e-Discovery Insights

e-Discovery Resolutions: Law

Best wishes for a safe, healthy and prosperous 2009!

Fellow attorneys, we lost the coin-toss...but think of it this way, by virtue of being 'second', our post ends up 'first', so it's really a lose-win...

Besides, I'm a techie and an attorney - I was gonna win either way...

1.    KNOW WHAT YOU DON'T KNOW

Nobody expects you to be an expert.  Who am I kidding?  Of course they do!  The problem is, an expert on what?  You can learn the law, but in order to be effective, you need to know something about technology (otherwise, you're really going to annoy the techies when you talk to them).  Would it hurt to learn a little bit about how things work?  The resources are available - use them!  Go to IT and ask them to educate you, or educate yourself.

If I can do it, so can you...after all, you've got to know your limitations...

2.    BROADEN YOUR THINKING

This is on the 'Technology' list, too, and for good reason.  Do you know what encompasses ESI at your clients' enterprise?  Where is it?  Do they have access to it?  What if it's on someone's personal equipment?  What if it's on the 'web'?  What about your adversary?  Are they being forthcoming about their ESI?  How will you ascertain that?  Remember, you're not just issuing and answering subpoenas here, you're also looking for exculpatory information on your clients' own systems.  The blade cuts both ways.

e-Discovery Resolutions: Technology

Best wishes for a safe, healthy and prosperous 2009! 

I took a few days off, but found myself pondering what a list of New Year's resolutions for e-discovery professionals might look like.  I tried to make a single list, but as I compiled it I realized that bifurcating it and creating two separate posts - one for law, one for technology - would work better.  How did I decide who went first?  Well, I carefully reviewed the data, factored in the importance of each item, took into account the ego issues that would arise...

...I flipped a coin...Technology won...

    1.    KNOW WHERE YOUR DATA IS

Yes, yes, I know; never end a sentence with a preposition.  In my defense, I don't think that's really a sentence.  If you insist, I'm just going to have to pull a "Winston Churchill" on you (See #1)...

Let's face it, you're running around with a ton of things to do, so nobody actually sits down and draws a map of the enterprise.  And if you're one of the lucky ones who actually has a map, is anyone keeping it up to date?  (What do you mean I can't start a sentence with 'and'?  See #3)...  I can't tell you how many times I've been hired into an operation, asked for a data map and received one that's two years old (Never use 'I' in business writing?  See #2).

    2.    BROADEN YOUR THINKING

What encompasses ESI at your enterprise?  Where is it?  Do you have access to it?  What if it's on someone's personal equipment?  What if it's on the 'web'?  This is a good time to think about all of the places ESI may reside.  Remember, you're not just answering subpoenas here, you're also looking for exculpatory information.  The blade cuts both ways.

e-Discovery California: AB 5 - Electronic Discovery Act

Back in October of this year, I wrote about Governor Schwarzenegger's veto of AB 926 (e-discovery California rules) and humorously predicted, "They'll be Ba-a-a-ck!".  Well, it didn't take long...

Noreen Evans (D-Napa) has introduced AB 5, the "Electronic Discovery Act", which is winding its way through the system.  It's virtually identical to AB 926, but contains an urgency clause, which means that if the Governor signs it, it'll take effect immediately.

Some were of the opinion the issue was dead for a year.  I didn't share that view.  No, I don't have a crystal ball (or a Magic 8-ball, for that matter).  I'm not The Amazing Kreskin - assuming anyone remembers him.  To be honest, my opinion sprang from pure logic.  These rules must be implemented if we're to have any uniformity in California courts.  The only concern to me was how long it would take to enact.

Will the Governor sign the bill?  What does the Magic 8-ball say?

[UPDATE Feb 6, 2009 - There's been further action on AB 5]

Ready, Set, Litigate!

Litigation readiness.  What does that mean?  Sure, I can state clearly that it means you're ready to respond to a litigation hold; maybe "prepared" would be a better word.  What about everything that follows?  How ready are you?

I break it up into five possible scenarios:

1. No lawsuit in sight, but you want to be ready for the future
2. Plaintiff - you sue someone
3. Defendant - someone sues you
4. Internal - Plaintiff and Defendant are within the same organization (e.g. employee suing employer or vice versa)
5. Third Party - you're drawn into a complaint between other parties (e.g. impleader)

How do you get the conversation started when there are so many reasons to put it off?

• "I don't know what the big deal about ESI is."
• "We don't have it in the budget."
• "We don't have time to deal with it right now - try again next cycle."
• "We'll deal with it if and when a problem arises."

Fortunately, most of us recognize that if one waits until an issue arises, it's already too late.  Receiving a subpoena is not an ideal time to find out that you can't comply.  It's also a short-sighted view.  You may need your own ESI to bolster your case, no matter what side of the action you're sitting on.  Perhaps that's the argument to make when attempting to motivate management to act.

I Can't Really go to Jail over this...Can I?

As sanctions mount for those who have run afoul of the new e-discovery rules, debate is raging about criminal liability.  To some, the threat is very real.  They recommend extreme caution.  To others, it's nothing more than a scare tactic.  They say the threat of incurring criminal liability over an e-discovery issue is slim to none. 

Who is right? 

I've neglected to link articles from both sides of the debate.  The reason; it's not my place to criticize the writers - they make very strong arguments, for and against.  It just so happens that, in my opinion, the answer is somewhere in between.  Perhaps the reason many people think that criminal liability is unlikely to attach flows from the possibility that they're not thinking broadly enough.  In other words, they're not taking into account who might be ensnared in the e-discovery net.

The logic works in reverse.  The higher up in the e-discovery food chain you are, the more likely you'll be eaten.  The small fry aren't likely to get themselves in trouble, barring egregious conduct of some sort.  The standard of what would rise to the level of a criminal act may be high - but the liability exists.  So, who should be looking over their shoulder?

The White House (possibly violating the Federal Records Act), A former Broadcom Corporation executive (accused of obstruction of justice) and former Credit Suisse First Boston investment banker Frank Quattrone (also accused of obstruction and witness tampering) who endured a four-year ordeal for encouraging his employees to essentially 'clean up those files'.

e-Mail - Death, Taxes & Send

What do these three things have in common?  They're inevitable.

The ABA Journal published an article about things you should never put in an e-mail.  Of course, they included some other links to bolster the story.  As usual, the article spawned a lot of interesting comments and I was more fascinated with a couple of them than with the story itself.

First, many people couldn't understand how a rational person - who would never write the same thing in an actual letter - would do so in an e-mail.  Second, a few lambasted the authors for providing a method to "evade the law".  Third, and I admit I've used this example, it was suggested that one should never send an e-mail that they wouldn't want their mother to see.  Based on some of the expletive-laced e-mails I've received in my career, I sure wish the senders had run them by their mothers...

There's a reason we have anti-theft devices for our homes and cars.  They're preventative measures.  Not only are they a hindrance, but in some instances, they give people time to think about what they're doing.

If we really want to address where the process breaks down, there's only one place to look; time.  Time to reflect.  Time to calm down.  Time to reason.  In the olden days, someone had to take care to craft a letter.  They had to address the envelope.  They had to put a stamp on it.  Then, they probably had to walk or drive somewhere to put it into a mailbox.  Now, all we have to do is type our stream of consciousness as quickly as we can - limited only by how many wpm we can produce - then press SEND.

I type 70wpm.  If only someone would invent the anti-send device...

e-Discovery Ahead - Watch for Falling Rock!

"Real Men don't ask for Directions."
— Bumper Sticker

No, I'm not being sexist.  Anyone who remembers this classic from the 1980s knows that it spawned several humorous sayings that appeared on bumper stickers, T-shirts, etc.  But this one has a ring of truth to it - and it doesn't apply only to men.  I would modify it somewhat for today's modern technology.  Unfortunately, no one is going to pay good money for a bumper sticker that says, "Real Men and Women don't ask for Clarification."

Peer pressure and group-think can be dangerous at the best of times, but it can be absolutely lethal when e-discovery is involved.  We've all been there.  Big meeting.  Lots of players.  Someone is describing a complex process and a lot of people in the room don't understand, but nobody speaks up.  Understandable.  Who wants to appear ignorant?  Also, some people are gun-shy.  They don't feel comfortable in these situations. Unfortunately, the result is that many leave the meeting and don't really understand what was said.

In our likely scenario, we're going to have highly skilled technology professionals, each with skills their counterparts may or may not understand.  We'll have attorneys, but they'll also be proficient at various areas of the law.  We'll have management, who don't want to have to deal with the issue on a granular level - if they can help it - because that's what they're paying you to do for them.  Oh, and everyone's looking at the clock, hoping to get out by lunch-time.

In a perfect world, everyone will simply cross-pollinate.  We're not in a perfect world.  How are we going to bring everyone up to speed, avoid the potholes and arrive successfully at our destination?

e-Evidence: Legoland or Humpty Dumpty?

Part II of a two-part series.  Part I appeared 12/03/08.

Forgive me - I'm in a mischievous mood today...

PART II - LEGAL RELEVANCE

"All the king's horses and all the king's men couldn't put Humpty together again!"

This is a humorous nursery rhyme from my childhood.  Others, like Ring around the Rosey or London Bridge might have illustrated my point well, but those are missing the most important part; with e-discovery, once the opportunity is lost, it's likely a permanent result.

Let's say you've made it all the way through to this stage,  If that is so, then not only have you located evidence, you've established that it's logically relevant (which in law-speak generally means that the evidence is material to prove or disprove a disputed fact that is of consequence to the action, and has probative value).  That takes care of that, right?

Not so fast.  Now, you have to persuade the court that it's legally relevant to your case; and that means laying a foundation of admissibility.  Your adversary is going to use every tool at his or her disposal to knock out items that exculpate your client.  Did you take care to make sure that all technical aspects have been satisfied?  A paper trail is one thing, but an electronic trail?  Maybe a game of Twister would be easier.

In law school, we had a 'mini-checklist' that would help us remember all the things we had to think about when addressing this type of evidence:

What is Electronic Evidence? Answer: A lot more than you might Think!

Part I of a two-part series.  Part II will appear 12/04/08.

PART I - LOGICAL RELEVANCE

A cardinal rule, known to law students everywhere, was broken.  "When on a break from the bar exam, don't discuss a specific part of it with anyone - and if you absolutely must, ask permission first!"  The reasoning behind this rule; to prevent students from freaking out because inevitably the other student will point out something they themselves missed, thus setting off a chain reaction of worry, panic and distraction.

There I was, on a break from the California Bar Exam, and another student really wanted to discuss the evidence question with me.  We had a pleasant conversation - as pleasant as it could be between two stressed-out bar candidates in the middle of a three-day exam.  We discussed the facts as they pertained to the question and the issue of whether each piece of evidence put before us was authentic.

All was going well until I pointed out the ones that were legit, but weren't admissible in court.  The pallor of my counterpart changed noticeably.  That's when he realized that he'd done a great job analyzing whether each piece of evidence was authentic, but forgot the next step - determining whether each was admissible.

Finding evidence is just the beginning.  If all of your dominoes don't line up properly, it will never be admitted.  The technology gurus have a huge role to play and may not even be aware of it.