This past March, the Governor of the State of New York issued Executive Order No. 202.7, which authorized notarial acts to be performed remotely during the COVID-19 emergency under certain conditions.

A memo posted by the Secretary of State explains the parameters of the order to notaries public. Note the following:

1. A photo ID has to be shown to the notary public during a video conference - it cannot be presented separately. The notary must have a live video link to the person who requests their services.

2. The notarized document has to be signed and sent to the notary on the same date.

3. The person who requests the services of the notary public must confirm that they are in the State of New York, and if he or she is in a different county than the notary, the notary has to indicate which county that is on the document.

This may mean that reporters may not be able to take the oath of deponents who are questioned on a Zoom conference call if they are in another state.

When considering which file sharing service to use, consider the following factors:

1. Can the users of the file sharing system recall records by referring to file hashes? If the hashes are generated using a private key and public key outside parties will not be able to access the files.

2. Does the service provide tunnelling protocols to allow data to be transferred securely between two points that use different protocols?

3. Does the service allow for customer managed encryption keys? Can the end user use their own encryption software and manage their own keys - the piece of information that allows a cryptographic algorithm to convert encrypted text into plaintext [unencrypted text], and vice versa.

4. Is device-to-device synchronization available? When data is updated on one device, will it be automatically updated on another device it is linked to?

5. What is the maximum size for any one file uploaded to the file sharing platform? For example, different kinds of Box accounts may limit individual files from anywhere between 250 MB and 32 GB. See this post.

6. If the file share software is open source, it will be easier for security experts to check for its vulnerabilities.

7. Does the service offer hybrid clouds - allow for both public and private cloud services. The former is cheaper and can be easily scaled to meet customer demand, but the latter uses a dedicated cloud infrastructure that keeps data behind a firewall.

8. Will files be encrypted only while they are transferred, but also when they are stored on a server? Is the data protected while it is at rest?

9. Does the service offer end-to-end encryption? This will allow only users exchanging files to view them, and prevent access by the provider.

10. Is two factor authentication offered?

11. Does the service permit data mining? Google Drive uses data mining to find personal information it can use for advertising purposes.

12. Does the system have a versioning file system which allows it to store several versions of the same file?

Yesterday, Judge Yvonne Gonzalez Rogers issued a decision, Williams v. Condensed Curriculum Int'l, No. 4:20-cv-05292-YGR, 2020 U.S. Dist. LEXIS 212886 (N.D. Cal. Nov. 13, 2020), denying the Defendant's motion to transfer venue.

In deciding such a motion, one of the factors to consider is the ease of access to evidence in the target forum. The Court's decision indicates that since most evidence these days is electronically stored information, this factor is moot. "Given that the records could easily be compiled electronically, if not already available in this format, this factor is neutral." Id. at *16.

The other factors to consider in ruling on a motion to transfer are:

1. The Plaintiff's choice of forum.

2. The convenience of the parties.

3. Convenience of the witnesses.

4. Familiarity of each forum with the relevant law.

5. Possibility of consolidating multiple cases.

6. Local interest in the matter.

7. The case load in each forum.

Sean O'Shea has more than 15 years of experience in the litigation support field with major law firms in New York and San Francisco.   He is an ACEDS Certified eDiscovery Specialist and a Relativity Certified Administrator.

The views expressed in this blog are those of the owner and do not reflect the views or opinions of the owner’s employer.


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This policy is subject to change at any time.


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