Alextronic Discovery

Alextronic's State Bar Presentation mentioned in a Blawg

2009-09-14T09:12:00.000-07:00

Here is an exciting blawg entry from TotalAttorney that references Alextronic's presentation yesterday (at the 82nd Annual California State Bar Meeting in San Diego) entitled New Strategies for Winning the Document Production War. Enjoy blawgerheads:
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Day 4 of the California State Bar Meeting
The morning began with us pondering an interesting question. What would Lincoln do? As a lawyer first and then a President, Lincoln often faced ethical dilemmas which he worked his way through in a smooth and commendable manner. If you despise what you are doing you won’t do it well. In honor of the year of the 200th birthday of Mr. Lincoln, it was an interesting seminar to examine how we would in the modern era use the same principles he applied over a century ago. As you head back to work, if you are faced with ethical dilemmas, ask yourself… What would Lincoln do?

E-Discovery has been a very hot topic throughout the conference. This morning’s session was full of useful information about both ethics and rules of discovery. Check out Electronic Discovery for Dummies it is a great reference that highlights e-discovery. There is so much that exists in the files beyond just the data they contain, in fact they can tell you when they were created if and when they were altered and who made these alterations. E discovery is a very expensive process and often the cost is shifted to the requesting party, however most cases look at several factors. Email is the world’s largest communication tool with trillions of messages transmitted each year.

The most important lesson I learned today is don’t type anything you do not want discovered! If you are looking to discover almost any document you will likely be able to. If you are looking to hide it, you better have a protective order of some sort. There is Electronic discovery software which can discover how and when the document was altered and by what login name. There was a case where a slanderous document was at issue; the party saying they had never said those things! But the document was filled with slanderous words, and through this software they were able to see that the document had been altered from a different login computer and printed from a different login.

For more information check out www.renewdata.com.
It was a wonderful meeting and I look forward to the 83rd Annual State Bar of California Meeting. If you weren’t able to come to this one, check out the Hong Kong conference in early November!

Alextronic and Friends Speak This Month and Next

2008-09-08T23:47:00.000-07:00

Alextronic (Alex Lubarsky) and friends have a jam-packed E-discovery/ESI speaking agenda this month and next. I hope our dedicated legion of Blawgerheads can join us at the following events (I will be speaking at all but the last event listed below):

Litigation Skills for Legal Professionals - Friday, September 26th in Saramento at the Sheraton Grand Hotel - 1230 J. St. from 9am to 4 pm. Register at www.lorman.com
Preserve Find and Retrieve a Client's ESI - State Bar of California Annual Meeting in Monterey. Sunday, September 28th from 8.30 am to 9.30 am at the Portola Hotel and Spa - 2 Portola Plaza, Monterey, CA. Register at: http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=11368
Litigation Skills for Legal Professionals - Tuesday, October 14th from 9a.m. until 4.30 p.m. at the Fairfield Inn by Marriott - 8452 Edes Ave. Oakland, CA 94621. Register at www.lorman.com
Trends in Corporate Data Storage: Information Management and Cost Reduction Techniques teleconference - Thursday, October 30, 2008 from 10 am (PST) to 11 am. This is a webcast. Register at www.lorman.com
Also, I am not speaking at this event, but I STRONGLY encourage you Blawgerheads to attend tomorrow's FREE webcast entitled 'Implementing a Defensible eDiscovery Process' conducted by Guidance Software and Seyfarth Shaw. This webcast will begin at 11 am PST and I believe it lasts an hour. You can register at http://www.real-ediscovery.com/

It was great seeing many of you at ILTA this year. NYC is just around the corner. I promise another semi-scholarly Alextronic column sometime soon.

- Alextronic

Metadata and Retetention Policies 'Down Under''? You got that right, Mate!

2008-06-03T21:06:00.000-07:00

Metadata and Retention Policies 'Down Under''? You got that right, Mate!

OK, now we can safely say that the little niche cottage industry called e-discovery has gone global.

This year marks the first substantial changes tot he Australian civil code concerning (gulp) data retention policy best practices and metadata handling. And you thought them Aussie's only handled boomerangs, Fosters and Vegemite.

This month in Sydney a smattering of attorneys, government officials, corporate counsel types and didgeridoo IP professionals will converge around the barbie and discuss natives ... but not the aboriginal type that hang around Uluru and Alice Springs. No, these folks will be 'men at work' discussing the new rules regarding the handling of electronic data and electronic evidence that have been propounded in Victoria and which is taking hold around the red-rock nation/continent from the Sydney harbor all the way to the opal mine shafts of Coober Pedy.

How can a Yankee get an invite to speak at this gig?

I miss Australia. I spent a few weeks there with my wife in the late nineties scuba diving in the Great Barrier Reef and grilling shrimp when we weren't shopping for aboriginal art and ornate boomerangs. I recall when my dive master, Peter Andrews, asked me as we returned to shore from a mesmerizing fifty foot wall dive off of Port Douglas, "So mate, what is it you do up there?"

"E-discovery consulting mostly" I said, quickly realizing that Peter knew as much about e-discovery as I did about the mating habits of a wallaby. Peter scratched his head and I tried to explain load files, deduplication, retention policies, litigation hold protocols and metadata to him. After a good ten minutes he suggested we talk about cricket and tap the keg of Victoria Bitter that was knocking around the scuba tanks as we zig zagged through the reef.

I was amazed at how clean and well organized Australia appeared to be as a whole. Each time I would compliment the Aussies on the near-Utopian society they had crafted from a once squalid penal colony, they reminded me that they paid income tax at rate near fifty percent and, in some cases, more.

"Thanks for that" I would comment as I strolled the clean and well lit streets and admired public masterpieces such as the Sydney Opera House.

It looks like those inflated tax dollars will now be used to pay legislators who will likely have to learn of the saga of Laura Zubulake and Coleman Holdings.

I admit that I am not familiar with the British style common law that Australia has adopted and that I can guess that the judicial rules committees made the right decision keeping the Tory wigs and rejecting rules that would call out for protracted, over inclusive, cost-prohibitive data discovery as far as settling on the more appealing accouterments to liven up the courthouse. Suffice it to say, however, that I would bet dollars to donuts - no, make that dollars to lollies - that somewhere out there in the land down under, a koala bear custody dispute will turn on that one deleted yet recoverable email that came back out of nowhere to sting the defendant like so many boomerangs. It is the empowerment of the Australian barrister and solicitor to get to the truth via digital evidence that will turn the land down under right side up.

Hell, if they're serving Balmain bugs at these Australian e-discovery events, I'll swim there myself and present my paper on the comparative landscape of the FRCP and the new E-discovery rules adopted by the Queensland Supreme Court in Brisbane.

The FRCP Amendments Not Just for Federal Practitioenrs Anymore

2008-03-25T14:31:00.000-07:00

The FRCP Amendments Not Just for Federal Practitioners Anymore

For quite some time now, attorneys whose practice was limited to the State court system (notably, PI attorneys, family practitioners and small business litigators) were convinced that they wore a cloak of invisibility as far as the ESI-centric amendments to the FRCP were concerned. "ESI is stuff for Federal practitioners to deal with", my law school buddy Glen, who does family law,used to tell me. "I'll worry about it when I take on a Federal matter". I did not want to admit it, but Glen had a point. He could walk into a discovery conference at the Superior Court in San Francisco, admit that his client, the defendant, had on-point email messages out there somewhere but he did not know how to retrieve them and the court would simply accept this and move on to other issues. Glen had few discovery worries. His counterparts practicing in the Federal jurisdiction did not sleep as well at night.

Whereas the Federal practitioner - bankruptcy litigator, anti-trust attorney, tribal law specialist, IP counselor and a host of others shiver at the thought of a rule 37 sanction or wake up in a cold sweat from a nightmare in which the cutoff date to hold the rule 26(f) conference had passed, this is not the fate of the state practitioner. Meanwhile the state practitioner, such as the employment discrimination defendant's counsel, worries about mundane items such as the increase in filing fees and who would replace the retiring mean old judge Murphy.

Well folks, the playing field has evened in California - or at leas the forces of equalization are now taking shape. Just this month, the California Judicial counsel proposed new electronic discovery rules to bind state practitioners. The state intends to tweak its case management rules of court and amened its Civil Discovery Act. To no one's surprise, the proposed rules are eerily similar to the FRCP amendments.

I know what you're about to ask... Yep, these rules apply to the small claims court where litigants cannot be represented by counsel at trial. You got it, Mr. and Mrs. John Qpublic are now subject to rules concerning the identification, preservation, review and exchange of ESI. Who'd of thought?

The proposed amendments are now open to public comment and Alextronic is chiming in. It seems a bit much to expect the cast of characters that appear to my amusement on Judge Judy to understand metadata, the benefits of hash values for deduplication and the pros and cons of native format production as opposed to a tiff based production. Alextronic advocates that the court designate a free facilitator well versed in ESI to help small claims litigants and all unrepresented litigants in the Superior Court deal with the new and perplexing intricacies of electronic document management for discovery purposes. If you talk about a safe harbor to most of today's average pro se litigants, they will point to the sailboat dock in the fictional town of Amity Island feaured in the movie Jaws circa 1975. Talk about inaccessible data... to the lay person, this could mean that the CD ROM was kicked under the refrigerator by the cat. You get the picture...

On balance, of course, the fact that the more down to earth state court system is moving to adopt the discovery standards, practices and polices of its high-filutant cousin is a breath of fresh air. Just as email and MS Office documents often tell the whole story in a complicated SEC matter or patent dispute, the same ESI is more likely to bring the relevant facts to the forefront in a divorce or slip and fall case. I would bet dollars to donuts that the state court Justices will look back in five years and wonder how on earth the court ever got to the bottom of anything without the required and carefully thought out introduction of ESI to provide the fifty-thousand foot view of the facts.

More importantly, many of you Blawgerheads reading or even subscribing to this Blawg know that we all work within a little known niche of e-discovery nerds and ESI pundits and litigation support jocks. Most of us attend the same conferences (with the same short list of keynote speakers who rotate from gig to gig) cough, Browing, cough, George, cough Michael, cough Mary Pat - and we read the same articles and blawgs and vendor web site to ingest the same information in our little, incestuous, closed-circuit ediscommunity. Now, with the California state court in the lead (and the remaining states bound to follow soon) our own off-color art will become the mainstream and the world will soon awake to appreciate the need and, yes, challenges to electronic information as it plays a part in our judicial system. This will change the way the straying spouse thinks of his AOL chat and GPS gadget. The impact will be felt far beyond LTNY and ILTA.

It will certainly be interesting to track the soon to follow decisions from the California Appellate courts regarding admissibility of metadata, cost shifting, scope of protective orders, defensibility/admissibility of electronic evidence, best collection and preservation practices and the whole host of hot button issues that have dominated the Federal scene since Laura Zubulake felt disenchanted with her gig at UBS.

Home is Where the Hard Drive Is...

2008-01-20T10:32:00.000-08:00

Home is Where the Hard Drive Is...

Folks, in the spirit of my '08 New Year's resolution, Alextronic is back on the map at least for now.

I had been receiving a bit of flack from my once quasi devout following from the days that this Blawg was daily and then weekly. It slipped to bi-weekly, monthly, every quarter and finally it seemed posts were only going up on leap years. I am constantly amazed at my colleagues that religiously keep up their e-discovery Blawgs and newsletters on a consistent cycle. How on earth do my colleagues do it, each time I receive those enlightening and well written posts which arrive like clockwork. Do they synch them with their garbage bills?

The wakeup call came when, to my honor and embarrassment, Robert Ambrogi listed Alextronic as the top e-discovery Blawg in the November issue of Law Technology Product News (O.K., so he listed his favorite Blawgs alphabetically and being Alextronic doesn't hurt given that criteria) bit it was nonetheless an honor to be mentioned. I certainly am most deserving of his criticism that my writer's block seemed to be prolonged and, by my own admission, inexcusable... so guilt and a sudden need to release some ESI related ideas that have been swimming around in my head have lead to this long overdue Blawg entry.

I am writing this on my home computer. You don't want to know all the things I do on my home computer and I don't want you to know all the things I do on my home computers. Googling ex-girlfriends, wasting time following Kasparov's chess moves, reading back issues of the the Exile (www.exile.ru), playing Tetris during working hours, tracking photos of the small Ukraine village where I spent a summer picking potatoes and sending the fifteenth threatening e-mail to the guy who owes me Sharks tickets from the Texas Hold 'Em hand I won last June is just the tip of the iceberg... and that is just the quasi respectable stuff...

A friend of mine, we'll call him Max, went through a nasty divorce. Max was the kid who always got me into trouble. My parents tried everything to get me to stay away from Max, but Max always had fireworks, shaving cream, eggs and a devious plan mapped out for the neighbors on our way to Ms. Welte's second grade classroom. I remember the day he convinced me to hitch hike to class, we spent three hours trying to flag down some unsuspecting soccer mom (no one stopped) to score a ride that would have brought us a whole two blocks to our elementary school. One day, we found in our mailboxes a free sample of the new flavor of Wrigley's chewing gum. Needless to say, we were noticeably abscent from class that day and spent the same evening toting around a one pound bag of chewing gum after visiting every mailbox in the neighborhood.

Max called last month not to suggest that we T.P. the middle school or give Mike a swirley again, but to inform me that he and his wife, who I will call Nedra, were getting a divorce.

To Max's credit, he did straighten up a bit in his later years. He was a good father to three kids and only tossed water balloons with them on hot Summer days and not at the local school principle's car.

"You're into that computer as evidence shit, right?" Matt asked as he called as the custody battle heated up. "Nedra's asshole attorney wants my goddamn email off of my home PC, that sonnofabitch. Can he really do that shit?"

"Ummm, I think so," I replied, feebly.

"That can't be legit" howled Max. "Can you check on that for me. I told my lawyer you would help him with this. I'll spring for the cabin next time we fish the upper Sacramento."

I could not refuse a longtime friend in pain and I did pay for our fishing cabin during our last four trips - even though Matt brought the cases of Moosehead. I told him about the seminal California case of Playboy v. Welles, where good old (literally) Hugh Hefner was able to 'get at' yet another luscious Playmate's hard drive (literally, again). I had not heard of much else on the home computer front since the Playboy case, so I promised Max I would dig.

After strapping on the Lexis account and visiting my favorite ESI web resources, I realized that neither Matt nor my home computer was safe at home. Frees, Inc. v. McMillian (2007 Federal Dist Decision out of Louisiana) says that the home computer is subject to a reasonable discovery request even if it was purchased AFTER the events in controversy took place (because, data off of old computers can be easily copied and exported to the new PC). Also, last year in Clayon v. Mizuho Securities, the defendant wanted to dig around in the Plaintiff's personal PC when the Plaintiff's claims of mitigating damages were disputed. The court allowed access, but gave the right of first harvest to the Plaintiff's own forensic expert and if the results seemed fishy, then the court would allow the requesting party's expert (the defendant's expert in this case) access to the home drive. Things did not look good for Max.

When I called Max to tell him the bad news, he responded in typical Max fashion. "I'll just put a Black and Decker Ic1 voltage emitor to the damn thing and give it to the judge while it is still smoking." Max was in construction and new more about voltage emitors than did I, but I told him it was a bad idea. I educated him about adverse inferences and about Teague v. Target Corp, a 2007 No. Carolina case which said that if the PC is destroyed due to a seemingly 'culpable state of mind' the adverse inference attaches. I told Max that there is little that anyone can do wit a voltage emitor which cannot be seen as overly culpable.

I did tell Max, however, that there was case law and rational arguments that his attorney could make to argue that the computer did not contain germane evidence that has not already been presented through paper discovery and deposition transcript and that the requesting party in California under the Toshiba decision would likely have to shoulder costs, which may make the other side back down or back off completely. I had a chat with Max's attorney who had just attended his first ESI lecture at a state bar event and had Zubulake down well enough to be dangerous. After a long chat, he asked me if I had any parting advice for him.

"Yes," I said, "if you don't want to see your mailbox egged our your house toilet papered, do a good job for Max."

Writer's Block

2007-07-30T14:21:00.000-07:00

Going on nearly a year of writer's block. I am so ashamed. I could blame my slothful lack of diligence on my wonderful three kids all under four and transitioning from Sponge Bob to Spiderman or the office move or the CEB chapter I just finished authoring or the course I am teaching at Cal State East Bay and the law course I am preparing on E-Discovery at Golden Gate U. Law School. I could blame things on my long stint in a training lab trying to learn the ins and outs of EnCase or perhpas it is the goboal warming epidemic that is making me lackadaisical but the truth is I have just been unimaginative and awkwardly uninspired as of late.

I vow to crawl out of my inexcusable slump starting with this small post.

I just today get a shot in the arm of long overdue inspiration when the highly anticipated Blawgworld book was published featuring a fluffy little article by Alextronic as well as more substantive work by my more deserving colleagues.

The link to Blawgrowld is here: http://www.technolawyer.com/r.asp?L11437&M1 Enjoyh Blawgerheads!

I want to thank my readers for the near constant badgering and name calling concerning my failure to update this little forum over the past year. Your insults have never made me feel more loved.

Look for something of relative substance soon.

ED Humor

2006-08-17T19:52:00.000-07:00

The world is in need of some levity more than ever in these troubled times. My friend, Jud Parker sent me this top ten list he is using in connection with promotion of his new biz (OK, here comes the gratuitous Alextronic plug for his friend) Digital Legal Tampa, LLC:

Here are the top ten reason to seek help from an E-discovery consultant such as Jud:

10. The numbers 16, 26, 33, 34, 37 and 45 look more like a winning lottery ticket than key federal rules which regulate electronic discovery.
9. Metadata. Meta what?
8. You assume “native” files are those created in Hillsborough County.
7. You vaguely recall the terms “EDD” and “ESI” from one of your teenager’s text messages.
6. Your only reference for “forensic data recovery” is CSI: Miami.
5. You confuse well known electronic discovery plaintiff Zubulake with the leader of a U.N. peacekeeping mission to Darfur.
4. You imagine that the Sedona Conference is a retreat for New Age pilgrims.
3. Your only context for “spoliation” is the expiration date on a milk carton.
2. You guess that the word “petrification” may have stumped last year’s runner up at the National Spelling Bee.
1. You need a strategic consulting partner for electronic data discovery and litigation support.

See y'all at ILTA!

When will the West(tm) Be Won?

2006-07-14T23:10:00.000-07:00

I learned from an early age that the quiet kid who sat in the back of Hebrew school was not to be ridiculed for being a nerd, shy or a goober. The quiet kid usually ate our lunch when it came the grading curve. The quiet kid ended up with the chocolate gelt and the hamentashan. I learned that still waters ran deep. I have always respected the apparently inert. They have an innate ability to strike when the iron is hot and run into the sunset.

Speaking of sunsets, they happen in the West. What is not happening, though is West itself. Lexis/Nexis following the lead of the likes of Larry Elison of Oracle fame has made some very aggressive acquisitions as of late. CaseSoft (CaseMap), Dataflight (Concordance), Matthew Bender, Best Case Solutions, Applied Discovery, TimeSlips, HotDocs, TimeMatters the list goes on and on... Will it become impossible to practice law without having to pony up to the bargain hunting Brutches (British Dutch) who own Lexis/Nexis and who fear not throwing more of them coveted Euros against them weak greenbacks to own the industry? Will there be a backlash? Will attorneys welcome the Lexisization of the tools of their trade? Will the company truly be able to provide a flowing and somewhat seamless integration with their flagship research tool and the bevy of case management, time and billing, forms and litigation support software packages?

So why has the other giant of the West seemed to slumber? I would have bet my wacky pack collection that West would have snapped up Dataflight or perhaps some waning ED processing company which seems to be on life support (Dolphinsearch?) to get into the game. Is West waiting for the market to further soften? Are they just content owning the book and binder lot? Do they have a that ace up their sleeve or are they really just plainly missing critical opportunities to get some footing into the game moving forward? What on earth are they thinking?

Maybe West has the next 'it' litigation technology under wraps. Perhaps the perfect Frankenstein is just starting to heave its chest in some obscured and maniacal lab in Minneapolis. Perhaps not.

Still waters run deep, but not always. When Mr. Shapiro finally called on the quiet kid in the back, we braced ourselves for his words of brilliance. When all he could do was shrug shoulders and admit that he could not read the passage in Hebrew, we realized that his silence meant just what it was - there was nothing going on...

That coveted link to the free eDiscovery publication

2006-05-13T22:08:00.000-07:00

Due to the many e-mail messages I have received lately asking for that coveted link to the free blawgworld... once again, folks, here it is: Enjoy!

http://www.technolawyer.com:80/admin/redirect.asp?LinkID=7068&MemberID=1-

Alextronic

Where the new FRCP rules fall a bit short...

2006-05-05T01:19:00.000-07:00

Alextronic was invited by a Magistrate to comment on the new FRCP rules pertaining to ediscovery and a verbatim copy of the Alextronic two-cents follows. Your comments and constructive criticisms are invited....

The Judicial Conference Rules Advisory Committee surmised that the FRCP amendments as proposed aim generally to help the courts differentiate and appropriately treat electronic discovery as opposed to conventional discovery and to "resolve the issues electronic discovery presents". The rules seem to make great strides towards this end, but they can stand room for improvement.

It is somewhat surprising that the US Supreme Court approved without dissent or even analysis, the amendments as they stood at the time of the Court's review. The rules, although commendable on the whole and a substantial improvement over the status quo (,ie, no differentiation between electronic data discovery and paper-based discovery), do not go far enough to protect litigants from facing runaway costs which could stifle the administration of justice. Also, some of the rules tend to be vague and could stand some benchmarks so that certain standards can be established as is explained below.

For example, the amendment on page 38 discusses parties' obligationd to meet and confer pursuant to FRCP Section 37(a)(2)(B). This meeting will certainly help the litigants narrow issues pertaining to how they will exchange digital evidence, but the mandate under the rule goes only to the preservation, production,"translation" and review of data. The rule is, surprisingly, absolutely silent as to how the subject data should be harvested/collected. In fact, the entire sixty page rule makes no reference as to how data should be harvested.
This presents problems because the methodology of data collection can vary drastically. An adverse party can manually open up a pc, for example, and unscrew a hard drive and copy it via a usb cable connection. This method is disruptive and erhaps even rightfully deemed reckless as the target machine is put out of commission for some time and subject to a high likelihood
of irreparable damage. Not to mention, this manual method fails to guard against the inadvertant alteration of metatags leading to claims of spoliation and opening a Pandora's box of evidentiary challenges and law and motion headaches.

Furthermore, the rule offers technological solutions to the review and production of spreadsheets on page 37 citing cost savings attained by using e-discovery tools to avoid the printing of spreadsheets and other such difficult manual tasks.

Curiously, however, the rules remain silent and offer no analysis when it comes to data collection efforts that all parties confronted with e-discovery must undergo. Current technologies allow for a quick, seamless, inexpensive and forensically
sound data harvest while antiquated technologies (or the failure to apply technological solutions to this critical stage of the e-discovery process) can result in despoiled evidence, wasted funds and excessive, needless man hours in the effort to move the data from its original location to counsel for review and then to opposing counsel via production and finally into
evidence before the Court. The failure of the Rules Advisory Committee to consider this crucial step in the discovery of ESI stands out, in the eyes of this author, as a blaring omission that must be remedied. Given the fact that courts in every jurisdiction (Federal as well as State and administrative) have determined which forensic protocols involved in the harvesting of potentially responsive data should be accepted by the court as forensically sound, these conclusion should be interwoven into the FRCP.

Further, along similar lines, the rules do not discuss the benefits of data culling at the point of collection so as to reduce unneccessary hourly and dollar expenditures by parties. The Court in the renown Zubulake IV decision made it clear that a litigant is under "no duty to preserve every shred of paper, every e-mail or every electronic document and every
backup tape... [as] such a rule would cripple large corporations..." This critical and correct holding enjoys no support nor visibility within the FRCP. The use of technologies that can quickly and accurately filter out data which all parties can agree is outside of the purview of that which is germane to the issues at hand should be mandated by the Rule. It is
surprising to this author that the Rule addresses the remedies of inadvertent disclosure of electronic data in great detail and with much aforethought clearly directed towards such remedies yet the preventative steps that will drastically reduce the possibilities of such inadvertent disclosure (culling out that which is non responsive, irrelevant or otherwise clearly
privileged) is given no mention in the Rule.

The new rules provide that electronically stored data which is not "reasonably accessible" does not need to be produced unless the requesting party can show good cause. The rules seem to fail to appreciate that with modern forensic capabilities, it is quite uncommon that data can be deemed truly inaccessible.

It is appropriate that there exists a scienter analysis providing that data cannot be purposefully "made inaccessible" by the party who would benefit from the absence of that data in the court's record. Sanctions for such malicious destruction of evidence are appropriately provided
for in the rules. However, the rules are unclear when it exempts a requirement to produce data which is not "reasonably accessible." Of course, no examples are cited as to what constitutes the terms "reasonable" and "accessible". Based on the technological "savvy" of the producing party, what may be 'reasonably accessible' for one party can vary drastically from that of a dissimilarly situated party. For example, data kept by defendant, IBM, charged with producing ESI contrasted with a defendant restaurant or child care center under a similar obligation will result in a wildly disparate definition of 'reasonably inaccessible data' based on these divergant party's perspective.

The rule provides for a safe harbor from penalties imposed upon a party which allows its ESI to become "lost" or inaccessible due to routine computer usage (,ie, machines rebooted overwriting slack space which may contain deleted data fragments). Forensic technologies can mitigate this data loss and such regular computer usage will, over time, account for less and less inadvertant data destruction as forensic recovery tools continue to improve. This is not to say, however, that the provision of the rule which provides a 'safe harbor'from sanctions for those whose data is rendered inaccessible due to such routine computer usage is not a fair provision.

In sum, the rules in certain areas (outside of the well drafted areas concerning inadvertent production of privileged data and the sections which broadly and appropriately define what constitutes 'electronically stored information') can stand to be better defined and further analyzed. That being said, it appears that amendments to rules 16 and 26 requiring the early meet and confer about the above referenced issues pertaining to e-discovery can serve to ameliorate the criticisms raised above.

Shame on me...

2006-05-03T19:32:00.000-07:00

If your stomach turns at every shameless self promotion that somehow sneaks past your popup blocker or slithers its way into your monthly partner/associate conference call or jumps out of a legal technology 'review' or 'white paper' ghost authored by some editor at Westlaw or Reed Elsevier, then switch off old Alextronic now because you ain't gonna like what is about to go down...

This is the lowest I have stooped since I bootlegged a copy of time map for my wife to use in her communication's class oral presentation (sorry, Bob and Greg... the check is in the mail).

I am shamelessly and selfishly asking for your vote. I feel like Ross Perot doing this, but Alextronic Discovery is tied for first place in the prestigious technolawyer awards category for 2006 Blawg o f the Year and my loyal readership and Blawgerheads/EDiscovery propellerheads can help push old Alextronic past the finish line by voting at: http://www.technolawyer.com/tlballot2006.htm

In return for your vote, I promise to NOT write a dry and drawn out analysis of the new FRCP and California Rule 212 as amended but I will restate the effects and challenges of these rules in Haiku or via some Kafa-esque stream of consciousness writing style. Hell, I may even rap about these rules if I can get DJ Metatag and MC MD5-Hash to ditch the Eminem tour...

With no humility left, I thank you in advance for your support.

Still Haven't downloaded your copy of Blawgworld?

2006-04-09T21:10:00.000-07:00

A few of you stuck out in some far away orbit out there have yet to download and enjoy Neil Squillante's famed "Blawg World" free .pdf publication. Although some 25,000 blawgerheads have indeed downloaded this phenomenon, Alextronic has heard that some of you are still huntin' for it.

To make your life just a tad simpler, here is that coveted link. Enjoy!

http://www.technolawyer.com:80/admin/redirect.asp?LinkID=7068&MemberID=1

-Alextronic

Alextronic and the Judge

2006-04-07T18:09:00.000-07:00

My brother is a documentary film maker. He is a good one too. He actually has won both an oscar and an emmy. He lives in New York and is well respected in his profession. His professional idol is Michael Moore, whom he has met. He tells the story of how nervous and excited he was to have had enjoyed the rare opportunity to chat ever so briefly with such a living legend of the documentary world. They briefly met when they were both at Cannes receiving an award at the 2001 film festival. My bro. can recall each syllable he nervously uttered during his brief encounter with Moore. He still vividly describes each facial twinge and subtle eye movement and feigned attempt at interest made by Moore just for my brother during his enchanted encounter which he will recount for decades to come and which Moore certainly promptly and completely forgot about as he moved past my brother to the spread of brie cheeses, wines and oversized red grapes at that post award party.

What Michael Moore is to an up and coming documentary film-maker, Judge Shira A. Scheindlin of Zubulake fame is to an e-discovery Blawgerhead such as myself.

The folks at Jones Day and Guidance Software invited me to an exclusive evening out at Dodgers Stadium this week to join their guest of honor, Judge Scheindlin. Of course, like all other ED junkies, I came to be introduced by Judge Scheindlin via the series of Zubulake decisions (I through IV) concerning cost shifting for backup tape restoration, the type/amount of data one is expected to preserve and/or collect, how inaccessible data should be treated as far as collection duties are concerned, and what constitutes data spoliation amount other cutting-edge issues). I have been speaking to large audiences and class rooms about the impact of these four decisions for years now. I later came to learn of the Judge's other decisions involving subjects ranging from drug sentencing to the NFL draft and sexual harassment (hey, wait a minute, I think those are synonymous!) which I have found just as interesting (although much less e-discovery relevant) as Zubulake.

So, I'm in that crowded private baseball box and I finally see my opportunity to approach the legendary Judge. I quickly make my move just as she finished her fruit plate and as that Jones Day partner who had been monopolizing her went to get a second hot dog towards the end of the third inning. I shamelessly pounced.

The Judge did not seem particularly eager to talk about Zubulake. In fact, she did not seem that eager to talk to me. Not a surprise,. I guess. But I wasn't going to concede defeat. I had waited too long to finally meet Ms. Zubulake.

I awkwardly introduced myself and the Judge was polite. As things warmed up a tad, we ended up having a brief chat about legal education as we both teach law and I am starting to teach my students Zubulake. Then, just as I was about to impress the Judge with my knowledge of the Culbro case involving Havana Cuban Cigars, Mr. Jones Day came back munching on his foot long and swigging his MGD mumbling something about the Sedona conference and the Judge reengaged. Like the cub feeding on the carcass when the papa bear returns, I sheepishly slithered away back to my seat in the rain somewhere at the top of the fourth.... And that was it... my moment with my Michael Moore went as quickly as it came.

All in all, it was a joyous night. The game did not get rained out as all had expected and the home team won in an exciting 5-4 finish in the last inning. I met a lot of interesting folks and someone gave me a really cool Jones Day clock. I also learned (from the Judge) that the new proposed rules will really shake things up, so the Ediscovery conferences of next year will be full of new fodder.

Proposed rule 34(a) will allow for the request for production of a static database. The next section, 34(b) will actually charge a responding party with the duty to provide tech support and data translation services on an as needed basis so that the requesting party truly receives usable data they can get into for review. Rule 26(b)(2)(b) will provide a rebuttable presumption that inaccessible data need not be produced. Due to the rebuttable nature of this statute, it is clear that plaintiff's counsels will attempt to argue that very little is truly inaccessible in their effort to show cause that the data should be produced to them. In any case, inaccessible data still must be preserved as is readily accessible data if the content of the data falls into statutorily enumerated categories of data which must be preserved (a la SEC 17(a)(4) type of regulations).

At the end of the evening, I somehow found my rental car through the rain and (more amazingly) made it back to my hotel and curled into bed with a smile on my face as I had achieved the goal of meeting one of my idols and will enjoy those bragging rights for years to come...

Pass this on to your Corporate IT Security Guru...

2006-02-21T17:34:00.000-08:00

I just read this hot-off-the-press article written by Southern California Attorney and E-Discovery Guru, John Patzakis. The article (printed in the February Edition of the ISSA Journal - www.issa.org) discusses the tangents and intersections between litigation support/GC and corporate security professionals.

In essence, Mr. Patzakis effectively argues (and indeeds proves up his theorem) that the trained corporate security professional can serve his or her employer by applying such IT/ corporate security professiona'al talents to the e-discovery (read "data harvesting" and/or "forensic analysis") processes that are becoming more and more staple among the rapidly changing litigation landscape.

How and why should the IT/ corporate security professional jump into the e-discovery trenches? This is what Patzakis has to say:

To better understand the advantageous role
information security departments can play in this
equation, it is important to understand the current
broken eDiscovery process and the staggering
costs associated with it. Unbeknownst to
many CISOs, eDiscovery expenses for large companies,
which tend to outsource the function, are
spiraling out of control. What should be fairly routine
computer evidence collection and processing
engagements can cost millions of dollars in consulting
fees for a single case. According to standard
price lists from top eDiscovery providers, a
company can expect to pay $11,000 to $15,000
for the processing of a single hard drive. Thus, a
relatively modest investigation involving 10 computers
will likely cost well over $100,000. In addition
to a substantially reduced bottom line, these
enormous costs force companies to prematurely
settle cases or otherwise compromise their litigation
strategy, such as by cutting corners that often
result in court penalties for noncompliance.
A key reason for these high costs involves the
traditional role of outside counsels who represent
the company and typically oversee and manage
the eDiscovery process on a per-case basis. These
law firms habitually rely on their own consultants
to handle the eDiscovery needs of the case at
hand, and both the law firm and their consultants
typically approach the issue as a case-specific litigation
support project. Thus, the focus is on
addressing the immediate case, and not on solving
the end client’s long-term problems by establishing
a systematic methodology.

Corporate IT and security professionals routinely address the long term solutions that should be set in place to make the enterprise more efficient and streamlined. That being said, becaue e-discovery is (or should be) a "repeatable" process, would it not make sense to empower these folks to lay the framework for a data harvest or data examination process? Who else, better than the corporate IT/security profesional has the technical knowledge in general combined with the specific knowledge and experience of the enterprise's network and systems topography? It simply makes sense from an operational as well as a cost perspective to empower these folks at the client's site.

Now all of you newly minted e-discovery attorneys reading this article, don't begin to tremble. Should the trend suggested by Patzakis take effect and flourish, your skill set would not be displaced but rather, to the contrary, become much more coveted. Both the law firm and its coroporate client will look to the e-discovery attorney as a bridge to cross the gap between the worlds of the litigator at the firm and the executive and the IT/ corporate security professional who supports him or her. This role (now assumed by costly consultants who know neither the firm nor the client nearly as intimately as the e-discovery counsel does) would not only prove to be a big money saver and money maker (constituting billable events each time e-discovery counsel works towards building said bridges) , but it will help the law firm strengthen its relationship with its client. A win-win all around.

So pass this on to your IT/ corporate security professional contact at your client site and ask them to take heed (and subscribe to the Alextronic Blawg in the meantime).

EDD Reflections

2006-01-22T12:59:00.000-08:00

EDD Reflections - By Alextronic Lubarsky - Tel. (626)298-9856

Having been entrenched in the ED biz since 1999 (and 'old fashioned' paper based litigation support since 1994) makes me, if I do say so myself, a pioneer of sorts.

I recall the first time I was exposed to the concept of eDiscovery was in 1997. I had been working at Summation Legal Technologies in San Francisco for many years and was standing in line for the free Thursday lunch... A tradition that I took full advantage of while at Summation and, some may say, stealthily continued after I moved over to Daticon but remained in San Francisco. I am told that I would regularly visit the folks at Summation, coincidentally enough, on Thursdays at noon when I found my stomach particularly empty and wanting.

As I was standing in the do it yourself taco line in early '97, Jim Henderson, the co-founder of Summation and the brains behind "blaze" (the technology that indexes the Summation search engine) was in front of me, tinkering with his new Sony VAIO sub-notebook. I always liked to pick Jim's brains because he was always preocupied with refining soon to become standard technologies that the rest of us hadn't heard of yet. He was and is a true visionary.

"What's new in the industry, Jim?"

"Paper will be less important in the years to come."

"Oh, you mean paper is all going to go to .tiff?", I asked.

"No, I mean the paper will not be in the equation at all."

"Huh?" I was beginning to wonder who spiked the salsa at the taco bar.

"We're seeing a need for the email messages and other data from the computer to be directly brought into the review platform without the traditional print, scan, OCR and code methodology," continued Jim.

I blinked and scratched my head. My thoughts refocused on the selection of beans before me. "I think I'll do refried, this week", I told myself.

I was not quite sure what Jim was talking about. In fact, I could not even envision it really. I felt stupid and went off to chew on my pollo asado and guacamole.

A year later, I was waist deep in e-discovery as the product lead at Daticon for a tool that allowed for 'do it yourself' e-discovery called 'Discovery On Demand', later I would become the e-discovery subject matter expert with Fios and unleash this blawg on the topic. There has not been a day since I spoke to Jim in that taco line that I have not had a conversation about e-discovery in some fashion (with the exception to my yearly trekking excursions to the Bolivian/Peruvian Andes - but it may not belong before those descendants of the Incas whom I pass along the ancient trails are retooling their MD-5 hash codes and debating the admissibility of metadata...)

One thing that has not ceased to amaze me is the costs of e-discovery. I recall people shelling out six grand a gig (after negotiating the vendor's price down from eight grand or so) and waiting a week or two for the processing to complete its course. I remember when a five gig e-discovery job was mammoth. Now, I deal with cases involving terabytes regularly, I see traditional e-discovery shops charging between $800 to $2,000 per gig ("Would you like .tiffs with your index, sir? ... Have I told you about our chef's special - hosting platform with .tiff on demand?"). I am also seeing forensic labs unleashing technology that can query a drive based on date/key word and then mirror the results in a fashion that is ready for direct export into Summation, Concordance and others for just a few hundred per drive... The progress has been dizzying.

Where will things be in a few years from now? I can only begin to guess... I'll have to give a shout out to Jim.

Pre Collection Filtering - A cost saving reality

2006-01-03T19:22:00.000-08:00

Once upon a time, the cost saving move was to go the EDD route. The alternative (paper which must be copied, Bates labeled, scanned, coded, boxed, shipped, copied again, stored etc...) was just too scary to fathom.

Then along came the unexpected, a way to save on EDD! Just when the electronic data discovery game got good from a cost perspective, it amazed everyone by getting better (and cheaper) via pre process culling. The ability to pay to process only a designated subset of that which had been collected was a Godsend. At $2,000 a gig (in those days) any winnowing down of the information to be processed was as good as money in the bank. Collect everything and then put in some key words to filter down what you pay to process. The greatest thing since chewing gum... or was it?

Almost.... but cuttind edge technologies have again stepped up the play.

Now, one vendor, Guidance Software, has trumped 'em all in the e-discovery realm. They have software/services that allow for pre collection culling. This means that instead of grabbing the whole darn enchilada (and paying for it too) and saving only by filtering out that which did not have to be subsequently processed, Guidance lessens the loads significantly by allowing the corporation (or law firm representing the corporation) to not have to shell out for anything (even harvesting costs) for the data that is irrelevant or otherwise outside of the discovery request/subpoena.

Imagine the implications. This can bring costs down by ninety percent or more by Alextronic's calculations (albeit, Alextronic took algebra twice in high school and only got through it by copying from Lisa McLaren's test after distracting her with a stink bomb... but that's for another blawg entry). Where was I? Yes, if a large pharmaceutical company is defending a patent dispute concerning drug Z's production for the children's medicine market in 2004 and emails and spreadsheets from the Western R&D Department Managers are requested, instead of paying some collection outfit to mop up the entire she-bang, software can be introduced which will run through the enterprise and sniff out date ranges (2004) and key terms "Drug Z" and "Children" and only lift that for processing. The savings are front-ended.

Many naysayers will argue that this initial pre-shrunken collection effort is too narrow and therefore can be successfully challenged by the opposition. I say phooey. Look at some of the recent case law including the reknown Zubulake decision which holds that only "relevant" data need be harvested upon a reasonable discovery request or subpoena. If it is clear that the parameters used to filter the collection comport with the scope of the discovery request [ie, if a reasonable person would conclude that reducing the scope of the initial collection to 2004 and the keywords selected where on point, then in all likelihood the courts would uphold and even outright bless (as the courts did in Williams v. Mass Mutual Life, 226 F.R.D. 144 (D. Mass., Feb. 2, 2005), Wiliford v. State of Texas, 127 S.W. 3d 309 (Tex. App. 2004), State v. Cook, 777 N.E. 2d 882 (Ohio App 2002) the actions of the wise and frugal producing party].

In sum, the logic is simple. If you or your clients are not pre collection filtering but are only pre process filtering... someone is probably paying too much.

Tune in next week when Alextronic discusses the new law firm trend of promoting attorneys to the role of "E Discovery Partner."

Look at me now, Ma!

2005-12-02T23:32:00.000-08:00

Ever since I lost the bubble gum blowing contest to Warren Gunderson in the second grade (he cheated because his dad owned a candy factory and furnished him with one of the first known prototypes of Bubble Yum while I tried to make do with Bazooka the consistency of flint stones), my mother told me I'd never amount to anything even despite the fact that I went on to learn how to blow a bubble within a bubble.

I thought I had proved her wrong when, working at the local pizza parlor, I had perfected the art of dough tossing when my colleagues cut the pie dough into circles from cookie-cutter style templates.

Well, if that didn't impress you, Ma, this certainly will: Alextronic has been featured in the new highly touted "BlawgWorld" 2006, Capital of Big Ideas (check out Alextronic's entry on native review and native production on page three)! This nifty e-publication, sponsored by TechnoLawyer, is a sample platter of Blawgers from around the globe who Blawg about everything from e-discovery to IP litigation to law firm management.

In its first day at press, this book reportedly had over 6,000 takers!

Stay tuned Blawgerheads for an upcoming entry concerning the benefits of a proactive and forensically sound data retention/collection environment...

Now back to my Dentyne... I've settled down a bit in my old age.

The laws they are a changin'

2005-11-04T23:58:00.000-08:00

It should come as little surprise that (finally) the Federal Rules regarding evidence used at trial (FRCP and FRE) as well as most state rules (,ie, the California Code of Civil Procedure and the California Evidence Code as well as the Alabama Code and others) are finally getting into the "nitty-gritty" as far as language reflecting the reality of electronic evidence is concerned.

Some notable changes that will play a key role appear in revised statutory materials as well as "pending" statutes recently promulgated by "advisory committees" such as the Standing Committee of the Judicial Conference and the Civil Rules Advisory Committee. Groups such as the Sedona Group and the George Socha project (can't recall what he calls his new club off hand) may also prove significant enough to be heard and contribute to the formation of these new statutes.

What changes can we expect?

I don't think you will see litigator's continue to tremble when asked to produce legacy data from Univac circa 1962, TDKSE90's or Wang Mainframes that churned out reports at 2 ghz as Grease was playing at a theater near you. No more holding your breath as you search E-Bay for the Sun Tape Drive produced between 1982 and 1984.

Why? Because the proposed amendments to Federal Rule of Civil Procedure 26(b) will require production of electronic data which is reasonably readily available "without excessive burden or costs" - of course lawyers will argue that reasonable minds may differ as to what constitutes excessive burden/costs, but I tend to think that any efforts to revive any technology pre Flock of Seagulls and Iran-Contra would be deemed a bit too troublesome.

Some other rules such as 16(b)(5) have already had a face lift so that they explicitly include electronic records within their purview. Rule 26(f) brings electronic data into the meet and confer and mandatory settlement processes, so those depos and yellow pads may now only tell half the story. Rule 26(1) will now require an affirmative disclosure of electronic files that are germane to the dispute to follow the longstanding federal rule 37 which has required such of physical evidence such as paper and the shell casings...

California has broadened the definition of discovery via CCP Section 2017.710 so that electronic document depositories and e-mail are specifically named. This helped me recently help a friend win a case against a plaintiff who was playing hide the ball as if he was trying to hide Anna Nicole Smith behind Paris Hilton.

Then there is an entire slew of new rules (both recently revised and proposed) that penalize those who intentionally destroy relevant and potentially damaging (to the destroyer) data including erasing but not including inadvertant erasure by starting/stopping one's PC. This probably should have ben called the Kenneth Lay amendment.

Even more exciting is the new case law both at the Federal, State and Administrative Court levels. I will save this for another Blawg entry, but I can assure you that all you Blawgerheads will be quite intrigued as to how many different courts have landed with respect to the same issue. Toshiba vs. Zubulake are no longer the big dichotomies out there...

By the way, your very own Alextronic will be speaking twice in the next few months (the 6th of December from 5.30 to 9.00 at the LA County Bar) and again for the California State Bar on January 27th through the 29th at the Loews in Santa Monica). Hope to see some of you there.

Alextronic 90210

2005-10-23T23:28:00.000-07:00

Blawgerheads.... Your very own Alextronic will be presenting a course on the current state of the law and technology with respect to EDD and computer forensics at trial in Beverly Hills, California this coming Tuesday (October 25th) at 6 pm at Lunaria's Restaurant and Jazz Club at 10351 Santa Monica Blvd. (at Beverly Glen) Los Angeles.

This event is hosted by the Beverly Hills County Bar Assn., ZANTAZ and Guidance Software and I will be speaking on a phenomenal panel of attorneys and tech gurus.

For more details, the link is: http://www.bhba.org/intus/event3/signup.asp?event_id=1801

Hope to see y'all there!

-Alextronic

Will live capture of e-mail make ED processing as we know it obsolete?

2005-09-15T23:33:00.000-07:00

Will live capture of e-mail make ED processing as we know it obsolete?

As rules such as SEC 17(a)4 requiring live capture of e-mail communications by publicly traded entities in the wake of Enron, WorldCom and ten thousand dollar shower curtains (Tyco) begin to be the rule rather than the exception, live capture of electronic communications seem to be more and more the norm. Combine the flow of this tide with the reduced cost of storage and the electronic data does not have to be harvested and massaged and indexed... it's simply already there.

In fact, this progression makes sense. History supports it. Early man hunted with poison darts and clubs before Ugtar the Bison hunter concocted a fence and bred bison in a secure area with saber tooth tiger firewalls. Streamlining live data to a digital archive with audit and query capacities results in data instantly searchable and classifiable without necessarily pushing it through the indexing and meta tag extraction exercises.

Of course, chain of custody is hardly an issue as the live stream does not necessarily divert from its environment. Deduplication and virus protection can be scripted into the archive via front end filtering. Data which has been live captured can be simply queried for relevance and/or repsonsiveness and then this sub population can be exported into a full fledged litigation support tool for redactions/annotations/production subset numbering and ultimate export into a trial presentation application such as Trial Director or Sanction.

This isn't Star Wars. This stuff exists now and the tier one EDD players are moving into this model slowly but surely. If you are interested in a list of companies doing this now, e-mail me at alubarsky@enterusa.com .

Of course, in the short term traditional EDD processes will likely continue to grow but this growth will ultimately move sideways as live streamed data is more and more routinely captured. In the meantime, don't throw out that MD5 hash code.

Hot Native Passions Ignite!

2005-09-01T15:35:00.000-07:00

Hot Native Passions Ignite!

No, Alextronic has not gone Harlequin on you. If you were expecting steam to rise from them little spaces between your keyboard as you read this belated Alextronic entry, you will be woefully disappointed.

But passions (of a less prurient nature) are erupting around us. I speak of the passions that are invoked when the hot issue of electronic discovery review and production best practices rears its feisty little head.

I find that few are actually passionate about having to do a document privilege/relevance review and production, but without doubt the nature and format of that very review almost inevitably invokes deeply rooted primal desires and lusts of such intensities not seen since biblical times before metadata and Zubulake in Eden's garden with the pesty serpent and what's his name and who's her face.

Attorneys, paralegals, litigation support professionals and vendors nearly "go to blows" when it comes to electronic review formats. I've recently counted it among my favorite emerging spectator sports as it both entertains and educates. Not unlike watching Texas Hold'em poker marathons.

I recently visited a national litigation support director for a large New York based firm. I found him red faced and fuming at the fact that the partner in charge of a large SEC audit response wanted to have all of the data which had been electronically harvested at great expense to the client converted to .tiffs before reviewing. The lit support director, I'll call him Frank, was grinding his teeth and pacing in circles around his small office - carefully avoiding the small mounds of ALC and Ikon labeled banker boxes nearly missing collisions with his cabinets full of DVD's and DLT tapes.

"This is going to add another thirty percent to the cost of this project... the client will be steamed" he muttered, "we will bill out for all of those .tiffs when only a smidgen will be actually produced or redacted. This is bullshit!"

I tried to change the subject by asking how his fly fishing trip to Alaska last month turned out but to no avail. Frank began to wring his sweaty hands and scratch his head intermittently as he muttered something about the extra time it would require to convert the native data to images. "Hell, we have the tools to do a native review and I hate waiting for tiffs to load." We already have the .idx export file so why send this back to a vendor so they can jack up the bill... tose damn... and... "Frank stopped himself in mid sentence realizing that he was talking to an ambassador from the evil planet "V" and back tracked with noteworthy grace given his emotional state. "Not that I believe you'd inflate a bill, Alex... You know, its just that this new requirement will make everyone vulnerable and I just don't see the logic."

I attempted to sooth Frank a bit suggesting that if the partner were to actually see a native review tool in action, he may start to sing a different tune. Frank assured me that the partner in question was someone who was not known to budge. She had blown up at him recently and he was frankly scared to death of her.

I offered to take Frank out for beers on Friday and then decided to pop in to meet with a managing partner who I have become friendly with at the firm next door.

Michael was surprisingly around and not vacationing in Switzerland or lunching with a client when I asked for him. He didn't have a lot of time but he invited me into his corner office and told me about a sixty three million dollar IP infringement verdict he had recently won before the District Court judge reduced it to a fraction which still represents a king's ransom in the humble world of Alextronic.

Michael is somewhat of a lit support guru. We met at a Glasser show where I was speaking on common electronic discovery faux pas and he hung around to ask me why I didn't include failing to check vendor references as one of them. He told me a story about an EDD shop that came in with the low bid only to botch a job so badly, the firm had to request an emergency continuance and a ruling on a discovery motion to be held in abeyance while the EDD shop was replaced (and ultimately sued) by the law firm.

Michael had been extolling the virtues of native review but had locked horns with a client who wanted native production as well. The client wanted to keep costs down and any .tiffs or .pdfs created for production after a native review would surely impinge on that endeavor. Michael had spent over an hour on the phone talking corporate counsel out of insisting on a native production. I guess the easily exposed metadata and inability to overlay production numbers and other stamps finally did the trick. Michael performed a quick little exhale as he simulated the motion of dabbing beads of sweat from his forehead as he finished his story. "What a relief it was to finally get these guys to see the pitfalls of a native production" he surmised.

As I left Michael's office, I checked my voice message where my friend Scott Sachs had left a detailed description of how he had persuaded a Superior Court judge to order an on-line native review and how opposing counsel was livid at the notion... I thought to myself, move over Jerry Springer - just spend some time with litigaton professionals debating discovery review strategies... that's worth a million former transvestite former klansmen who will reveal their secret crush after the station identification.

Back from ILTA

2005-08-25T19:38:00.000-07:00

ILTA (formerly LawNet) aka International Legal Technology Association pulled off yet another "coup" with its second straight 'conference in a furnace' in Phoenix, Arizona.

Yup, Arizona is no treat in August. Vendors need to learn NOT to give out chocolate in Phoenix in August. Please. The fine folks at ILTA probably cut their costs in half by signing up this month as opposed to December or January where Phoenix is really a treat, but it appears that they channeled those savings back into the show and the revellers could actually watch the saved dollars dance before them via phenomenal events such as a firework display topping off one of countless booze-filled receptions. Oh yeah, some impressive speaking talent was lined up too. One Arizona attorney who gave a very basic yet quasi-dynamic presentation on ED (please don't go over the Zubulake factors again... pretty please...) was a key litigator responsible for putting the cuffs on Charles Keating during the Lincoln Savings and Loan debacle in the eighties.

For me, ILTA (and NY Legal Tech) is akin to my high school reunion. It was truly enthralling to reconnect with the firm in South Carolina who I set up with Summation in 1994 or the firm in Arizona who I am now setting up a war room complete with Introspect, Sanction and CaseMap/TimeMap 4. I particularly relished in the recurrent complaints from my colleagues that I am not keeping this Blawg current. I was honored that such Blawger legends such as Dennis Kennedy actually noticed the stagnant state of Alextronic and wryly commented on such. These many more than valid crtiticms that stirred up my guilt (and shame) enough to sit down and bang this entry out...

I won't dwell on the vendor parties and gooey gossip that swirled around like the hot Scottsdale breeze, but do want to shine some light on the growing and increasingly thorny issue of discoverable electronic evidence in the form of strcutured database information.

I have been consulting on several cases recently where the parties want more than them .pst and .nsf files. They want the database itself. I'm not talkin' Crystal reports that package up key snippits of information from a database, but these folks want the whole enchillada. They want to see the db's structure, content, fields. They want to run searches and tweak the lookup tables and custom reports. Parties want to sit in the application and smell it, feel it, drive it.

"But", inevitably cries the party with the unpleasant obligation to fend off the request for a complete database, "this is structured data. You can't have it because you can change it! These are not documents! This must be work product privileged. We can't review it in any efficient or effective fashion. You're killing us with this request..." .

Phooey, I say.

A database clearly can contain discoverable, germane and critical information that will often be of immeasurable assistance to the trier of fact. Such a database can without exception be replicated and the privileged records may be retained. Partially privileged records will be a bit tricky. Although they obviously cannot ride along with a fully functional replica of a discoverable database, I suppose they can possibly be generated as screen shots and then redacted via annotations that overlay an image file format whereas the privileged pieces can be dressed up with redaction skirts and bibs. They would not "work" like their unpetrified cousins, but it's the only work around I can come up with now as I type this and pop aspirin to push away the effects from last night's Lex Solutio party at Barcelonas...

The courts appear to be viewing database records residing in their attendant database application as no different than e-mail messages with attachments. As they should be. Just as a .xls formula may be discoverable and, indeed, a party may be able to launch a copy of an .xls file in Excel itself to test formulas in accounting scandal related lawsuits, it would logically follow that the same can be done in an Oracle or Peoplesoft or SAP or Access database.

Of course, as entire database applications themselves become routinely sought after in discovery, a secure area for their review by adverse parties will be the bigger issue. This space must provide a home in which replicas of the database applications can be hosted, reviewed and essentially produced after privilege/relevance review for the other side to fiddle with. I predict ED vendors will set up or partner with highly secure data centers to host discoverable replicas of requested databases themselves whereby the requesting party can come in and massage that data and work with it to prove their case. Security, bandwith, storage space, licensing, training and inadmissibility grounds for objecting to the entry of such data at trial will all be hot issues as the databases themselves (in tandem with the tradition e-mail, MS Office files, paper documents and transcripts) prove to be more and more fair game to the discovery process in both the State courts as well as the Federal and administrative tribunals.

Do you Blawgerheads agree?

OK, now I've got to go unpack my hot sauce, cowboy boots, peyote and rattlesnake tails and start planning for next year's ILTA extravaganza (thankfully, in Florida this next time around).

Vote Alextronic!

2005-05-31T19:36:00.000-07:00

Alextronic has been nominated as the best ED Blawg in cyberspace! Please cast your vote for Alextronic my fellow Blawgerheads. You can vote at the Technolawyer Awards and access the ballot at http://www.technolawyer.com/tlballot2005.htm Vote once as they have seem to lost their MD5 hash and don't de-duplicate over there...

-Alextronic

Plummeting Prices... What's next?

2005-04-25T15:38:00.000-07:00

I heard through the grapevine that some mom and pop shops are doing ED processing for some $750 per gig. $750 per gig! I recall people lining up to pay me some four thousand per gig back in the day. With every corner copy shop and litigation support provider doing EDD (or claiming to do so) is it any wonder that the prices have started to sink through the floor?

I'm old enough to remember when my father told me about this new machine called a facsimile transmitter. I could not quite grasp the concept until he drove me to his law office to show me the one hundred and ten pound, six thousand dollar monstrosity that he and his partners all chipped in to purchase. It was the talk of the building and curious neighbors were always dropping in to catch a bewildering glimpse.

Now we've all got fax machines at home and if you paid anything over two hundred bucks, you paid to much.

Of course, the fax machine business is healthy and growing. I suspect ED processing will follow suit. As prices come down, the demand for ED processing should increase with reverse proportionality. I expect this will trigger a long overdue shakeout and some of the newer and less innovative ED shops will have to close their doors while others will capture a larger share of the expanding market while innovating and reinventing themselves to respond to the drastically changing market forces.

I do not want to divulge which players out there I would place my bets on, but suffice it to say that I would be somewhat surprised if certain vendors are around another year or two while I would be equally surprised if others do not experience astronomical growth.

My brother has been telling me how excited he is to see baseball start up again. Baseball schmaseball... hell, I think this ED game will be the more exciting series to watch.

Native native, oh my!

2005-02-24T16:34:00.000-08:00

When I was growing up, native was not yet a pc word for indian and it was used primarily by my brothers and I when we were trout fishing along the Sacramento river in and around Dunsmuir. "Hey Aaron, I think I've got a native on the line!" The native trout put up a much more diginfied and strident fight than did them lazy rainbow plants from the hatchery.

Today, the word native continues to dominate my vocabulary but it is not used in the context of pristine streams and splashing steelhead. Today, the term native is muttered in the war room on the 20-0dd something floor of some sterile, large law firm.

Native native review is the ability to review electronic data right from its actual source. We aint' talkin' print/scan/ocr here nor are we even talkin' bout tiffin' ... Nope. We're looking at the file via a file viewer or pulling the application up from its bootstraps inside of its own application. Some folks call the review process which utlizes .tiff's produced by the ED vendor a native review, but take tiffs out of the picture and you're sitting pretty with a native native review. That's the kind of review that would make Sitting Bull look like a half breed.

A native native review is not quite as exciting as having the seven pound brown on your hook while trying to navigate it around the breakwater and into a deep pool, but it is still somewhat well... could I use the word, interesting?

The lack of a tiff is a cost saver and often a time saver. The tendency to open a document in its own application allows the user to learn more about it (track changes in MS Word, hidden formulas can be exopsed in Excel etc...). Of course, this can lead to claims of spoliation and evidence tampering if you are tinkering with the exact file as harvested from the original custodian, so there are a few land mines out there.

Perhaps the biggest detriment to a native, native is the inability to redact. Programs such as Summation and Introspect can let the user create the tiff more or less "on the fly" so the file can be appropriately redacted, stamped etc... Usually this beats the alternative of just paying to tiff everything even though a very small subset of the native data reviewed will actually be subject to redaction or other stamping/labeling overlays.

Of course, when it comes time to produce that which is not completely privileged or irrelevant, many would welcome the ease of a completely tiffed population so that the data can be exported to a CD or the like. However, native files themselves can be exported without a tiff, but this opens up the file to metadata exposure, history tracking and other little evils that could come back to haunt the producing party. Decisions, decisions!

If you are waffling back and forth trying to figure out if you will indeed go native with your next production, your indecision is understandable. You are not alone. There are several ways to land that fish.

Thanks for hangin' with me Blawgerheads...

2005-02-06T18:20:00.000-08:00

Blawgerheads,

It was a pleasure to meet many of you at the Blawg/Blog and IM session at the New York Hilton. Larry Bodine, my co-presenter, and myself were very, very happy to meet many of you.

Please stay tuned to Alextronic for some substantive posts in the near future...

-Alextronic

See y'all Tuesday at Legal Tech NYC

2005-01-29T15:10:00.000-08:00

*Newsflash Blawgerheads... your very own Alextronic has been asked to speak about Blawgs on Tuesday at the LegalTech Show in NYC!

Hope to see you all there.

Here is the information:

Session 2: Real Time Legal Collaboration: Interoperability, Integration, and Compliance

This session will focus on "real time" collaboration technologies such as instant messaging and the use of blogs and provide attendees with insight into how these technologies are being used at law firms and in-house legal departments across the country. We will assess the impact of such technologies on our information workflows and dig into what every legal professional needs to know about compliance and security and how they relate to the integration of these real-time collaborative tools into our daily work.
2/1/2005: 1:30-3:00pm in Collaboraiton Technologies Track

Attached to Attenex

2005-01-21T17:38:00.000-08:00

Here is a very thoughtful and well supported response to my previous call for info regarding people's thoughts on concept based querying. This response comes from Jim Sherman of the firm Preston, Gates and Ellis in Seattle and truly lends a clear understanding of what concept based technologies are and where they are likely to head...

Here you go... my beloved Blawgerheads, enjoy....
///////////////////////

Alex, Hi. I’m a partner with the law firm of Preston Gates & Ellis LLP, and a member of Preston’s Document Analysis Technology Group (DATG). I’m happy to be able to comment on the issues and questions that you raise below.

I should start by disclosing, as I think you are aware, that Attenex Corporation—the company that developed and markets Attenex Patterns E-Discovery Platform—was formed and is owned by Preston.

Preston has worked extensively on document discovery matters over the past 10+ years, and has experienced first hand the shift of document discovery from almost pure paper to today’s focus on K:\19406\00045\JDS\JDS_O210Je-discovery. Several years ago, as we were struggling to find an effective way to efficiently and economically organize and review the mushrooming volume of electronic documents, we hit upon the idea of using concept based searching/organization. At that time, there were no concept-based tools available that had been designed specifically for use by the legal community, much less specifically for document discovery. Because there was no such technology available, the firm formed Attenex Corporation to develop the software we needed.
Given the above information, it will be no surprise to you that my direct, hands-on experience with using concept-based technology is pretty much confined to the Attenex e-discovery platform.

Before turning to your specific questions, I think it’s important to note that concept-based document discovery technology (at least insofar as the Patterns tool is concerned) is not a stand-alone product. Rather, it is one important component of a tool that employs various other technologies for indexing, searching, de-duplicating, and graphic display. In our experience, the most valuable aspect of Patterns’ concept-based technology is not its ability to retrieve documents using concept-based searching, but rather how the software organizes documents in a graphic display based on the concepts they contain. It is really the concept based organization and display, rather than the concept-based searching, to which my comments below refer.
We have used Attenex’s e-discovery software for over 3 years. The product integrates keyword searching and de-duplication with concept-based technology together in an interface that allows the user to re-organize, view, and mark documents. The software includes Boolean search capability, which we use quite extensively, and which is an important complement to the concept-based organization of documents provided by the tool.

We use Boolean and concept searching to identify the documents on which we want to focus, and then use the concept based technology to organize the documents based on their actual conceptual content. So, although the initial searches may pick up “red herrings,” those documents will tend to be grouped together and located in one area of the graphic display, while the relevant documents (which likely have different conceptual content) will be displayed in a different area. This organization allows us to more quickly distinguish between relevant and irrelevant documents – so that in addition to more efficiently locating and marking responsive documents, we can zero in on key or important documents, while not wasting time on irrelevant materials.

We are big fans of the technology. Our DATG uses the technology in virtually all of its cases involving electronic discovery. We feel it makes a big difference to our group. It has substantially increased our productivity, as well as the quality and consistency of our reviews, while saving our clients money.

Finally, I do believe that the use of concept-based technology is here to stay. Traditional searching alone, including Boolean searching, is inadequate to effectively plow through the massive amounts of electronic data we are seeing in e-discovery.

Hope this is of some use to you. Let me know if you have any questions or comments.

Jim Sherman

What a concept!

2005-01-18T21:51:00.000-08:00

I am being hit from all ends with concept querying comments and questions. It seems to be the buzz. What ED was four years ago and what imaging was a decade ago.

Engeniam, Symmetric, Ontology, Dolphin, Attenex, Architext and a variety of others are mentioned at the industry events and among attorneys and lit support professionals alike.

So, I pose to you, my dedicated Blawgerheads... is this stuff the undeniable future or just a bunch of hype that will pass as quick as "Alexander" did at the box office?

Also, I invite some feedback for an article I am writing for a national publication.

Have any of you used concept based searching?

If so, did it "make the difference" and help you find your proverbial smoking gun?

What engine(s) did you use?

Did you use concept querying in lieu of traditional Boolean word searching, or as a compliment to it?

Did you pay a premium for this technology and if so, how much more did it cost you? Was it worth it, in your opinion?

Did the concept queries come up with "misses" or "red herrings"?

Alextronic would love to hear from you...

Been awhile...

2004-12-12T16:04:00.000-08:00

Blawgerheads,

I hope I haven't forsaken all of you... In the immortal words of the afro inspired 80's power rock junket, Boston, "it's been such a long time... time doesn't wait around... it keeps on goin'."

So, instead of offering my laundry list of excuses (new baby, new home, travel, urgent client matters, death in the family... all true mind you) I will just launch back into Alextronic and pray for your forgiveness and understanding.

So, out of the game for several personal reasons, I returned to the bullpen via a keynote speaking slot at the phenomenal Estrin's Paralegal Super Conference. There, I was able to chat up litigation support managers, paralegals, attorneys, IT folks and friends and foes on the vendor side. Here is the buzz I've come away with...

- The Toshiba Case! (Toshiba vs. Superior Court of Santa Clara County) . Right here in own back yard the Court's thumbed their nose at the omnipresent Shira Sheidlen and her Zubulake decision. In Toshiba, the requesting party wanted Toshiba to pay for the restoration of some 800 archival tapes. Unlike the cost shifting decision in Zubulake, where a seven factor test is used to determine who whips out the checkbook, the California court has focused on the longstanding language found in the FRCP whereby discovery is to be produced "at the reasonable cost upon the demanding party." The court found this language to be "unequivocal" and hence in California if you want the other side's data... well you just have to pay for it and that's the way it is.

This will certainly chill the breath of discovery tactics that a small plaintiff can apply against a larger behemoth such as UBS (and Toshiba). So what is the rationale for a decision that appears to prejudice "the little guy?" Is the court trying to protect the corporate status quo?

The court's logic reads like this: if the requesting party will have to pay, they won't request more data than that which is truly needed... Thereby promoting efficiency and evading overwhelming data discovery responses.

On the flip side, of course, perhaps the smaller firms will shy away from taking on cases with true merit but which may not end up being economically feasible if the firm has to break its bank in discovery just to get to the facts. Further, if a Defendant stands a lot to lose, couldn't that Defendant turn into a puffer fish and present its data universe as being so large that any potential predator will think to itself, "Hey, I don't have the jaws to wrap around that big fish and will therefore hunt for its next meal elsewhere...

On balance, I think the Zubulake is the more reasonable view as it does take many important factors into appropriate consideration...

Other buzzes include...

The acquisition of Summation by a Dutch company that owns an interest in Ringtail... talk about odd bedfellows! Alextronic is not to thrilled with the folks at Summation these days since, in their trademark paranoia, they yanked my hard earned certification status claiming that my relationship to Zantaz makes me an adversary of sort... whatever...

How about this year's record sanction by Phillip, Morris (2.7 million) a drop in the bucket for the Marlboro man, however, for failure to retain documents relevant in a tobacco tort action? The corporate in house folks tell me that this has been a wakeup call to management.

My colleagues in the legal educational environment (I have taught paralegals and law students legal technology for over a decade now) are all abuzz with the recent push by many law schools to put litigation support and e-discovery courses into the core curriculum now that firms report to the schools that their former students are winning and losing big money cases on issues of e-discovery.

I've been typing this with my newborn, Shaina, cradled between my chest and my laptop keyboard while my two year old, Jacob, is throwing Square Bob Sponge Pants shaped Cheez-its at me... it is time to sign off for now...

I'll be around soon...

2004-11-05T19:15:00.000-08:00

Blawgerheads,

I haven't forgotten about y'all...

Been very busy putting together the touches on a new litigation support workflow program and will tune in soon with results and news about this endeavor... Please stay around.

The Paperless Litigation - Little Green Aliens?

2004-10-26T01:24:00.000-07:00

10.25.04

It finally happened, while meeting with a client involved in large litigation I asked the standard question : "So, how much of your discovery review will consist of paper as opposed to electronic documents?"

"None."

"K'suse me? I coulda sworn you just answered 'none'."

"I did, there is no paper here. All .pst's and their attachments and maybe some I.M. as well."

Still not believing my stunned ears, I gave my colleague a way out of their obvious faux pas.

"But, I guess I'm asking you for a total amount of documentation that may have aleady been scanned and OCR'ed or which will need to go throught that process."

"Alex, what part of 'none' don't you understand?"

Dazed and confused ..., I whimpered ... "none? Are you sure?"

"We will be harvesting about 150 gigs of .pst files and some MS office files that may or may not be attachments to the .pst".

I was finally living in the futue. In a world where paper is a bygone consideration not unlike that 8 track player or phonograph. I could almost see myself growing with age.

My colleague went right into some of his concerns about slack space, vectors, deduplication and delimited export files. The absence of the terms ."tiff," "OCR" and "banker's box" is nothing short of haunting. Metadata was finally a term that could apply to the entire body of evidence before the court. There was hope for the old growth forests and the Spotted Owl afterall!

Now that I take my hand written notes on my PC using my tablet pen and the new Mocrosoft One Note program ;when I think about it, it does not surprise me that I actually encountered a paperless beast face to face. I won't be surprised if another sighting is not far off. Should you claim to find yourself in such a strange encounter, make sure you can toggle on your digital audio recordrer and shoot it off to Alextronic for postin on this blawg 'cuz otherwise no one would believe you.

I'm baaaaack...

2004-10-11T01:29:00.000-07:00

No, not dissin' the Blawg and would not dream of letting down my fellow blawgerheads... just been on a whirlwind tour... the ARMA conference in Long Beach, the Mitratech show in Las Vegas, the ABA Environmental Section meeting in San Antonio, TX and the California State Bar annual meeting in Monterey. I've slept in my own bed two days in the last two weeks... It's been nuts. I also have two more gigs this month... so there is no rest from the Alextronic...

My favorite story from the road this time... without a doubt.

The 5th circuit swearing in ceremony in San Antonio.

My good buddy, John, whose long and varied career I always envied put me up in San Antonio. John had worked for the Government as a special agent, then joined the Peace Corps in the Dominican Republic, then became an attorney, then a cop and now an attorney again. John is one of them guys that just can't sit still... you know the type. The type we all envy.

Anyways, true to form, John just picks up one days and moves from the Bay Area to San Antonio with his wife. They quickly purchases a sprawling one acre spread with five bedrooms, four bathrooms, a pool with a waterfall feeding it, a basketball court and other amenities on his palacial estate for the price of a dilapidated studio in the shady area of town where I am from here on the Bay Area Peninsula).... That bastard! But I will bleed my pent up envy in another Alextronic entry...

So, I forego the hotel and crash with John and his lovely wife and daughter. He wakes me up one morning and asks me if I'd like to come to his swearing in ceremony at the Federal Court house. He had just met the requirements to swear into the Fifth Circuit court.

We make our way past the River Walk and countless Bar-B-Q joynts. Once settled into a bench inside the courtroom, the Bailiff reads a scripted introduction for the Judge before he enters the room. The bailiff mentions something about God blessing the USA but more importantly, God blessing Texas. The judge, a seventy-something intimidating figure with silver hair (well, that which remains appeared silver) takes his seat and gives a touching lecture about affirmative action, Brown vs. Board of Education and, of course, true to his San Antonio spirit, he works the Alamo into his little delivery. The Judge recalls the days when Blacks and women could not practice law in Texas and calls on the new admittees to work to promote positive social change and end continuing racism that runs in the veins of this country. He gave a good pep talk and his words held meaning and wisdom.

After his touching remarks, the Judge calls up the eight or so attorneys for admission and the takings of their oaths. He swears each one in and then chats with them a bit. For the women, he asks about their law schools and where they practice. They are summarily congratulated and moved aside. It's the boys he really wants to chat with.

"So counselor, I see you went to University of Texas Austin Law School... is that right?"

"Yes, your honor."

"So... did you catch the whole season?"

"Excuse me, your honor?"

"Y'know what I'm talkin' about, boy, did you have season tickets or not?"

"Are you talking about football, your honor?"

"I sure ain't talkin about cheesecake, counselor... so did you see UT whip U. Miss in 2001?"

It went on like that... The men were asked about football without exception... who they rooted for, where they went to high school and what position (not "if they played" but "what position") they DID play. The Judge seemed to know each high school's win/loss record and coaching staff dating back a decade or more. If this guy knew the law half as well as he knew high school football, then someone appointed the right guy for his job.

The responses were uniform... "Linebacker sir," "quarterback, your honor" " tight end, judge".

Then came the European guy.

Now this dude was a Euro through and through. His name was Bertan. He was Dutch and wore a bow tie and rose colored loafers. When the judge asked about his past, he rattled off an impressive CV ... educated at Oxford, represented a multi-national corporation in Spain, spent some time in South Africa helping to draft a new constitution, did a fellowship at Yale, taught law at Venderbilt and was now a partner at a top Texas law firm heading up their new international transactions practice. Not too shabby.

The Judge stared at the Euro, unphased by his worldly accomplishments... the judge dropped his jaw slightly, scratched his head and said with his trademark aire of authority mixed with a few spoonful of agitation... He thought for a second and quizzickly remarked, "yeah, well that is all good and well, but tell me there Bertan..., did you ever play any football?"

At that moment, as I used every ounce of strength to keep myself from falling into a fit of uncontrollable laughter in the hallowed halls, I knew I was in the deep heart of Texas.

-Alextronic

Substantive EDD and Lit Support stuff this week... I promise.

What "da Man" Wants

2004-09-29T19:13:00.000-07:00

9.29.04

Through my involvement with the infinitely exciting and promising merger of Zantaz and Steelpoint (Zantaz caters to mostly Fortune 500 Blue Chips and Steelpoint to large law firms and in house corporate legal departments) I have been blessed with the opportunity to rub shoulders with "da Man."

In other roles, I would work with lit support staff and paralegals at forty to two-hundred attorney firms and I thought that I had really made the big leagues. Now I come to realize that this was small fries... yes, I'll take a milkshake and a Big Mac with them small fries. This weekend, I was introduced to some accounts such as a burger joint trying to manage the many frivolous and not so frivolous law suits against it... that little burger joint's name... McDonalds.

I also met the in house legal support coordinators for mom and pop shops such as Home Depot, Toyota, Honda, Bank of America, Wells Fargo, Allstate, Exxon, Chevron and many many more. My contacts list is less American Lawyer Today and more Fortune Magazine these days.

I must admit that I was not initially thrilled to be working so closely to "da Man." I thought that if I did not perform a flawless back flip on cue, I would be cast out into the wasteland of the unwanted. I envisioned the branches of the tree lined trees suddenly experiencing horrific animation as they clenched me with full knowledge that I voted against the latest corporate tax break. I was always on the lookout for Michael Moore - pouncing from behind a shrub with camera in hand to expose me as the latest collaborator with evil.

But, after spending time with these folks, I found them to be (for the most part) very pleasant. Most turned out to be left leaning free thinkers who truly believe that their stint at the behemoth is an opportunity to perhaps effectuate some positive change in the world. Of course, others just look to the high pay checks. Regardless, the day-to-day litigation anxieties (Can we collect the data needed within the time from posed? Will this system upgrade fall within out budget parameters? How are we going to get legal support trained on this before discovery commences?) remain universal concerns. I found that the solo practitioner with her office perched on top of the WhileUWait laundry mat is more similar than dissimilar to the Senior Litigation Coordinator at Dupont.

I'll give da Man an ounce of respect given what I now know.... but just don't tell my liberal arts college buddies... they think I'm working for Greenpeace.

-Alextronic

Trickle or an Avalanche?

2004-09-18T20:51:00.000-07:00

9.19.2004

I was privileged to be invited to attend a high level strategy meeting at the Davis, Polk firm to discuss the firm's representation of Oracle in the famed Oracle v. Peoplesoft matter. The participants from the firm were friendly and knowledgeable. Oracle certainly must have done its homework before hiring this stellar firm (along with Bingham, McCutchen and other top-notch counsel) to fuel Larry's unquenching desire to maintain his evergrowing empire (and Bonsai tree forests as well as Carp ponds). Bonus question, do Bonsai's grow better in Redwood Shores or Pleasanton?

The meeting meandered around the typical topics concerning litigation support in general. What do you use locally? Who does your scanning? How much OCRing are you seeing? How are you creating Bates Numbers? On site, domestic or off-shore coding? What is your current litigation technology budget? Sanction II or TrialDirector? Using CaseMap? How about TimeMap? Real time transcripts yet? Summation or LiveNote? Ya know, the regular stuff.

Then I asked the question de jour... "So what proportion of electronic data are you processing as opposed to the tried and true (yet costly and sluggish) print, label, copy, box, scan, OCR etc?"

The litigation support gurus both looked at me and slightly bent their necks a bit and rolled their eyes ... " They seemed to scream out silently... c'mon... you know we're asked that sixty three times a day... don't be such a schlameel.

What they did say, was not much different: "It's a bit overrated. All this hype about EDD. We hear about it at the trade shows, read about it in the magazine, but our litigation is still 90 percent paper based. The pleadings and RFP's reference digital data, but in the end, we usually just have paper."

I countered: "But have you not seen the statistics? The George Socha surveys... the pundits who say that ED is a multi-billion (yes, with a 'b') industry that is only in its infancy? Can they be wrong?"

"We think its a lot of hype now... Our day-to-day dealing with even the most tech savvy clients still yields paper in a manner that far exceeds its electronic counterparts."

I was intrigued by this perspective and wondered to myself if anyone actually had statistics as to what average proportion of discovery reviewed in today's modern litigation climate is purely source-to-review application electronic and what start as paper. I thought of my two longtime buddies in San Francisco pounding on doors selling two very different products. Matt sells ED and only ED while Gaylord sells litigation copy services. Gaylord is always buzzing around town with a hand truck and colorful banker's boxes and never has time to grab lunch because of all of the pickups, deliveries and orders he takes in a day. Matt, strolls around with a deduplication and meg to page pricing schedule and is always hitting me up for leads.

Gaylord's looking a bit more buffed these days from years of carrying seventy pound boxes of papers off the hand trucks and into the war rooms... Matt's starting to get a gut and had to strengthen his eyeglass prescription.

I raised my eyebrows in deep thought... the plot thickens...

Makes me think if the folks defending the king of tech may be smart enough not to drink the Coolaide or are they just way off base.

Hmmmmmmm?

As they say, only time will tell.

Sake and Kinkos and Gavels oh my!

2004-09-12T19:03:00.000-07:00

9.12.04

So I stroll up to the clerk's counter at the majestic Ninth Circuit Court in San Francisco, surrounded by crystal chandeliers and marble hallowed halls, the place is a bit intimidating if not downright demeaning. It really puts the insignificance of one's self into stark perspective.

My filing of a Petition for Review from a State Court appeal goes without a hitch. I realize that it is soon time for a web cast and I've gotta duck into a nice little nook with my cell and tablet pc close in hand. I ask the clerk if there is anywhere I can get a wireless connection at the courthouse. He tells me about cell phone reception. No, I says, not the cell phone ... ya know, the computer... internet. He says his brother in law once played a hand of blackjack on the internet for real money. Then he tells me there is some kind of computer plug thing in the library.

I run to the library to find that the computer hook up thing is a universal power adapter that someone most likely left behind as they nervously scuttled up the marble stairs to face a nine judge appellate panel clutching gavels and perfecting their imposing frowns... I stroll over to the law librarian and he says that if I am not a court employee, then there is no access for me. "You're not a court employee, are you?" he asks. I feel like lying right there in the State's highest courthouse and literally standing beneath sitting Federal Circuit judges whose murmurs from the chambers above can be heard through the library's ceiling. My good upbringing gets the better of me and I make a mad dash for the nearest Kinkos.

The lack of technology at the Ninth Circuit makes the new advisory proposal concerning e-discovery come as a shock if not a pleasant surprise. The Court has proposed an absolute duty for counsel to notify opposing counsel of electronic evidence which is likely germane to the litigation at hand and a meet and confer is required to facilitate such. Also, if one party can reasonably show a need for preservation, the court's standards for granting such an order has been lowered and we'll see much more in the way of preservation orders in this jurisdiction. The court is also considering requiring digital production via native or .tiff or some other format that is not paper. This will make the litigators just as happy as the environmentalists. The Chief Justice of the Ninth Circuit deserves a kiss from Julia Butterfly whatshername tree sitter... Finally, the courts suggest that responses to RFP's should indicate which types of media have been harvested and reviewed. This will help minimize the "you hid the smoking gun" allegations that are a staple in modern litigation.

The guy at Kinkos directed me to a Starbucks but I did not have the password there. I finally ended up at a sushi joint that specializes in Spider Rolls and DSL connections... Ever tried giving a presentation while chewing on sashimi and knocking down a few sakes?

Are you regular?

2004-09-06T01:49:00.000-07:00

Most Blawgerheads who don't boast too much unallocated disk space between their ears understand that the ubiquitous Rule 34(b) requires a responding party to produce electronic documents "as they are maintained in the regular course of business." This definition has caused many to pontificate in Bill ClintonEsque style... doesn't it depend on the regular definition of "regular"?

The Southern District of New York - home to more EDD decisions, discoveryheads and Wall Street firms waiting in long lines to drop off their clients hard drives to their local e-discovery vendor recently struggled with this same issue.

In Zakre v. Norddeutsche Landesbank Girozentrale (2004 WL 764895) (say that one five times fast for a free Introspect T-Shirt!) the court was faced with a situation in which over 200,000 e-mail messages were produced by the party hit with the RFP in the following fashion:
The e-mail messages and their attachments were converted to plain text with an ASCII extraction utility and delivered in standard, non-delimited format to the requesting party. This production is one step above a pure paper production in the sub-par chart maintained by fretting litigators awaiting their e-discovery responses.

To no one's surprise, the requesting party moved the court for an order to compel in line with Rule 34(b) arguing that such a pure text rendition of the requested data was far from the format that the producing party kept in the "regular course of business."

Any wagers on which way the court swayed... ?

Get this... the court opined that the production was sufficient because all of the e-mail text was produced quickly and in a searchable electronic format. True, much metadata was likely not extracted nor would an export to a local or hosted litigation support database application for strategy review be anything remotely resembling a turnkey operation, but the court held that this ASCII text production met the bare minimum standard.

Now the bury in paper tactic may not be the only such tactic that one can use to get the requesting party's counsel to blow steam through their ears...

It should be noted that this very issue concerning acceptable production formats for requested electronic discovery is still hotly debated in other jurisdictions, so stay REGULARLY tuned to Alextronic for the late breaking updates on this doozy...

Party Pooped

2004-08-30T11:13:00.000-07:00

After a week of EDD (and other intoxicants) overload in Phoenix, it is sure good to be back home... wait a minute... where the heck am I?

Hey, I'm in Boston! Transported from the Phoenecian dry heat to that clam chowder, Bostonian sticky heat... where I am undergoing indoctriniation into the ways of Zantaz and Steelpoint to begin yet another Alextronic journey. So your Phoenician correspondant is now a Bostonian... say bye-bye to Senator McKane and hellow to Senator Kerry. I am, however, set to return to my base of San Francisco soon, so I'll have to pretty myself up to transform into the lovely Dianne Feinstein... (even though my biceps are frequently mistaken for those of Arnold)... Man, am is this getting nutty and off-course... focus Alextronic, Focus!

Before I leave the topic of LawNet, I wanted to send out a special thanks to the folks at CaseSoft, LexSolutio and Dataflight for their wonderful hospitality ... especially Bob Wiss who ended up becoming my designated driver and industry therapist, but that's for another story.

Speaking of Bob, has anyone checked out DepPrep yet? Sounds like a great resource to take that uncomfortable fear of the unknown out of your deponent so that he or she is likely to really score big points at that upcoming deposition. I wonder if Amber Frey owns a copy.

Here is the hot EDD issue to ponder (we debated for what seemed to be hours on this one). Can a term query used as a first instance culling mechanism to a data set expose counsel to malpractice liability if the query culls out too much relevant information and that which may have been subject to the RFP even if not technically relevant? Hmmmmm.

Alextronic will address this in the next post. Stay tuned....

LawNet 04 Live Report

2004-08-25T12:18:00.000-07:00

The only thing hotter than the 105 degree Scottsdale Sun is the announcements coming out of the vendor booths here at the Holy Grail of legaltech shows - LawNet.

Zantaz acquired Steelpoint technologies (makers of Introspect) which, in turn, Acquired Yours Truly as a Regional Western Sales Representative. Summation is launching a SQL backend Beta and Concordance is up and running with Thin Client hosting via FYI that works like a charm. Debate is raging as to the ROI of concept based queries. Fios' Prevail now easily hosts images in addition to data/metadata making that application more well rounded and Kroll has enchanced its annotation tools. Daticon is working on a long overdue new interface for Virtual Partner and iConnect unleashed its new Oracle version for them highly robust matters. The University of Washington Law School in conjunction with Andrew Adkins and Tom O'Connor is creating a litigation support/EDD course for law students and California Law Schools such as Hastings, Golden Gate and Stanford are expected to follow suit. Exciting stuff here...

And that's just scratchin the surface and the tidbits I gleaned when I was not sippin' Cactus Coolers at the pool...

Stay tuned for more live updates.

- Alextronic

Disappearing Data...

2004-08-09T17:56:00.000-07:00

8.9.2004

That Damned Delete Key.

We've all heard that the delete key is a misnomer. Delted data can be recovered by forensics experts and high school kids who can score more than ten thousans points playing the latest edition of Tomb Raider.

Some things we may not be aware of when it comes to the controversial delete key follow:

- The delete key does not do away with data. It simply takes your data from one organizational index (accessible from your desktop) and 'moves' the 'deleted data' to another area accessible from your hard drive.'- Utilities with apt names such as "evidence eliminator" and "data scrubber" can delete data in a rather pemanent fashion. However, that being said, forensics experts have been known to be able to reverse the damage caused by these utilities. The 'data scrubbing' companies are trying to out do the forensics nerds and the forensics nerds keep reinventing that rollin' anti-scrub wheel so the cat and mouse escapade continues ad infinitim.

- Surefire ways to delete data may include multiple reformats of the storage media and then use of that same media so that sectors are overwritten.

- Even if data is actually and completely deleted, it is often the case that it lives elsewhere in undeleted splendor (think backup tapes, e-mail attachments that may have been delivered and on paper if it was ever printed).

- Attorneys have been known to subpoena backup media as well as 'live' hard drives and network servers to locate the purportedly 'deceased' nugget of data. Often one or more of these alternate mediums will bear fruit. Attorneys have even been known to subpoena third party data carriers (such as hotmail or yahoo or netwizards) to obtain the ISP or web based e-mail provider's copy of the smoking gun.

So next time you hit your delete key, don't be too confident that your little file is saying bye-bye for good.

Law Net Nears...

2004-08-03T17:28:00.000-07:00

8.03.04

Phoenix in the summer? Who thought of that?

As LawNet nears, I eagerly anticipate my next honeymoon with my Blawgerhead pals. I've got plans to do some sun screen shopping. Phonenix in August will certainly keep me in the air conditioned exhibit area.

Be sure to check out the program schedule and try not to miss the ED sessions on Tuesday and Wednesday in particular. A little birdie told me that some new technologies to allow for seamless compliance-geared ED will be unveiled. Of course, don't forget to check out the latest and greatest on the exhibit floor and go easy on the freebie pens.

I've heard from many of you concerning getting together for drinks or a walk through a cacti forest (not concurrently, of course). I'm game... Would fellow Blawgerheads like to meet Tuesday the 24th at say 7ish at the Desert Ridge Bar?

Oh yeah, Alextronic will broadcast a "semi-live" report from the event here at Alextronic Discovery so for those of you not sweating the 104 degree desert heat later this month, stay tuned for the latest news flash.

Dennis Does it Again!

2004-07-25T22:25:00.000-07:00

Blawgerheads...

Words alone cannot do justice to the incredible EDD roundtable that Dennis Kennedy put together. The discussion really focuses on every worthwhile tangent of the EDD game. It is destined to be deemed a holy scripture in the EDD world. Dennis is quickly becoming my new hero, perhaps even starting to pass up the likes of George Socha, Browning Marean and Mike Arkfeld (all of whom curiously did not chime in on the roundtable).

Without further ado, I command you to check it out for yourself (it's free) at http://www.abanet.org/lpm/lpt/articles/ftr07041-6.html It is NOT to be missed.

- Alex

Now that's a (re)Treat!

2004-07-18T22:59:00.000-07:00

7.19.04

I had participated in large law firm partner retreats in the past. Once I demonstrated new labor libraries in Lexis and on the web to the fine folks at Littler, Mendelson and I had the privilege of doing a litigation support seminar for Thelen, Marrin, Johnson and Bridges (now Thelen, Reid and Priest). I also attended functions at Holland and Knight, Jackson, Lewis, and many others. The intimacy and exclusivity of a partner retreat somehow permeates the atmosphere and makes my typical presentation seem a bit more majestically, if I may be so bold...

Not until this year, however, was I asked to come in and talk EDD. With three partner retreats this summer and counting... EDD is the topic of choice as well it should be.

Partners may concern themselves with monitoring associate hours, acquiring competitive intelligence. schmooing the key clients and keeping up that golf game, but if they don't know where to direct their armies to look for the smoking gun evidence, then their game will be up. So I was honored as well as relieved when this year's slew of law firm prtner retreats

Of course, the challenge to presenting EDD at such retreats is that each firm maintains a distinct client base. The labor law firm wants to know about how to view metadata underlying a grievance in the form of an e-mail message by the union leader to management while the corporate attorneys go goo-goo over the electronic review of spreadsheets, with their columns and formulas shamelessly bared for all to see. I'm still trying to figure out what it is the IP attorneys are asking me to show them... they always seem to be a few steps ahead of me.

If your firm's retreat does not yet include a session on electronic evidence, you may want to bring that up to the planning committee. It'll be the next best event at the summer retreat after s'mores and flashlight ghost stories.

Nix the OASIS and come to OAIS

2004-07-06T12:51:00.000-07:00

7.6.2004

For quite some time, technologists figured that an island or "oasis" approach to proprietary data formats would be their ticket to fancy fares. This conjures up images back to the days of Apple and IBM each closing their OS and figuring that everyone else would pay to play in their gated community.

That worked for a while, but there is something about the collective demand of the consumer that resists being duty-bound to any given product or service. Essentially, a technology island or oasis stifled a free market and the folks at Big Blue and elsewhere could not change the economic laws of nature.

After time, open source format providers became the big winners. Adobe, for example, was free and could be viewed on almost any OS. Red Hat (Linux) was and is essentially shaeware on steroids.

Backup data formats and compression formats followed a similar historical pattern. The data archival enterprises figured that if the user had to own their suite of software to open up and view the data, then it wouldn't be that tough of a sale for 'em.

So, enterprises were forced to become brand/format compliant to access and review archival data. This, of course, trickled down to the attorneys of those clients and their litigation review teams.

Needless to say, this became problematic. Law firms were spending small fortunes on arcane data archival systems just so they could review a series of e-mail messages or that smoking gun spreadsheet. Electronic evidence vendors and data forensic consultants began to throw up their hands in defeat and pull out the checkbook. It looked like Big Blue circa 1985 all over again.

That was, of course, until a nifty little group of forward thinking individuals formed a group called the International Standards Organization (ISO). Not unlike the noble efforts of today's Sedona Conference Group, this crew demanded an open architecture and common standard so that the public would not have to endure repeated pistol-whipping at the hands of the data archival giants. The econcomic tide began to swiftly turn against those banking on maintaining proprietary data format "islands" and charging a hefty docking fee.

This new movement of open source is known as OAIS (Open Archival Information Systems). Today, it is the buzz word among a growing number of records managers as well as IT and litigation support professionals. It is what we have been waiting for.

Not surprisingly, the first enterprises to demand and receive OAIS compliant technologies include a variety of governmental and think tank outfits that simply cannot afford impediment to the restoration of their collective knowledge. Universities and corporations are following suit. In time, litigation support and electronic evidence professionals should be able to plug into an archived data set for processing and review not unlike one plugs in the hairdryer at the Westin.

Who wants to live on an island or visit an oasis anyways?

- Alex

Cali Seeing the Light

2004-07-01T23:14:00.000-07:00

7.01.04

At times, it is tough to be proud to be a Californian... The Scott Peterson sensationalism hails from my home state as well as my home county and city... The heady days of Bay Bridge World Series and Journey Arena shows at Candlestick Park (before it was renamed 3Com Park... a criminal act if you aske me) are long gone. Although the Giants are having a great season, we still must make excuses for the Sharks and Warriors. Steve Perry is in a retirement home somewhere and our biggest rock hero is now William Hung.

One thing about California makes me proud, though. No, not the majestic Golden Gate or the splendid Redwoods... It's California's Proposed Rule of Court Rule 332.

You read that right, take a hike Goofy and Pluto... catch you later Barry Bonds and Gwen Stefani... Hasta la vista Arnold, I'm all about CPC 332.

This proposed rule of court "requires attorney to be familiar with relevant computer applications, document retention policies and the storage and retrieval capabilities of the client." You read that last sentence correctly, the court's are REQUIRING litigators to understand EDD basics. This ground breaking rule (should it become adopted) will essentially require law students to take a class on EDD and automated litigation support between morning crim law and afternoon torts. This is ground breaking stuff. The biggest thing since prop 237 (my fellow Californianites will understand that one).

Imagine an attorney being sanctioned for not understanding the difference between a .pst and an .nsf. How about the counselor who is considered legally ineffective for failing to know which data to be requested is live and which is likely to exist in archival format? God help the litigator who is not familiar with Zubulake!

Is this real or am I in some euphoric dream state? Somebody pinch me please...

Detective ED says, Book 'em Danno!

2004-06-29T18:25:00.000-07:00

6.29.04

The criminal courts and the cops may be way ahead of us in the forms of traditional forensics (the blood and hair sample stuff) but us civil litigators have reveled in the fact that we can smoke them DA's, PD's, cops and robbers when it comes to traditional electronic discovery (getting at the computer guts and not the crime victim's guts).

I once (quite recently) spoke at a police department to a group of investigators and the group was stunned at my depictions of harvesting e-mail messages and running filter queries for later categorization and examination of metadata. The cops were big on data mining hard drives for their child pornography internet cases, but beyond that, electronic evidence was as mystifying to them as a stun gun is to me...

Things have changed. Just this week, the Boston police department assigned handheld network devices (RIM Blackberries, to be precise) to the force and networked them gadgets with regional crime databases. Now the officers can page each other while they pull up the rap sheet on the would be robber by the dumpster behind the local Pay n' Pak.

Gone are the days of "going back to the precinct to run the prints."

Of course, this on the fly flurry of electronic data coming out of the law enforcement community will translate into a steep increase in ED activity. One of many reasons why the ED community can expect to keep a hefty supply of donuts on hand these days is that Blackberry and other relatively pervasive technologies have been strategically interfaced with previously unknown and still 'clumsy' law enforcement databases such as Matrix or SEVIS. The integration of e-mail technologies such as RIM will in effect lift the data from these systems and allow it to travel as e-mail attachments through the internet. Hence, we see traditionally discoverable mediums (e-mail) as vehicles for other types of critical electronic data that had not vehicle to enter the public domain. It can be analogized, I guess, to the Ukrainian herring farmer who did not find an international market for his pungent fish until the railroad was developed to bring the product to France, Germany, Italy and other far away places.

The Supreme court recently chimed in. A plaintiff who claimed that a police stop requiring him to divulge his name amounted to an unconstitutional search and seizure was rebuffed by Justice John Paul Stevens who referenced Blackberryesque technology to justify the importance of available data "at the scene" to confirm identity in furtherance of the interests of law enforcement. Score one for ED ... sorry little thing called Fourth Amendment...

Mobile computing and wireless e-mail devices are surely carrying data from all crevices of the nation into the mainstream. This is yet another avenue that should be watched as electronic evidence continues to gain momentum.

With HIPPA - The Kids are Alright

2004-06-25T00:42:00.000-07:00

6.25.04

Sarbanes-Oxley is sort of like the Who while Hippa can be analogized to the Clash.

During my freshman year in high school, The Who embarked on its first of twenty or so "farewell" or "final" tours. Today, now that John Entwistle and Keith Moon have dearly departed, Roger and Pete still seem to sell to an increasingly gullible public the "final tour" concept. We did get fooled again... and again. When will we ever catch on? Perhaps we WANT to believe that the band will just fade away... Pete certainly has not lived up to his promise to die before he gets old.

Oh, so where was I? Yeah, freshman year - Who concert. My friends and I crammed in a Bart train to the Oakland Stadium and meandered through the mullet hairdo clad crowds amidst hip flasks and pot smoke to secretly revel in the opening act. In the eighties, no one admitted that they would go to a show for the opening act. Today, however, it seems to be that you are easily spotted for the nerd that you are if you reveal that you are interested in anything but an opening act. But then again, this was the eighties. Reagan was in office. We wanted the nuclear warheads, not the pea shooters. I'm just talkin' about my generation here...

So when the Clash took the stage and Joe Strummer (may he rest in peace) belted out his trademark bark during an opening rendition of London Calling, we were besides ourselves. By the time the Who came on, we were day dreaming about our high scores on Ms. Pac Man.

Sarb-Ox, as it has grown to be affectionately called these days, has captured the minds and hearts of the EDD heads out there. And for good reason, this legislation which exponentially steps up the need for financial and corporate compliance and accountability (and hence more extensive data retention and tracking and hence more e-discovery when litigation rears its perty lil' head) is no fluffy statutory subsection here. The audits, investigations, accountability and disciplinary "teeth" that Sarb-Ox brings to the table will forever change the way this nation churns and will hopefully reduce the chances of another Enron/WorldCom/Global Crossing/Orange County...(you can stop me any time there, fellas) debacle.

But lost in the frenzy of Sarb-Ox just as the semi-sober head bangers were hopelessly mesmerized by Pete's rotating, outstretched strumming arm is HIPPA (Health Insurance Portability and Accountability Act of 1996). HIPPA, like The Clash, deserve no less respect than does Sarb-Ox. HIPPA can really rock the Kasbah.

Like Sarb-Ox, HIPPA is all about accountability. It aims to promote privacy and responsibility in the health care arena. Sarb-Ox says no more swindling grandpa out of his pension and HIPPA slaps you upside your head if you go about broadcasting which denture cream grandma uses. Before HIPPA, doctors worked like lawyers. They used a system of stare decisis. When Aunt Martha in Arkansas needed hip replacement, the hospital went ahead and contacted Aunt Bertha's hospital in Oregon who just provided her with a snazzy joint replacement of her own to pull those records so that the wheel could be reinvented. The problem was, of course, Aunt Bertha didn't know nor would she have been ecstatic to learn that her hospital was sending her records all over to be used as templates. HIPPA ended this practice - a boon for patient's privacy rights and a blow to the laid back protocol of just working from blueprints.

Now, thanks to HIPPA constitutionally based invasion of privacy actions will be on the rise. As HIPPA requires extensive documentation of the steps that any health care provider takes to ensure compliance - this is a double whammy for the ED world.

Further, HIPPA also protects health insurance coverage for workers and their dependents. It provides for coverage of pre-existing conditions when changing medical plans or going to COBRA - another discovery treasure trove when the bad faith insurance actions hit.

Finally, HIPPA imposes civil and CRIMINAL penalties for privacy violations. This is forcing hospitals and insurance companies across the nation to finally get serious about compliance and electronic records management. I can see for miles and miles will be the tune that these entities must sing.... anything less may bring about a fate similar to that suffered by Boris the Spider (if you don't get it, Google it... trust me it fits).

Litigation being brought by patients recently has involved matters where a health care professional has breached HIPPA by failing to provide a privacy log indicating all steps covered t protect the medical privacy of the patient. As these records are invariably kept (or not kept) in electronic format, the ED vendors of the world now have a true role to play within the medical world when med-mal suits were previously the only vehicle that would bridge these two disparate planets.

The ED professional can now help Dr. Jimmy streamline his review of electronic privilege laws to stave off that nagging lawsuit and his patient can sleep well at night knowing her privacy is protected by HIPPA. Everyone wins. I call that a bargain... the best I've ever had.

Back in the Saddle

2004-06-22T23:43:00.000-07:00

6.22.2004

There is not much ED going on in the Dordogne Valley region of Southern France. The most electronic discovery that I experienced there was the tuning of the radio on my rented Peugeot van as I sailed through endless rows of bright green vineyards while chewing on brie and baguettes...

It's tough to be home.

So after I polished off the third bottle of Bordeaux that was supposed to be a gift for my assistant, Julia (sorry Julia, do you drink Perrier by chance?). I do what comes naturally under the euphoric spell of some red wine... I turned down the lights, lit some candles, sauntered to my bedroom and... surfed the web for ED resources.
What else would I possibly want to do?

I gravitated towards http://www.merresource.com/

The folks that run this site (Cohasset Associates out of Chicago) do a splendid job of providing useful information that extends far beyond traditional ED. The site is devoted to the art of managing electronic records both before, during and after litigation. It is an absolute bible for any records professional that needs to keep his or her enterprise compliant, efficient and at the same time with an eye on the minimilization of chaos when (notice that I didn't say "if") litigation rears its ugly head.

The site contains, among other resources:

. The laws from all 50 states relating to storing records on
magnetic media, optical disk and microfilm all in an easily
browsed and fully searchable format. Each listing includes a
legal analysis providing additional insight.

. A database of relevant case law organized into distinct
and easily navigable categories, and including relevant
passages highlighted by an expert attorney.

. Access to a library of hundreds of relevant articles,
reports and white papers on a variety of subjects, all
organized into logical topic-related categories.

. Post questions, receive answers, and help others in our discussion
forums each monitored by an industry expert in the field while
building your personal network of MER professionals.

. A subscription to Pike & Fischers Digital Discovery & e-Evidence
Newsletter (a $545 value in its own right) presented to
you in both html and PDF format.

. An online dictionary of over 15,000 IT-related technical
terms with over 2,500 pictures charts and diagrams to help
demystify communications with your IT department.

A collection of over 30 of the best of the best MER Conference
Presentations with the PowerPoint presentations linked
to the sound and presented to you in streaming format
over the web no plug-in required. (Selfish note: I hear that Yours
Truly will soon boast his very own .ppt in this "best of the best" arena).

Now before you go goo-goo here, there is one caveat. This is NOT a free site. Not a surprise given the perks it boasts. But for $1,800 per year it truly is a bargain. Better yet, trial subscriptions can be negotiated before one takes the plunge. Also, even without a subscription, a tremendous wealth of very useful "teaser" materials are available at no cost. For example, Brad Hulbert, a trial attorney for McDonell, Hoehnen et al presents a terrific presentation entitled "As a Trial Attorney, How Would I Attack the Way You Manage Your Electronic Records Both Before and After the Trial?" The presentation boasts audio as well as excellent slides.

Case law is extensive and not only alphabetized by case name in a virtual rolodex, but the critical passages in opinions relating to ED and electronic records management standards are conveniently highlighted for the reader. This is not a freebie and only available to subscribers.

Of course, the most beneficial free site in the ED realm is www.discoveryresources.org as evidenced by its ranking just behind Lexis/Nexis and Findlaw in the recent TechnoLawyer awards last month. Discoveryresources.org is optimal for the litigation professional in the throws of discovery. Merresource.com, on the other hand, is ideal as a supplement to discoveryresources.org in that it provides the knowledge and guidance needed to help the records professional gear up for litigation and then wind back down upon its conclusion.

Discussion boards and educational forums are available at the site and archives of the well received Digital Discovery and E-evidence Newsletter (to which I have contributed)in the past are made available for users.

Of course, the site links to other excellent resources such as the Sedona Principles site.

This resource has me so excited, that lately my yearnings for duck pate, red wines and croissants have been fading as they are slowly being replaced with records management surveys and visions of redundant backup servers... Get me back to Europe.

Out of Office Reply

2004-06-11T15:42:00.000-07:00

(06.11.04) Alex is currently on vacation. He will be returning to Alextronic Discovery the week of June 21st.

ED and the Founding Fathers

2004-06-04T12:52:00.001-07:00

(06.04.04) It had to happen. Just when I thought that I had seen it all, the constituion is now coming into question with respect to ED discovery.

You think I'm Funny... ?

Well this, is funny. Even Joe Pesci would concede.

You heard that right... the US Constitution.

Now, when our friend Ben Franklin and his colleagues signed that sacred
document, it is debatable whether he was pontificating about the right to
bear arms should extend to an AK-47 in the lady's powder room, but could
he and his cohorts could have been dreaming up protections against a rogue
.pst file or a botched deduplication? Did the founding fathers talk hash
code as they reached for the quill pen and ink well?

A judge in Illinois thought not.

In a reasonable decision this year US v. Segal (not Bugsy but close) WL
635065 (ND Ill 3/32/04) the Chicago court dealing with this white collar
mafia matter (believe it or not, a mafia case out of Chicago... ) found
that the bad guys' claim that the prosecution (the Feds) failed to protect
the afiosos' constitution rights to Cohibas, moonshine, Tommy Guns and
metadata was violated when the Feds failed to inform the wise guys that
they had turned over attorney client (or consigiliari-client) e-evidence.

Last I checked, it was incumbent upon the responding party to make sure it
did not turn over obviously privileged materials designated in a privilege
log. The court agreed and held that there is no constitutional violation
when the recipient does not conduct an attorney client review for the
opposing side.

Ain't that obvious, Guido? C'mon now, make me an offer I can't refuse.

The evidence came in and the bad guys are likely to be slicing linguini
and hoping to wake up free and clear of severed horse heads in their new
home at the Federal Pen.

So why then did this matter even make it into court? Was the judge
fearful of saying nay to the family of Al Capone and John Gotti? Nope,
yet an even more well heeled influential family made sure this issue got
attention... the Federal Courts.

The court in INS v. Doherty, 502 U.S.314,323-24, 116 L. Ed. 2d 823, 112 S.
Ct. 719 (1992) mandated that all such claims must be heard. Anything less
would constitute a violation of a constitutional righ to due process of
law as guaranteed by the fourth and fourteenth amendments. This principal
has been on the books for quite some time now. Even Lucky Luciano could
have seen it coming when Mulane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950) was decided.

Right about the time when Marlon Brando stuffed his jaws with cotton to
perfect the image of Don Corlione in part II, the Supremes came out with
Mathews v. Eldridge, 424 U.S. 319, 348-49, 47 L. Ed. L. 18, 96 S. Ct. 893
(1976) identifying a "property interest" in due process towards discovery
of evidence. Until that point, the only property interest that the mafia
concerned itself with was the speakeasy and the rights to Frank Sinatra's
latest Vegas performances.

Times have changed...

Do I amuse you?

I've Seen the Mountain Top... And It Is Good

2004-06-01T11:21:00.000-07:00

(06.01.04) Attending the MER (Managing Electronic Records) conference was a real eye-opener. Being selected as a featured speaker was an honor. I may have learned more at this show than at the last ten legal technology shows at which I have spoken combined. Those shows may blur together in my memory, but MER is a true standout.

This Chicago event extraodonaire hails from the fine folks at Cohasset, Inc - a leading corporation/think tank/hand-holder in the management of records and electronic data in particular. The engines that run this nation turn to Cohasset to manage their s&%#.

I sort of hate to have to say it, but the mainstay attorneys and legal vendors that pepper the exhibit hall at every LegalTech and LegalWorks show, should really be at the MER event. Attorneys who court their corporate clients or who represent a governmental agency should kiss the spouse and kids goodbye for a few days and take Trans-Capone Airlines to the Windy City. If not for the deep dish Gino's pizza or the stroll down the miracle mile, do it to understand your clients needs and learn how your discovery strategy may (or may not) dovetail with what your clients are doing under the hood. I whispered in a state of disbelief with attorneys from the few law firms represented (Jones Day, Gray Carey, Pillsbury Winthrop and a few others). Can you believe we're the only law firms/attorneys here? What gives?

Exposing MER in my Blawg leaves me with mixed feelings. I feel that I have a duty to keep my loyal Blawgerheads informed about the finest resources in the biz, yet like divulging a good fishing hole or off-the-beaten path Ethiopian restaurant in San Francisco, I really hate to clue others in to this diamond in the rough.

Well, not too rough. The list of registrants read like a the Fortune Power Five-Hundred. Major insurance, banking, textile, food, drug and government corporations and agencies were present in full force. I had beers with Chevron, danish and coffee with the Florida's Natural Growers, shared elevator stops with Allstate and the FBI, waited for an available urinal with the DOJ and major aerospace industries. One of the first people I buddied up with was a fellow who controlled product distribution world wide for products such as zip-lock bags, Raid, Pledge and a variety of other "little known, obscure" (cough, cough) household products. The guy in the hotel room next to mine ran operations for a small shop called Target Stores. Up until that point, my standard fare was dining with attorneys who may have filed briefs against these behemoths. I graduated a cut or two at MER.

As I entered the large luncheon hall (lunch is included with registration as it should be for a 1K plus admission ticket), I avoided the tables full of vendors and conference organizers. True, they represented the few people I initially knew at the conference, but it has always been my rule to never sit with those I know at these gigs. Experience has taught me that the protocol yielding best lunchtime partners is to grab an empty or sparsely populated table and just see who drops in.
Our table, table 16, filled quickly. CIA records clearance professionals, major beverage industry executives, big-firm attorneys, bankers, Big Five accountants and major financial brokerage IT directors passed around the butter cubes. It felt that if that butter was someone spoiled and then lead to a table-wide outbreak of food moderate poisoning, the world just may just possibly stop going 'round.

More impressive than world-reknown companies, agencies and institutions that spawned the delegates to table 16 was the dynamic at the table. Everyone lent an ear, offered a thought and we all learned. Us attorneys explained hos a motion to comple cold be opposed. The records managers The records managers discussed the ramifications of a sudden litigation hold or "stop", as they call it, and how it would impact the world-wide product distribution cycle. The IT folks outlined the benefits of some of the latest records managements applications such as FileNet, Hummingbird and EMC. The coversation was engaging, educational and strangely entertaining. We closed down the dining hall. The Miracle Mile and free nick-nacks offered at the small exhibit hall could not lure a one of us away. We made plans to meet up that evening and continued our discussions late into the night atop of the Hancock Building and at Ditka's... but that is for another Blawg entry....

The MER was filled with hundreds of registrants, each paying a four figure price to attend and leaving their influential organizations for three days. I began to wonder how and why they all came to be there and what prompted the world's most powerful organizations to give them a playground pass.

The answer was universal. "This is the only place to figure out what the hell is going on" was the response I heard over and over again. Think about it. There are no schools that teach "record management" (library siences comes closest ... but it is still way off base). Additionally, the IT folks rarely get to glimpse the day-to-day trials and tribulations of the record managers and vice versa. Same goes for those folks and their inside and outside counsel. As was evident from table 16, each of these groups of professionals speaks a different language and the MER is, when it comes down to it, a foreign language institute. After my third glass of zinfandel at Ditka's, I had expanded my vocabulary to include terms such as RMS (Records Management Systems), "enterprise architecture" DRMs (Data Reference Models), record development life cycle method,capitol investment planning and 'reusable audit component." Meanwhile, my new friends were practicing their accents on "litigation support applications," "blowbacks," "work product privilege" and "redaction." I had not had better language instruction since my immersion program in Catamarca, Argentina during my Junior year in college.

The speakers were dynamic and the handouts helpful, but in the end I learned best at table 16.

Blawgerheads... there is a whole world out there. I saw it! I can identify now with Meriwether Lewis as he excitedly attempted to describe the Clackamas Indians to the colonists upon his return East. I may have no pelts or beads to corroborate my find, but I have some new knowledge a few new friends in my arsenal now... and that can't be beat.

By all means, check out www.choasset.com and expose yourself to the rest of the picture. We've been isolated for too long.

Partner or Peddler?

2004-05-26T23:00:00.000-07:00

Entering The Twilight Zone

(05.26.04) The parallel universe (or universes) concept is fascinating. Under this science-fiction like theory, our universe is not alone. To the contrary, our universe exists amongst other similar universes which are nearly identical. Nearly being the operative word. As no two human beings are completely identical – every Big Mac bun nestles small disc like pickle portions rotated at a slightly different degree. Our almost identical universes in the parallel universe concept exist along side one another in almost perfect harmony.

Of course, the allure of a parallel universe is the interesting contradictions that could percolate into view. The small inconsistencies that may not be logical or even possible in our universe may be the norm in our parallel universe. In our parallel universe, Madonna may be an insurance agent, frogs may fly and the sun may rise in the West. Everything else would be a mirror image of our reatlity… that is everything except for the fact that our eerie twin would boast an unlikely, harmonious alliance between electronic discovery vendors and their attorneys/litigation support professional clients – perhaps the most baffling, inconceivable inconsistency found among our parallel universe.

This inconceivable marital bliss amongst E-discovery vendors and their clients as well as their clients’ clients, manifests itself in a universe where electronic evidence is requested, obtained, processed, produced and presented at trial in a nearly flawless and highly effective manner.

In this imperfect universe, there exists a somewhat strained relationship between vendors and their attorney and litigation support manager clients. Rather than embracing attitudes which manifest themselves in constructive communications, mutual collaboration and teamwork, vendors and their clients often find themselves struggling with a dynamic that is largely adversarial.

Back to Nirvana

Seasoned NASCAR racer Scott Riggs counts on Valvoline engine lubricants to get him to that finish line in record time. He waives the Valvoline flag and Valvoline waives the Scott Riggs (Chevrolet) flag. Valvoline is present at his practice track, the pit and the qualifying laps. It is hard to distinguish the endeavor and enthusiasm between the Valvoline folks and the driverRiggs. Riggs enthusiastically test drives new Valvoline products and offers his input to R&D. Riggs understands that his own success is Valvoline’s success and vice-versa. This alliance between client and customer represents a mutually beneficial partnership. In the end, both Riggs and Valvoline are winners. We litigation support folks and attorneys could stand to get a bit of grease underneath our fingernails. We could learn a little from the NASCAR folks and their automotive industry partners.

Finger Pointing

In our actual universe, few law firms, government legal offices and in-house corporate counsel can point to many victory laps which were the result of a true client-customer alliance. Unfortunately, more often than not, lack of communication and collaboration yield a sub-par litigation support effort. This result may stem from a certain level of mistrust or a belief that the goals of the electronic evidence provider clash with those of the litigator and his or her clients. Which side is responsible for fostering such destructive notions? Is it the vendor that is suspected of viewing the client as just another prospect that may fill that looming monthly quota? Is it the client who deems the Electronic Evidence vendor as an aggressive salesperson looking out for his or her own interests? Although there may be shreds of truth to the stereotypes, in essence this profiling is destructive and drives a wedge between two parties that truly need each other’s skills, trust and respect to bring about desired results.

Crossing the Universal Divide

How can we in this broken universe adopt the success of the parallel universe of ED-Vendor and client collaboration? True to the concept of collaboration, this will require both parties to take some of the following initiatives:

I. Clients should not hesitate to ask their vendor to become involved in the initial strategic planning of a digital evidence strategy. Don’t wait until the discovery cutoff deadlines get tight, bring your vendor in from the get-go. After all, if counsel is in the midst of analyzing the scope, strategy and goals of e-discovery, what better resource is there than the professional that confronts these same issues on a daily basis and therefore knows what work and what does not work?

II. Vendors should query their clients and try to understand their particular strategic goals and pricing considerations.

III. Both parties should discuss any potential legal or evidentiary obstacles which may preclude the admission of favorable evidence or compel the inclusion of damaging evidence.

IV. Both the vendor(s) and the client(s) need to make a concerted effort to really get to know one antoher. The vendor should invite key members of the client’s outfit to tour their offices and attend their seminars and workshops. Legal counsel may wish to invite the vendor to firm functions such as retreats and CLE presentations. More importantly, if feasible the legal professionals and e-discovery professionals should get to know each other as individuals. A lunch or Friday afternoon beers can really turn a slightly strained quasi-adversarial relationship into a friendship.

V. Clients should not be afraid to “think outside of the box” and ask vendors to engage in some unconventional projects. Vendors have tremendous resources at their disposal in the way of access to current legal authorities comprising e-discovery and experts in the industry who may be available to advocate for the client in a hotly contested electronic evidence discovery dispute. Clients can ask their vendors to undertake some of these research or consultative endeavors.

VI. Vendors should be sure to address organizational concerns with the client. Retention policies, the ability to restore backup archival DLT tapes, existing methods of communication between counsel and the client should be understood by the vendor.

VII. Both should assign multiple contact persons to the matter at hand. A sales representative, manager of litigation support, partner overseeing the litigation and customer support representative will be key, however additional players should be identified and brought on board so that there is little chance for a ‘communication blackout.’ Client executives, experts, litigation support consultants and trainers, head paralegals, associates and IT staff at both the law firm and vendor site need to get acquainted with one another. Contact information should be swapped and weekend contact numbers need to be exchanged.

VIII. A vendor must quickly run a conflict of interest check. If the vendor is conflicted from the litigation, this is not a death blow to a partnership. The vendor may exclude himself from this particular litigation altogether (and remain in touch with the client and ready to partner on the next case) or the vendor may attempt to form a “Chinese Wall” and engage the project if he or she can insure that no entity (person or machine) at the vendor site that will work on the new matter is also working on the conflicting matter.

IX. Both parties must not be afraid to show they are fallible. Like any other partners (spouses, law partners, business partners) there will be snags and tough times. Understand this truism in advance and expect a few road blocks along the way. Anything less will be setting up everyone involved for disappointment.

X. Share in the success. A successful result stemming from the combined forces and efforts of a law firm and an electronic discovery vendor is a testament to the capabilities and determination of both. Celebrate your success and, above all, your lasting partnership.

Pat Yourself on the Back and Take the Lead

Striving for a true collaborative partnership by implementing the above efforts will let you find unity with your universe while putting your team in the pole position of the litigation.

Are You Up on Your DRP's?

2004-05-26T12:03:00.000-07:00

(05.26.04) Document Retention Policies (DRP's), although not the sexiest subject to burst onto the scene along with electronic evidence, electronic filing and e-briefs, is perhaps one of the more critical concerns for the legal professional and their clients. Although the DRP's may languish a bit in the shadows of their more popular colleagues, the DRP can (even more than the documentary evidence with or without its metadata itself) "turn a case."

So, just what is a DRP? A DRP is a rule or standard requiring a person or company or other entity that maintains documents (electronic or otherwise) to "hold on" to those documents for a finite (and in some rare instances, infinite) period of time because in theory such documents may become germane in a future dispute or audit.

Remember when you were encouraged to "hang on" to your automobile maintenance receipts just in case a potential purchaser down the road requested a complete upkeep history? Do you hang on to your tax returns knowing that they may be requested if you later on apply for a home loan? Well, these are common examples of how we are encouraged to engage in our own little DRPs in modern life.

In the world of litigation, however, DRP's are not simply "advisory" - such policies are mandated by statute. Some recent examples of such broadly sweeping statutes include the much publicized Sarbanes-Oxley Act of 2002 (requiring SEC and corporate retention of financial transaction documentation). Perhaps even more well known of late than Sarbanes-Oxley is the Health Insurance Portability and Accountability Act of 1996 (more commonly known as "HIPPA"). This legislation mandates the retention and security of medical and health insurance documentation both in paper and electronic mediums.

DRP's tend to be industry specific. Attorneys are mandated by the Model Rules of Professional Conduct as well as State Statutes (Business and Professions Codes) and also by case law to retain client files for a set period. All of the claim forms, pleadings and settlement correspondence pertaining to your fender bender matters in Wisconsin must be maintained for three years while the will you drafted for your client Ted Testator in Oregon must be maintained forever (or until Ted's demise).

More important than your own retention requirements will be your clients obligations pursuant to a controlling DRP. If your client is a physician facing a med-mal lawsuit, then as counsel you must understand what DRP's control your client's practice. Further, you are also going to need to do some digging to confirm whether or not your client indeed followed such protocols.

If your client is a pack rat like myself, he or she essentially is immune from violating this type of legislation, but if that client is prone to send his or her files to the shredder bin or has an itchy 'delete button' finger, you may need to advise your client to change his or her ways to comply with the DRP in the industry.

By the way, be VERY cautious about advising your clients as to how to be compliant with a DRP. Although you may feel such advise is in the best interest of the client and that without such an education, your client is likely to violate DRP protocols, by rendering this advise - you are exposing yourself it to a malpractice lawsuit if it turns out that your advise is off target. Many large law firms have entire departments that bill for such advise and there are DRP and preventative legal care consultants that make a living dispensing their wisdom on this issue. It may be best if you simply practice law within your specialty and let the experts sell their consulting services and assume the liabilities attached thereto.

Even if you wisely refrain from flexing your DRP muscles in front of your clients, you as a legal professional must still try to stay current with the prevailing DRP's influencing the industry or industries that of your clients.

I am often asked the sixty-four thousand dollar question - "How do I figure out what (if any) DRP's control my client's business practices?" Great question, tough answer.

A search in Google or Lexis on Westlaw (industry news) for "retention polic*" AND (then type your client's industry) will often bear fruit. Also, check the controlling State or Federal Codes. If all else fails, a search within case law (Findlaw.com and LexisOne.com are great free case law search tools) may reference the DRP. You may be surprised to learn that some DRP's are entirely case law created and not an act of Congress or state legislature. Finally, check the umberella organization that controls your client's industry. The AMA for doctors, for example, which (much like the ABA) have promulgated standards which are expected to be followed in the realm of retention policy.

Today, the majority of American corporations either have no retention policy in place or they have a retention policy that is simply not being followed or enforced. This just spells trouble, I'm talkin' capital, twenty-six point font, bold "T" trouble too... Insist that your client maintain an actively followed, regimented internal DRP which satisfies the requirements of the DRP's in the industry.

One common reaction you may get from your client is: "Wow, we keep so much of our records in digital format, how can I translate that to a DRP?"

Remind your client that the "D" (Document) now legally includes anything that conveys information - paper, digitial data (binary code), stone tablets, smoke signals the whole thing... Then assure your client that the electronic storage actually will make life easier for him or her. It is much more cost effectie and organazationally optimal to embrace a system that manages electronic data than dealing with boxes and filing cabinets. Anyone savvy enough to be reading this blawg will know that... but you may have to do a bit of convincing to your client. To do so - resource that you may want to reference is the 'litigation readiness' flow chart accessed at www.fiosinc.com/ - this model will help your client 'see the light.'

Once your client has followed your advise and drafted a DRP (ideally with the assistance of an outside consultant or litigation readiness professional), make sure your client creats mechanisms to insure that the policy will indeed be followed. It should be easily accessible in the employee handbook, the intranet and availabe in print from HR and all levels of management. Further, someone at the client site should be charged with the task of randomly auditing the policy to make sure it is actually being followed.

Your client will emerge a more efficient and litigation resistant entity and should the ugly head of litigation surface, you and your client will be in an optimal position to effectively resopnd.

Gettin' FAT

2004-05-25T20:38:00.000-07:00

(05.25.04) Just got out of the documentary, "Supersize Me" and I am now repenting for every Big Mac and Happy Meal I have consumed over the past three decades. I'm ordering a fruit salad for lunch tomorrow.

Speaking of getting fat, I am still catching wind of that old wife's tale which maintains that a deleted file will not later haunt litigation.

Those that still hold on to this erroneous theory need a calorie intake. They gotta get FAT.

A deleted file still lives on your hard drive, it just gets kidnapped and stowed away in a dark, hidden place. A seasoned crime scene analyst can usually survey the scene of the crime and then unearth the victim from its shallow grave.

In fact, this forensic truism has been transitioned into legal authority. The court in State v. Townsend, 57 P.3d 255 (2002) opined that counsel has a duty to grasp the fundamentals of "deleted" electronic evidence and should instruct its clients to retrieve that which is germane or "go after" such "deleted" data from the opposition.

So where does the so called deleted document get stashed? The answer lies within the File Allocation Table (FAT) which maintains links to all electronic records produced on a computer be they deleted or not. Hard drive disks are separated into unique sectors and surfaces. A deleted document can be chopped up and its remains distributed to various parts of the disk. Only the FAT can provide the treasure map needed to collect the pieces and sit down at the jigsaw table.

A trained forensics or EDD consultant can help you get FAT without stuffing you with chicken McNuggets.

What about metadata? Not to worry, these informational nuggets (sans the honey-mustard sauce) which can reveal modifications, revisions, bcc recipients, page counts, directory structure, author, custodians etc... get moved along with the corpse of the deleted data. These fundamentals are unearthed along with the so called deleted document. It's like unearthing King Tut AND his golden sarcophagus.

What if the other guys don't want you digging in their grave yard? There is a wealth of case law that can help you support a motion to compel FAT data. Also, FRCP Rule 34(a)(2) authorizing on-site inspections can often pave the way for the discoverability of documents that a computer user thought were deleted. Rule 33 interrogs and Rule 30(b)(6) can also unearth the hidden gems.

So next time someone tells you it has been deleted, tell 'em that this is not time for a diet. Ask for the FAT files and while you are at it, go ahead and supersize it.

Don't Cry for Me, Litigator

2004-05-19T16:58:00.000-07:00

(05.19.04) Andrew Lloyd Webber didn't think that Eva Peron sought sympathy and the Superior Court of West Virginia similarly finds that the requesting party in litigation involving e-discovery should expect consolation at every turn as well.

At issue recently in many courts is the hotly debated "spoiled brat" position. Is asking for "electronic documents" sufficient language in an RFP or must the producing party bend over backwards to provide its responses in the requesting party's favorite format?

These days it seems that the brats need to pipe down a bit.

When the requesting side says "gimme all of your electronic evidence" what does that include or exclude?

Responsive electronic documents can be produced to the requester via native formatted evidence (.wpd, .doc or .xls) but those aren't the only formats in town these days. Documents that have been scanned to .tiff or .gif or .jgeg or any other image format can now fit the bill. Evidence that has been posted on the web via .html is also an "electronic document" - even voice data and the ubiquitous .pdf fall into this ever widening category.

So what is a litigation professional to do?

The courts have addressed this issue as of late. The rule these days is simple. If you simply ask for "electronic documents" or "data compilations" then essentially any response in any electronic format even including an ASCII text rendition of the document is an appropriate response.

If the requester wants to throw the e-documents into its in-house litigation support database, however, it may behoove that requester to specify the format that is best utilized within that application (usually, .tiff but now we're seeing .pdf as well make the short list).

But ask and ye shall receive (or more appropriately, ascii and ye shall receive) is not the mantra of many courts that have struggled with this issue.

In Wisconsin, for example, if you ask for Swiss you better be happy if they serve you Cheddar. That's what you'll get and you WILL like it. Several weeks ago, the Wisconsin court in Northern Crossarm v. Chemical Specialties, held that a requesting party should make do with any format response even if the response is not formatted as specified in the discovery requests. The court basically slapped the ruler across the wrists of the whining parties and scolded "... we know you wanted chocolate pudding, but all we're serving tonight is a fruit bowl so that's what your gettin' ... any objections now....? Didn't think so". (The actual language reads: "no rule mandates that a party is entitled to production in its preferred format." but pudding and fruit are always more appealing than judicial holdings).

The decision, however, is not as unforgiving as a Boy's Reform School Yard Attendant. The court, to its credit, makes some distinctions which could pave the way for the upholding of a format-specific discovery request. For example, it held that where parties are clearly on notice that one (or both) of the parties truly would be better off with a particular format and production to that format is not substantially burdensome to the responding party, then an order mandating such a production would be appropriate. This would play out today in the common scenario where certain firms that routinely do battle know from experience that the other side consistently utilizes a tool that requires format A. If it is no more difficult for the responding party to deliver in format A, then the courts could raise an eyebrow if the production is made in format B. Such a "convenient inconvenience" benefiting the producing party may be more than a benign response.

So where does this leave us? If you find yourself on the producing side, do unto others... If you are the requester, hope for your preferred format but don't cry over spilled metadata if you don't get your way. Eva wouldn't.

So How Do I Get Started?

2004-05-09T23:07:00.000-07:00

So How Do I Get Started?

Paralegals always ask the best questions. After a decade of teaching paralegals at various California Paralegal Schools throughout the Bay Area, I've come to realize that many paralegals seem to see the forest through the trees while the attorneys for whom they work are stubbing their shins on the stumps.

After a recent lecture that I delivered at the Paralegal SuperConference in Los Angeles last month, I was approached by a paralegal who had been in the discovery trenches for so long that she had redacted a portion of her tatoo on her forecept.

The question was brilliantly simple and, above all, it was functional. No head in the clouds high brow discourse and no overly technical propeller-beanie line of inquiry either. A perfect balance... a Stratavarious of questions.

It went like this:

Can you name ten concepts or rules that I can study to become knowledgeable in the world of electronic evidence?

Now I never really understood the popularity behind David Letterman's Top 10 lists, but this time the sheer genius of a top ten smacked me upside my head.

I thought a bit... I grinned, looked at her and said, that is a wonderful question:

So here now is a list of rules and items you the ED neophyte can learn and incorporate into your already overly-hectic routine to become at one with the ED universe.

1. Understand MS Office Apps. (Word, Outlook, Excel etc...) as a bonus throw in WordPerfect too. You don't necessarily have to understand what the function keys do in each application, but understand how they are used in the real world and why.

2. Lear Privilege. Be familiar with the Attorney-Client, Work Product and other commonly cited privileges.

3. Know what "Redaction" is. Look it up. I'm not gonna make this too easy for you now...

4. Know what "Spoliation" is. Hint: it is NOT when you leave the eggs in the fridge throughout your three month trek to the Himalayas.

5. Understand the concept of Duplication and De-Duplication.

6. Read FRCP Rule 26(b). Know it cold!

7. Read FRCP Rule 34

8. Read FRCP Rule 26(f)

9. Read FRCP Rule 37

10. Visit ED resources regularly such as www.discoveryresources.org; http://californiadiscovery.findlaw.com; www.sochaconsulting.com; www.fiosinc.com; www.findlaw.com/ and many, many more.

If you can devote some time to this top ten list, you too may become an EDD authority. No need to offer up a Ginzu knife here.

A Call for Comments

2004-04-30T20:49:00.000-07:00

A Call for Comments

Blawgerheads....

Alextronic has been asked by more than one person to do a text book on EDD... This is an outline that I have come up with and would like to see if the flow makes sense you y'all. I'd welcome any comments in the comment button or privately to Alex at alubarsky@fiosinc.com

Chapter 1 – The Electronic Evidence Explosion
The Pervasiveness of Electronic Evidence Today
The Benefits of Electronic Evidence
A brief history of litigation support
The Emergence of EDD
What is Metadata?
Evidentiary Requirements in Federal/State Courts
Ethical Obligations
The Benefits of Electronic Evidence Recap

Chapter 2 - Creation and Storage of Electronic Information
Creating Electronic Information
Storage
Harvesting
Safeguards While Harvesting

Chapter 3 – Common Types of Discoverable Electronic Data
Data Types
E-Mail Formats
Handling E-Mail Attachments
Electronic Messaging and Internet
Spreadsheets,
Word Processing and Text Documents
Digital Fax
Presentation Software·
Digital VoiceMail

Chapter 4 - Collecting, Processing and Searching Electronic Information
Value of Collecting
Collecting and Producing
Extraction and Conversion
Production or Output Format
Searching, Filtering and Deduplication
Categorizing and Reviewing
Types of Discovery Software

Chapter 5 – Review Platforms
What is a Litigation Support Database?
How does EDD Integrate with Standard Evidence Output?
Access Models (Local, On-Line, Networked)
Product Leaders
Boolean Logic
Concept Based Querying
Briefcasing and Portability
Integration with Other Applications
Suggested Workflow
Time Lines
Trial Presentation Tools

Chapter 6 – Sleuths and Refs
Computer Forensics
Court Appointed Discovery Referees
EDD Processing Service Bureaus
What to Look For When Selecting an EDD Vendor

Chapter 7 – Civil Procedure Before Trial
Anatomy of a Lawsuit
Bracing for Trial
Litigation Readiness Strategies
Duty to Preserve (Preservation Letter)
Retention Policy
Sanctions/Negative Inferences
Requesting Evidence
PreTrial Motions

Chapter 8 – Black Letter Law
Federal Rules of Civil Procedure
Federal Rules of Evidence
State Statutues
New Legislation

Chapter 9 – CaseLaw
Stare Decisis
Top Ten Cases Affecting EDD
How to Validate EDD Caselaw
How to Keep Current with EDD Caselaw

Chapter 10 - Admissibility of Electronic Evidence
Judicial Notice
Admissibility Requirements
Relevance
Authenticity
Best Evidence Rule
Hearsay and its Exceptions
Using Experts
Trial Technology

Chapter 11 – What will Tomorrow Bring?

Discoverability of New Communication Mediums
Advanced Querying and Culling

Chapter 12 - Top Ten Lists

Glossary

Beyond Rule 26

2004-04-28T20:56:00.000-07:00

Beyond Rule 26

Most litigators and litigation paralegals are familiar with good 'ol Rule 26. That's the one that forces the litigants to be honest. It is the court's truth serum. Without this rule, parties would hide more balls than Minnesota Fats. If Bill Clinton followed Rule 26, we would have adopted Lewinsky as a noun, verb and adjective months or perhaps years before we eventually did.

Those not familiar with Rule 26 would be unaware that this rule requires voluntary initial disclosures. The Federal Rules of Civil Procedures now is home to this bastion of honesty, however nearly all State and Federal Administrative Agencies have adopted a similar statue. In fact, most call it "Rule 26" just to be consistent with the numerical schemes.

Graucho Marx used to give away a whopping fifty dollars to anyone who correctly said the "magic word" on his comedy variety show. The audience would be clued into the word of the day, say 'Pelican' and if the guest on the show just so happened to say 'Pelican' during the course of his or her appearance, the neon sign would lower, bells would sound and Graucho would stoop into his duck walk and give an extra chomp to his stogie.

Prior to the days of Rule 26, discovery not unlike the Graucho Marx show. If a litigant knew that a particular document was germane to the dispute and was not privileged, that litigant would hesitate to simply 'hand it over' to the opposition. Why make their job any easier, right?

This had the effect of bringing about a 'guessing game' of sorts. Keeping within the Marx brother vein, let's say that the defendant was a manufacturer of funny, plastic novelty glasses with an attached plastic nose and fuzzy black moustache. Let's further assume that the moustache is said to cause an unusual skin irritation that caused those who wore the gag costume accessory to develop a severe rash. If the Defendant had ran studies on the possible chemical skin reactions of the material that makes up the moustache and the studies showed that there was a high likelihood of irritation, wouldn't the plaintiff want to get his or her hands on that study? Back in the day, if the plaintiff did not specifically come right out and demand that document by name via an RFP ("Please produce any and all studies or surveys pertaining to any human reaction to the moustache fibers....) then it simply was not offered up by the defendant. This obviously enabled a defendant (and a plaintiff for that matter) to quite easily keep out relevant, non-privileged information simply because the requesting party never said 'the magic word.'

Today, with the Rule 26 early disclosure requirement, "Every party MUST disclose the following information WHETHER OR NOT REQUESTED THROUGH FORMAL DISCOVERY:" The rule goes on to specify that contact information of individuals "with discoverable information," documents, insurance agreements, data compilations (thus opening up the rule to e-discovery) and other such vital information MUST be disclosed.

In 2001, when Prudential Insurance company did not voluntarily disclose a policy rider that was obviously damaging to their position, the court imposed a one million dollar sanction for violating Rule 26. Wouldn't want a piece of that rock...

Those that follow Rule 26 or use Rule 26 to pressure the other side into being forthright may or may not be familiar with the intricacies of the rule.

For example, did you know that Rule 26 does NOT require the disclosure of several types of documents? Yep, pursuant to FRCP 26(a)(1)(A)-(D), mandatory disclosure is NOT applicable in cases pertaining to actions to review an administrative record, post conviction relief applications, pro-se habeas corpus petitions, actions to quash an administrative summons or subpoena, actions by the US to recover benefit payments or student loans and actions to enforce an arbitration award. These situations call out to Graucho and invite a new episode of 'say the secret word.'

Also, there seems to be a good amount of confusion as to when information must be disclosed. The Rule indicates in sub section (a)(1)(E) that "Unless a different time is set by stipulation or court order, the initial disclosures mandated by FRCP, Rule 26(a)(1) must be made at or within fourteen days after the discovery conference of parties required by FRCP 26(f).... for parties joines or served after the FRCP 26(f) conference, disclosures are required within thirty days after the party is severed or joined."

Now here's where the e-mail and EDD becomes wedded to the rule. The statute goes on to dictate that "A party must make its initial disclosures based on the information then reasonably available to it and is not excused from making its disclosures because it has not fully completed its investigation of the case or because it challenges the insufficiency of another party's disclosures or because another party has not made its disclosures."

Well, this obligates any litigant to check them e'mails and Word and WordPerfect files along with spreadsheets, PowerPoints and any other electronically stored document that may fall into the gambit of this definition. If only Graucho would have used "deduplication" as the word of the day...

Additionally, FRCP 26 is further defined and narrowed by sub section (a)(4) which obligates no party to disclose if a meet and confer is ordered by the court which has not yet taken place. Many (if not most) courts that follow Rule 26 will have a meet and confer requirement.

The final and one of the most pain staking requisites of Rule 26 is comes with section (d) which requires parties to 'continually supplement' prior disclosures or discovery responses. In the electronic world, this will require a well oiled litigation readiness strategy and great attention to detail.

OK, I cannot leave this article without one Graucho quotation. There are so many to choose from, but I chose this one as it pertains to the judicial process...

"I was married by a judge. I should have asked for a jury" - Graucho Marx

Know Your DRP's

2004-04-23T22:38:00.000-07:00

Are You Up on Your DRP's?

Document Retention Policies (DRP's), although not the sexiest subject to burst onto the scene along with electronic evidence, electronic filing and e-briefs, is perhaps one of the more critical concerns for the legal professional and their clients. Although the DRP's may languish a bit in the shadows of their more popular colleagues, the DRP can (even more than the documentary evidence with or without its metadata itself) "turn a case."

So, just what is a DRP? A DRP is a rule or standard requiring a person or company or other entity that maintains documents (electronic or otherwise) to "hold on" to those documents for a finite (and in some rare instances, infinite) period of time because in theory such documents may become germane in a future dispute or audit.

Remember when you were encouraged to "hang on" to your automobile maintenance receipts just in case a potential purchaser down the road requested a complete upkeep history? Do you hang on to your tax returns knowing that they may be requested if you later on apply for a home loan? Well, these are common examples of how we are encouraged to engage in our own little DRPs in modern life.

In the world of litigation, however, DRP's are not simply "advisory" - such policies are mandated by statute. Some recent examples of such broadly sweeping statutes include the much publicized Sarbanes-Oxley Act of 2002 (requiring SEC and corporate retention of financial transaction documentation). Perhaps even more well known of late than Sarbanes-Oxley is the Health Insurance Portability and Accountability Act of 1996 (more commonly known as "HIPPA"). This legislation mandates the retention and security of medical and health insurance documentation both in paper and electronic mediums.

DRP's tend to be industry specific. Attorneys are mandated by the Model Rules of Professional Conduct as well as State Statutes (Business and Professions Codes) and also by case law to retain client files for a set period. All of the claim forms, pleadings and settlement correspondence pertaining to your fender bender matters in Wisconsin must be maintained for three years while the will you drafted for your client Ted Testator in Oregon must be maintained forever (or until Ted's demise).

More important than your own retention requirements will be your clients obligations pursuant to a controlling DRP. If your client is a physician facing a med-mal lawsuit, then as counsel you must understand what DRP's control your client's practice. Further, you are also going to need to do some digging to confirm whether or not your client indeed followed such protocols.

If your client is a pack rat like myself, he or she essentially is immune from violating this type of legislation, but if that client is prone to send his or her files to the shredder bin or has an itchy 'delete button' finger, you may need to advise your client to change his or her ways to comply with the DRP in the industry.

By the way, be VERY cautious about advising your clients as to how to be compliant with a DRP. Although you may feel such advise is in the best interest of the client and that without such an education, your client is likely to violate DRP protocols, by rendering this advise - you are exposing yourself it to a malpractice lawsuit if it turns out that your advise is off target. Many large law firms have entire departments that bill for such advise and there are DRP and preventative legal care consultants that make a living dispensing their wisdom on this issue. It may be best if you simply practice law within your specialty and let the experts sell their consulting services and assume the liabilities attached thereto.

Even if you wisely refrain from flexing your DRP muscles in front of your clients, you as a legal professional must still try to stay current with the prevailing DRP's influencing the industry or industries that of your clients.

I am often asked the sixty-four thousand dollar question - "How do I figure out what (if any) DRP's control my client's business practices?" Great question, tough answer.

A search in Google or Lexis on Westlaw (industry news) for "retention policy*" AND (then type your client's industry) will often bear fruit. Also, check the controlling State or Federal Codes. If all else fails, a search within case law (Findlaw.com and LexisOne.com are great free case law search tools) may reference the DRP. You may be surprised to learn that some DRP's are entirely case law created and not an act of Congress or state legislature. Finally, check the umbrella organization that controls your client's industry. The AMA for doctors, for example, which (much like the ABA) have promulgated standards which are expected to be followed in the realm of retention policy.

Today, the majority of American corporations either have no retention policy in place or they have a retention policy that is simply not being followed or enforced. This just spells trouble, I'm talkin' capital, twenty-six point font, bold "T" trouble too... Insist that your client maintain an actively followed, regimented internal DRP which satisfies the requirements of the DRP's in the industry.

One common reaction you may get from your client is: "Wow, we keep so much of our records in digital format, how can I translate that to a DRP?"

Remind your client that the "D" (Document) now legally includes anything that conveys information - paper, digital data (binary code), stone tablets, smoke signals the whole thing... Then assure your client that the electronic storage actually will make life easier for him or her. It is much more cost effective and organizationally optimal to embrace a system that manages electronic data than dealing with boxes and filing cabinets. Anyone savvy enough to be reading this blawg will know that... but you may have to do a bit of convincing to your client. To do so - resource that you may want to reference is the 'litigation readiness' flow chart accessed at www.fiosinc.com/ - this model will help your client 'see the light.'

Once your client has followed your advise and drafted a DRP (ideally with the assistance of an outside consultant or litigation readiness professional), make sure your client creates mechanisms to insure that the policy will indeed be followed. It should be easily accessible in the employee handbook, the intranet and available in print from HR and all levels of management. Further, someone at the client site should be charged with the task of randomly auditing the policy to make sure it is actually being followed. Some measure of punishment such as a fine or demerit or "write up" unfortunately must be instituted to help encourage compliance.

Your client will emerge a more efficient and litigation resistant entity and should the ugly head of litigation surface, you and your client will be in an optimal position to effectively resopnd.

Back in the Saddle

2004-04-18T20:51:00.000-07:00

Back in the Saddle

Julia Wotipka who is the force behind Alextronic... my Don King yet without the spikey hair (otherwise the resemblance is pretty stunning) lamented the other day...

"Alex, your daily Blawg has turned into a weekly Blawg... what gives?"

Ugghhhhh. I sied. I thought that reaction said it all. Don... I mean Julia didn't seem to let me off the hook so easily.

"You need to publish a bit more frequently Alex... your fans want your art."

Double ugghhhh.

Julia offered to send me a box of chocolates to jump start my creative juices and keep me up later at nights pontificating my next move in Bloggerville. The sweets were intended to make vision of .pdfs and .nsf's dance in my head.

I promised Julia that the chocolates just may do the trick... but, tragically, the chocolates never arrived and I remained hunched over my laptop pulling at my hair. Had the chocolates arrived, Blawgs would have been spilling out of this site in a manner that would make the late Henry Ford envious. I also would have refrained from claiming that Julia looks like Don King and would have referenced the more appropriate (and accurate) celebrity look alike - Wynona Ryder... but no chocolates mean unflattering Don King comparisons... Got that, Julia? I prefer Cadbury or Hersheys.

Julia called again... "Hey, so, where is our Blawg entry...".

Lacking my fix of cocoa - I had one word for her. Well, make it two words: Writer's Block.

Hey, the subject of this Blawg is not Christina Aguillera's hair color. The industry is fast paced... but does it merit daily reporting? I was beginning to think not. I just didn't know what the heck to write about. Another on de-duplication? No, I could not subject my reader base to that. An ode to the document retention policy? We're not ready for that yet. A pre-processing filter query haiku? That's still a work in progress.

That was, of course, until Glasser Legal Works rolled around. The SF Glasser show which rappe dup last week was nothing short of an infusion of ideas. I felt as if I was strapped to a guerney and the ED intravenous tube was plugged into my arm.

The Glasser show is, for me, a reunion. A chance to catch up with my clients, co-workers, former-co-workers as well as fellow practicing attorneys. Harold Spar who went toe-to-toe with me in court last week stopped in front of the Fios booth, dropped his jaw as he glanced the company logo strewn across my chest and exclaimed... "What the hell are you doing in some booth?"

The Glasser show is also a bit like a rock concert in that I can catch a rare glimpse of the ED and legal tech rock stars whose words I read, sites I visit and lectures I absorb - I'm talking about legendary luminaries such as Ross Kodner, Geroge Socha, Chris Greene, Judge Richard Best, Judge James Rosenbaum (I had the true privilege of speaking on a panel with these two judges and I have not yet come back down from the euphoria), Peter Krakaur, Tom O'Connor, Browning Marean, John Tredennick and other notables. When I was invited to have lunch with Judge Rosenbaum and later invited to breakfast by Judge Best, I felt as if I were thrust back to 1979 and approached by Gene Simmons and Ace Frehely... imploring me to join them on the tour bus to complete the Kiss Dynasty tour... OK, wake up Alex... wake up... time to go to school...

So now that Lynn and Steve Glasser and the folks at Findlaw have managed to reinvigorate and motivate (even without the aid of chocolates) I don't even know where to start as far as new blawg material is concerned.

Every time I think I got this ED thing down, I am proven drastically mistaken when I sit in on the Glasser workshops. I learned so much that a daily blawg is now doable (no promises without Ms. Godiva present, Julia).

One of many topics debated at the show was brought up at the keynote luncheon by Judge Rosenbaum (perhaps one of the most thought provoking and entertaining speakers I have ever been exposed to) who inquired to a panel of ED experts... "Who authors metada? Can Metadata be privileged or hearsay if the declarant is not a person?"

Think about that one. Who is the "declarant" of metadata? Is it a person or a machine?

If the metadata is machine made, do the same rules attach to human-being made communication?

On one hand, the metadata is clearly machine made as the author of the e-mail message, word processing document or spreadsheet does not directly input the data that appears underneath the hood. The computer notes the creation date, number of modifications, last saved time etc... .

On the other hand, without the human being there would be no metadata.

The old chicken or the egg... .

I can't quite figure this one out. I tend to analogize the metadata as the post date stamp. The human being writes the postcard and as a necessary step of the mailing process, the post office applies a post date stamp. Did the author of the post card personally place the post date stamp on its cover? No. Can the post date be relevant and possibly even turn a question of law or fact? Absolutely. Is it a declaration? Yep. Is it a declaration by a human being and thus subject to so many restrictions and rules associated with admissibility of evidence? Not sure...

This debate could be endless... I'd continue but I am beginning to feel a bit fatigued at this point. If I only had that chocolate...

Somewhere Between Chapters 7 and 13... It's HammerTime!

2004-04-11T21:39:00.000-07:00

Somewhere Between Chapters 7 and 13... It's HammerTime!

As I was perusing the new initial disclosure requirements for bankruptcy filings (Federal Bankruptcy Courts) I was at first impressed by the inordinate thought, logical flow and reasonable standards that were interwoven into the Act (Fed. R. Bankr. P. 7026) which modifies the framework of FRCP 26.

Why on earth would the bankruptcy courts of all places have put so much thought into the electronic aspect of disclosure and discovery? Aren't these courts essentially little more than middle-ground turf for Sears and MC Hammer to go at it over the dischargeablility of an HDTV flat screen ?

Counsel for Hammer: "Creditor, concerning the TV ... well, to state it simply, ... "U Can't Touch This."

Counsel for Sears: "You can count on us." We'll get it back for our client.

Amidst the fireworks, the Bailiff quickly swaps his black uniform for an oversized white one, puts on the Z-Ray Shades and a few gold chains and Hammertime is on...

The Judge screams "Order in the court, order in the court!" One more outburst like that, and I will trail this matter to the end of the calendar and go straight to Vanilla Ice vs. FUBU.

So where's the ED?

The Bankruptcy courts first mandate that an initial discovery conference in which electronic and conventional evidence is considered. The court mandates a meeting in which informal discovery, ADR and narrow down the scope of their respective claims. Routine stuff so far...

Then the rules kick into ED overdrive. The rules set for that FRCP rule 26(a) - initial disclosures including disclosure of electronic evidence are made in writing and delivered to the other party or his or her counsel within 14 calendar days after the Discovery Conference.

This translates to the debtor and creditor sifting through debts, assets and accounts receivables to determine what items should be included within the filing and what may be considered exempted or nondischargeable.

As financial transactions are largely electronic these days (wire transfers, internet account balance transfers, on-line retail commerce and the like) the data that falls into the purview this informal discovery conference is less and less paper and more and more virtual.

Take, for instance, the case of Chapter 7 debtor who obtains a discharge on his credit card but one of the creditors (a bank) claims that prior to the discharge a large cash advance was wired from the card to the debtor's account. The bank may wish to challenge the dischargeablility of this debt on the grounds of fraud or deceptive/reckless conduct.

The law, however, does not maintain that such a wire transfer prior to filing for dissolution is per se fraudulent or otherwise unlawful. If the debtor at the time of the transfer had not been contemplating a bankruptcy filing and/or was using the funds for essential items and/or had a real expectation to repay the debt, then the debt would in all likelihood remain dischargeable.

Well, how doe we "discover" the wire transfer? How do we "discover" other similar transfers made by the debtor to show a pattern or practice or habit which may or may not assist in the proving or disproving of fraudulent intent? How do we uncover any communications made by the debtor which may reveal intent at the time?

The answer my friends, is spinning in the hard drive... the answer is spinning in the hard drive.

Think about it. If Dan Debtor had filed for bankruptcy every six years and each time transferred a large advance sum from his credit card and then used that credit to purchase a scuba vacation in the Bahamas a few weeks prior to the filing of his Chapter 7 petition... then the creditor may easily have a case for nondischargeability. However, if Dan Debtor has a history of small, sporadic cash advances made during desperate times and used for the purposes of paying his rent, clothing his kids and commuting to work... then perhaps the transfer was made in good faith and Dan is entitled to a fresh start.

Let's say, however, that the electronic advance is unique and does not show up in Dan's e-credit histories... (yes all parties discussed retention policies in detail during the initial disclosure and discovery conference). What to do then? How can we possibly show Dan's intent?

How about the discovery of Dan's e-mail file (.pst if he is an Outlook user, .nsf file if he is a Lotus Notes user and other file types if he uses cc.mail or Eudora or some other e-mail application)? Perhaps the discovery of that file would turn up a message from Dan to his old frat brother Paul Partier. "Hey Paul-O. Hope you're going easy on the beer bongs these days... did I tell you the latest scam I pulled to cash out some cash for brewskies....?" Of course, a search of Dan's e-mail may also turn up a message with a distinct tone: "Hi Paul. I hope you have outgrown that silly beer bong thing of yours. I have surely matured. I have felt very helpless lately, as I have been laid off of work and even had to go as far as taking out a cash advance on my credit card to pay for necessities. I,of course, will do all I can to repay that debt... ." This type of electronic evidence (in conjunction with other electronic audit trails) will eventually extract the truth as to the debtors intent and will turn the case.

The Bankruptcy Code goes on to require a written "discovery plan" to come out of these discovery conferences. This is not unlike your senior group project thesis in Greek History. The parties are required to meet together and do some homework. Specifically, they must "develop a written discovery plan signed by all parties... which reflects the parties' views and proposals concerning the following factors:"

1. What changes should be made to the initial disclosure requirements

2. Proposed timing litmitations, if any, of additional needed discovery

3. The subject of any court orders that may be appropriate.

Then... the parties appear at trial with the e-discovery issues identified, flushed out, massaged and synthesized. Now that's what I call true Hammertime.

Summation 2.6

2004-04-01T18:34:00.000-08:00

Summation 2.6

The new version of Summation just rolled off the assembly line and half of the total product washed up on my shores.

I received my certified trainer copy twice (UPS would not ship to my PO box, so they notified Summation of this and Summation sent a copy to my home, but then UPS caught wind of my home address and sent the original bounced back copy there). Then my friend Eric Guzman of Summation tech support sent me a copy himself with a little sticky note: "learn this and stop bothering me." Y'a see, I got Eric the gig at Summation when I worked there five years ago or so and he's owed me one, so I hit him up whenever I find a snag. The last thing a guy who spends all days trying to sooth irates in a tech support pig-pen wants to do when he gets home and whips out the Cheetos and turns on America's Most Wanted is take another tech support call in his slippers. But Eric has to. I got him the job and I have never let him forget that. Yeah, he took me to Vegas for weekend, but that was the precursor thank you.

Then another copy mysteriously arrived in the cubicle I borrow at Summation when I am downtown and need a place to make a call or something. That brought the count to four. I later that same day received a call from Ilynn at Summation production asking me if I'd like to come by for lunch and also pick up a copy of newly released 2.6. I have enough of these CD's to build a deflector shield or start a Frisbee football league.

Then I received my version 8 kit from Concordance, but the CD was no where to be found. Some sort of divine intervention to maintain an equilibrium, I guess... Concordance promises it is on the way... Will comment on that in the next post.... But I digress...

2.6 is no drastic improvement on 2.5, but there is one lifesaving feature that would make anyone a dimwit who decides against the upgrade. Enter, enhanced batch loading of vendor processed EDD via the summation .dii file (for those lit. support neophytes lurking out there, that is document information import file). The new Service Bureau Toolkit will provide utilities allowing the client to do something it has never been able to do... seamlessly load a .dii and actually realize "push button" loading of their edata into Summation for immediate query and review.

You read that right. No more .dii examination and test batches, no more struggling to define the carrots and pipes, no more spitting into the receiver of your phone with eyes a bulgin' at your imaging vendor. No more finger pointing - attorney to paralegal, paralegal to IT guy at firm, IT guy firm to Summation Rep. - Summation Rep to imaging/ED vendor - Imaging/ED vendor to Summation Rep and the cycle spirals on...

Now, of course being the realist that I am, I am not expecting an ED panacea. I've still not seen an OS that recognizes and loads all appropriate drivers nor have I found a paper-jamless printer... but anything, ANYTHING to make the loading of the ED import file into the lit. support app. just a tad bit more streamlined is very, very welcome news.

Gotta run, I think I see the Fed-Ex guy approaching.

This one will stump you.

2004-03-28T23:13:00.000-08:00

This one will stump you.

The Supreme Court of Connecticut knows a megabyte from a pixel as well asa a counter suit from a cross complaint.

Justice Katz is no dummy as is evidenced by her understanding of the facts in the recently decided matter of:

PSE CONSULTING, INC. v. FRANK MERCADO AND SONS, INC., ET AL., 267 cone. 279 (2004)

This matter involved damages under a payment bond issued to the defendant in connection with a city funded construction project. The defendant filed a counterclaim, and where the co-defendant National Fire Insurance Company of Hartford filed a cross claim for indemnity against the named defendant and the named defendant then shot off a counter cross claim against the defendant National Fire Insurance Company of Hartford alleging breach of its duty of good faith and fair dealing; thereafter, the complaint and the counterclaim were withdrawn and the case was tried to the jury on the cross claim and the counter cross claim only and you get the picture.... This stuff makes three-dimensional quadratic equations look like a game of chutes and ladders.

Buried amongst all of this procedural gobble-goose is a piece of evidence that broke this case wide open for the defendant. I'm not talking about the fiercely guarded don't hire Mexicans memo or the panties on the ceiling fan... I'm talcum' about a couple of otherwise innocuous e-mail messages that had they just so happened bubbled to the top due to the sleuthing of some fine attorneys and even finer litigation support perilously. Them little e-mail messages didn't involve male enhancement pills nor where they compelling offers by the disinherited Princess of Tanzania who has five hundred million (US) dollars that you can help her smuggle out as long as you let her store it in your back yard next to your kid's Big Wheel and inflatable subterranean. Nope, folks - these e-mail messages contained settlement offers that attorneys were proposing to their clients and to co-defendants.

Settlement offers put in writing but not intended to be published to the other side. This stuff is about as powerful is powerful. Its mere mention can cause investors to cover their eyes invoking the same instincts that they acquired at one too many Mel Gibson films. This stuff is juicer than the Dole Pineapple factory in a typhoon.

I betcha a bag of extra spicey Cheetos that you're jumping up and down like you haven't done since Mrs. Rodriguez decided to halt all bathroom breaks until after rest period. Attorney-Client privilege. Attorney-Client privilege.

Yeah, like you think you know something that Justice Katz doesn't? Remember, Justice Katz can tell a cross-complainant from a counter-claimant - a feat that was last accomplished by Benjamin Cardozo. Settle down now you wide-eyed newcomer you... This thing has more twists than the Thunder Mountain Express.

Oh, I got it. You can't fool me! I studied for the Bar (six times). I know that even beyond the A/C privilege, settlement offers themselves are inadmissible as per most state Evidence codes. Oh, oh, oh call on me. I am enlightened. I will flaunt my understanding of evidentiary rules and everyone will finally come to know how cool I've been all along.

Pa-leeze you neophyte! Sit the heck back down. In fact, don't sit down, run over to the vending machine out by the elevator and get me a Coke. What's that? Do I have change? Get out there before I...

Anyone else care to step up to the plate when Katz is pitching?

I thought not.

The e-mail came in you buffoons. Of course it did. No A/C privilege because it was not between an attorney and his or her client (do I have to repeat myself again? It was from an attorney to a co-defendant. Tchhhhh. Hello. I'm over here! Yoo-hoo! Now will ya' stop lamenting over that lost bet. I would have gone with Jeff Gordon over Dale warmhearted too. You'll win your case of MIGHT and your lava lamp back next year... Now concentrate damned you!).

And the privilege against revelation of settlement offers didn't stick either for the same reason.

So now you know. When one attorney blabs in an e-mail to the party on the same side of the fence that is not technically his or her client (the co-party) then few of the traditional privileges attach and them damning e-mail messages revealing how much a party is willing to pay and how culpable it admits it is comes rolling on in...

Hey, didn't I tell you to get me a cup of ice with that. Get your butt back out there fool!

What if the e-mail was also cc'd or bcc'd to the actual attorney of the co-counsel.

Doesn't invoke the privilege for this purpose says Katz. That secret virtual settlement discussion still comes in. Sorry.

Hey, did I ask for Diet Caffeine Free! Do I have to do everything myself around here?

MetaData SchmetaData

2004-03-21T16:55:00.000-08:00

MetaData SchmetaData

So I went through my metadata schpeel to the partner heading up the discovery project. Despite his stone face, I push on towards my punch line... my hand gestures reaching a climax and my voice growing ever more authoritative... "So that's why the metadata can make or break this case."

I don't even receive a consolation inspired eyebrow raise. This guy looks as if someone just tried to explain the principals of nuclear fusion. If I could only take that face to this weekend's poker night at Jeff's house, maybe Roxie would not go home the winner for a fourth straight month.

Time is frozen and the silence is excrutiating. I feel myself begin to blush.

Finally, the Senior Partner breaks his silence. "I've heard about this metadate thing you speak of, Alex. Candidly, it sounds like a lot of hocus pocus to me. Can the other guys really see stuff that will reveal my client's hand? Assuming they can, are they gonna really go out of their way to look for it? It must he pretty hard to find that stuff anyhow."

Thinking on my feet, I asked Mr. Senior Partner, "so, what word processor do you use?"

"Well, I use Word, but why?"

"Can we step into your office for a bit?"

Mr. Senior Partner looked a bit confused, but he complied with my cryptic request. Once inside, I asked him to open up an existing Microsoft Word memo, delete the body and replace it with the text "The firm's managing partner is a big fat idiot."

"So," belched Mr. Senior Partner, "what is this truism supposed to prove?"

"You wouldn't want your managing partner to see that would you?", I countered.

"Hell no! The truth can hurt!"

"So what will you do to make sure he never sees it?"

Senior Partner scratched his balding scalp a bit and then simply deleted the "big fat idiot" text and replaced it with "cutting edge stand out leader." I instructed him to save the document and then close it.

When we reopened the document, I suggested to Senior Partner that if he were to attach it to an e-mail and mail it to Managing Partner, it could change things for Senior Partner.

"With flattery like that, maybe I'd be next in line for his spot."

"Not so fast there," I cautioned, "let's assume we are Managing Partner and we've just detached this memo from an e-mail message."

I next took him to File - Properties - Statistics and pointed out that Senior Partner could easily see that the memo was recently modified by Senior Partner. This may pique Senior Partner's interest. How and why was it changed?

Senior partner could then go to Tools and Track Changes to reveal the "big fat idiot" comment. The beads of sweat began to form on Senior Partner's forehead. "So you mean, the other side could see everything as it was prior to being changed?"

"Now you got it... the line you may be standing in after this is delivered would be the unemployment line... not the firm's promotion track... can you imagine how this can be used to your client's disadvantage, say, if a settlement offer was mailed as a word processing document?"

"Holy smokes!"

After playing with the recover text features in Word, we then went into a few other areas where the stealthy metadata was just waiting to cause some damage. I was able to show how Word revealed hidden authors, comments, text, titles and versions as well as document summaries. I also explained that if Senior Partner went as far as to embed a link to an image of Benito Mussolini to his commentary and then delete that link, it could still be recovered.

After a few minutes of tinkering around on Word and Outlook, Managing Partner asked me if I would repeat my metadata presentation the following day to his litigation team. "We've really got to be on top of metadata" he concluded.

Score one for Alextronic!

The Re-education of a Litigator 2B

2004-03-16T01:49:00.000-08:00

The Re-education of a Litigator 2B

Paul Simon once sang in poignant unison with Garfunkel the following truism:

"When I look back on all the crap I learned in high school, It's a wonder I can think at all."

Take the average new litigator and substitute the word "high" for "law" and the truism remains as valid today as it was in the sixties.

I have been asked to revise the syllabus for the litigation courses I teach throughout various schools and programs in the Bay Area.

I insisted on devoting several classes and at least one assignment to the understanding of electronic discovery. This endeavor provoked some skull scratching at best.

I found that wills and trusts proved to be about as useful to me as a practitioner as was high school calculus. The closest the law schools and paralegal schools come to teaching ED is in the evidence course where in some schools, the way that certain tenets of evidence have been transformed by how electronic evidence (particularly, attorney-client e-mail communications) have changed the way that privilege and hearsay is viewed.

Beyond that, legal education remains steeped in tradition a la "paper chase".

Even when law students and paralegal students have tackled their dreaded required courses are finally permitted to "venture out" and enroll in courses of their own choosings, very few schools offer instruction beyond the not-so-freebie Lexis or Westlaw account.

A few forward thinking schools such as Cornell, Vanderbilt, U of Florida and Duke reportedly are offering law office application courses, yet they tend to focus on internet legal research, Word and WordPerfect tips and tricks (using the pleading wizards and the table of authorities generators) and some Timeslips and Summation and Concordance introductory classes. (CaseMap and TimeMap are being introduced in a few of these programs).

The bigger issue is that litigators are being thrust into the "real world" where ED issues are staring them down from every angle and these young attorneys and paralegals are ill equipped to respond to such challenges.

I have heard from many of the students that attend my web casts that they wished such were taught in the law schools. Many attendees have reported back to me, flattering me with their renditions of "war stories" in which they were able to put some ED strategy to use on behalf of their client. Without exception, the student laments that his or her fellow students are not likely to develop such skills at school.

What will it take to see a trend aiming to integrate ED and other essential technologies into the curriculum of legal and paralegal educational institutions?

It is hard to venture a real good guess here, however a collective voice would be a good starting point. Perhaps a petition could be circulated to members of AAFPE (American Association for Paralegal Education) and the National Associations of Law School Professors advocating the long overdue shift away from pure tradition and towards a more practical and modern curriculum.

Alextronic is interested to hear from professors and students on this particular issue. What are the greatest challenges to curriculum incorporation of ED and other practice and technology disciplines? Do you think that the educational institutions will continue to move forward at a snail's pace? Do you think that an undercurrent of change can grab the attention of the appropriate administrators. Is it any wonder that you can think at all?

The Attorney-Client Privilege - Is it Airtight?

2004-03-11T01:38:00.000-08:00

The Attorney-Client Privilege - Is it Airtight?

Law students doing their Summer internships as well as young associates are trained to do two things well: minimize the Ms. Pac-Man screen when the Senior Partner pops into the office and claim that anything between a client and counsel that may be part of a discovery population is privileged.

As with every rule, there are exceptions. In certain types of litigation, the exception may become the rule.

Take attorney malpractice matters for instance. Not that I can speak from experience on this topic (thankfully) but imagine what disadvantage the client would find herself in if the attorney was able to simply exclude the damning documents and communications evidencing her malfeasance simply by playing the attorney-client (hereinafter "A/C" privilege card). Not surprisingly, nearly all states have refused to allow the exclusion of evidence based on A/C in attorney malpractice suits. California embodies this A/C exception in Section 958 of its Evidence Code.

"There is not AC Privilege ... as to a communication relevant to an issue of breach by the lawyer or the client, of a duty arising out of the lawyer-client relationship."

A large law firm, tried to argue that key incriminating communications should be excluded due to A/C as they struggled to defend a large attorney malpractice claim. With full knowledge of the language and intent behind Section 958, the firm relentlessly claimed A/C. The result? Get this, a whopping 27.7 million dollar sanction for abusing the claim of privilege where it clearly is inapplicable by operation of law. That's right, twenty-seven million buckaroos... enough cheeseburgers to circle the earth forty-six times... the GDP of Benin. As my mentor, Rob Lekowski, would undoubtedly comment... Whoooooa Nelly!

Does this exception to the rule complicate ED processing? Well, what new evidentiary issue does NOT tend to throw a wrench into the ED process?

Be cautioned, don't rely on standard pre-processing query filters to automatically exclude data such as e-mail messages where the attorneys name and a client's name appear in either the to or from Outlook fields. Although this is often an ingenious strategy when it comes to legitimate A/C privilege retention, it will work against involved in a dispute in which the attorney-client relationship itself is in dispute.

Sometimes thing that appear so certain and time-tested such as the trusty old A/C privilege can be turned on their heads. The sun may not always rise in the East.

Last Year's House of Horrors...

2004-03-07T22:18:00.000-08:00

Last Year's House of Horrors...

Reviewing many of the key e-discovery decisions of 2003, was not unlike the summer of 1978 - the golden era of horror filsms - Halloween, Attack of the Killer Tomatoes, Omen II and Magic. I don't think I slept in 1978. At the very least, I avoided puppet shows, trick-or-treating and ordered my BLT sandwhiches without the T's.

What 1978 was to a frightened fifth grader, 2003 was to corporate counsel. The E-discovery decisions that came down last year were enough to make Michael Meyers himself have nightmares. These rulings didn't even need Jamie Lee Curtis to deliver ghastly gore....

The 2003 thriller decisions center around a common theme - the horrors of a lack of a electronic document discovery response scheme. This was to 2003 what hockey masks and large kitchen knives were to 1978. Few sources chronicle last year's haunted house of horrors as well as recent judicial opinions spanning the Federal, State and Administrative judiciaries.

In Metropolitan Opera Assn. V. Local 100, 2003 U.S. Dist. Lexis 1077(SDNY, 2003), the court held that a party that fails to timely produce reasonably requested electronic evidence may be subject to punitive damages and also liable for attorney’s fees incurred by the requesting party in efforts to move the court to compel production.

Similarly, the court in Medtronic Sofamor Danek, Inc. v. Sofamor Danek Holding Co., No. 01-2373-MIV, 2003 U.S. Dist. Lexis 8587 (WD Tenn. 2003) the court mandated the restoration and production of backup media from a corporate defendant where it was clear that the archival media contained data relevant to the litigation. The court can fashion sanctions for a failure to produce such data including monetary sanctions and adverse inference instructions to a jury. The corporation charged with production in Residential Funding Corp. v. Degeorge Financial Corp., 306 F.3d 1999 (2003) a creditor’s rights dispute, was hit with both sanctions largely due to the absence of a responsive process in place instead of a reactive one.

Other frightening decisions have resulted in penalties levied against producing parties who are unable to respond effectively to electronic document discovery requests because the producing organization fails to adhere to a sufficient document retention policy resulting in a judicial finding of spoliation with attendant sanctions .

The corporation that insists that its potentially responsive documentation exists in paper format and therefore tends to shun a request for electronic records, will find that the courts are routinely compelling the electronic version of documents rather than their paper counterparts even after the paper based discovery has been produced.

In that spine tingling year, the Southern District of New York ruled that a requesting party who had duly received the paper version of the documents they had requested was correct in its assertion that the paper production was insufficient and the producing party must reproduce the documents in their electronic formats. In re Honeywell Int’l Sec. Litig., 2003 WL 22722961 (SDNY Nov. 18th, 2003). The rationale for the required repeat production of electronic documents centers around the fact that paper production alone makes it nearly impossible for counsel to determine which documents belong with which e-mail attachments.

The doors to the corporate hall of horrors (and shame) remain wide open for litigants who fail to implement and maintain consistent processes, policies, communications and technologies that enable adequate responsiveness to the new breed of discovery requests. The modern corporate counsel is charged with implementing a working policy which empowers the producing corporation to effectively and quickly respond to requests for digital documentation with ease, structure and precision.

Will 2004 unearth a tombo of similar horrors? The courts don't seem to be shying away from imposing liability towards corporate counsel who are simply ill prepared to respond to an electrnoic discovery request. Can we expect the horrors to continue this year? History has a way of repeating itself. Just when moviegoers though that the worst was over as 1978 turned into 1979... along came a little flick called Phantasm...

Interview with Russell Jackman, Esq.

2004-03-01T23:52:00.000-08:00

Interview with Russell Jackman, Esq.

Russell Jackman is a local EDD luminary. Russ is not only a professor of law, an attorney, former in-house counsel to women.com and arguably the leading data harvesting technician on the West, but Russ is a professional wrestling manager and counsel to the WWF. When he is not restoring backup media or harvesting .nsf files from servers, Russ can be seen amidst a humid room packed with howling pre-teens who delight in every body slam delivered by some Herculean steroid laden, vein-popping, eyes bulging Hulk Hogan in training. You see, Russ is an EDD guy that doubles as a much hated "professional" wrestling referee.

I have a Russ story. I was on my way to Legal Tech Los Angeles a few years back, settling into my United flight and low and behold, there was Russ sitting in the aisle across from me. He was toting his laptop, Law Office Computing and WWF Today. An arsenal unique only to him. We began chatting about the conference where we were both scheduled to speak.

All of a sudden this army dude comes shuffling down the isle with his model-level girlfriend in tow. Most of the men seated in the cramped coach section were drawn towards the curvaceous blonde, but Russ was surveying Rambo's pecks and forearms...

Rambo and Barbie sat right between Russ and myself... Russ motioned to me with a thumbs up and knew he was about to make his trademark move.

"Excuse me sir," I couldn't help but notice how fit you are. Are you a professional athlete?

"Nah, I do warehouse work out in Daly City for a shipping company. Got a night shift and hit the 24 Hour Fitness in the afternoons before work."

Barbie smiles at Russ as he fishes in his bag for something.

Russ pulls out his coveted WWF business card, hesitates for a few seconds and then nudges Rambo...

"So, warehouse work, heh? Have you ever thought about another career?"

"Yeah, what you got in mind... brain surgery or sometin'?"

Barbie chuckles and rubs Rambo's leg.

"Have you ever thought about professional wrestling?"

Barbie lets out a shriek. A few curious passengers crane their necks in our direction and Rambo raises one eyebrow in true "Rock" fashion.

"You serious, dude?"

"Absolutely," quips Russ as he hands over the business card. "I'm local. Think about it. We'd have to audition you and all, but you seem to meet the threshold for serious consideration."

"Yeah, right-on, I'd be into that... I'll call you, dude."

Russ smiles but his grin suddenly flattens into a canvas of consternation. He taps Rambo again... "Excuse me sir, but would you be adverse to wearing a mask?"

Alextronic: Electronic data harvesting and professional wrestling refereeing ... how on earth do you reconcile the two?

Jackman: You can't really. After indexing the umpteenth hard drive and checking for metadata spoliation on the seventeenth gig, being body slammed by a two-hundred and seventy pound monster in leotards seems like a vacation.

Alextronic: Ever been body slammed by a litigation support manager?

Jackman: No, I can put the LSM's in a half nelson quicker than you can say Hulk Hogan, it's the paralegals you have to watch out for.

Alextronic: The paralegals, really? How so?

Jackman: They seem to be the most up on ED issues. It is becoming a big part of the paralegal curriculum. Law students spend to much time memorizing the rule against perpetuities and the IT guys and gals are more interested in Java and bandspeed latching. The paralegals know when their metadata has bee altered and they don't let that slide too easily.

Alextronic: Do they step in the ring, or do they just make their case to the ref?

Jackman: Oh no, they absolutely hit the ring. No pads. No headgear. I once had this paralegal in Los Angeles slam me harder than any WWFer could even dream of. I had neglected to cross deduplicate multiple media sets. I was able to work with the vendor to get that done, but I was sure sore the next day.

Alextronic: So what new trends do you see coming down the road?

Jackman: The women are really starting to dominate the industry now. I am now answering more and more to women.

Alextronic: Female attorneys, IT staff, inside counsel, paralegals... ?

Jackman: Oh, you meant in EDD not WWF?

Alextronic: Yeah, we can discuss Chyna in another interview.

Jackman: In that case, I am starting to see the issues of native productions come up more and more. I am also seeing intelligent querying capacity built directly from the algorithms deployed in the core processing phase itself. I've noticed less paper blow backs and more .tiff, .html and even .pdf.

Alextronic: Anything else?

Jackman: I am getting asked more and more to recommend experts for trial. Producing parties are really pushing back and trying to resist electronic production requests these days. The blanket objection which was once a very seriously debated tactical move is now a knee jerk reaction. Even in the face of common sanctions and spoliation claims, firms with something to hide are just not putting out. Both sides are beginning to unleash their experts at law and motion and discovery hearings as a matter of course.

Alextronic: What theories do the experts put forward to justify the non production of the requested ED?

Jackman: Not very good ones, the courts really advocate the inclusion of evidence so the judge can weigh the facts and so that the jury can sink their teeth into the substance of the dispute.

Alextronic: Any particular experts that stand out...

Jackman: So far none yet in the legal tech world that have floored me in the way that The Undertaker has. However, I suspect that if you could get Stone Cold Steve Austin and Brett "The Hitman" Hart up on the witness stand, no judge in his or her right mind would rule against them.

Flowing Visions...

2004-02-25T16:03:00.000-08:00

Flowing Visions...

Remember the days when Word didn't talk with Excel and Quicken didn't share data with Timelsips? Can you think back to a time copier and scanner and fax and phone were entirely independent machines that bore little in common? Is it possible to imagine a day when the cell phone only made phone calls and Ms. Pac-Man did not dwell in there along with your alarm clock and web browser?

Attorneys have forever demanded seamless integration... and the market has responded accordingly. However, some of the last technologies to link tend to be litigation support technologies. Does your ZPrint and .pdf to .tiff conversion packages "talk" to your Paperport Strobe scanner? Do Summation and Concordance easily export to one another? Not yet. How about video depositions to CaseMap... maybe sometime...

The good news is that now a days, the word I'm hearing all over the lit. support world is undoubtedly "integration" everyone wants to talk to the other guy for the benefit of the attorney/paralegal/litigation support manager consumer.

I predict that in less than a decade, the mission critical litigation support applications (transcript management programs, EDD conversion services/applications, evidentiary databases, knowledge management portals, time-liners, video conferencing portals etc...) will be accessible on-line with multi-user real-time synchronization and the only tool the attorney or paralegal will really need would be access to the World Wide Web and a basic know-how as far as navigation and use of these applications is concerned. Best of all, they will all easily work with one another so the attorney can log on from essentially anywhere (Starbucks, an Airport, home office, train commute with a wireless laptop) and build his or her case for trial. Critical documents or e-mail messages can easily be popped from Prevail into TimeMap to build a chronology and the red-faced deponent eating his words for lunch on the video depo. can be plopped over to Summation for issue coding and outlining).

We are really not that far away from this reality today and much of the above-mentioned tasks I use as a Jetsonian example can actually be accomplished today (albeit with a bit of unusual technology, know how and luck). A few years down the road, however, it will be as simple as underlining text or replying to an e-mail.

Stay tuned...

SpamED

2004-02-23T23:28:00.000-08:00

SpamED

If you're not British or you somehow managed to avoid late night public television in the early eighties, then you may be in the fortunate minority who was not subject to Monty Python's annoying spam sketch. The sketch involves a British couple, Mr. and Mrs. Bun (played by Eric Idle and Terry Jones - both in drag) who enter a local restaurant and attempt to order a meal that lacks that grotesque brick colored slimey slab of something akin to meat: spam. Oddly, one of the tables at the restaurant seats a group of Vikings wearing horned Viking helmets. Whenever the word "spam" is repeated by the waitress, the Vikings begin singing and/or chanting an ode to spam. That's it. That's the joke. Never did understand British humour. Gimme the Marx Brothers or Seinfeld any day...

I apologize for this brutal affront to my ever so loyal Alextronic reader base, but in order to put things in proper context, I must post a sickening snippet of Monty Python's least glorious moments:

Mr. Bun: Morning.

Waitress: Morning.

Mr. Bun: Well, what you got?

Waitress: Well, there's egg and bacon; egg, sausage and bacon; egg and spam; egg, bacon and spam; egg, bacon, sausage and spam; spam, bacon, sausage and spam; spam, egg, spam, spam, bacon and spam; spam, sausage, spam, spam, spam, bacon, spam, tomato and spam; spam, spam, spam, egg and spam; (Vikings start singing in background) spam, spam, spam, spam, spam, spam, baked beans, spam, spam, spam and spam.

Vikings: Spam, spam, spam, spam, lovely spam, lovely spam.

Waitress: (cont) or Lobster Thermidor a Crevette with a mornay sauce served in a Provencale manner with shallots and aubergines garnished with truffle pate, brandy and with a fried egg on top and spam.

Mrs. Bun: Have you got anything without spam?

Waitress: Well, there's spam, egg, sausage and spam. That's not got much spam in it.

Mrs. Bun: I don't want any spam!

Mr. Bun: Why can't she have egg, bacon, spam and sausage?

Mrs. Bun: That's got spam in it.

Mr. Bun: It hasn't got as much spam in it as spam, egg, sausage and spam has it?

Mrs. Bun: (over Vikings starting again) Could you do me egg, bacon, spam and sausage without the spam then?

Waitress: Ech!

Mrs. Bun: What do you mean ech! I don't like spam!

Vikings: Lovely spam, wonderful spam....etc

Waitress: Shut up! Shut up! Shut up! Bloody Vikings. You can't have egg, bacon, spam and sausage without the spam.

Mrs. Bun: I don't like spam!

Mr. Bun: Shh dear, don't cause a fuss. I'll have your spam. I love it. I'm having spam, spam, spam, spam, spam, spam, spam, baked beans, spam, spam, spam and spam. (starts Vikings off again)

... You get the picture.

So how does this tie into an Alextronic entry?

You probably guessed it... spam. Not the quasi-meat and not the excrutiating skit, but the loads of unwanted e-mail that clutter each of our in-boxes no matter which version of Norton or Symantec's spam stopper we buy into.

Not many people know that the term spam referring to virtual junk mail actually was derived from the Monty Python sketch. Word is that the term reflects the sheer number of references that Python made to spam in the sketch. The idea being that an equal barrage of undesired e-mail messages is not all that different from the waitress who rattled off the unwanted menu item.

The more logical Alextronic theory is simply that e-mail spam is simply as purely annoying as the Python sketch.

Now that annoyance is aggravated exponentially as e-mail is the subject of requested discoverable documentation in connection with litigation. The e-discovery expert or litigation support expert is now charged with a similar duty as that of the anti-spammer. Of course, convincing the client that they should pay the quarter or so a shot to process and review to eliminate every vi/\gra e-mail message that slithered through the network spam screens.

The litigation support specialist, consultant or e-discovery professional will need to conduct spam filter queries more and more frequently these days so as to weed out those printer toner refill kits and Nigerian scams and exclude such from the litigation review process.

However, as litigation support folk become more savvy as to how they can shoo off that spam, the spammers have joined forces with the hackers and perpetrators of viruses to give us lit support nerds a real run for our boolean bucks.

Last month, the worldwide spam count doubled in just one month to over, get this, 700 billions messages - about one out of every five e-mail messages distributed. Doubled in just one month?

Blame the much publicized Mydoom virus. This virus infiltrated enough home and office networks since January 26th to create an avalanche of spam that the restaurant lounging British Vikings themselves would be hard pressed to serve. You see, the Mydoom virus infected individual e-mail accounts and caused them to sends waves of spam to others. Known as a zombie virus, the victims of the unknowing spammers become unknowing spammers themselves and thus the avalanche gathers momentum.

Litigation Support folks should at the very least educate their clients on how to use the Outlook Rules Wizard to look for phrases such as "lose weight," "sex," "discreet" and "viagra" and automatically stop such certain spam in its tracks. Of course, this would be an act performed underneath the umbrella of a reputable spam killing hardware or software utility such as McAffee SpamKiller, iHateSpam, SpamAgent, MailBlocks, SpamBuster and others.

Next, after the spam software/hardware and the user's own Outlook settings (hopefully) snag the majority of spam, the Litigation Support Professional (LSP) should run similar filter queries prior to ED processing on e-mail populations just to see if anything slipped by. It is wise for the LSP to send out a message to the clients asking them to forward spam that overcomes those obstacles to the LSP so that he or she can review it to gather some key terms to include in the pre processing filter query. This will result in a huge money and time saver in the long run.

Unfortunately, fighting spam is yet another hat that the modern LSP must wear. Hey, at least its not a horned Viking hat...

Don't Forget to Network

2004-02-19T00:59:00.000-08:00

Don't Forget to Network

Until recently, networking primarily meant to me hanging at the local cigar club or dragging myself to the next reunion. In EDD land, however, networking may hold more keys to success than its schmoozing alter-ego.

The astute requesting party will certainly query the other side as to what it may or may not have living inside its network. However, the attorney deposing the adverse IT dude or dude-ette needs to have a basic understanding of networks so that the inquiry can yield fruit and so that the attorney and his or her meandering line of inquiry smacking of network naivete does not become the butt of the chuckles back at the other guy's IT water cooler.

The first rule is that the attorney should look the part. Walk into the depo with the rules of evidence tucked under one arm and the latest issue of Wired in the other. Make sure you strap on a PDA, pager or Blackberry to your belt. Compare your general appearance to any of the DEVO album covers circa 1978 and if there is even a faint resemblance you're halfway there.

Amble into the conference room with confidence and ask the court reporter if he or she will be conducting real-time stenography in Amicus II format. Have your laptop with you with a wireless d-link card flashing like the Macy's Christmas tree.

Next, memorize a bit about networks. You may not need to know the history of Java or the difference between TCP and UDP protocols nor will you be expected to distinguish bridges from routers, but at least know what a LAN is (Local Area Network that runs within an office structure) and a WAN (Wide Area Network that tends to connect remote office structures together via telephone lines, microwave or even satellite - the internet is an example of a massive WAN). Less common is a peer to peer network which connects two independent computers together or connects computers to a printer. Peer to peer technology is common in small law firms and businesses and is included in Windows 95 and beyond.

Also, know that a network is composed of a server or client work station, network interface card(s), cabling and a network OS (operating system) such as NT. A machine hooked into the network and utilizing it (the client computer or printer etc....) is known as a "node."

Most critically, however, know where files tend to be kept. In a client-server architecture the server acts as the "brains" of the network and tends to store and process applications with the clients (the terminals connected to the server) simply are receptacles for the data "served" to them by the server. This is critical when you are trying to figure out where that smoldering gun e-mail .pst file may live. You may want to devote less time inquiring about the work stations and more time understanding how the shared drive paths (UNC) on the network are configured. Of course, a user can opt to take data served to him or her and then store it locally on his or her own hard drive on the work station, so don't completely ignore the possibility that the evidence sought may exist on the drive and not the server. Ask the IT person if the individual users maintain there own private directories and if these directories exist in areas of the network that may extend beyond the scope of the office (ie, can the users access the network from home via a virtual private network (VPN) and then sore data on home computers? - if so, you will want to request mirror images of those home drives).

Don't forget to ask the IT individuals which folders on the network are "shared" and accessible by multiple users. Who has access to shared folders? What is the path to the shared folders? Are these folders password protected or otherwise secured?

Perhaps most critically, don't fail to include backup procedures in your query. Find out how often the network server is backed up. Is it backed up on the whole, or are certain directories backed up? Is the backup automatic? To what media is data backed up (tapes, CD's, on-line storage vaults etc...)? Where is this backup media kept? Is it rewritten? If so, how often? What processes or technology is required to restore backed up media? What, if any, retention policy (read, destruction policy) does the corporation follow?

This basic understanding of network structures and usage will make you a more formidable presence during the deposition and will facilitate the revelation of discoverable data that will hopefully contain your smoking gun or at least your smoldering slingshot. Once you have accomplished your task of making the other guys reveal their data landscape so that your side can thereafter narrowly request such data from the server, you can pat yourself on the shoulder, head down to the local watering hole and partake in the more entertaining type of networking.

AOL Matters

2004-02-15T22:06:00.000-08:00

AOL Matters

No not the web service provider, but the area of law, silly.

Chatting up lit. support peepes, litigators and clients on the ever evolving topic of ED, I have come to realize that one really needs to get a handle on the area of law that these folks find themselves in to get a real read on their concerns and objectives.

For example,

The corporate counsel are very concerned with retention policies and compliance in the face of Sarbanes-Oxley and other legislation which is constantly applying pressure on their clients.

Medical malpractice and health care professionals are very concerned with the authenticity of medical reports entered into evidence via e-discovery. The Supreme Court decision in Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993) which explored the reliability of contradicted expert medical testimony and documentary evidence has caused legal nurse consultants to inquire whether or not computer forensics can be implemented in order to determine if medical electronic evidence had been altered or otherwise changed and therefore could be deemed inadmissible. They are also goo goo over thee Federal courtÂs treatment of medical evidence in light of new tort reform via the holding of Wray v. Gregory, 61 F.3d 1414 (9th Cir. 1995). There, the courts limited the admission of scientific medical data when the veracity of such data could be called into question, forensic analysis is the determining tool when it comes to sifting the incontrovertible data from suspect data.

Then there are the insurance defense practitioners who are always concerned with ways to keep the evidence out be it via motions for protective orders, objections to requests or privilege review.

Labor and employment litigators love metadata. So when did that slimey bastard terminate my employee? Was it after she shot off the e-mail message saying, "I told you Manager Marvin, I am a happily married woman..."? Did Marvin open it? Was it printed?

Don't even get me started with IT litigators. They want every shred of electronic data under the moons of Jupiter. A .pst or .nsf file with its attendant Word or WordPerfect attachments is child's play to these folks. They are always asking me if we can open a .zxp or .erg file ... things that without fail elicit my "let me get back to you on that" out.

The Government wants cost quotes. The substance of the processing seems to take a back seat to their obligation to get a minimum of three competing quotes by vendors on their much coveted "approved provider lists."

The solo guy wants to know if he can do EDD on his own. After I explain the options, costs and learning curve for do it yourself EDD they then, without fail, ask for my business card as they'd rather dump the job on a professional as long as the price is right.

The anti-trust attorney (up against the DOJ) wants to know how e-data can be hosted and how easy or difficult it would be to share a platform with co-counsel. They are also big query buffs. Always wanting to pontificate on the advantages of Boolean verses segmented verses concept based... .

Maritime and immigration attorneys want to know what the heck is EDD again... is that some kinda protocol drafted during the latest round of the Hague convention or is it a soup?

Mass tort litigators like to know that ED will work with their current systems. Can I combine it wiht the paper? Can I throw it into Concordance? Does it come with Ginzu knives?

Constitutional and Civil Rights attorneys ask if they can get a freebie. Our cause is righteous and you will be a part of it... I get suckered into that one all the time.

Environmental attorneys always ask something, but I can never really understand anything they say. They lose me after their fifth recitation of CERCLA and the Clean Air Act. We usually end up making plans to go camping and tabling the EDD discussion.

PI attorneys approach... but I usually can't address their concerns cuz I'm too busy running like hell in the other direction.

I could go on but then again I hate to generalize.

Alextronic Laments....

2004-02-11T20:24:00.000-08:00

Alextronic Laments....

Thus far, Alextronic has refrained from editorializing. However, countless columns concerning gigs versus megs, tiffs versus html, auto extraction versus manual coding has made Alextronic a dull boy.

Truth is, there is a whole bunch of cool stuff in this ever evolving EDD world that makes Alextronic wanna get on his laptop and tap away but there is little that inspires him to clench his fist and pump his arm towards the stars not unlike the Bolsheviks as they supported Lenin driving the Romanovs from the Winter Palace.

Today, however, Alextronic has met his waterloo. Somethin' out there is buggin' him even more than unexpanded Excel cells or a password protected zip attachment with a stealthy virus just waitin' to be unchained.

The focus of his Ire - Vendor Created Electronic Data "Certification Programs."

Now, Alextronic has gone through more certification programs than he'd care to remember. Beginning with the Bear badge that the Den father of Pack 545 was reluctant to award him after his tepee crashed down and broke Sam Schwarz' arm at the Indian campfire. Then there was the coveted Malibu Grand Prix go-cart license. Who could forget the pro marksman target certificate from Summer camp? One of his most notable certificates was his PADI SCUBA certificate earned once he finally was able to differentiate the air intake bc from the snorkel.

Those were the heady days for Alextronic. Later however, life dealt Alextronic a rough hand... certifications no longer were dollied out on exotic Caribbean islands or next to the video game machines and S'mores roasts... the DMV, the State Bar, the grueling Summation and Concordance certificates and the not as grueling certification program offered by CaseSoft on the shores of Florida filled his time with pre-test jitters and nightmares of showing up late for the examinations naked... but that's for another blawg.

The one certificate that Alextronic will not be shooting for is this questionable if not downright shady "E-Discovery Specialist" gig (or rig?) that has bubbled to the surface of the swamp. The particular program in question raises the eyebrows a bit more than it raises the EDD IQ out there in litigation support land.

Perhaps it would be best not to name the vendor that is the self-proclaimed certifying agency for "E-Discovery Specialists". Alextronic would liKe to pRint the name, but resOlved to Let it sLide.

Now when Alextronic buckles himself into coach for that sure to be turbulent flight to Law Net, he probably would slam that Bloody Mary a bit easier knowing that the pilot and co-pilot were "certified" by the FAA and not Jet Blue Airlines. Alextronic prefers that his dentist is not certified by Crest Toothpaste and his team of relentless criminal defense attorneys be licensed by some State Bar and not by Lexis/Nexis or West. .. you get the picture.

There are certain reputable and largely unbiased groups and people out there who really could piece together an objective certification scheme for e-discoveryheads. Talkin' about the Browning Marions, the George Sochas, the likes of Ken Withers and Joan Feldman, the Michael Arkfelds and other luminaries that serve as the forward thinkers in this increasingly complex dimension. It may even be plausible for highly reputable and independent organizations such as the Sedona Group or the ABA to put together a certification program. Let's face it, a certification for E-Discovery is not some trivial matter. Fortunes, lives and futures can literally turn on a piece of evidence and in today's world it is almost more likely than not that such evidence lives in binary form. Do we really want to allow one for profit entity to unilaterally set the standards as to what constitutes competence with respect to electronic discovery strategy, collection, processing, review and forensic analysis? Aren't' the stakes a bit too high to just let the first person to step up to the plate make the rules? Would one not rather see vendors offer classes and training seminars and possibly hand out cutesy diplomas rather than become presumptuous enough to self proclaim authority to "certify" one as an "E-Discovery Specialist"?

Certification is serious business. The public has come to rely on those who are certified to handle complex chores such as doctoring, lawyering, driving and counseling. If anyone can essentially create an industry wide "certification program" and thereafter designate industry "specialists" just by jumping in and doing so, does that not dilute the value of the certification? Where does that leave the largely unsophisticated public? Public policy should dictate that legislated standards should be put in place before the grant of any power to certify a specialist of any professional discipline. Surely, certification of a sophisticated and downright critical art such as electronic discovery (as opposed to an individual software product per se) should be issued in accordance with publicly approved standards not unlike the cosmetologists or paralegal's certificate. Think about it. One needs to meet state specified standards to apply the hair gel but the standards associated with presenting complex evidence in a court of law are essentially up for grabs.

Something just ain't quite right...

You've Been Served

2004-02-08T20:02:00.000-08:00

You've Been Served

Just back from NYC Legal Tech and then an immediate vacation in balmy Palm Springs with the wife and sans the little one to unwind from trade show booth burnout. I apologize for the large gab in substantive discourse fellow bloggerheads...

Now as the pretzel vendors on Broadway and 42nd fade into the oblivion along with the shooting stars over the Palm Springs desert, I reenter the atmosphere as I once again maintain the controls of the USS Alextronic.

Stardate February 9th, 2004.

One question that came up quite a bit at Legal Tech NYC (and thankfully did not ever arise as I sipped margaritas in La Quinta, California below swaying palm trees) was whether or not the requesting party really had "teeth" to force an IT person or some other such source of adversarial secrets into a deposition so that the screws can be tightened and the spotlight positioned right into the IT interrogee's eyes:

"So, Mr. Network Manager.... let me reposition these matchsticks between your pinkie toes ... ahhhh, now are you a bit more inclined to reveal where the CFO's PST's are backed up to... or do we really need to get serious and bring in the Clay Aiken CD?"

Well, in many States the Clay Aiken method clearly falls into the cruel and unusual punishment category, but in California, if Clay fails we have Code of Civil Procedure Section 2025(e)(2).

Yep, this nifty code section which arose out of the recently refurbished Discovery Act calls for the mandatory appearance for deposition of "the person most knowledgeable" of a party's electronic data storage methods (both live and archival) who can "thoroughly explain" how and where information is organized so that it may "be gathered for discovery purposes." This code can require such a fountain of wisdom to appear "within seventy-five miles of the company's principal California business office OR within the county where the action is pending."

This is the effective State counterpart to the well known Federal Rule 30(b)(6) however this State statute is a bit more flushed out and directed when it comes to the pursuit of the source of electronic evidence.

So call off the German shepherds, extinguish them cigarettes and yank out the ceiling fan, we in California have the teeth to get at that elusive electronic data.

Those of you in New York, Pennsylvania, Ohio, Florida and Texas will find that you have similar state statutes. I have yet to survey the other 45 states, but I am willing to bet that those who do not yet have such legislation in face will soon find such in place soon.... Until then there is always the reliable iron maiden and stretch rack.

Out for a few days...

2004-02-03T09:06:00.000-08:00

Out for a few days...

Bloggerheads:

I am broadcasting from New York City's Legal Tech show, the mama of all of the mama's as far as legal nerd conventions are concerned.

Hence, there will be no posts of substance until this Thursday. I plan to post a full report upon my return from the show. Hang in there for me.

- Alextronic Discovery

From Washington to Nigeria and Back...

2004-01-29T00:45:00.000-08:00

From Washington to Nigeria and Back...

Not too many industries are able to fly low under the radar these days. Gone are the days in the seventies where huge land deals would be struck in clear violation of zoning and public housing regulations. We bid adieu to the gluttonous 80's where frat boys manipulated junk bonds just enough to plop a red Testarossa in the four car garage. The offshore wire transfer financial institution scams of the nineties are now history. Where did all the fun go?

Now I'd be the last to suggest that we've entered into the clear zone. I for one am still awaiting for King Neby Mgawanga of Nigeria to deliver me my fifty-million dollars of his Uncle's (King Matawabu III) once frozen assets that I helped liberate. I've also been noticing the mysterious debits on my Visa card from some company called V-I/\G.R/\ .com for them vitamins I've been taking that have been keeping me up late at night.

We can now rest assured that our interests are protected not by the new moral code promulgated by the Bush Jr. administration but rather by the new certification requirements calling for records retention standards. The Sarbanes-Oxley Act of June 2003 which requires CEO's and CFO's of financial institutions to retain essentially all internal and investor electronic communications. Also, any "significant changes" made to the corporate financial reporting scheme must be duly revealed via a quarterly report. Failure to report/retain would subject the CEO or CFO to criminal penalties if such a failure was knowing and in bad faith.

These new regulations don't only protect our pocketbook, they allow us to engage some of America's most important institutions with a renewed sense of trust and zeal. It's sort of like knowing that the new DC-10's have remote auto-pilot capabilities today just in case the pilot starts to doze...

Of course, these new requirements call for the enhanced retention of electronic records which translates into an avalanche of electronic discovery when it comes to litigation. Companies who are in business to help these financial institutions retain their electronic communications and therefore stay compliant with the new regulations (fines have reached into the hundreds of millions of dollars for those who have strayed from the regulations) are partnering with electronic data processing outfits to handle this onslaught of electronic data comprising the bulk of what used to be traditional paper discovery.

As a nation of laws, I don't see us going the other direction anytime soon. "Lawless laissez faire" societies such as modern day Russia went from extreme regulation to the wild west and they have suffered. Of course, there is a happy medium out there somewhere - but finding it is the trick. In the meantime, them EDD and financial data capture machines will be a hummin...

Dual Meanings of Disaster Recovery

2004-01-26T00:03:00.000-08:00

Dual Meanings of Disaster Recovery

I've been getting a repeat question. Not a common occurrence in an area so convoluted and limitless as is electronic discovery. If lightning strikes twice, I guess you gotta pay attention.

Here's the recurring nightmare:

Counsel for Defendant is asked to produce electronic records X dating back to a period of alleged harm which happens to be several years ago.

Well, the requested data no longer lives on the "live" server and the backup tapes are no longer in storage due to a retention policy that (in compliance with industry standards) does not require their preservation for so many years. Hence, the data does not exist... well almost.

Introducing the disaster recovery tapes.

Most large corporations have a secret set of tapes that would make Richard Nixon think again about joining Columbia House. These are the disaster recovery tapes and as their name suggests they tend to be archived infrequently but stored forever in the case of a real emergency. Since September 11th, we've seen a resurgence with regards to such emergency retention practices.

Of course, the obvious questions become:

1. Must the party subject to the request respond by accessing the disaster recovery tape?

2. What if the standard backup data that has no longer been retained (and rightfully so in accordance with a reasonable retention/destruction policy) yet, still can be obtained through the disaster recovery tapes? If the party does not wish to produce, must it still do so because it has the disaster recovery tapes?

In both scenarios (the second applying only to a party who is resisting a production request) the courts have answered "no."

Disaster recovery tapes are a necessity that should not place an extra burden or obligation upon the organization that maintains them. Judge Shira Scheindlin is just one of several jurists who has delivered such a holding (she discussed the lack of a duty to produce or restore from disaster backups in the Zubulake IV decision - SDNY, October 23, 2003).

Therefore, that disaster tape is a real gem. It may be restored and accessed by a litigant who wishes to use its data to respond to a request for electronic evidence (possibly in an effort to negate an element of the Plaintiff's cause of action or otherwise defend the matter at hand) however should it not be in the best interest of the recipient of the document request, that party can choose to leave the disaster recovery tapes undisturbed.

A real trump card.

So, next time the IT person or inside counsel raises his or her eyebrows at the practice of maintaining limitless backup tapes for disaster recovery purposes only, you can assure them that such data does not, in fact, present added exposure in that its data usually cannot be compelled in the absence of the requested data appearing on standard backup media or "live" on the network/desktops and other data storage units.

Wouldn't Want to Be Uncle Sam in Maryland

2004-01-21T00:55:00.000-08:00

Wouldn't Want to Be Uncle Sam in Maryland

To those of you that attended all three of my web casts this month and graduated from the series, I take off my ten-gallon stars n' stripes tall-hat to you. Tell a friend to join the next round in February.

Speaking of star spangled tall hats and blue blazers, I wouldn't want to be that Great Uncle Sam in Maryland.

Just last month, a court gave old Uncle a slap on the hand that may have caused a welt.

In Thompson v. US (2003 WL 22963931) the Government missed its discovery cut off and fell short by some 80,000 e-mail messages. Obviously, the Senate Steering Committee failed to instruct its subcommittees to attend a Fios web cast.

As was discussed in the top ten faux pas web cast, one of the most detrimental errors one can make is miscalculating that menacing discovery cut-off date.

Thinking he had plenty of time to flip some burgers and sample the Apple pie in addition to respond to the Plaintiff's request for electronic production, out dear old Uncle took in that seventh inning and dug into his box of cracker jacks looking for that prize.... .

His prize was one of them self tattoos that smear and don't turn out the smiling sunshine emblem but rather something that looks like the early stages of leprosy.

The smeared tattoo was not the only stain the Government had to contend with. Missing the cut-off and failing to process some 80,000 relevant and non-privileged e-mail messages and their attachments, the judge slapped a sanction on Uncle saying that Uncle could not call his chief witnesses if the substance of the would be witness testimony proffered would be themes covered in those missing 80,000 e-mail messages. Hence, Sam had to instruct George Washington, Samuel Adams and Betsy Ross to wait outside the courtroom and whistle Dixie.

Meanwhile, Uncle continued to get spanked behind the closed doors of that unforgiving Maryland courtroom. So livid that the 80,000 e-mails were not produced given the ample discovery period that preceded this omission, the Judge ruled that the Plaintiff was entitled to access to all 80,000 e-mails (meaning the Defendant was ordered to finally produce them at its own cost, but could not rely on any of these e-mail messages which supported its position).

Imagine a summer water balloon fight where your bucket of balloons is turned over to the kids from Lincoln Elementary and you are prohibited from reaching into the bucket as them damn Lincoln kids drench you with the very weapons you wore your fingers down tying end after end. Very damaging. Better not come in the kitchen dear, Uncle is upset.

What if Uncle just could not resist and tried to sneak into the record the contents of one of them 80,000 messages that could help his case?

Can you say "contempt of court?" Good, I knew you could...

Ouch.

Hey folks, whatever you do, hit them discovery cut off dates, will ya?

E-Facts n' E-Figures

2004-01-19T01:06:00.000-08:00

E-Facts n' E-Figures

Betcha didn't know that:

9.8 billion (yep, that is with a "b" y'all) e-mail messages are transmitted every DAY (over twenty times more messages than the US Postal Service delivers in a week).

Over one-third of that is ... you guessed it that ugly four letter word... SPAM (hey, do I got a deal on Viagra for you!).

By 2006, the number should exceed 60 billion (messages in all that is... not just SPAM... well, maybe...).

The average white collar U.S. professional sends and receives in the neighborhood of 200 e-mail messages per day.

By 2005, it is predicted that world wide, over one-billion people have internet e-mail addresses (almost one out of every four)... don't sell that Microsoft stock just yet...!

Over ninety percent of U.S. businesses (large and small) store the majority of their documentation electronically and over seventy percent of these electronic documents are never printed to paper.

A floppy disk can hold 115 pages while a thumb drive can hold 5,120. Your MP3 recorder (when you are not listening to Ozzy's remix of Crazy Train) can hold up to one and a half million pages of data and the average backup tape (DLT) can cram in over six million we can make him... better, stronger, faster....

Just a few fun e-tidbits for all you e-discovery heads out there. If you have a few you'd like to share with Alextronic discovery, don't ignore the comment button.

Here Say... Here Say... an ode to Hearsay

2004-01-14T20:13:00.000-08:00

Here Say... Here Say... an ode to Hearsay

When we were in law school leaning about the Hearsay rule (an out of court statement made by another not subject to cross examination and is offered to prove the truth of the matter or issue asserted is considered inherently unreliable) and the many exceptions that swallowed the rule... none of us (except those of us budding litigators born during the Reagan administration) could have ever envisioned that these rules and exceptions would ever apply to the Apple II+ and Vectra 286 computers buzzing in the background.

Today as we communicate primarily though electronic data, the hearsay rule has sprouted up in a fashion that would make Tom Hanks feel like he was still the preschooler he was in the movie "Big".

Think about it. Nearly every e-mail one creates and nearly every Word or Wordperfect document hammered out as well as almost all spreadsheets and html creation are hearsay by their very nature. These documents are usually communications and they are rarely created by an individual placed under oath and subject to cross examination. Hence when the astute 21st century litigator thinks that he or she is the most savvy and slick cat on the street since Rudy Ray Moore by introducing processed electronic evidence, be advised that such a submission screams out to the opposing party "claim Hearsay... claim Hearsay!" Thus, the damaging evidence can be possibly excluded based on the tried and true Hearsay rule.

But... wait... what's that up in the sky? Coming to the rescue is the mighty hearsay exception which effectively swallows the hearsay rule and allows the e-evidence into play.

But how does the hearsay exception work in the world of digital evidence? Consider these variations of the conventional application of the hearsay exception:

1. Usual Business Records Exception - Now data that is entered into spreadsheets or interoffice memos (attached to e-mail messages or not) can come in under this rule.

2. Excited Utterance - Believe it or not, this could work via live chat or ICQ or IRC. Imagine this chat... Broker writes "Hey investor remember that inside tip, I told you about... I am confident about my source and the stock is certain to tank tomorrow."

Investor replies (instantly): "Stupendous! Buy me 1000 shares right now! ! ! !"

This dialog would overcome hearsay by way of the excited utterance (chat) of the investor.

Similarly, the Present Sense Impression - can come in as an exception when one logs on to the network at work and quickly comments on something that appears out of the ordinary on the system or the like.

The Recorded Recollection hearsay exception would come in if an individual routinely tracks his or her thoughts or recollections in a digital media. This blawg itself could possibly qualify as such an exception. Calendaring software and digital diaries would certainly qualify.

Admissions and Statements made Against Interest are routinely dug up in e-mail messages and possibly chatboards and the like.

Finally, the Character Reputation would be a bit more difficult, but if a web page is offered and the page consists of comments by others on the reputation or proclivities of a party and that party's reputation is at issue, this may work as well.

In sum, the more things change the more they stay the same. The hearsay rule and its exceptions seem to stand and perservere.

Preservation Putz

2004-01-12T00:40:00.000-08:00

Preservation Putz

To my classmates at Hebrew School, I was known as the Putz because I used to show up without my homework.

No the dog didn't eat it and I wasn't hiding a failure to perform, I just would fail to bring it for one reason or another. Sometimes the car pool would pick me up right after elementary school, when all of my friends played kick ball and Mrs. Steinberg and her annoying son, Ricky, would pull up in an oak paneled station wagon and furiously honk their horn outside of the playground. Of course, I had neglected to bring my Hebrew school homework to elementary school and Mrs. Steinberg would chide me for being an absent minded schmuck all the while ignoring my pleas that she drive me home to let me run up to the TV Pong set where my homework was surely sitting.

At school, I would fearfully tell Mr. Shapiro that I again had forgotten my homework. He would slam his closed fist on the table and yell, "Again, Alexander... why you really are a putz."

And so it went. My Grandmother was born in Jaffa, Israel and was, of course, fluent in Hebrew. More often then not she would catch wind that I would forget my assignments and she became furious as well. She had a right, as she actually was the one that did most of my assignments once she conceded that her grandson would never know the difference between a gimel and a chai.

I learned a lesson as the Hebrew School Putz that thankfully carried into my adult life. Do whatever you can to keep and deliver your documentation.

I am not certain if today I fear the Federal and State Judges as much as I feared Mr. Sharpiro and Mrs. Steinberg, but I can assure you that the former have not labeled me the forgetful Putz.

I pride myself on making sure my clients retain their documentation and produce it as required.

How do I insure that this is done? Here are ten tips and tricks that I adhere to religiously ...

1. I always instruct my clients to make daily backups of active matters and weekly backups of all data.

2. Make sure the client goes to a reputable and experienced consultant for assistance retaining or retrieving electronic records. Asking a friend who happens to be a WordPerfect power user is usually not enough.

3. Careful transporting data. Do not allow an unknown person to transport your backup tapes or CD's. If you carry critical data with you, do not let it out of your sight. Keep in your carry on luggage if your travel and do not check it on and risk it ending up in Bangalore when your litigation support strategy meeting is taking place in Baltimore.

4. Never examine files using Windows as your can change or corrupt metadata leading to a spoliation claim by the other side.

5. Tell your clients to make sure they have installed firewalls and virus protection software. Avoid running a web browser when the user is away from the computer. This only invites hackers and thieves.

6. If your client is a large business/corporation, ask the IT staff to look into a robotic back up silo which automatically creates multiple backup tapes on an incremental basis.

7. Make sure you and your client periodically review its record/data retention policy or policies and confirm that such are up to prevailing standards for the client's particular industry or type of business.

8. Confirm that your client's communications with their clients reveals the specifics about the above enumerated retention policy.

9. If you or your client chooses to "go paperless" by scanning paper documents and merging them with electronic data, be sure to use an experienced and reputable imaging vendor and don't bother trying to take on such a gargantuan task yourself.

10. If you are struggling in Hebrew school and your Grandmother was born in Israel, paint her a nice picture and be sure to let her pinch your cheeks... then hit her up for help on your homework.

Tips to Consider when Designing a Litigation Support Database

2004-01-06T16:47:00.000-08:00

Tips to Consider when Designing a Litigation Support Database

When designing your litigation support database form, there are always a plethora of choices to consider:

Do I create lookup tables?
How many numbering schemes will I assign?
Will I have certain relational fields or not?
Do I create a big and busy form or a simple one?
Will I need a feel to store OCR'd text? Can I incorporate fuzzy querying to accommodate such a field?

To help in the decision making process, here are a few considerations that should be addressed:

1. What kind of data will I be "coding"?

Databases keeping track of discovery responses may need multiple fields such as respondent's name, the question or interrogatory being addressed, the date of the response and a link field to any image or other file that corresponds with the response.

Of course, if the data being tracked are standard corporate documents such as interoffice memos and e-mail, then standard fields should be employed (date, author, issue, Bates Number etc). If, of course, that data is electronic, then the database designer should insert an electronic data component into the database for storage of metadata with such files as metadata, cc, bcc, versions, sender's address, subject, number of revisions, printed and other such fields that typically correspond to metadata.

2. Is there an obvious distinction between importance of documents?

In many matters, certain documents will be inherently more sensitive or private than others. Also, certain documents will clearly be undisputedly "hot." The database designer should create "switches" or buttons which can be easily triggered by the first level objective coder and/or the final subjective reviewer so that documents can be quickly labeled confidential or "hot" or "key". Further, the designer will usually want to set the system so that it sorts queries based on these critical documents first.

3. Issues... Issues.... Issues

Perhaps the most critical field in a litigation support database remains the issues field. If you think about it, a litigator's job is either to prove or disprove that the prima facie elements in a certain cause of action exist (plaintiff) or do not exist (defendant). Of course, these elements are broken into basic issues. A slip and fall case database should contain a lookup table of issues: cause in fact, proximate cause, duty, breach of duty etc... which correspond with the elements of this cause of action. A wise litigation support manager once told me that the surefire way to cover the relevant issues is by going into an ALR (American Law Reports) and looking up the textbook definition of the cause of action at issue and then simply inserting the elements of that cause of action as your issues.

4. Unwrapping the Structure

Today's discovery responses may spill out of crates, box cars banker's boxes, backup tapes, CD's etc... Make sure your litigation support database mimics the structure of the sources of your data.

If you typically receive paper in banker's boxes from the opposing side or your client and you also receive the electronic data via backup tapes, make sure to have a field called "Box Number" and another titled "Tape ID" or something of the like. A failure to mimic the structure of the data you unwrap as it comes in can lead to huge problems later on when the physical source or that data is at issue or if the data simply needs to be retrieved for authentication and the like.

5. Dude, check out them waves!

If you are involved in litigation that involves multiple "waves" of responses, be sure to have a field created such as "discovery production number" whereby you can indicate who produced the evidence and which "wave" or "production set number" can be associated with a particular document. Sounds simple but this is one of the fields most frequently ignored and one of the most difficult to populate after the fact.

6. Shortcuts

Try to program shortcuts for recurring information. If many of the e-mail messages coming in are authored by Bill Garland you may want to program an expandable "BG" that can autoexpand to Bill Garland when the coder types those two letters. Better yet, you may want to put Bill's name on a short lookup list of the most commonly coded names in the litigation.

7. Don't forget Verification Fields

If you have a field for social security numbers (SSN's) you should certainly put a verifier on it to make sure that the field accepts exactly nine digits in the following format ###-##-#### anything that doesn't fit this format will be rejected. This will insure that such data is entered in a standard format with no room for errors. You will want to repeat this for telephone numbers and dates as well. It would be more difficult to do for e-mail address or bank account numbers which can vary in length and contain both alphas and numerics.

These are just a few things you may want to consider the next time you are applying your wizardry to the litigation support form. Happy coding!

Litigation Readiness... Don't Blunder.

2003-12-29T23:55:00.000-08:00

Litigation Readiness... Don't Blunder.

As an undergraduate student of literature and poetry and a graduate student of law, I quickly realized that attorneys could stand to learn a lesson or two from those noble and romantic poets. As I traded the readings of Allen Ginsberg for the dryer text of Ruth Bader Ginsburg, I could not help but see the wisdom of the poets providing a shining light in the dark and chaotic battles of so many litigators.

My favorite poem is "The Charge of the Light Bridade" penned by Alfred, Lord Tennyson in 1864. In his five stanza masterpiece, Tennyson artfully memorializes the suicidal charge by six hundred horsemen of the British light cavalry during the Battle of Balaclava (now Ukraine) in 1854. The war between the Royal Crown and the Russian Czars over control of sea routes is home to perhaps one of the most spectacular defeats in modern warfare. A defeat that makes Custer's last stand look like a Boy Scout weenie roast.

The invading British cavalry suffered near obliteration at the hands of the Slavic, Cossack, and Russian warriors. How could the Royal Cavalry fall before these ruffians? The answer is simple, the 600 British cavalrymen were not sufficiently "battle ready":

"Into the Valley of Death Rode the Six Hundred"

During my brief stint as General Counsel for a very small Silicon Valley "dot-com" on-line cookie mail-order business, I quickly realized that the modern litigator is truly not ready for battle. Like the light brigade, corporate counsel tend to work in a world that is responsive and reactionary as opposed to proactive and equipped. When the cookie company was confronted by an unexpected trademark challenge, we frantically tossed aside the boxes of chocolate chips and white macadamia nut swirls in a vain effort unearth our trademark registration records so that we could timely respond to a discovery request. ("Tossing your cookies" quickly took on a whole new meaning for us). Needless to say, we were always on the run during that litigation. We could never seem to stay on top of the discovery cut-offs. Always catching our breath, we were needlessly reviewing and re-reviewing the same materials and we spent more time trying to locate and synthesize the evidence than we did trying to organize and protect it. In sum, I could sort of sympathize with the British cavalry facing the Russian cannons. The other side had us on the run and, unlike our top selling product - walnut almond chunk, the litigation turned out to be anything but sweet.

"Cannon to the right of them
Cannon to the left of them
Cannon in front of them
Volley'd and thunder'd
Storm'd at with shot and shell,
Boldly they rode and well,
Into the Jaws of Death,
Into the mouth of Hell,
Rode the six hundred.

I recently was privileged to take part in a litigation readiness survey conducted by Fios, Inc. Through that survey, I had the unique opportunity to speak to the General Counsel's of large United States corporations - banks, financial powerhouses, pharmaceutical behemoths, technology giants and the like. The corporate counsel's tales which I heard over and over did not seem to vary greatly from that of Tennyson describing "the six hundred." These giants were sorely unprepared to respond efficiently and quickly to a law suit.

"Stormed at with shot and shell
While horse and hero fell,
They that had fough so well,
Come thro' the jaws of death,
Back from the mouth of Hell,
All that was left of them,
Left of six hundred."

The British cavalry rode into Balaclava as they had ridden into hundreds of battles before. They had not bothered to update their armor or change their battle strategies to account for the advent of the mobile land cannon. The British cavalry did not evolve their war strategy to counter new technologies and one day their antiquated system just plain didn't work any longer - and the British paid the ultimate price for their stubborn resistance to proactive change. No one in the cavalry had questioned this backwards thinking (non) strategy. Similarly, corporate counsel don't seem to question their company's antiquated (non) response policies when that first summons or subpoena hits them like a bolt of lightning. It is time that corporate counsel take a long, hard look at their level of litigation readiness.

Their's not to make reply,
Their's not to reason why,
Their's but to do and die:
Into the valley of Death
Rode the six hundred.

So what is corporate counsel to do to avoid steering her client into the proverbial "valley of death?" The following six "action inquiries" are a good start. They should be quickly incorporated into the company's near term agenda:

1. Have you surveyed your current litigation response policy (if you indeed have one)?
a. Is it in compliance with the rules of court/evidence in your jurisdiction?
b. Is it streamlined enough to meet discovery deadlines?
c. Does it incorporate the latest litigation support technologies such as knowledge management systems and electronic evidence discovery?
d. Does the discoverable litigation data "flow" into a format that can be readily culled, reviewed, protected for privilege and categorized?
e. Are key staff and outside counsel familiar with the policy? Is the policy preserved in a manual or other vehicle that can be used to educate new inside and outside counsel?

2. Are your data systems scalable and "open ended"?
a. Can your internal data systems handle a large case and then handle a case fifty times the size of that "large" case?
b. Does your data systems "share" information with your litigation tools such as Sanction, Summation, Prevail, CaseMap or Concordance?

3. Are you keeping up with the Jones'?
a. Does your system "fit" into the flow of requests for evidence that your company may receive from opposing counsel?
b. Can your system respond to requests as fast or faster than the requests come in?
c. Can your system handle data in new formats such ad .pst or .edii or .pdf?
d. Do you feel that you are riding into a valley with "cannons in front of you, to the side of you and behind you?"

4. Are you winning?
a. Is your current litigation response strategy delivering the results you want or is leading you into the "Valley of Death"?
b. Does the cost of maintaining your successful strategy lower than the costs associated with the headaches of a failed strategy and the pains of not obtaining your desired results?
c. Does your strategy allow for the avoidance of redundant tasks (such as reviewing and categorizing the same information over and over again or repeatedly searching for the same documentation)?

5. What does your outside counsel think?
a. Does your outside counsel utilize a similar litigation response strategy? (If so, can it interface with your strategy?)
b. Can outside counsel make sense of your strategy and "drive" it as well as your corporate counsel?
c. Is your streamlined strategy helping your corporation reduce its outside counsel attorney's fees?

And finally,

6. Do you have help?
a. Do you have a reputable consultant or EDD vendor supporting and advising you as to how to maintain the best litigation response strategy tailored to your corporation's specific needs?
b. Do you trust your consultants and strategists?
c. Do they come highly recommended?
d. Are they "conflicted" (ie, are they also consulting to opposing counsel)?
e. Do they stay on top of evolving technologies?
f. Do they stay on top of evolving rules and authorities pertaining to evidence and civil procedure?

I can attest that if the dot com cookie company had implemented a streamlined litigation readiness policy, we would have realized much more success when faced with that menacing trademark litigation. Similarly, if the British light brigade took the time to tweak and reinvent their outmoded strategy, they may be sipping tea today instead of vodka along the banks of Ukraine's Dnieper river.

Forward the Light Brigade!
"Charge for the guns!" he said:
Into the valley of Death
Rode the six hundred.

Alexander H. Lubarsky, LL.M., Esq. is an attorney, legal technology consultant, member of the LPMT Executive Committeee, Consultant with Fios, Certified Trainer with Summation, CaseMap and Concordance and Instructor of Legal Technology at San Francisco State University.

Wouldn't wanna be like you...

2003-12-20T17:08:00.000-08:00

Wouldn't wanna be like you...

"Make the other guy's life so miserable, that they'll just be happy to settle with you."

This may or may not be the golden advice given to the family that is taking on Michael Jackson but it was the learnings of Milton Weissberg.

My dad and Milton were law partners, starting their practice some thirty-five years ago. Milton was considered a legal tycoon. My dad would point out the fiercest litigator at the courthouse and tell me to watch their palms when Milt entered the courtroom. They would start to shine with perspiration. No one wanted to go up against Milt.

"Discovery requests are the best thing since chewing gum," Milt would belt out as he asked a defendant pharmacy or for that matter corner sandwich shop to copy and send every shred of paper they had ever owned (including the yellowed with age prescription pads and the more yellowed with mustard sandwich wrappers).

Milt's tactics worked for his day. The ethics behind such tactics were not really called into question. This was how results happened.

Things are different today.

Many processes and strategies translated seamlessly from the paper world to the electronic world. Overbroad discovery requests did not.

The courts have come down with a vengeance on the litigator that give Milt's tactics a whirl today. If you think that the financial institution will buckle under the pressure associated with a request to produce every scrap of electronic transaction data, then think again.

Recently, a California lawyer named Iryna Kwasny thought she could "Miltonize" Defendant into a perty lookin' settlement for her client Alwyn Farey-Jones.

Drafting a highly Miltonesque discovery request, Iryna asked Defendant Integrated Capital Associates, Inc. to promptly "produce every e-mail message ever sent or received."

This language was more burdensome than the Special Forces proved to be to Sadam and was broader than the plains of Kansas.

The Defendant was not amused and the Court even less so.

I would hate to be Iryna Kwasny.

After stubbornly refusing to retreat from her position and failing to edit the request to something a bit more narrow tailored, the Court simply had enough. It dealt the death knell to Miltonologists everywhere.... the court did not only refuse to compel the Defendant to comply... but they fined Iryna a whopping nine-thousand bucks. A lot of money to most people but it'll get you a pretzel at San Francisco's Fisherman's Wharf if you're lucky.

Be that as it may, the sanction clearly showed that there is a new Sheriff in town and the Miltons are starting to run for the border.

Don't find yourself put through the Milton mill. Be extremely cognizant of your ethical Don't get caught in the Milton mill. Always remain cognizant of your ethical and professional duty to narrowly tailor discovery requests so that they can bring about a realistic response from opposing counsel.

If you would like some cites to cases in your jurisdiction where the courts have held e-discovery requests to be unduly burdensome and overbroad, shoot off a message to Alextronic and he'll see what he can do.

In the meantime, you can forget your worries about having to hang on to your fifth grade essay about your Summer vacation, because some Milt may come after it someday.

An EDD Standards Committee Is Born

2003-12-09T23:31:00.000-08:00

An EDD Standards Committee Is Born

It had to happen... Standardization in the EDD world is at our doorstep.

When I was a charter member of my high school computer club, Kevin Hackman got his hands on this game for the Apple II+ called Tai Pan. It was the first simulation video game ever. The player managed a fleet of ships along the Asian sea silk trail whereby silk was traded at various ports for opium, cannons and silver. The wise user would purchase products at attractive prices and know when and where to sell the bounty for a profit. Of course, if enough cannons were not traded the user would surely fall prey to the scores of Pirate ships commandeered by Black Bart which outgunned the user's trading ship.

If any one knows where a copy of Tai-Pan can be had these days, I would be forever indebted.

Colin Fisher wanted a copy of Tai-Pan from Kevin but he had a Franklin and we had Apples. His Franklin didn't read Tai-Pan so while we played Tai-Pan, poor Colin was relegated to pong.

Litigators have lived in fear of being Colin-ized on the EDD front. Not unlike a run in with Black Bart, the firm or corporation that has not standardized its systems and procedures may not be able to effectively process and review data which could prove decisive in high stakes litigation.

Fortunately, the American Bar Association (ABA) saw the binary code on the walls and in 1999 established Civil Discovery Standards committee. Although the amendments to the standards pertaining to EDD remain in draft form as of the time of this writing, here is a glimpse of a few of the proposed EDD standards which Alextronic believes make sense and support:

1. All parties are encouraged to "meet and confer" as a standard discovery stage to discuss how electronic evidence will be requested, gathered and produced. If there are any unusually complex e-discovery items which a party may seek, an EDD consultant, magistrate or referee should be selected.

2. Parties should agree that harvesting should be done by a disinterested third party expert/vendor and not by attorneys or party litigants themselves.

3. In a native electronic document production, a party who does not own the software application to load a particular file, the requesting party should make arrangements to obtain such software.

4. Parties are encouraged to stipulate as to the authenticity of certain elements of electronic data, such as certain metadata fields (date, character etc...).

5. Issues concerning a waiver as to any privilege must be considered in advance.

These are but a small sampling of the proposed standards promulgated by the ABA. We can expect similar proposals from the Sedona group, the FRE and State legislatures.

We are now at an exciting juncture whereby the standards for EDD aren't yet solidified and exist as drafts available for comment. That means that YOU can actually chime in and share your ideas about a draft standard or even propose your own standard. It won't be that easy to implement your own ideas when these proposals are set in stone.

Streaks and Geeks

2003-12-07T18:23:00.000-08:00

Streaks and Geeks

Sunday afternoon... I'm flipping through all 72 channels... golf, football, a coin auction, more football and NASCAR. Yawn. I'll go do something on my Blawg...

I've struggled with a major disability throughout my lifetime: my chronic disinterest in professional sports. I couldn't tell you who played in the Superbowl last year and, with my interests grounded in law, technology, travel and motorcycles, I can discuss the BNA (Bureau of National Affairs) with a thousand times more fluency than I could the NBA. The only kinds of helmets I've ever handled don't come with face guards. You get the picture...

Although my atypical indifference to professional sports has freed up countless Sundays and Mondays and my wife says it is one of my best attributes as we flip from the Discovery Channel to the History Channel when all of my college buddies are at tailgate parties at the Oakland Arena and Candlestick Park (to which they have long, long since stopped inviting us).

Being professional sports agnostic does have its very notable detriments. I cannot begin to count the myriad of "power lunches" I have attended - a white male amongst a sea of other such white males... when things are just rolling along until the dreaded question hits like a cluster bomb dropped by the Northern Alliance in Kandahar...

"So, Alex who you have on tomorrow's game?"

I've mastered spilling my coffee at that very instant and I can invoke sneezing and coughing fits on cue. If I can sense that the B-52 is on its war path, I may opt for a strategic diversionary bathroom break where I pray that when I return the conversation will have meandered back from the Bucaneers to Blackberries.

Of course, with every rule there is an exception. Rather than instinctively shunning all things sports, I have developed passion for high school football. This started back in 1985 when as a San Mateo High School Bearcat, I rooted my team on from deep within the band section where I was lead cymbal player. That Junior year as well as my Senior year which followed, I clashed my cymbals as our team won the Regional State Championships back-to-back... not only did the Bearcats go undefeated those years, but they went, get this "unscored upon." At least in that respect, my friends on the football team and myself had something in common during our high school years.

But seriously, after 24 straight shutouts, the Bearcats made the history books... Several players went into the Pac 10 and/or the NFL and to this day the school still honors that football team with dedication ceremonies, achievement awards, team updates etc... . It was the biggest thing in Northern California High School Football ever.. that was, of course, until the De La Salle Spartans came on the scene.

De La Salle is a Catholic school in a nondescript San Francisco suburb known as Concord. It is right out of the movie American Beauty ... you'd expect to see Kevin Spacey's character among the throngs of balding parents in the stands comparing keyless remotes to their Hummers. Concord is as sterile as it comes. Cookie cutter tract houses break a continuum of strip malls... it is the type of place that makes you think about death.

So what's so special about a high school in a lifeless San Franciscan suburb? The school's football team. The school is on a bit of a winning streak. They have gone undefeated for eleven years. You read that last sentence correctly, De La Salle Spartans haven't lost a football game since early 1992 during the first Bush administration. That is what you call a streak .

Now this is no little po-dunk team playing in the farm leagues, De La Salle plays in the State's (and perhaps the Nation's) toughest high school league. In fact, over the years the team has invited undefeated teams throughout the country over for a rough and tumble game of ball and those visiting teams all, without exception, flew home bruised and battered by a bunch of suburban, clean cut Catholic boys. Last month, ESPN for the first time in its history... dared to televise a high school football game. The shootout involved a team from the South that was rumored to be able to actually put up a fight. Huh! As usual, the team flew back to Shreveport, Lousiana with their bruised heads bowed in shame and De La Salle didn't even bother to celebrate this 145th straight game of their streak.

They are now at 150 and pushing. No other football team in history has matched this record. Imagine if a law firm or attorney went a decade without a defeat. It is simply unfathomable.

So everyone out here has been itchin' their heads. How can a run of the mill Catholic school in suburbia produce such a national winning streak? A key player carrying the team for a season or two would explain this but a 150 games spanning over a decade... how on earth? Surprisingly, when you look at the team, they don't appear to be anything particularly lethal. The team is of average size and weight and speed. But 150 straight wins against the creme de le creme? What gives?

For every high school sports junkie out in the Bay that you ask, you'll get three responses and none of them will bear any semblance to the other. It is the Bigfoot mystery of suburbian high school sports. You didn't ask, and you may not care, but here is the Alextronic theory:

The administration at De La Salle high school intelligently outsourced the support behind the football team. They didn't count on one head coach or hope for one star athlete... they built a team to build a team.

De La Salle has always recruited the best support from across the country ... Head coach Bob Ladouceur located the top defensive line coaches, the most sought after offensive coaches, coaches plucked from the corn fields of the Midwest that have done nothing but lived and breathed point after touchdown squads. The world's greatest punt return trainers have been enlisted. The team even has an "equipment coach" that is constantly researching the latest gear that could give the team that edge. There are even coaches for the coaches. At last count, De La Salle had twelve... count them... 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 coaches dedicated to the varsity team. A greater team of national experts had not been assembled since Oppenheimer lead the Manhattan Project scientists in Los Alamos in 1943.

So what on earth does all this high school football talk have to do with E-discovery?

Well, I firmly believe that a law firm that simply puts an e-discovery savvy litigation support manager in place, without more, is a Jefferson high school - the firm will win some and lose some and will hold its breath a lot. However, the firm that seeks out an electronic discovery vendor or consultant who itself has bent over backwards to hand pick an all star team of EDD gurus that can back the firm's litigation support manager will be the De La Salle of the legal world. Will the firm win 150 straight... ? Probably not. Will the firm who has the best of the best backing it's litigation support team find itself at a substantial advantage over the law firm boasting at best a "plain vanilla" litigation support inside and outside team...? You know the answer.

Go Spartans!

Top 10 EDD Procedural Faux Pas...

2003-12-03T11:12:00.000-08:00

Top 10 EDD Procedural Faux Pas...

For those of you on the call today, here is the list as promised.

Please don't forget to go to sign up for the repeat web case on Tuesday the 16th of December at 10:00 PST until 11:00 PST. You can sign up at the Fios web site.

Here are the Top Ten Procedural Faux Pas:

1. Error One - Lack of a Reasonable and Effective Retention Policy Given the Industry

2. Error Two - Lack of Litigation Support Review Platform

3. Error Three - Lack of an Anti-Spoliation Policy/System

4. Error Four - Not understanding the Costs Associated with E-Discovery

5. Error Five - The “Gentleman's Agreement”

6. Error Six - Failure to Communicate with Outside Counsel

7. Error Seven - Miscalculations

8. Error Eight - Insufficient Discovery Pleadings

9. Error Nine - Revealing Your Hand

10. Error Ten - The Knee Jerk Printer

Of course, on the 16th, I will delve into each of these topics in detail. In the meantime, if you have any questions, shoot 'em off or post your comments here.

- Alex

What is your EDD Faux Pax?

2003-12-01T20:56:00.000-08:00

What is your EDD Faux Pax?

As I brace myself for my third and final web cast this Wednesday covering the top ten most common EDD faux pax (translated: what things do clients and their attorneys do or fail to do which end up making an e-discovery mission more daunting down the line?) I was hoping to elicit some of your comments as to what things you as attorneys, lit. support managers, paralegals, IT dudes and dude-ettes and hopeless bloggers have done or not done that later on caused an electronic discovery project to, well, suck?

Did you fail to instruct your client to save potentially relevant data? Did you try to copy the data yourself for remote review and production? Did you forget to check out the reputation of the ED vendors from whom you sought bids? Did you forget that if you ask for an .edii file you need Summation version 2.5 of iBlaze? Did you ask for a .dcb file when you are a Litigator's Notebook user? Did you forget that Prevail now hosts images for the paper-only pieces of your production?

So, go ahead and air your dirty laundry here on Alextronic Discovery. On this forum, we take great pleasure in the sadistic realization of other's weaknesses.

E-mail me at alubarsky@enterusa.com or, if you dare, post a public comment and confess your ED sins...

Thanksgiving and EDD

2003-11-26T13:03:00.000-08:00

Thanksgiving and EDD

In all the literature I have studied relating to EDD, I have yet to see a scholarly correlation of Thanksgiving and the advent of Electronic Evidence. It boggles the mind that no one has attempted an analysis of the state of digital evidence and its processing components from the perspective of the Pilgrims and the Indians.

I think if you surveyed the crew of the Nina or the Pinta, and asked them there thoughts as to how an encrypted .xls attachment can best be processed for export into Sanction II, they'd tell you to smoke a peace pipe and go catch a wild turkey.

I'd tell you the same.

Have a great Thanksgiving and I'll see my fellow e-discoveryheads on Monday.... Don't slip up like I do each years and say "please pass the MD-5 Hash potatoes Grandma..." I hate it when I do that!

Bates numbering....

2003-11-25T16:11:00.000-08:00

An Ode to Mr. Bates

Norman Bates slashed up blonde fifties floozies in the shower and of the Bates Manufacturing Company created a neat little doozie that increments itself one digit each time the stamp is pounded onto that unsuspecting legal document. When Mr. Bates founded the Bates Manufacturing Company in Orange, New Jersey, little did he know that paralegals the world over would one day come to curse his name. Don't know which Bates is responsible for more nightmares, Norman of the Alfred Hitchcock camp or the good 'ole incremental stamp crazy Bates of New Jersey (ten bucks to anyone that can find his first name on the web).

One thing is for sure, he sure was not blessed with an appropriate name.

Consulting to a large securities class action, the managing partner of Top 10 firm got up in front of the litigation support staff gathered in the war room as a scuffle broke out as to whose Bates schematic would be adopted - counsel A, co-counsel B or co-counsel C's. The managing partner loudly proclaimed - from this day on, we shall collaborate and create one grand scheme... We will let it be known as our master Bates practice.

The room was quiet for about six seconds, finally the red and blue faces could not contain themselves any longer. Senior litigator and lit. Support directors were rolling, yes literally rolling on the floor. This is no EDD wive's tale. I was there. I saw it. I still recall that incident if I find myself in a situation where I should make myself laugh (ie, when my boss tells one of his notoriously unfunny jokes...).

If anything, Mr. Bates is responsible for many strengthened wrists out there (from stamping and re-stamping so many documents, of course). But after computers were buying groceries, allowing chat across the globe, opening the garage door and siphoning hard earned fortunes to off shore virtual casinos in St. Bards, someone got smart and made a Bates labeling machine. No great joke there, but the machine redeemed itself in that one could simply print out a large sheet of incremented alpha-numeric for placement on each document (or each page of each document -that debate will never end) sticky labels. The adhesive on these labels is cool in that it is strong enough to stay put on the document but giving enough to allow itself to carefully be peeled off and refastened to another document when the inevitable mis numbering occurs.

Next came image viewing software which could virtually stamp a "Bates" number on the image being viewed and the user could opt to print with or without the overlay. This virtual Bates Number enabled the user to dictate the color, size, positioning and font of the overlay. No peeling, no stamping, no blue faces. Mr. Bates would be rolling in his grave.

Today, now, ahora miasma, pronto we've got EDD tagging. Fios, for example, is able to create a FENS (Fios Electronic Numbering System) number which assigns a unique number to each electronic document AND at the user's option can further create a Bates overlay on the html rendition of the electronic document as it is displayed over the web via the Prevail application.

Now the big issue is Bates "gaps". Contrary to popular lore, this does not refer to Mr. Bates bad dental work. If I am the producing party and agree to produce my 100 documents but pull the six privileged, if my Bates schematic is 000001, 000002, 0000003 and I pull out them magical six, the gaps will show clearly and the other side will be tipped off as to how much of the loot I'm sneaking into Grandpa's stash box.

"Well, isn't that special? The defense kept six for themselves.... Unleash the hounds... Fire up the motion to compel and get the 30(b)(6) deaf. Lined up! We're going after them magnificent six!"

Not so fast, buddy. New technologies such as those found in Summation and Concordance allow for the renumbering of "production Bates subsets" which effectively recount the produced documents in sequence and don't reveal any gaps. The poker face of Johnny Chen.

But what, then, happens when a different production set with a different schematic goes out to various co-defendants? Well, that means various production "sub sets" exist but there is no uniformity of numbering. If you are still with me, I wish I sat next to you in Mr. Collier's trigonometry class. Copying off of Martin Billings only lead to my having to repeat algebra in Mr. Miller's class in my Senior year... but I digress.

OK, I get it but how can one keep track of all of these different Bates schemes? Cross reference my dear... simple cross reference. Today's litigation database should be able to display a document and then display the paper Bates, the electronic number (FENS) and the various sub-set Bates number schemes. That way, counsel can say this smoking gun is "master Bates" (cough, cough) ABA1254 and FENS number rx4765 and sub set to co-defendant one AX83746 and sub set to co-defendant two knows this document as DFC39438 etc.. .

The more things change the more they stay the same... but they just get a lot more complicated as their efficiencies grow exponentially. Damn it, give me back my big Bates stamping steel wrist buster.

Norman, is that you?

After the Tone...

2003-11-24T18:02:00.000-08:00

After the Tone, You Will Enter...The Next Frontier

OK, so we've successfully figured out how to discover the elusive e-mail, hidden excel spreadsheet and buried word processing document. We can yank out its metadata, extract its attachments in a method reminiscent of the Spanish Inquisition, view its interiors in a way that would make Paris Hilton blush. Uh huh, we can categorize these little fellas by relevance, privilege, production sub-set etc.... If the little bugger just doesn't want to budge, we can call in the forensic surgeons who can methodically and with great precision dissect each little sector, bit and byte of the stubborn e-data. Yep, we've whipped that piece of the puzzle into shape. We rule the e-data so now what's left to tackle?

Video Synchronized Depositions? Old hat.
Courtroom graphics? Paleeeeze! Can you say Christopher Darden circa 1994?
Hey, hows abouts imaging of paper? Like, the kid next door with the X-Box is already bored with imaging.

So what then?

Get this....

Digital voicemail - the uncharted frontier. Even a Vulcan like Spock can't quite grasp this one yet.

The digital voice mail is the future of automated electronic litigation support. Think about it. If that smoking gun memo wasn't put into the word processor or shot off through Outlook and wasn't scribbled on a piece of paper that found its way into the filing cabinet, then where oh where could that damning communication live? Have you checked your messages today, pal?

As you probably are aware, voice mail today is a complex beast. Long gone are the days when we would rewind the cassette and record over our last three months of messages from spiteful ex girlfriends and United Way contribution solicitations. Today's voice mail is digital. The message is left, it is forwarded, stored, categorized, backed up onto servers and possibly even sent to text pagers.

What kinds of beasts live on these digital voice recordings? Well, if you look at some of the cases out there that have turned on voice mail messages, them fish are lunkers.

I'm not talking about the 911 recording that snagged so many insipid evildoers trying to create a diversion. That stuff has been on the Discovery Channel for years now... I'm talking about the:

Six million dollar settlement when a stock broker was recording dispensing some "very timely" investment tips to his buddy via his buddy's office vm.

Thirty-five million dollar patent infringement settlement when CFO and new employee just snatched away from the competition were discussing the possibility that new employee may have brought with him some "interesting source code."

A defense verdict when the plaintiff made an admission against interest on the voice mail of the defendant which completely negated the plaintiff's negligence cause of action.

The list goes on...

So you're probably thinking that this is all dandy, right?

Not quite so.

Voice mail discovery has its own set of problems. Principal is the fact that most digital voice messages are not "searchable." Granted, some very infant technologies exist which allow for sound matching querying but this field is at a pre TV Pong stage in an era of virtual reality Ninendo.

The hard truth remains that some unlucky human being must listen... yes actually listen to ALL of the captured digital voice data to try to capture that golden snippet of sound.

What about privilege?

Unfortunately, voice mail messages usually don't start like this:

"Hi Bill, this is Sally your attorney with whom you have an ongonig confidential and privileged relationship... let me tell you something that will be of extreme importance to the third prong of your defense."

Ain't that easy folks. It will take a specially trained ear to deduce who lives behind the voice. Is this the voice of the attorney? Sure about that? How can you be sure? If you can prove you are right, then maybe the court will exclude this evidence based on privilege. Is that the doctor calling the patient? Sure? Well if you can prove it then... you get the picture.

Further, what if the client speaks Mandarin or Tagalog? Who are we going to get to screen and evaluate those tapes?

These issues are just a few of many to ponder in an area that we as litigation support professionals and nerds will be hearing much, much more about.

Forced to Study EDD?

2003-11-23T23:55:00.000-08:00

Forced To Study EDD?

Although only partially delusional, I have come to the stark realization that not everyone is an EDD academic junkie like myself. When I speak at firms, the majority seem to be engaged in 50's Happy Days style but there is always the sleepy person in the back or the dude with the Game Boy on mute. These are the folks that prefer to learn about Discovery on the cable channel bearing its name and not in a CLE session. I call them the Fonzies.

Well, it appears that there are enough Fonzies in my home state of California to cause a bit of a stir. These folks just ain't gonna take it anymore. They are challenging Californians CLE requirements on the basis of constitutionality - or lack thereof. Heyyyyyy.

Unless you've been living under a rock or hanging out with Potsie, you know that attorneys throughout the country are charged with mandatory education known as Continuing Legal Education (or CLE for short). Attorneys are expected to attend a prescribed number of hours of CLE courses during a set statutory period. Hours spent munching on pizza in large conference rooms or scribbling notes on Hilton memo pads are audited at the end of each period (period cycles are determined by last name in most states and Bar Number sequence in others) and those that have skipped class to ride their motorcycles are sent to a very big detention class where they have to put their head down on their desk and possibly forfeit their milk card and, oh yeah, Bar card at that. Not pretty stuff. Worse than having to fix the broken Hot Rod with Ralph Mouth (episode 18).

There are a few out here in California who vowed to never sit in a class after they wrote the last sentence in their Wills and Trusts Examination Bluebook while 3L's. In 1999, these Fonzies were surprisingly successful in the matter of Warden v. State Bar to do the impossible - they got CLE's declared unconstitutional Lot's of two-thumbs up action happenin' after that victory.

Unfortunately for the Fonzies, the matter was overturned and CLE's came back in 2001. It brought the Fonzies a pain that had not been experienced since the time Joni left to date Spike and the juke box at Arnold's broke down. (episode 24).

That same year, Senate Bill 144 was enacted as sort of a compromise between the bookworms and the class cutters. The originally mandated 36 hours of CLE in a three year period was knocked down to 25 hours. That is still quite a coup d'etat for the Fonzies out there. They got to cruise to Arnold's Diner on their motorcycles at 1:00 instead of 3:00 when the old school bell rang. The kids from Lincoln High were headed back to class when the cool dudes from Jefferson showed up. Double finger, cheerleader grabbing, snap. The Richie Cunninghams however, were less than amused.

In addition to substance abuse, elimination of bias and ethics, California attorneys must learn about law practice management. That's where CLE and EDD marry to produce CLEDD.

Even today's Fonzies may concede that CLEDD credits are a must for any litigator. Look, you gotta sit through this stuff anyways, right? Well why not learn how to collect the smoking gun e-mail from the Defendant (or flag it and try to exclude it based on some privilege if you represent the Defendant)? It's either that or a two hour session on IRS implications on the revocable generation skipping trust. Not cool.

Not surprisingly, the best attended classes at the California Section Education Institute (a CLE drag race at Lookout Point, if you will) deal with litigation technology. The classes that I routinely give with Russ Jackman from the Cal. Bar Law Practice Management and Technology Section sell out in hours at times (could it be the black leather jacket?) The next most popular sessions are on the topics of settlement disputes and then comes ADR. Sorry Richie, chemistry doesn't make the top ten list.

I hear that the Richies and the Fonzies have supercharged their Chevy's and have brought these CLE issues to a state near you. What is your state's CLE requirement? What programs would you like to see offered at your Bar Convention? Would you vote to eliminate CLE altogether?

I will be helping out the Richies and the Fonzies of Cincinnati next month as I speak at a two hour CLE on the topic of, you guessed it, electronic evidence in litigation at the Cincinnati Bar on Friday the 19th. Check it out if you can. There's a great malt shop nearby. Also, those West Coast revellers can catch me on the 11th in San Francisco at the Hyatt Regency through Career Coaches

In the mean time, don't forget to tip Joanie when at Arnold's and keep your CLE's current while considering using CLEDD to do the trick. Cool?

Been Away

2003-11-21T00:07:00.000-08:00

Been Away

It is nice to be missed. Thanks so much for worrying about me during my brief absence. I am flattered by the messages so many of you have sent me to "come back home" to Blogville.

I'd like to thank the fine folks in the Pacific Northwest - Heller, Ehrman in Seattle and Lane, Powell, Spears and Lubersky (no relation, believe it or not... my surname is quite uncommon and for years attorneys would wish me a safe trip back to Portland, Oregon after a trial in SF) in Portland and Seattle. The folks at Lane, Powell packed the room with over a hundred savvy e-litigators. What wonderful company! I also want to send a shout out to the great guys and gals at Miller, Nash for having me in as well. Am I missing a firm or two... I fear that I am.

Finally, I wanted to thank the large group that attended my web seminar about the top ten cases controlling electronic discovery issues. Don't forget to sign back on December 3rd for the next Webcast (Top Ten EDD Procedural Faux Paxs).

Oh yeah, if you or your firm have not yet personally been "Alextronicuted" throw your hairdryer in your bathtub and shoot me a message and I'll see if I can get out to you.

More later...

-Alex

Try to Guess When this Change Was Made?

2003-11-13T20:50:00.000-08:00

The Drafting Committee of the Federal Rules of Civil Procedure Made its First Major Revision to FRCP 34 as follows:

"The inclusive description of "documents" is revised to accord with the changing technology. It makes clear that Rule 34 applies to electronic data compilations from which information can be obtained only with the use of detection devices, and that when the data can as a practical matter be made usable by the discovery party only through respondent's devices, respondent may be required to use his devices to translate the data into usable form."

Any guesses when this change to the Federal Rules accommodating technology took place?

Take a guess:

A. 1984
B. 1970
C. 1990
D. 1993
E. 2001

If you guessed that this change took place in the past thirty years, you'd be wrong! The amendment took effect in 1970! B. is the correct answer.

And you thought that the legislature was just beginning to realize the importance of digital discovery! Huh!

Lawyers and Not So Lucky Fish

2003-11-13T06:29:00.000-08:00

After passing the bar and trying the big firm thing out for a while, I decided that I needed to test my father's theory. My father always told me that as far back as he could trace our heritage... back to the days when great, great, great Grandpa Lubarsky left the Shtetl near Lvov, Poland to join Levi Strauss and a few other ragged Ashkenazi expatriates venturing to California on the heels of the gold rush, no Lubarsky ever worked for another man. "It's in our genes," my father insisted, "we just can't do it."

Rather than trying in vain to fight the forces of DNA, I left the construction defect litigation department at the large San Franciscan law firm and sought for a place to hang my shingle.

Being the miser that I am, I instinctively avoided traditional office space with buzzing halogen overheads. My old high school friend, Dung Nguyen, had just opened up a travel agency in the heart of the East San Jose, California’s immense Vietnamese community - the second largest Vietnamese neighborhood outside of Asia next only to that of Westminster in Southern California. Dung insisted that I commission his friend to paint a sign in Vietnamese and run a few ads in the local ethnic newspaper. "As a first generation Vietnamese, I can guarantee you that you will thrive in this neighborhood," he would tell me.

"But I don't speak a word of Vietnamese, Dung" I countered.

"That's why you will be so successful out here," he explained, "Us Vietnamese don't trust our own when it comes to lawyering. We want to hire the white Jews because we think that they know how to work the system." Although the logic escaped me, I blindly followed his lead. Dung had a sixth sense that never seemed to fail him. He launched what is reported to be the first internet based travel agency before I had my first Prodigy password.

As usual, Dung was right. Within a month I was inundated with Vietnamese clients. Dung would help me with the interpretation and I would borrow his Vietnamese speaking agents to work the front desk and answer the phone. I learned enough Vietnamese to say, "I do not speak Vietnamese, come back or call back later." The plan was working.

Then came the Asian Arowana.

The Asian Arowana is the Vietnamese "good luck fish". The Vietnamese are steadfast in their conviction that those who open a new business without placing an Asian Arowana in an aquarium within the first month of business are destined for unparalleled financial disaster that would make the Great Flood look like a the drizzle of Portland in March. It took me a while to figure out why all of my Vietnamese clients would ask "where's the fish?" before they would inquire about the status of their personal injury case or generation skipping trusts.

After weeks of being labeled "the fishless luat su" ("lawyer" in Vietnamese) I looked into one of these creatures if only to avoid the subject of marine life during every new client intake consultation. The local Asian aquarium sold these grotesque looking fish. They started in the neighborhood of nine-hundred dollars for a silver creature that looked like a cross between a sardine, an eel and Uma Thurman. There was no way I was going to drop nine bills on one of them ugly suckers. Superstitions be damned!

One day I complained to Dung that I had thought business was slowing down. "Maybe it is because I still don't know how to give out my phone number in Vietnamese," I guessed. Dung was adamant that it was my fish free office that was the source of my insecurity. "How can you expect to do well when you still don't have an Arowana?" he would reply.

The next day I walked in and there was the ugliest looking nine-hundred dollar fish I'd ever seen. It glared at me as it swam in circles amidst a large tank next to my Shepard's Citators and Witkin Treatises. "You're not going to be able to handle the onslaught of business now" said Dung - still ever the wise sage and giver of fishy gifts.

Lo and behold that ugly fish did its job. I was settling whiplash cases left and right and processing Amerasian Legalization Petitions with the INS at record rates. People were lining up for my simple wills and I couldn't keep pumping out the Chapter 7 filings fast enough.

Life was good and I owed it all to a talisman with dorsal fins.

Then one of my Vietnamese clients, Huu Minh Tran, hit pay dirt. The insurance agency accepted our inflated offer and he was cut the biggest settlement check anyone had seen this side of Saigon. He was so happy with me, he bought me a large bottle of Meukow Cognac and a live turtle. I got the cognac part but a turtle? What gives?

"It's so that the good luck fish won't be lonely" he explained as he shook the green critter from a plastic bag into the aquarium. "This will double your luck as you have doubled mine" he said in between sips of a tapioca pearl iced tea and drags of his Marlboro.

I actually grew attached to the turtle almost immediately. I named him Fluffy.

There was one big problem, Fluffy was amphibious but he was stuck in a tank with no shore in sight. I couldn't stand to see the little guy constantly swimming day after day with no respite. I was losing sleep over it. I would have nightmares where I would be treading water in a vast sea along side a sinking schooner.

Finally, I had an idea, I could find something that floats and perhaps Fluffy would perch himself happily on his little island. I tried a Frisbee, but Fluffy was too heavy. I tried a broken two by four, but he couldn't seem to climb onto it. Then as I searched around the office, I found some Styrofoam packing material inside of a box that used to house a Sony computer monitor. Perfect!

I placed a slab of the Styrofoam in the aquarium and Fluffy took right to it. I had never seen a more content turtle since the Teenage Ninja series.

The next day I walked into the office and Dung's face was pale white. "What's wrong?" I asked Dung. He was speechless, he stepped aside to reveal the fish tank which looked as if it had been replaced with skim milk. The Styrofoam had dissolved into the water and the lucky fish was dead. Fortunately, however, Fluffy was swimming around blissfully.

"This is a very bad omen," said Dung. He ran out of the office mumbling something about how he was going to pick up a Vietnamese sandwich. For the first time since he opened his business, he never returned that day.

My 4:00 appointment came in, saw me trying to net the dead Asian Arowana from the aquarium and promptly asked that I substitute out of his case. My 5:00 took one peek at the scene of the crime and coolly walked out of the office. The word hit the street fast. The Jewish lawyer killed his Vietnamese lucky fish. My clients fled faster than the American GI’s during the fall of Saigon.

Now I've heard of attorneys that have overcome natural disasters that have leveled their offices. I've seen them bounce back after the insolvency of their key clients... but I never, never heard of an attorney that could get past the complicit demise of their lucky fish.

Within two months, I was working as an account representative at Lexis/Nexis and my office was subleased to a Karaoke club.

Fast forward to today - a decade later (yesterday, actually). I am co-sponsoring a litigation support event in San Francisco on behalf of Fios with my former co-workers at Summation. Among a host of other duties, I was charged with handing out name tags. One name tag was for a Dung Bui Trinh, Chief County Counsel of Santa Clara County. So, I give Dung his name tag and explain that I once shared an office in Santa Clara County with a Vietnamese friend also named Dung and that I practiced law in that area for a bit.

It turns out that Mr. Bui Trinh and I knew a lot of the same people in the Vietnamese community back in my old East San Jose stomping grounds. We started chatting about how e-discovery could really transform the county's outdated litigation support strategies. Dung began to tell me of how he is currently defending a large wrongful death suit against the county and how he needed some assistance reviewing the hard drives and CD's that are being requested by opposing counsel for relevance and privilege and... and... he froze, twitched and a solemn glare stretched across his face... "you're not that attorney that killed his lucky fish are you?"

Where else should I look?

2003-11-12T00:53:00.000-08:00

A Top Ten List of Hard to Find Data Hideouts

A few of the folks that attended my "webinar" asked me if I could create a checklist of sorts that could be used by the litigator who endeavors to uncover every shred of e-data that could house that proverbial smoking gun that may be used by or against his or her client.

Well, although, I do not submit that the following list is by any means comprehensive in scope, I will highlight a few of the "behind the ears" areas where too few data harvesting professionals remember to scrub. (I am assuming that the data harvester will request production of the "commonplace" sources of electronic evidence such as hard drives, backup tapes, removable media, file servers etc...).

1. Don't forget to ask for "mirror disks" these are not necessarily backup disks but they are servers with "mirror images" that are supposed to take over if the counterpart server dies. I've heard that counsel have found data on these mirrors when their counterpart was not produced or corrupted.

2. Thumb drives. Defendants are carrying around their smoking guns on their key chains these days. These little doo-dads are expected to store a gig of data by next year.

3. Digital film. You'd be surprised what may not be in the hard drive but on the digital video recorder.

4. Software itself. If the data cannot be accessed, you may need to examine the types of software used to create the data in question. What program is used? What is the version or release number of that program? What OS was the program written on? Was the application customized in any way?

5. Source code "escrows." Hard to explain, just ask for it if you find yourself in any trade secret type of litigation.

6. Home computers. Don't forget that almost half of all corporations today promote a certain amount of home office computing.

7. PDA's and Blackberrys. Data files stored in Personal Digital Assistants can unleash a treasure trove.

8. Printer memory. The printer itself may have captured the smoking gun, even if the computer is nowhere to be found.

9. PCMCIA memory cards. Most people are unaware that these cards can actually store evidence.

10. Cell phones. Believe it or not, more than one large piece of litigation has turned on a text message sent and received between two cellular phones.

The Birth of a Blogger

2003-11-12T00:22:00.000-08:00

If I had dared call Richard Theissen, the undisputed king of the second grade sand box, a" blogger", he surely would have kicked my behind. Well, he kicked my behind anyhow nearly every day until I befriended Charles Schofield in the fourth grade. You see, Charles was about as big as Richard and somewhat fearless. Although everything wasn't rosy for Charles. Charles' mom was a health food nut and he always came to school with a frown and Brussels sprouts. If he was lucky, he ate a fruit roll for dessert.

My mom bought pop tarts.

The equation was simple, pop tarts for Charles and Richard would go another day without making me eat sand. It was the best deal going since I traded my brother's prized Rick Barry basketball card for Todd Brenneck's entire Wacky Pack collection while my brother was away at camp.

Now, I am reminded of those bygone days where I could find shelter in the shadow of Charles for a pack of frosted blueberry or s'mores flavored pop tarts. The folks at Fios have graciously sponsored my very own Blog (they came up with the name, not me - I have to set the record straight on that one.) I guess it will slowly grow on me. Be that as it may, I have not been exposed to a more efficient and fun vehicle for reaching so many fellow e-discoveryheads out there. This will be devilishly fun.

Without the support and encouragement of key folks at Fios, I would continue to struggle with my complex as a hopelessly nonblogworthy being. Today, blogger stardom seems to be within my grasp. Someday, my name will shine in binary code (or at least it will be formatted for export as a metadata field in a litigation support application). If only Richard Theissen could see me now.

I want to thank the many individuals that attended my "webinar" today. I appreciate all of the complimentary messages and calls I've been receiving. I hope to see y'all back on Thursday the 20th at 10 am (PST) when we will go over the top ten cases defining electronic discovery.

- Alex(tronic?) Lubarsky, LL.M, Esq.