Published Articles

CDI Founder Greg Fordham has authored more than 70 articles. Below are some of his articles that are available for download.

10 Steps to Protect Your Company from Employee Based Computer Compromise

 

There is a lot about computer security that employees need to be taught and reminded. Furthermore, it is not just something that they can leave at work.  The practices can follow them home as well.  In fact, a successful organization should impress upon their employees that they (the employee) will be a target as a result of their employment.  Consequently, they must always be on guard for evil doers and practice good computer security.
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Another Domino Falls: Kentucky PI Statutes Have No Evidentiary Effect

 

On January 13, 2012 the Kentucky Court of Appeals reversed and remanded a lower court decision where the defendant's forensic expert was excluded because the expert was not a licensed Private Investigator (PI). (see, Susan Lukjan, Appellant, v. Commonwealth of Kentucky, Appellee. No. 2010-CA-001509-MR. Court of Appeals of Kentucky, 2012 WL 95556, January 13, 2012.)

In its decision, the Appeals court reasoned that, "Reading the plain language of the statutes, we believe the General Assembly meant only to prohibit an unlicensed individual from offering private investigation services to the public; hence, the prohibition against 'hold[ing oneself] out to the public as a private investigator[.]' KRS 329A.015. Providing testimony in a court proceeding is not the equivalent of selling the public one's services as a private detective. . . .Kentucky's statutes governing the practice of private investigating are simply not meant to have any evidentiary effect, and to prohibit the testimony of Lukjan's expert on that basis was erroneous "
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Cost Accounting Standards

 

To a great extent the real consequence of CAS coverage is contractor liability. Since many contractors will escape much of the burden and risk of performing fully-covered contracts as a result of the increased thresholds for full coverage, the increased risk of the CAS will be blunted for all but the largest contractors or smaller contractors performing very large contracts.
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Cost or Pricing Data

 

Cost or pricing data are facts. So, they are not a calculation, a methodology or even a presentation format. Consequently, they are not the schedules created by contractors showing the calculation of their proposed prices. Rather, they are the facts related to the proposal whether or not the contractor actually even used them in calculating his proposal.
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Do Computer Forensic Experts Need a PI License in Georgia?

 

In a letter dated April 2, 2007, that has been widely circulated by computer forensic practitioners as well as some e-discovery shops, the Secretary of State advises that the Georgia Board of Private Detective and Security Agencies (the Board) requires computer forensic firms and their technicians to be licensed when providing services to the public, since they meet the definition in OCGA §43-38-3(3) as a private detective business.

Some have theorized that what is actually happening here is that anyone with a credit card and access to the internet can obtain a background check. So, the PI profession may be going the way of the elevator operator. Consequently, is the profession simply leveraging the amorphous definition of a private detective business to find new blood? If so, they have picked the wrong host.
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Do Computer Forensic Experts Need a PI License?

 

The question of whether computer forensic experts require a PI license is currently a hot topic in American jurisprudence. Numerous groups and individuals have invested considerable time in answering the question for those who are interested. Unfortunately, the work by most of these researchers is usually limited to the various state PI licensing statutes and opinions by the PI boards. Thus, they never consider applicability of the evidence statutes, controlling precedent, or any analysis of legislative intent.

The reality is that a PI license is not required in federal courts. The answer is more complicated for state courts and requires some amount of statutory construction analysis on a state-by-state basis. Generally, however, a state’s evidence statutes tend to trump that state’s occupational statutes when forensic experts are the subject of the analysis.
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Eleven Steps to Designing an E-Discovery Plan and Protocol:
A Systems Engineering Approach to Modern Litigation

 

When confronted with an e-discovery project or any litigation involving digital evidence many wonder where to begin and how to proceed. Rule 26 of the Federal Civil Rules is a good place to start.

The product of the Rule 26(f) Discovery Conference should be a discovery plan. When the plan goes into even more detail and describes the specific procedures that will be followed in executing the discovery plan it becomes a protocol.

All kinds of industries, where complex projects are performed, have found that advanced planning not only improves the final product but can reduce overall project cost. In fact, analyses of various projects with and without advance planning have developed a rule of thumb that 15 to 20 percent of the overall budget should be allocated to advanced planning. This 15 to 20 percent is not an additional cost, however. Rather, by spending that much on advanced planning the overall costs of the project are often cut by 50 percent or more when compared to similar projects without the planning effort.
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Finding and Selecting a Computer Forensic Expert

 

Once the need for a computer forensic expert is recognized, the next likely hurdle will be how to find and select one.  To the uninitiated, this may seem no more complicated than an inquiry with a colleague.  However, there are more things to consider, particularly now as the number of those claiming to have this expertise grows to meet demand.  The following sections provide guidance to the litigator on finding and selecting a computer forensic expert.
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Four Reasons Why You Need Celestial Defense to Investigate Your Intrusion and Data Breach

 

When one considers the two choices of using in-house resources or using an outside consultant to investigate an intrusion and data breach one factor looms large.  By their own admission in the recent Ponemon Institute survey, over half of the in-house security professionals are not adequately equipped to handle the unique challenges of a network intrusion and data compromise. 
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Pricing Changes and Claims

 

So while some find the pursuit of claims to be objectionable, they are a design feature of the government contracting machinery. For many companies to survive these highly competitive times, they will have to adopt a strategy that recognizes the role of claims because to do otherwise will be to forego life as a government contractor.
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Selecting an E-Discovery Vendor: A Best Value Approach

 

As e-discovery continues to become more widespread and more technical, practitioners will likely face the need for vendor assistance.  When the time comes, how should practitioners chose a vendor?  Is it just a matter of lowest cost?
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Terminations for Convenience

 

In a quickly dwindling defense market, a termination settlement proposal may represent a company's last best opportunity to maximize its current period revenue stream and to recover whatever investments may have been made. To that end, contractors are fortunate that there are no cookie-cutter formulas for settling terminated contracts.
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Using Keyword Search Terms in E-Discovery and How They Relate to Issues of Responsiveness, Privilege, Evidence Standards and Rube Goldberg

 

The use of keyword search terms in litigation has received careful
attention over the years. As the prevalence of digital data increases in
litigation, along with the practice of electronic discovery, the use of
keyword search terms will be relied upon more and more to winnow the wheat from the chaff. Although such an effort is seemingly simple, in order to successfully implement and sustain a keyword search plan, there are actually very complex issues and numerous criteria that must be navigated. It is not a pure technology problem. Rather, it is a problem of process . . .
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The Case Against Offsets When Pricing Changes and Delay Claims in Government Contracts

 

Author Fordham presents a compelling and well thought-out 10-page article that advocates there is no basis for offsetting Eichleay overhead with amounts received as markups on change orders.  In presenting his thesis, Fordham examines the issue from three perspectives.  First, he examines the percentage markup method as required in the Federal Acquisition Regulations (FAR) and Cost Accounting Standards (CAS).  Second, he examines the mechanics of the Eichleay formula and the variables used for making the computation.  Finally, he examines the decisions by the General Services Board of Contract Appeals and by the Federal Circuit in Wickham Contracting where both the Board and the Court rejected the government’s decrement to the Eichleay value for overhead recovered in priced changes.

This article first appeared in The Procurement Lawyer, Spring 2004, Vol. 39, No 3, American Bar Association Section of Public Contract Law, and is available by request only.

Wickham Contracting: A Holocaust

 

Wickham Contacting is the case where the Federal Circuit proclaimed the Eichleay formula as the only means for computing unabsorbed overhead (delay damages) for Federal government contracts. In this 20 page article, author Fordham reviews the history of delay claim quantification in government contracts as well as the damages theory and explains how the court's decision in Wickham undermines equitable analysis.

This article first appeared in The Clause, December 1995, The Board of Contract Appeals Bar Association, and is available by request only.