Archive for February, 2011

Latest Release of Company’s SmartCrawl Technology in Cloud Preservation Product Delivers Advanced Archival Capabilities for Facebook and Other Websites Requiring Authentication

Nextpoint today announces a significant update to SmartCrawl technology in Cloud Preservation, the company’s web archiving service that securely captures data from social media and websites. Released in 2010, SmartCrawl technology offers an unprecedented level of customization to the crawling, rendering and capture of web-based content. With the February 2011 release, SmartCrawl now allows for detailed custom crawls to be performed on individual Facebook pages where user authentication is necessary.

Cloud Preservation’s SmartCrawl technology, which feeds specific navigational cues to the application during a crawl to engineer a desired return, can now access, archive and index individual Facebook account pages for users. This latest advancement also allows Cloud Preservation to authenticate a user session (with customer-supplied user credentials) on web sources of all kinds for the purpose of automated crawling and archiving of data, delivering the most comprehensive and accurate web archive technology available on the market.

SmartCrawl continues to allow archiving of Flash, streaming multimedia including YouTube and Vimeo, Javascript, Ajax, customized use of API feeds from numerous social media communities, and enhanced file capture from PDF, Microsoft Word, Excel, PowerPoint and a host of other file types that may be made available for download.

“Cloud Preservation has been deployed by corporations and institutions of all kinds to build a forensically sound archive of their Internet-based content,” said Rakesh Madhava, Nextpoint CEO. “With SmartCrawl, our goal has been to allow customers total crawl-customization to ensure they have the complete archive of pertinent web-hosted data that they need. This latest release targeting the archiving of individual, password-protected Facebook pages was developed in direct response to customer demand. We are very excited to offer this advanced technology that allows users to preserve all Facebook data, Sharepoint intranets and any data repository that requires user authentication.”

More information on Cloud Preservation can be found at www.cloudpreservation.com

More details on this Cloud Preservation Smart Crawl release can be found at: nextpointlab.com


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During a terrific dinner with two experts in legal technology and in charge of electronic discovery services for a major international firm, I posed the following question about Rule 26 of the FRCP. A vivid conversation ensued, and I’ll spare you the play by play, and instead focus on the same questions.

“Does Rule 26 cover websites?  Doesn’t a party have to review the website for relevant materials?  Isn’t there an obligation to keep ensuing versions of it during the length of a litigation?”

In my mind it’s no different than a word processing document or email box, which means:

1. It has to be reviewed for relevance

Why would websites not fall under Rule 26 (a)(1)(ii) “Initial Disclosures”

“(ii) a copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;”

and then under Rule 26 (b)(1) Scope in General.

“Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.”

Maybe there is a universe where – without review – a party could claim there were no relevant materials on the marketing websites relevant to a particular litigation (anyone got an example?). But then again, maybe there is a universe where dinosaurs didn’t exist but unicorns did.

2. Versions have to be retained — making changes and “saving over” the files is prohibited.

Case law even exists.  “This Court sees no reason to treat websites differently than other electronic files.” (Arteria Prop. Pty Ltd. v. Universal Funding V.T.O., Inc). Furthermore, it is a ruling is from a judge who is a recognized expert in electronic discovery, Judge Ron Hedges

Is there a possible reading of Rule 26 that gets around 1 and 2?

Also, same would be true of social media platforms (read: command and control).  Wouldn’t it?

A spirited conversation ensued, and not one of a hypothetical nature in my mind.  Full disclosure, I have a dog in the fight, our Cloud Preservation product was designed to specifically address this scenario.

What I have found so surprising is that while there is an initial reaction of most attorneys to say, “we don’t need to save it”, I still have not gotten any analysis or example by way to get around Rule 26.

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It’s difficult to not be tempted to oversimplify the Egyptian Revolution and call it a “Facebook Revolution”.  It’s simplistic and glosses over the real fundamental shifts in the minds and hearts of the Egyptian people that caused them to take to the streets.

And in many ways, it’s parallel to the election of Barack Obama in 2008 – driven in great part by social media and huge turnout numbers from the young.  It’s silly to say Facebook elected Barack Obama or caused the Egyptian Revolution.

But if you have time, check out the interview with Wael Gohnim who was the admin of the Facebook page We Are All Kaled Said, just to get a sense of the passion and here you can read the transcript.

Some quotes:

“What are called the “facebook youth” went out in their tens of thousands on January 25th, talk to them. This is the era where people who have good intentions are considered traitors.

“My wife was going to divorce me because I didn’t spend time with her, and now they call me a traitor. I spent all my time on the computer working for my country.”

Just the fact we have to step back from the conclusion is a powerful proof of the magnitude of significance of social media.  The communications channels are changing, dispersing, uprooting the old guard in every imaginable context.

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The first question customers evaluating our Cloud Preservation product ask is “Why do I need to archive”. First off, Rule 26 of the FRCP makes it clear a legal obligation exists for any party involved in a civil proceeding.

But further than that there are specific ethical considerations regarding the marketing of their services on the internet.

Quoting from the article “The Ethical Boundaries of Selling Legal Services in Cyberspace” published in the National Law Journal.

“Copies of advertising materials must be filed in several jurisdictions. A few states, notably Texas, Florida, New Mexico and Kentucky, require advertising to be screened prior to or concurrent with distribution of the material. Filing fees must accompany the review submissions and be refiled when there are changes. Some states with screening requirements have not yet decided whether to include internet materials. Texas, however, has concluded that home pages of Texas law firms must be submitted and failure to so do is itself a rule violation.[8]”

The footnote citation is “Sterns & Murgatroyd v. Lundberg, IP 95-674C, (S.D. Ind.) May 1995.”

Interestingly, this article is from way back in 1996, when the subject at hand was websites.  Facebook would not be founded for 8 more years, in 2004.

The ethical standards and evaluations will take time to catch up with the breakaway pace that these new technologies are emerging.  What is clear however is there is no rational reason to believe that social media marketing will be treated differently than websites.

It does seem inevitable that any lawyer marketing on the internet will need to be able to have a copy of any materials they were making available on the internet, including communications made over third part social media platforms.

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