's what brings back the repeat business and referrals which makes a company successful over the long run.

It is time that we lift the fog and let the sun shine on e-discovery pricing models.

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

www.senseient.com

http://twitter.com/sharonnelsonesq

Siri - Can She Spill Your Secrets? By Default, Yes.

The wonderful Canadian blog SLAW (ok, I'm prejudiced, John and I write for it) recently carried an excellent article by our friend and IT/infosec expert Ben Schorr. As Ben points out, the feature of the iPhone 4S that everyone is excited about is Siri, the voice-enabled personal assistant.

Siri can do some cool things - she can direct you to the nearest gas station, read you your e-mails and help you remember the coffee shop you liked in Seattle the last time you visited - ah, the wonders of GPS. Unfortunately, Siri has no loyalty - if someone else gets possession of your phone, Siri will obligingly read them your texts or e-mails - or send text and e-mails that appear to come from you. This is true EVEN if you have your phone locked with a PIN.

This recently discovered security flaw can be corrected, but you must take the affirmative step of disabling Siri when the phone is locked - and how many users are going to do that? Unless you take that step, be wary of what you share with the faithless Siri!

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

www.senseient.com

http://twitter.com/sharonnelsonesq

Our Test Drive: Reed Tech Web and Social Media Archiving Services

Thanks to Rod Wittenberg and Matt Byrd for a tour of Reed Tech's Web and Social Media Archiving Services (and yes, I recommended coming up with a shorter, catchier name). Nice product, with much of it very similar to the social media archiving products of Hanzo, Iterasi and Nextpoint.

What we really liked and saw as a great boon and product differentiator was the on-demand Web capture tool - what a great way to gather web content relevant to your area of practice into searchable folders - at $30 a month per seat, this is an affordable tool for solo and small firm lawyers. Heck, we see this as a valuable tool for us, given all the research and writing we do.

Rod was kind enough to send us a very thorough description of the product which I've included below:

Sharon and John,

Thanks again for your time last week. We really appreciate the time you spent with us reviewing the Reed Tech web and social media archiving solutions. We are excited to bring the services to market with some differentiation from the competition. This year has really been about creating market awareness, building relationships with potential customers and channel partners, and refining the tools.

We spent a good deal of time reviewing the “on-demand” capture tool. The Reed Technology solution will enable organizations like yours to create, organize, and use an archive of critical website and social media information in a state of the art application. The archives are stored in a high-tech data center and provide you unmitigated access to this data set 24x7x365. As web research becomes more of a focus for the legal industry, this solution will enable researchers to save time capturing and retrieving critical information.

Thanks to our discussions with attorneys and librarians over the past four months we have learned that the web capture tool supports a variety of business objectives including:

1. Dramatically reduce the time it takes to accurately capture and preserve content from the web including social media, and find it when you need it.
2. Easily organize all your web research into searchable folders or leverage tagging to identify critical themes.
3. Confidently present critical web content in its native format with digital signature, date and time-stamp as evidence in court.
4. Prevent “link rot” or changed website locations by permanently storing critical research in our state-of-the-art data center.
5. Support your trademark research and audit needs by tracking the “effective use” of your clients’ trademarks. During an audit you can quickly retrieve compliant materials from your archive.

More broadly, our Web Archiving Services create fully searchable and interactive archives that not only capture the way the website appeared, but also restore its functionality. Dynamic capture modules expand this scheduled or on-demand service to encompass the archiving of a company’s entire online presence, including company websites, blogs, Twitter, forums, Wikis, and more. There are two defined processes that we provide to capture and preserve the web:

1. Website Archiving- in this scenario Reed Technology works with clients to schedule website, blog and social media capture with sophisticated tools that automate and replicate the capture to the defined schedule and retention policy.
2. On Demand Web Capture- in this scenario Reed Technology provides a browser plug-in to end users enabling user directed capture of web pages as necessary.

The on-demand web capture application can be sold to individual users or across the enterprise. Pricing starts at $30/seat per month for unlimited captures, access to the archive, customer support and up to 10G of storage in the Reed Technology data center. The automated web and social media archiving solutions start at a price point of $50 per month.

Key Product Features:

• Full-text search
• Date and Time Stamping
• Digital Signature (Sha-1)
• Folders & Tags (including auto tagging)
• Thumbnail image review
• Metadata
• Date filters
• Flash & Video
• Document Capture
• Retention schedule management
• Legal hold
• Data export to E-Discovery review tools

Nice product guys - and thanks again for taking the time to let us play in your sandbox! Now get to work on those export options so we can have our electronice evidence on paper. <g>

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

www.senseient.com

http://twitter.com/sharonnelsonesq 

Stupid is as Stupid Does: Social Media Posting Contributes to Life Sentence

The Roanoke Times recently reported on a case in which a once promising hip-hop musician pled guilty to his role in a major crack cocaine distribution ring and ended up with a life sentence.

Among the evidence facing Derrick Evans was his posting on his MySpace page of a video showing him next to a shoe box full of cash while wearing a T-shirt that said "Can't sell dope forever."

It boggles the mind that someone would think that posting that video was a good idea. Although it sure made the prosecution's job easier.

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

www.senseient.com

http://twitter.com/sharonnelsonesq