MIRLN 22 June-12 July 2008 (v11.09)

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PEER-TO-PATENT RELEASES FIRST ANNIVERSARY REPORT (Press release, 18 June 2008) - Peer-to-Patent, the groundbreaking Web-based governmental “social networking” project, has released a report on the results of its one-year pilot. Peer-to-Patent seeks to improve patent quality by connecting the United States Patent and Trademark Office (USPTO) to an open network of scientific and technical experts to enhance the patent examination process. Launched on June 15, 2007 by New York Law School Professor Beth Noveck together with a network of corporate and academic collaborators and in cooperation with the USPTO, Peer-to-Patent is the first social networking project with a direct link to decision-making by the federal government. Under traditional practices, USPTO patent examiners bear the sole burden of identifying and relating information pertinent to patent applications. Under Peer-to-Patent, expert volunteers were permitted to assist in these efforts at the www.peertopatent.org Web site. With the consent of participating inventors, patent applications were posted to the Peer-to-Patent site where the expert reviewers discussed the applications and submitted bibliographic information, known as prior art, relevant to determining if an invention was new and non-obvious, as the law requires to obtain a patent. At the conclusion of the review period, this prior art was forwarded to the USPTO patent examiner for consideration and use in their further search efforts. Major companies such as IBM, Microsoft, Hewlett-Packard, Sun Microsystems, Intel, and GE, companies whose patent portfolios account for nearly one-third of the patents issued to the top 30 U.S. patent holders in 2007, all submitted patent applications to the Peer-to-Patent process. Other patent applications were submitted by Red Hat, Cisco, and Yahoo!, as well as smaller firms. Data from the first year of the Peer-to-Patent pilot shows that an open network of reviewers can improve the quality of information available to patent examiners and that such citizen-reviewers are capable of producing information relevant to the patent examination process and are willing to volunteer time. Initial results based on a survey of patent examiners from the USPTO suggest that information provided by the public is beneficial to the examination process. Findings from the first-year report include:
• Peer-to-Patent attracted more than 2,000 peer reviewers.
• The first 23 office actions issued during the pilot phase showed use of Peer-to-Patent submitted prior art in nine rejections.
• On average, citizen-reviewers contributed 6 hours reviewing each patent application in the pilot.
• Although USPTO rules permit third-party prior art submissions on pending applications, the average number of prior art submissions on Peer-to-Patent applications was 2,000 times that of standard rule-based submissions.
• Ninety-two percent of patent examiners surveyed said they would welcome examining another application with public participation, while 73% of participating examiners want to see Peer-to-Patent implemented as a regular office practice.
• 21% of participating examiners stated that prior art submitted by the Peer-to-Patent community was “inaccessible” directly to USPTO examiners.
• Prior art submissions by Peer-to-Patent reviewers were four times as likely to include non-patent literature (any document that is not a patent, including Web sites, journals, textbooks, and databases) as compared to prior art submissions by applicants.
Peer-to-Patent report at http://dotank.nyls.edu/communitypatent/P2Panniversaryreport.pdf?utm_source=Peer-to-Patent+Email+Announcements&utm_campaign=90facdefda-Press_Release_6_19_2008&utm_medium=email

NON-COMPETE PACTS CALLED BAD FOR TECH INNOVATION (NetworkWorld, 20 June 2008) - Employee non-compete agreements have stifled tech startup development in Massachusetts, where the pacts are aggressively enforced, but failed to hold back the IT industry boom in states like California, where they are mostly unenforceable, a panel at Harvard University concluded Thursday. Non-compete agreements, which generally seek to prohibit workers who leave a company from taking a job with a competitor for a fixed period of time, don’t necessarily affect new graduates entering their first job, according to a panel consisting of venture capitalists, a Google executive and academics. But the agreements can stifle innovation because they particularly hurt experienced, specialized workers -- the type of individuals who are often recruited to help guide a startup, panelists said. Some instead seek employment in large companies that can defend them against litigation related to non-compete agreements, said Lee Fleming, an associate professor at Harvard who is conducting a research project into the subject. “They tend to avoid startups, which don’t have the resources to protect them,” he said. Others leave their field entirely, according to Fleming. http://www.networkworld.com/news/2008/062008-non-compete-pacts-called-bad-for.html?netht=rn_062008&nladname=062008dailynewspmal

MICROSOFT SECURITY FIX CLOBBERS 2 MILLION PASSWORD STEALERS (Computerworld, 20 June 2008) - Microsoft’s June security updates were bad news for online criminals who make their living stealing password information from online gamers. The company’s Malicious Software Removal Tool -- a program that detects and removes viruses and other undesirable programs from Windows machines -- zapped game password-stealing software from more than 2 million PCs in the first week after it was updated to detect these programs on June 10. One password stealer, called Taterf, was detected on 700,000 computers in the first day after the update. That’s twice as many infections as were spotted during the entire month after Microsoft began detecting the notorious Storm Worm malware last September. “These are ridiculous numbers of infections my friends, absolutely mind-boggling,” wrote Matt McCormack, a spokesman with Microsoft’s Malware Response Center, in a Friday blog posting. Between June 10 and June 17, Microsoft removed Taterf from about 1.3 million machines, he said. Password stealers such as Taterf are among the most common types of malicious software on the Internet. That’s because there’s big money to be made selling the virtual currencies used in online games for real-world cash. Once a criminal learns a gamer’s username and password, he can log into the game and sell the victim’s virtual possessions for virtual gold coins. Those coins are then handed to another character in the game who sells the gold for real-world dollars at an online exchange such as IGE, said Greg Hoglund, CEO of HBGary and a co-author of the book “Exploiting Online Games.” “There’s no way to audit that money transfer, so effectively they’re doing money laundering,” he said. “There’s almost zero risk for the attackers.” http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9101878&intsrc=hm_list

WHAT PRIVACY POLICY? (Forbes, 23 June 2008) - Want to know how well a company protects its customers’ data? Don’t talk to its security and compliance officers. Instead, try its marketing department. A study released Monday by the privacy-focused Ponemon Institute and funded by e-mail marketing firm Strongmail reveals a disturbing disconnect in companies between the executives tasked with protecting customer data and marketing departments, which use the data for advertising purposes or share it with third parties. In response to a survey answered by 500 privacy and 900 marketing executives in industries ranging from health care to financial services, more than a third of marketing execs said they don’t place any limits on the data they share with third parties, such as e-mail marketing agencies or online advertisers. By contrast, 75% of privacy officers believe that their companies limit the sharing of customer data. More specifically, 80% of marketers said their organizations share e-mail addresses with third parties, compared with 47% of security and privacy officers. Other examples: 65% of marketers said they would distribute a customer’s cellphone number, while only 47% of privacy execs said their companies allowed the data to be shared. Forty-five percent of marketers believe their companies shared credit card data, compared with 32% of privacy officers, and 29% of marketers believe their firms distribute social security numbers, compared with 7% of privacy professionals. “The fact is, marketers are much more aggressive users of information than their privacy-focused colleagues believe,” says [Larry] Ponemon. “Privacy and compliance people tend to think they’re more important than marketing people think they are.” Ponemon notes that despite their differences, the two groups tend to agree about the privacy value of another kind of information: their own. Ninety-three percent of marketers and 99% of privacy officers surveyed said their own privacy was “an important personal issue.” http://www.forbes.com/2008/06/21/privacy-security-marketing-tech-security-cx_ag_0623privacy_print.html

SEC TO REQUIRE ELECTRONIC FINANCIAL REPORTING IN 2009 (Duane Morris article, 24 June 2008) - Certain companies will soon be required to submit their financial results, including annual and quarterly required submissions, electronically using XBRL, a language for communication of financial data. On May 14, the Securities and Exchange Commission unanimously agreed to propose the mandatory use of this technology, which has been in development since 1998, to ensure that investors receive essential financial information in a more timely fashion, with increased levels of reliability and at a lower cost. This interactive reporting vehicle will not only provide information to investors more rapidly but will aid companies in preparing their financial reporting packages more accurately and efficiently. Interactive data will revolutionize how the SEC collects data and will change the backbone of the financial reporting system, improve analytic capabilities and put vital information at the fingertips of investors. http://www.duanemorris.com/articles/article2863.html [Expansion of MIRLN 11.07 - http://knowconnect.com/mirln/article/mirln_11_31_may_2008_v1107/]

CHARTER DROPS PLANS TO TRACK USERS’ WEB USAGE (SiliconValley.com, 24 June 2008) - Charter Communications is dropping plans to track the Web usage of some high-speed Internet subscribers, citing concerns raised by customers, the company said today. In May, Charter announced a pilot program in four markets aimed at producing enough information for advertisers to target online ads for individual customers based on their viewing habits. But the St. Louis-based company said in a statement that some customers have raised concerns, so the program will be canceled before it begins. “Our customers are always our first priority,” Charter said. “We will continue to take a thoughtful, deliberate approach with the goal to ultimately structure an advertising service that enhances the Internet experience for our customers and addresses questions and concerns they’ve raised.” Charter is the nation’s fourth-largest cable TV company. It is controlled by Microsoft co-founder Paul Allen. The plan drew criticism from some privacy advocates and from two members of Congress. Rep. Edward Markey, D-Mass., and Rep. Joe Barton, R-Texas, wrote to Neil Smit, Charter’s president and chief executive, soon after the plan was announced, asking him to put it on hold until the three could confer. Markey chairs the House Subcommittee on Telecommunications and the Internet. http://www.siliconvalley.com/news/ci_9684795?nclick_check=1 But also see http://www.washingtonpost.com/wp-dyn/content/article/2008/06/25/AR2008062501950.html, and a CDT report here: http://cdt.org/press/20080708press.php

ELECTRONIC HEALTH-RECORD STANDARDS AGREED (Washington Post, 25 June 2008) - A major consumer group, insurers together with Google Inc (GOOG.O) and Microsoft Corp (MSFT.O) said on Wednesday they have agreed to standards intended to speed adoption of personal electronic health records. The electronic medical record field remains in its infancy. While U.S. privacy laws govern actions by medical providers such as doctors, there is little in the way of other established privacy, security and data usage standards despite decades of industry efforts. Backers, which also include some doctors and employer groups, said they hope to break a stalemate in moving medical records online, sparked by consumer fears that their personal information will be abused, or held against them. “A policy and privacy logjam ... has constricted some of the consumer uptake of these services,” said James Dempsey, deputy director at the Center for Democracy and Technology, a privacy rights group that accepts some industry funding. Principles for personal health records include an audit trail to track use of the data, a dispute resolution process for consumers who believe their personal information has been misused and a ban on using data to discriminate in employment. Also signing on to the principles are WebMD Health Corp; Consumers Union, which publishes Consumer Reports; seniors’ lobbying group AARP; and America’s Health Insurance Plans, representing big insurers such as Aetna Inc. But not all groups agreed the framework would be progress. The American Civil Liberties Union called the effort an “after-the-fact approach.” http://www.washingtonpost.com/wp-dyn/content/article/2008/06/25/AR2008062501788.html

JURISDICTION BASED ON NONRESIDENT’S ONLINE COMMENTS REQUIRES INTENT TO TARGET FORUM (BNA’s Internet Law News, 26 June 2008) - BNA’s Electronic Commerce & Law Report reports that the North Carolina Court of Appeals has ruled that a Georgia resident’s critical online comments about a North Carolina businessman could not form the basis for specific personal jurisdiction over him in North Carolina. The court reasoned that jurisdiction based on Internet contacts is only appropriate when a plaintiff establishes that the defendant intended to target the forum. Case name is Dailey v. Popma.

NBC OFFERS WIDE ONLINE ACCESS FOR BEIJING OLYMPICS (Washington Post, 28 June 2008) - NBC is making more than 2,200 hours of live competition from Beijing available online, giving Olympic junkies more action than they could ever devour in a day. After barely tipping its toe in the digital world during past Olympics, the network will dive into the deep end: live blogging, 3,000 hours of highlights on demand, daily recaps and analysis and even fantasy league gaming. That’s in addition to the 1,400 hours of coverage planned on six television networks, more than the combined total of every previous Summer Olympics. NBC’s digital plans, however, have angered media outlets that worry the company is being heavy-handed in enforcing its rights to exclusive Olympic access. There’s been some brewing tension about the rights of other media organizations to cover the event; NBC paid $3.5 billion to the International Olympics Committee to televise the five Olympics through Beijing. Other TV networks have a limited window in which to show Olympics highlights, but no video of Olympic events is permitted to be shown on any Web site besides NBCOlympics.com. NBC has allowed video of Olympic trials events to be shown on other Web sites, but each site is required to link to NBCOlympics.com. All of that video must come down Aug. 7, the day before the Beijing Games start. That’s going to limit the ability of Swimming World magazine, which has a heavy online component, to offer material to its users, said Brent Rutemiller, the magazine’s publisher. He’s also upset that limits have been placed on where other organizations can interview athletes, and that they were extended to coaches and officials. http://www.washingtonpost.com/wp-dyn/content/article/2008/06/28/AR2008062801324.html

VERMONT WANTS TO BE THE “DELAWARE OF THE NET” (CFO.com, 30 June 2008) - Known for its Green Mountains, maple syrup, and, of course, moonlight, Vermont might not seem the most likely state to welcome companies with edgy technology. And yet it is virtually in the lead. A bill signed into law earlier this month positions it as a leader in incorporating so-called virtual firms — those without a physical headquarters, actual paper filings, and directors’ meetings (they’re all online.) If it succeeds, it could emerge with the nation’s first virtual tech corridor. The bid to attract companies with infrastructures as diaphanous as Vermont’s moonlight has special appeal. It aims to offer far-flung groups, working on collaborative projects, the benefits of a corporation connection — without the costs that come with commuting and using centralized office space. Officials hope the law will replicate the success that Vermont has had as an “offshore” haven for captive insurance arrangements. That effort has drawn more than 500 companies to set up entities in the state. http://www.cfo.com/article.cfm/11654091?f=home_featured

DO FEDS TRACK CELL USERS ILLEGALLY? LEGAL GROUPS WANT TO KNOW (ZDnet, 2 July 2008) - The ACLU and the Electronic Frontier Foundation sued the Justice Dept. Tuesday for information regarding the use of cellphones as tracking devices. The Washington Post reports that the ACLU had filed, back in November, a Freedom of Information Act request for documents, memos and guidelines on tracking cellphone users. The groups suspect the government seeks the information without following the Fourth Amendment requirement that it establish probable cause of a crime. No information was forthcoming, so this suit is an attempt to shake lose the info. The DOJ responded this way: “It is important to remember that the courts determine whether or not cell-site data or more precise cell location data can be turned over to law enforcement in a particular case. . . . Law enforcement has absolutely no interest in tracking the locations of law-abiding citizens. Instead, law enforcement goes through the courts to lawfully obtain data to help locate criminal suspects, sometimes in cases where lives are literally hanging in the balance, such as a child abduction case or a serial murderer on the loose.” An article in the Post last fall revealed that the government routinely asks courts to OK the release of real-time tracking data. As the spokeman said, they “go through the courts.” The issue here apparently is not that they don’t “go” to the courts but whether they show up with inadequate proof of the need for the information and whether the courts rubber-stamp these requests. http://government.zdnet.com/?p=3880

SPIES WANT A SECOND LIFE OF THEIR OWN (Wired, 3 July 2008) - First, American spooks said they wanted to scour Second Life and other virtual worlds for terrorists. Then, they said that kids who hang out in those digital spaces may be unfit to join the intelligence community. Now, the country’s spies want to build a Second Life of their own. And they want it to have a time machine. The project, dubbed “A-SpaceX,” is designed to create a host of “synthetic worlds” where intelligence analysts can not only share data with one another, but “also with themselves and their previous states of thought about a problem. Analysts will be able to explore their own past thinking about the data as well as enabling the proactive exploration of how that data might change in the future,” according to a military announcement. The effort is a collaboration between the Air Force Research Laboratory, the Office of the Director of National Intelligence, and the newly-formed Intelligence Advanced Research Projects Activity (IARPA). “We cannot control the types of problems that future analysts might face. We cannot control the demands for understanding information and the pressure for faster decision making,” the announcement adds. “We can, however, provide the analyst with an environment that encourages creativity, reasoning, collaboration with internal and external experts... within a multi-dimensional information rich synthetic world. However, unlike players of World of Warcraft or Eve Online, A-SpaceX’s analysts will be able to turn back the clock, and see how they arrived at conclusions. “We believe a key dimension of exploring changing data will be the ability to manipulate time in the synthetic worlds – in effect turning these worlds into Time Machines,” the announcement notes. And those machines ought to be able to go forward, as well. “Proactive analysis could be explored by applying predictive models that look forward in time and suggest indicators leading to future events.” This new effort builds on A-Space, an intelligence community collaboration tool that’s under development. When completed, it is supposed to allow spooks to instant message, blog, share documents and photos, trade competing hypotheses, and do Facebook-style social networking. http://blog.wired.com/defense/2008/07/spies-want-a-se.html

GOOGLE LAUNCHES 2008 US ELECTION TRENDS SITE (Google, 3 July 2008) - See what Americans are searching for on politics. Use the Search Queries Map to view search trends from the 2008 election by location. Track the most searched elections-related terms below, and find out which candidates are hot in different cities. Find out how other Americans stay politically engaged online...Use the Candidate Search Queries map to see which cities are searching more for Obama or McCain, and the News by Candidate tool on the trends page to see the latest headlines on each of the presidential contenders. http://www.google.com/intl/en/trends/elections/

GOOGLE FORCED TO REVEAL USERS’ YOUTUBE VIEWING HABITS (Times Online, 4 July 2008) - Google has been ordered to hand over details of YouTube users’ viewing habits by a judge presiding over a copyright infringement case against the site. Viacom, the parent company of MTV, filed a $1 billion lawsuit against the video-sharing site last March. It demanded that Google, which owns YouTube, should hand over data about how people use the site, arguing that the information would show that copyright-protected material was routinely posted and watched. Judge Louis Stanton of the US District Court granted the request, ordering Google to divulge details of every video clip uploaded to the site, along with viewers’ YouTube usernames and IP addresses. Google had fought the request on privacy grounds and argued that it could not easily hand over its viewing logs due to the amount of data they contained. Judge Stanton rejected the arguments, decribing the company’s privacy concerns as speculative and suggesting that claims of practical difficulties were unfounded. “While the logging database is large, all of its contents can be copied onto a few off-the-shelf four-terabyte hard drives,” he said. Privacy campaigners attacked the decision. The Electronic Frontier Foundation described it as a “setback to privacy rights [that] threatens to expose deeply private information about what videos are watched by YouTube users. http://technology.timesonline.co.uk/tol/news/tech_and_web/article4263925.ece

GOOGLE QUIETS CRITICS WITH PRIVACY LINK (LA Times, 5 July 2008) - Google has made peace with privacy advocates, and it did so without cluttering its famously sparse home page. The search giant had drawn criticism over its refusal to include a link to its privacy policy on Google.com. Some groups said that was a violation of California law. The company said then that it didn’t think the link was necessary because its privacy policy was “readily accessible” to those looking for it. It could be found, among other places, on its About page, which was linked from Google.com. But Google quietly changed its stance Thursday, adding a privacy link. Google Vice President Marissa Mayer said founders Larry Page and Sergey Brin had told her that she could add “Privacy” to the home page, but only if she subtracted another word to keep the word count on Google.com. at 28. So the company removed “Google” from the copyright line at the bottom of its home page and added “Privacy.” http://www.siliconvalley.com/news/ci_9793592

RESEARCHERS TRACK DISEASE WITH GOOGLE NEWS, GOOGLE.ORG MONEY (Wired, 7 July 2008) - When the next salmonella or avian flu outbreak hits, the internet will have the news first. But good luck finding that news amid the chatter about Angelina Jolie, Tom Cruise or the newly touted benefits of watermelon. A new website, HealthMap, addresses that challenge by siphoning up text from Google News, the World Health Organization and online discussion groups, then filtering it and boiling it down into mapped data that researchers -- and the public -- can use to track new disease outbreaks, region by region. “There is so much information on the web about disease outbreaks but it’s obscured by garbage and noise,” said John Brownstein, a professor at Harvard Medical School, and co-founder of HealthMap.org. “The idea of HealthMap is to get filtered, valuable information to the public and public health community in one freely available resource.” The site’s free accessibility could be particularly important in the developing world, where poor public health infrastructure and lack of money has handicapped epidemiological efforts. That’s a problem because those regions are exactly where scientists predict new and dangerous diseases are likely to emerge. HealthMap goes beyond the standard mashup and is more like a small-scale implementation of the long-awaited semantic web. The site, which the researchers describe in the latest issue of open access PLoS Medicine, creates machine-readable public health information from the text indexed by Google News, World Health Organization updates and online listserv discussions. http://blog.wired.com/wiredscience/2008/07/researchers-tra.html

NEW GMAIL FEATURES PROTECT FROM SNOOPING (monkey_bites, 7 July 2008) - Gmail added protection from unauthorized logins Monday through new features allowing you to monitor usage and sign out remotely. The features allow you to police your account from snooping family members, stalkers or those who take advantage when you forget to log out at your local internet cafe. At the bottom of your email account, near where you would see the terms links and copyright information, is the addition of a line of text that alerts you to the last time your account was accessed and a notification indicating if there are any concurrent logins. Clicking on the “Details” link gives you the opportunity to turn the table and spy on the spys. http://www.webmonkey.com/blog/New_Gmail_Features_Protect_from_Snooping

A REVOLUTION IN ONLINE LEGAL CONTENT (Law.com, 7 July 2008) - As summer associates struggle to answer obscure research questions over the next couple of months, and when their predecessors start full time this fall, they may find an answer to their late-night prayers in JD Supra, a new online service that offers completely free access (with registration) to a variety of documents, including legal memoranda, briefs and unpublished court decisions. Inspiration for the service struck founder and San Francisco-based attorney, Aviva Cuyler, late one evening while she was writing a brief and wishing for a service like the one she created. “I thought there should be a place where the legal community could share its work in a freely accessible database,” she says. http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202422768997&rss=newswire

BREAKING THE LAW: ONE-THIRD OF US RESIDENTS RIP DVDS (ArsTechnica, 8 July 2008) - One-third of consumers in the US and UK have made a copy of a DVD within the last six months, according to a report from Futuresource Consulting. The firm surveyed 3,613 people in the US and 1,718 in the UK to discover their “home piracy” habits, and attempts to paint a somewhat ugly picture of casual copyright infringement even though a majority of users who make copies are doing so “legitimately” (for personal use). 36 percent of UK respondents and 32 percent of US respondents have made a copy of a DVD within the last six months, which Futuresource says is an increase from only a quarter of survey respondents in 2007. Respondents in the UK who copied DVDs primarily made copies of movies and TV shows, although movie copying dropped between 2007 and 2008 while TV copying went up. Unsurprisingly, the preferred method of copying DVDs were some of the simplest. Roughly a quarter of both UK and US consumers who made copies of DVDs connected a DVD player to a DVD recorder using a composite/S-Video cable, while roughly another quarter of the two groups preferred using a single PC application for burning DVD copies. Futuresource notes, however, that some 62 percent of US users and 49 percent of those in the UK are making “legitimate” copies of their own new release DVDs that they purchased. 58 percent and 54 percent of those who made copies of older movies made copies of their own DVDs too. Although the numbers for burned DVDs from those that were rented or borrowed are nothing to sneeze at, the large majority of those surveyed appear to be doing what they believe they have a legal right to do. http://arstechnica.com/news.ars/post/20080708-breaking-the-law-one-third-of-us-residents-rip-dvds.html

JUSTICE BREYER AND SEVERAL LAWYERS WERE VICTIMS OF DATA BREACH (ABA Journal, 9 July 2008) - Personal identifying information about U.S. Supreme Court Justice Stephen G. Breyer and several lawyers was inadvertently exposed when an employee of an investment firm used file-sharing software on a company computer. The breach occurred when an employee of the Wagner Resource Group used the file-sharing network LimeWire to trade music or a movie, the Washington Post reports. The worker inadvertently exposed personal information about 2,000 of the firm’s clients. About 700 of the records included Social Security numbers, names and birth dates, while others included only one or two of those details. Financial records were not revealed because they are stored by a separate company. More than a dozen LimeWire users downloaded the personal data, according to officials with a company hired to help contain the data breach. http://www.abajournal.com/weekly/justice_breyer_and_several_lawyers_were_victims_of_data_breach

MINIMIZING THE RISK THAT E-DISCOVERY FAILURES WILL CREATE CORPORATE LIABILITY (Law.com, 11 July 2008) - E-discovery practice in civil cases and government investigations has rapidly evolved since the onset of federal rules governing electronic discovery a little over a year ago. During its infancy, e-discovery was viewed as a costly but powerful tool that could generate “smoking gun” emails that would alter the outcome of cases. Just a few years ago, litigants were infrequently sanctioned for e-discovery failures, in part, because many judges gave litigants who botched e-discovery the benefit of the doubt and chalked up e-discovery mishaps to “the learning curve.” Those days are over. Judicial tolerance for shortcomings in e-discovery is on the decline, and litigants, their counsel and e-discovery vendors are facing direct liability for such failures. As a result, sensibly managing e-discovery is critical not only to success in the underlying litigation but to minimizing the possibility that e-discovery failures will become a source of liability in and of themselves. Before reviewing some ways to minimize the risk that e-discovery failures will create liability, this article draws upon two recent and notable e-discovery disputes to show how liability can arise. http://www.law.com/jsp/ihc/PubArticleIHC.jsp?id=1202422898147&rss=newswire

ROCKIN’ OUT THE E-LAW (ABA Journal, 11 July 2008) - When electronic discovery disputes get heated in his courtroom, Magis­trate Judge David J. Waxse of the U.S. District Court in Kansas has a simple strategy: “If someone comes to me and says, ‘So and so is impossible to deal with and we can’t get a deal done,’ I tell them, ‘Well, videotape the next [discovery conference] and let me watch it to see what’s going on.’ “I’ve never had to watch one of those videotapes. Just the idea that I’ll be watching it seems to put them all on their best behavior and suddenly they have an agreement.” Waxse’s influence is no fluke. E-discovery consultant Mary Mack of the Portland, Ore.-based consulting firm Fios says judges who are ruling on the finer points of e-discovery are going to have an outsize influence for a long time. “The law of e-discovery has largely been driven by a handful of federal judges who realized early on [that] electronic evidence was going to be a big issue in their courtrooms,” she says. “Fortunately, some of them have tackled it aggressively and have given guidance to a lot of other courts and judges.” http://www.abajournal.com/magazine/rockin_out_the_e_law

**** NOTED PODCASTS ****
GENE KOO ON NEW SKILLS, NEW LEARNING (Berkman Center, 27 May 2007) - From a MIRLN subscriber: Interesting discussion of training and knowledge-management issues, looking at e-discovery, technological affinity of younger lawyers, the different perspective (perhaps) taken within the mega-firms, and professional development. (Last 20 minutes are quite focused on law school teaching methods.) 61 minutes; online at http://blogs.law.harvard.edu/mediaberkman/2007/05/23/gene-koo-on-new-skills-new-learning-2/

SOURCES (inter alia):
1. The Filter, a publication of the Berkman Center for Internet & Society at Harvard Law School, http://cyber.law.harvard.edu.
2. Edupage, http://www.educause.edu/pub/edupage/edupage.html.
3. SANS Newsbites, sans@sans.org.
4. NewsScan and Innovation, http://www.newsscan.com.
5. BNA’s Internet Law News, http://ecommercecenter.bna.com.
6. Crypto-Gram, http://www.schneier.com/crypto-gram.html.
7. McGuire Wood’s Technology & Business Articles of Note, http://tinyurl.com/ywsusp
8. Steptoe & Johnson’s E-Commerce Law Week, www.steptoe.com
9. Readers’ submissions, and the editor’s discoveries.

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