ABA

Yes, it?s the ?B? word again: ?backup? . . . the perpetually challenging question of how to effectively and practically backup your practice?s systems, client and firm information so you can restore it when the digital chips are down. I continually refer people to the article/post I wrote last November (still very current since it?s mostly procedural and conceptual) called ?Ross? Great Truths About Data Backup? (http://rossipsa.com/?p=162) This article includes the 16 key steps to a successful backup process. I would IMPLORE EVERYONE to read this and be certain your practice is following most, if not all these guidelines. Your livelihood depends on it. Frankly, it may also be the best way to avoid a malpractice claim for ?failing to adequately protect electronic client and case information necessary for competent representation.? In my CLE programs on data backup, I?ve always exhorted my clients and audiences to memorize the two mantras of backup: 1. We don?t backup for the sake of backing up. We backup only so we can restore when the chips are down. 2. If you are doing ANYTHING in your backup process that could stand in the way of quickly and fully restoring your system, STOP IT NOW! The latest on this topic comes from a post I made on the gazillionth backup thread I?ve been involved with on various law practice management listserves (in this case from the State Bar of Wisconsin?s Practice411 list), as follows in a thread where a small firm lawyer asked: ?What is the best computer backup system and why?? Long-time Wisconsin lawyer and technology authority Rex Ewald responded: ?We have used Double Image since 2004 and have been completely satisfied with its performance. We backup on a robust schedule [separate cycled daily, weekly and monthly uncompressed backups ? 23 in all]. Backups run automatically from the built-in scheduler.? I then responded: ?Rex, you?re using this for server backup, correct? As I point out in my article, it?s VERY important to use server/network specific backup software for network servers v. software for backing up PCs that are not servers ? two different animals. When I posted about the article last night ? I was on my Blackberry at the Minneapolis airport so I could get to the article link. It?s called ?Ross? Great Truths About Data Backup. I have not specifically had experience with the Double Image software Rex mentioned, but I trust his experience with it. The best known server backup software (for Windows Server in its various iterations) is the Backup Exec series, now from Symantec. There are versions for both the Small Business Server version of Windows Server software and ?regular? Windows Server. There are also editions that can allow ?Disaster Recovery? which means the ability to not only restore from backups in the event of a complete server failure (when a FULL restore is required) (which would mean normally having to reinstall the network operating system, then install the backup software, then finally restore files ? all of which takes time), you can literally pop in the Disaster Recovery CD (or DVD) created by the software, have it install enough of the network software and itself to allow much faster restoration ? a real plus. Server-oriented backup software also is adept at doing things like backing up successfully even when there are ?open? files (usually via something called an ?open file agent?), backing up Microsoft Exchange Server databases, etc. Then there is backup software to backup regular PCs ? PCs that are NOT network servers running a network operating system (standalone desktops and laptops, or desktops being used as ?quasi-servers? in peer to peer network structures. There are a number of very capable standalone backup software products ? I mention my favorites in the article. My current favorites are Acronis True Image Home 11, NTI Backup Now 5, Second Copy 7, and Genie Backup Manager Pro 8. PCMag.com did a round-up review of standalone backup systems ? a really useful article. They actually rated the Genie product as their ?Editor?s

The Section of Litigation Diversity Leadership Award was established in 2008 to recognize those individuals or entities who have demonstrated a commitment to promoting full and equal participation in the legal profession through the encouragement and inclusion of women, minorities, persons with disabilities, and/or persons of differing sexual orientations and gender identities.

November 11, 2008: Professor Susan Martyn and practicing lawyer Lawrence Fox will discuss a variety of common ethics issues, and the steps you can take to handle them successfully.

News, Analysis & Publications from the ABA Section of Litigation in a fresh new layout.

On July 2nd, the International Standards Organization (ISO) announced that Adobe?s Portable Document Format (PDF) is a new international standard. Because PDF is a national standard, Adobe must turn over PDF to the ISO. The ISO will now be in charge of publishing specifications for the current 1.7 version, and for updating and developing future versions. The standard sold by the ISO will contain all the essential information for developers with a price tag of about $360. The ISO praised PDF in a press release for preserving the format of the original documents, something other software programs have struggled with. The full press release may be found at http://www.iso.org/iso/pressrelease.htm?refid=Ref1141

I?ve been getting a lot of questions lately from folks who are interested in Google?s new browser, dubbed ?Chrome?. They want to know if it?s better, faster, taller, cures cancer?and if they should convert their firms over to it. The answer to those questions is: Sort of, yes, no, definitely not and?.probably not. Chrome is very fast and it uses some interesting new (and open source, so expect them to become more commonplace) technologies to speed up the web experience. It also has a new javascript engine which speeds up the way some web applications (including, not-surprisingly, Google?s) will load and run. Chrome has some interesting technical features around how it handles multiple tabs to help make them faster (on multi-core machines), more stable and more secure. Chrome?s ?Omnibox? blurs the line between web addresses and web searches. Chrome?s Application shortcuts isn?t exactly revolutionary but does let websites pretend to be local applications; at least in appearance if not in performance. However, Chrome still falls short on a couple of points. First of all some websites are still written for Internet Explorer and won?t work in Chrome. Firefox users can get around this by installing the IETab add-in (https://addons.mozilla.org/en-US/firefox/addon/1419) which will render the site in IE, even though you?re using Firefox. But no such fix exists for Chrome just yet. Basically Chrome uses the same web rendering engine that Apple?s Safari does and so sites that don?t render properly in Safari aren?t going to work in Chrome either. Secondly, and perhaps more significantly, there?s no way to secure your saved passwords in Chrome and there are already utilities coming along to take advantage of that. If you?ve got Chrome installed and you?ve saved any passwords in it go to the Wrench (Tools), select Options and go to the ?Minor Tweaks? tab. Click ?Show Saved Passwords? and?well, it will. In plain text. The results may be a bit shocking, especially if you?ve done any online banking in Chrome. Now I know what you?re thinking (O.K., I don?t, but it reads better this way) ?But Ben, doesn?t Firefox do the same thing? I can go to Tools, Options, Security, click the Saved Passwords button and see all my saved passwords in clear text!? Yes. But in Firefox, on the same screen, you can also check that box that says ?Use a master password? which lets you password protect them. Check that box (and you should) and anybody sitting at your computer (or walking off with it) who tries to access your saved passwords will be asked to provide one first. Chrome doesn?t offer that rather important safeguard. At least not yet. Conclusion? Chrome has some nice shiny bits. It?s quick, it?s lean, it has some interesting innovations ? most of which will likely find their way into the competing products in the not-too-distant future thanks to Google making it largely open-source. It also has some significant limitations like being sort of lean on features, not as extensible as some of its competitors and a little free with displaying your stored passwords.

The Section would like to recognize the Committees and their Chairs that have made outstanding efforts during the 2007-2008 ABA year. The Section Council recognizes Committees in each of the three practice areas, environment, energy and resources, and cross practice for best publications, best programs, and best public service.

Nat?l Economic Research Assocs., Inc. v. Evans, LECG Corp., 21 Mass. L. Rptr. 337 (Mass. Super. Ct. Aug. 3, 2006). Services such as Yahoo mail make a screen shot of your activity in a temp file, such that password- protected e-mail you access is accessible later in the form of the temp file screen shot. In this case, the employer sought access to otherwise privileged attorney/client e-mail from a private, password-protected account (stored on an employuer-owned computer as a temp file) based upon a theory that a reasonable person would have known of the screen shot temp file and that these would be accessible to a forensic expert; and that privilege was thereby waived. The court rejected this argument, stating that: ?This Court does not agree that any reasonable person would have known this information. Certainly, until this motion, this Court did not know of the routine storing of ?screen shots? from private Internet e-mail accounts on a computer?s hard disk.? The court then concluded that: ?The bottom line is that, if an employer wishes to read an employee?s attorney-client communications unintentionally stored in a temporary file on a company-owned computer that were made via a private, password-protected e-mail account accessed through the Internet, not the company?s Intranet, the employer must plainly communicate to the employee that: 1. all such e-mails are stored on the hard disk of the company?s computer in a ?screen shot? temporary file; and 2. the company expressly reserves the right to retrieve those temporary files and read them. Only after receiving such clear guidance can employees fairly be expected to understand that their reasonable expectation in the privacy of these attorney-client communications has been compromised by the employer.? This is one of a series of recent cases potentially limiting the scope of employer policies granting the employer unlimited access to data on employer-owned computers. The usual rule of thumb that employer access to data is virtually unlimited if stated in a policy may need re-visiting, or at least employers may have to draft such policies with considerably more care and in more detail in the future.

In late August, the American Bar Association approved a resolution by the Section for Science and Technology law recommending that states should not require those performing computer forensics services to procure a private investigator license. The recommendation includes computer forensics services involving the review of computer information, whether it is for court purposes or providing expert testimony, and the testing and securing of computer networks. The recommendation also supports establishing a separate set of professional standards for the computer forensics industry. The report lays out reasons for the recommendations, most notably that computer forensics is distinctly different than what most private investigators do, and that most private investigators do not possess the science and technology background that is necessary to conduct computer forensic examinations. Further, many computer forensic experts would be excluded from the trial process because they are not licensed as private investigators, though the computer forensic experts have many other professional certifications that make them qualified to testify in court. The report also notes that licensing requirements are not one of the factors laid out by the Supreme Court in determining the reliability of evidence. The recommendation and report may be found at http://www.abanet.org/leadership/2008/annual/recommendations/ThreeHundredOne.doc

Mac Lawyer blogger, Ben Stevens, recently noted the Mac in the Law Office (MILO ) forum is now over 800 members strong with over 10,000 informative posts covering a wide range of Mac issues and solutions in a law office. Membership is limited to the legal profession; however, membership is free. The growth of Macs and iPhones in law offices is impressive, and will be covered more thoroughly than ever at TECHSHOW 2009. Watch this space for more TECHSHOW program information coming soon!

This medical malpractice action is being tried to a jury. We are in the midst of the final Defendant?s Opening Statement, and all Defendant?s counsel have used PowerPoint. The first lawyer is having difficulties with slides advancing very quickly ? apparently nerves are causing her to hit the button multiple times. In frustration, she puts down the remote and asks her technology specialist to navigate for her. A different lawyer experiences a similar problem when the screen goes to white and she is unable to bring up the presentation. Frustration is apparent for both lawyers. Moral? Learn all of the required commands and full use of the remote. A lawyer?s frustration over a PowerPoint presentation working differently than the lawyer had planned is nothing compared to juror frustration over the delays it causes. Further, it is rarely the technology?s fault. Educate yourself. Completely. Learn how to start, stop, go back, go forward, skip around and go from blank screen to a slide. PRACTICE. Then practice some more.

The last sentence of Federal Rules of Civil Procedure, Rule 1 requires that the Federal Rules of Civil Procedure ?shall be construed to secure the just, speedy, and inexpensive determination of every action.? As I approach the curmudgeon years of my legal practice, I fear that this mandate has been overlooked, ignored and abandoned. The threat comes from the considerable challenges of electronic discovery, its excessive costs, and the gamesmanship possible with electronic data. I don't pretend to have all or any of the answers. There is a paradigm shift underway from the pure adversary system to one in which considerable cooperation is demanded at the inception of the case. There is a real tension between zealous advocacy and the disclosures required under federal and state rules. Since I don't have the answers, I would be interested in initiating a dialogue where readers of this blog might contribute their thoughts on what can be done and what should be done to confront the challenges of electronic discovery. If we'll are unable to develop an effective modus operandi for electronic discovery, I fear that civil litigation will be foreclosed for many of us. Please send your opinions to me at b.marean@gmail.com and I'll summarize them in an upcoming post.