e-Discovery Insights

Speaking: Lost in Translation

"Language is the source of misunderstandings."
— Antoine de Saunt-Exupéry

Attorneys.  High-tech professionals.  High-tech professional attorneys.  Management.  Laymen.  Not only do they have to communicate between themselves, they have to communicate with all of the support staff that will handle an EDD issue.

Many cases also involve foreign participants - and, as logic will follow, their data.  Nothing like adding multiple languages to the mix to really complicate matters...

What we got here is a potential failure to communicate.  A potential failure of grandiose proportions.  What steps can be taken to avoid it?

Attorneys follow rules of discovery - electronic or otherwise - from state & federal civil procedure and criminal procedure law.  Procedure is the 'road map' of every case.  It's the nuts & bolts of the legal system - the 'plumbing', if you will..

Technology professionals are tasked with creating a 'map' of their hierarchy in order to identify, preserve and collect ESI.

Management has a vested interest in both groups being excellent cartographers.

Does this cover every contingency?  Who else might we - or our colleagues - be responsible for communicating with about this?

Listening: How a Dog became a Cat & other 'Tails'

Today is Thanksgiving, and aside from wishing you a safe and happy holiday, I thought I'd have a little fun.  Everybody's talking turkey, so let's talk about dogs and cats instead...

"There's a reason we have two ears and one mouth".  That old proverb is admonishing us in a subtle way; listen more and speak less.

Many years ago, someone told me a great story about a design team, tasked with making improvements to a client's dog.  A long narrative follows about how the various team members come up with all sorts of creative ideas about what they can do to accomplish this goal.  To make a long story short, by the time they're done, the dog's design has been improved so much that it's now a cat - a really fantastic cat!

The team is thrilled, and they can't wait to present the results to the client.  But when the client sees the cat, he says, "You've done a great job here, but what I asked for was a better dog."

Testing 1-2-3...Are you 'Really' Ready for a Litigation Request?

Part II of a two-part series.  Part I appeared 11/24/08.

PART II - ESI COLLECTION

I read a lot of of excellent articles, white papers and documents (as do you) which present reasonable, astute and prescient approaches to getting a handle on your company's ESI (electronically stored information).

However, in virtually all of the materials I see, one important element is missing:

TESTING.

Buildings run fire drills. Do you run data recovery drills?

Sounds counterintuitive, doesn't it?  Common sense would tell you that if you're backing up your data, it should be relatively easy to recover it on demand.  After all, the software "tells" you in your morning report that last night's run went fine.  But did it?  Is that all that matters?

Disaster, Recovery and e-Discovery - What You Don't Know CAN Hurt You

Part I of a two-part series.  Part II will appear 11/25/08.

PART I - ESI IDENTIFICATION & PRESERVATION

Perception is reality - or so the saying goes.  With e-discovery, perception cannot be reality.  The divergence of these concepts is illustrated by the following statistics:

When queried, a high percentage of law firms and in-house counsel believe the companies they represent are ready to comply with a litigation request.

Apparently, they didn't ask the IT department.  A dismal percentage of IT managers believe they are ready to comply.

A lot of this obvious disconnect can be attributed to lack of communication between the parties.  However, another major element is what's lost in translation.  Do the attorneys understand how IT accomplishes this task - or the difficulty of achieving it?  Does IT understand what the attorneys are asking of them?  Do both groups understand what is encompassed in the term "ESI" (electronically stored information)?

Lawyers are thinking about the litigation hold.  IT is thinking about incremental, differential and full backups.  Never the twain shall meet.

Money Pot or Money Pit? The 'Proactive vs. Reactive' Debate

Want to re-create the experience of salmon swimming upstream?  Try convincing the higher-ups that making an initial capital outlay to implement highly-efficient technology will benefit them in the long run.

Want to re-create the experience of salmon swimming upstream in a tsunami?  Try doing it in our current economic environment, while IT budgets are being slashed; and the highly-efficient technology you want to implement is a new discipline that almost nobody understands.

I've been making the"proactive" argument my entire career.  Certainly, I always had logic on my side, and lined up all of the metaphors to support my position.  Who would possibly argue against fixing potential leaks before the dam bursts?  "Don't be penny wise and pound foolish!".  "You can pay now or pay a lot more later!" (my brilliantly-usurped line from the Fram oil filter guy).

The problem is, you may win the argument, but still lose the debate.  CIO magazine illustrates this point beautifully.  There are a mass of sinister forces working against you; not the least of which is, to a lot of executives, the IT department is like that not-too-popular uncle they keep in the attic.  A necessary evil.  Their mantra is, "IT should be seen, but not heard".  You end up running into four common issues and one exception:

Back to the Future - Reebok v. Tristar, 1996 (the "Jerry Maguire" case)

*** NOTE - No privileged or proprietary information is contained in this post. ***

My first foray into the realm of e-discovery occurred in early 1997 - when it was still just called "discovery".  I was a Consultant to Sony Pictures Entertainment at the time and Manager of Groupware Services Worldwide, which - unfortunately for me - included responsibility for the company email system.  I was not yet an attorney.

(I have a feeling most of you know where this is going...).

In late, 1996, Reebok Int'l filed suit against Tristar Pictures (at the time a subdivision of SPE) for breach of contract due to the handling of a product placement in the movie, "Jerry Maguire".  Reebok's attorneys issued a subpoena for relevant email correspondence between Tristar representatives who were parties to the negotiations.

Attorneys - Get with the 'Program'

An interesting survey appeared in the September 2008 issue of the American Bar Association Journal.  The subheading states, "Lawyers Slow to Adopt Cutting-Edge Technology".

I took solace in the statistic that only 2% of lawyers maintain a law blog (assuming readers consider this a blawg then I'm certainly ahead of the pack) and only 8% of law firms follow suit, but as a general trend, the data is somewhat troubling.  It's a symptom of a larger illness.

The number-one complaint against attorneys is lack of communication.  I'm not just speaking in terms of what their employees or clients say - it's also the number-one complaint lodged against them with bar associations.

It's bad enough when the subject is one in which an attorney feels comfortable discussing.  But add complex technology to the mix and that's a recipe for disaster.  In the "wild west" days of e-discovery - before it even had a name - one could get away with mistakes.  Now that the rules have been formalized, the path is littered with attorneys - and their clients - who have suffered greatly for their mistakes.

There's an old saying, attributed to Confucius, which states; "He who does not know, and does not know that he does not know, is a fool".  In the e-discovery world, the new saying is, "He who does not know, and does not know that he does not know, will be sanctioned".