e-Discovery Insights

Tips & Tricks: Internet Archive: Wayback Machine

I'm starting a new 'Tips & Tricks' category today. 
Whenever I come across a resource that I think will be useful to my readers, I'll post it.

First things first...many of you will recognize Mr. Peabody and His Boy Sherman, who were part of the Rocky & Bullwinkle Show.

Mr. Peabody was the purveyor of the original 'WABAC Machine', which made it possible for he and Sherman to go back in time and visit the past.

Now, Internet Archive has the 'Wayback Machine', which makes it possible for us to do the same.

To put it in their own words, the Wayback Machine allows us to "browse through 85 billion web pages archived from 1996 to a few months ago".

This has enormous value to those of us who do forensic e-discovery.  Give it a try and I think you'll agree.

Quite!

Anticipation...Anticipa-a-tion...

"Imagination is more important than knowledge."

— Albert Einstein

Anticipation.  Carly Simon sang the song.  Heinz Ketchup made it famous.  It's the most important thing you need to develop.

What do I mean by that?  Success in e-discovery relies on that old Boy Scout motto - be prepared.  It's easy to do it when you know what to be prepared about; but what about when you don't?

Work with me here...this will all make sense, I promise...

In law, you succeed or fail not only based on your ability to build a strong case for your client, but also by anticipating the moves your adversaries will make, preferably before they make them (hence the 'anticipation' part), then responding accordingly.

In IT, you succeed or fail not only based on your ability to manage current technology, but also by anticipating the future direction and growth of that technology - and how to protect against a range of caveats from minor outages to catastrophic failures.

None of these processes is easy to do.  It's not something that can be taught - but it is something that can be developed with preparation, practice and experience.

Einstein had it right, but I would temper his words a bit.  Like it or not, where e-discovery is concerned, there's no substitute for knowledge.  If you don't know the law, lead cases and/or the technology - and how they work together - you're not going to succeed.  It's as simple as that.

How will you make an educated guess without the education?

Obama's CrackBerry Addiction: e-Discovery Intervention?

To My Readers:  No matter what your political leanings may be, today is an example of what's great about the United States; the peaceful, seamless transfer of power.  So, in honor of the inauguration, I felt it appropriate to jot down some observances I've made lately regarding the Presidency, e-evidence, privilege...and why I think they've got it all wrong...

e-Discovery Insights:  Keep this on the down-low.  I have it on good authority that Barack Obama's going to be in the nation's capitol on Tuesday.  Let's all plan to get him in a room and confront him on this whole 'BlackBerry' problem.

Readers:  What's the big deal?  He's a thoughtful guy.  He's responsible.  He can control himself.  Why are all of these lawyers making such a big deal out of this?

e-Discovery Insights:  Because PDAs are subject to subpoena, that's why.

What's the difference between your PDA and Obama's BlackBerry?  Absolutely nothing.  You have the same exposure he does!  At least he might be able to invoke Executive Privilege in certain circumstances; meanwhile, you'll be hoping for 'run-of-the-mill' privilege.

Now comes word the White House staff has been told they may not use instant messaging (IM).  Check out this quote - contained in the above link - from Reginald Brown, a former associate White House counsel for President Bush:

"These lawyers — [incoming White House Counsel] Greg Craig in particular — come out of a law firm environment and knows how onerous e-discovery has been for clients," (italics/bold added).

I'm feeling sooooooooo cool with my career choices right now...

e-DRiP, e-DRiP, e-DRiP: Who, What, When, Where & Why?

DRP and e-DRP; what are they and what's the difference?  Essentially, they're one and the same; a Discovery Response Plan (Electronic or otherwise).

I prefer to bifurcate readiness and response into separate groups, although some consider them as a single team/process.  I've covered litigation readiness several times and for the purposes of this post, I'll assume that you've followed my prior recommendations to the letter and have a readiness team in place (I'm allowed to assume that because it's my blog).

That was the easy part. 

Now, the alarm bell has sounded - a litigation hold has been ordered in response to - or in anticipation of - litigation.  What do you do next?  There are a lot of lists out there, but actually, you can envision the path by thinking in terms of 'who, what, when, where and why'?

WHO? - THE RESPONSE TEAM

You already have the "readiness" team - now you need the "response" team.  WHO will be on it?  Maybe it'll be the same people, maybe not, but what you do at the outset will establish the tone for everything that follows thereafter.  You'll need your technology and legal resources to come together at this point and take care to make sure everybody is clear about their specific role.  WHO will document the procedures?  WHO will serve as your expert witness?

I Have some Good News & some Bad News...

*** My n/w and phones are out, so I'm coming to you live from the Redondo Beach Public Library, courtesy of their free wireless service...THANK YOU!!! ***

Why did the goose cross the road?  Let's take a gander...

I.T. to the Attorneys and Management:  "Great news!  We can leverage our existing ESI backup and/or disaster recovery systems to solve many of our e-discovery challenges and simultaneously cut costs!"

The Attorneys to I.T. and Management:  "Terrible news!  You can leverage your existing ESI backup and/or disaster recovery systems to solve many of your e-discovery challenges and simultaneously cut costs!"

Why both?  Sauce for the goose is good for the gander - anything that makes it easier for you to access ESI, also makes it easier for your adversary.  But is it that simple?

Key phrases to keep in mind; 'accessible', 'not reasonably accessible', 'inaccessible' and 'cost-shifting'.  The Federal rule states:

“A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C).” Fed.R.Civ.P. 26(b)(2)(B), italics added.

Hot Potato - the e-Discovery Game!

Recently, Kroll Ontrack released their 2nd Annual ESI Trends Report (Full disclosure:  I'm a Registered Partner with Kroll.  In order to procure a copy of the report, they require you to provide some basic information).

<--- Uh-oh...he doesn't look very happy...we can glean two things from this:

1)  He works in IT, and
2)  He just read page 18 of the report

What caught my attention is the growing trend of directing more responsibility for developing strategy - and the corresponding enforcement of policy - toward the Technology department while steering it away from In-House Counsel and/or the Executive Suite.

This shifting trend forestalls major implications within the enterprise, especially when one considers the difference between the statistics for 2007 vs. 2008.  It doubled in the US alone!  This begs the more pressing question, at least in my mind; what about 2009?

Sisterhood of the Traveling Red-Leather Pants

Note:  This post may end my chances of finding gainful employment for the next several years...

I'm going a little off the reservation today.  Post after post, I've repeated various mantras:

• This is a team undertaking
• You've got to sell it to management
• Everybody needs to be on the same page
• Get everyone into a room

Great.  So I've told you what needs to be done.  This begs the question, how do you do it?  Well, someone is going to have to make the 'sale', and here's a good starting point.  The Times Online has an excellent article, "How to give a great presentation".  It provides a framework of ten useful tips to deliver your message clearly and concisely and helps you keep the attention of your audience.

Tip #7, 'Throw in surprises', brought back one of my favorite memories.  In 1994, I was consulting at Hughes Space and Communications.  The group I was working with was outsourced to EDS.  Now, this was an engineering group - jeans and informal shirts were commonplace.  EDS is a Texas firm with a very 'white collar' approach.  Needless to say, these philosophies didn't mix very well.  EDS' management began implementing formal rules that the Hughes folks weren't used to; one of which was the "No Denim" policy.  Anywhere else, this probably wouldn't have been a big deal, but this was Southern California in the 1990s - it had a serious downward effect on morale.

Drum Roll...New Blogroll!

It's amazing what one can accomplish while simultaneously watching college Bowl games...

I wanted to draw your attention to my new blogroll, which sits on the right sidebar.  Over the past several years, I've consulted many e-discovery resources and these are among my favorites.  I highly encourage you to check them out.  The topic is so broad that nobody can know everything, and having a body of resources to consult gives all of us a great advantage.

For anyone who has been reading my posts, you've seen that my goal is to deliver a serious message with a little bit of humor.  It shouldn't be construed to mean that I don't take the subject very seriously.  This is a very stressful discipline and my sense of humor has always kept me going.

Also, there was no need for me to re-invent the wheel.  As you will see if you visit these blogs, there are some very impressive, talented people out there who are making all of our jobs easier. 

I decided that my blog was not going to be a repeat of what others are already doing so well; I write from my own perspective, of one who sits in those rooms and conducts those meetings - those of us who are tasked with 'getting it done', if you will.

Those who share that responsibility will likely agree with my observation that theory is usually much easier than practice, e.g., in theory, the boss funds your project, in practice, maybe not.

I suppose this might be the e-discovery version of Dilbert, except I have no artistic talent (my readers will ultimately judge whether I have any writing talent, either).  Although I will say that one of my best friends is a cartoonist and I'm considering having him put some pictures to my words this year.

2009 presents the latest set of challenges.  Let's hit the ground running!