e-Discovery Insights

Dancing 'Geek to Geek' - Judges' Panel Weighs in on California AB 5, 'Train Wrecks' and the 'Mayflower'

If this keeps up, I'm going to rename this site the 'Hot Potato' blog...

I've posted ad nauseam about how parties want to rid themselves of the e-discovery hot potato, but throwing it to the Judge?  Not so fast, says the Hon. Andrew J. Wistrich.  You can try, but he won't play the game!  That was one of the morsels from the Judges' Panel, which also included the Hon. Maureen Duffy-Lewis and the Hon. Carl J. West.

I like Judges.  They're always more candid than I expect, and as some of you have probably figured out from my prior writing, I like candor.  Don't beat around the bush, don't use fancy language, just tell me what you mean!  I certainly got a lot of that from this panel.  It was the best 75 minutes a person interested/involved in e-discovery could spend, because it tells us where things are headed in the minds of the Judges - and ultimately, they're the ones we are speaking to, not only our adversaries.

What was the most important concern to the panel?  Cost!

Judge West lead off the discussion and to my delight, he immediately weighed in on California AB 5, noting the pending March 3rd hearing and saying he expects the Bill to be adopted either by late this quarter or the next.  My take?  California finally reached a budget deal, so we'll see if that development facilitates the passage of AB 5.

Judge West was concerned about two seemingly-contradictory provisions in the Bill; one, which discusses imposition of sanctions, and the other, which defines Safe Harbor.  He noted there were several exceptions to Safe Harbor that might incur sanctions.  That reminded me of law school.  As my professor used to constantly warn, "Everyone knows the rule, but they'll test you on your knowledge of the exceptions to the rule".

He also mentioned that more and more, he's seeing each party provide a technology expert at hearings, and that many times it becomes an 'expert versus expert' issue.  That's when he coined the phrase, credited to another Judge, that the parties should have their respective experts 'dance geek to geek'.  I just want the Judge to know I haven't worn horn-rim glasses since grade school...

Judge Duffy-Lewis spoke next...

WEST LEGALworks - Overview

How did we get into this mess in the first place?  Take a look at the photo I snapped with my Curve.  That's the panelists' table - where they hung out as they rotated in and out of their particular sessions.  Click on it and look at a larger view.  See that 'octopus' on the floor?  One panelist opened his bag to retrieve his business card for me, and a quick peek revealed his version of Noah's Ark...TWO OF EVERYTHING!  What else could I name the photo except, 'MICROCOSM'...

An informal poll revealed that about 2/3 of the attendees were attorneys.  I'm not sure whether to be disappointed in this or not.  It does tell us that attorneys are trying to come up to speed, but I wish I saw more IT people there.  My view is that it's the lack of each groups' understanding of the other that is a big part of the problem.

What I liked about the organization of this conference was that it was a well thought out progression.

THE BIG PICTURE

Day one started with an excellent overview of the various issues we face.  It began with the typical "State of the Industry", which highlighted survey results regarding e-discovery (some of which I've featured here previously).  They then moved on to litigation readiness, project and process management and cost controls, a discussion of the lack of planning, testing and the obvious pain that would result, and finished up with a discussion of ethics.

The highlight was the luncheon with the Judges' Panel.  More on that later...

If you're someone on the cusp, just getting into this process or are a project manager, you got a lot out of day one.  If you're a reader of this blog, you'll know that I've covered the very same things here.

DRILLING DOWN

Day two, a half-day, was the meaty day for me.  Any time someone is discussing Daubert (in California we call it Kelly/Frye), you know this isn't going to be simplistic...

WEST LEGALworks Feb. 26-27, 2009

Just a quick note to let you know I'm attending the conference, "Electronic Discovery and Records Retention: Beyond Faith Based Electronic Discovery" at the Four Seasons Hotel in Beverly Hills, CA today and tomorrow.  Hope to run into some of you there!  I'll post my observations...

UPDATE - SATURDAY, FEB. 28, 2009

Well, we can sure tell I'm a blogger and not a reporter or "Twitterer".  If I were, I'd have updated you on the fly.  I was there to learn - and most importantly, to make sure that what I'm relaying to you is a true and accurate representation of what I see out in the world.  Good news.  It is.  Having observed all of the people tapping away at laptops and PDAs, I guess I'm still 'old school'.  I believe the speakers deserve my attention - unless of course there's something critical that must be handled immediately - then I'm on my BlackBerry like the rest of them.  But, I paid attention to the sessions and took notes by hand.  This was my practice in law school also.  It makes me focus better.

FULL DISCLOSURE

Observations on Off-Site, On-Site, Outsourcing & Ownership

Seems to me there are a lot of companies selling data & e-discovery services with the attitude of, "Place your data responsibilities with us, then sleep well at night".  Hardware and software are offered in-house, SaaS, appliance, off-site...anything you want can be provided.

My personal opinion; before you start relinquishing responsibility to others, keep one thing in mind - it won't matter.  You'll ultimately be responsible in the eyes of the law.

I blogged about this before in my 'Hot Potato' post, among others.  The instinctive thing to do - especially with the added complexity of the e-discovery rules hanging over you - is to contract out and make it someone else's problem.  Heck, I get that.  I'm a Contractor!  Only thing is, in this case...it won't work.  Good-faith won't be enough.

I'm not living in a fantasy world.  Some companies have so much data - including ones I've consulted with - it would be virtually impossible to manage in-house.  If I said "Don't do it!" I would expect you to laugh me out of the room (which would be difficult, since none of you know where my 'room' is, exactly).  All I'm suggesting is, before you consider outsourcing data management; whether it be on-site, off-site or a combination of both - or even if you've already done so - think about all the risks, especially in these difficult economic times.  Do you have a contingency plan in place?

These are the items I'd be including in a checklist (order of preference is up to you):

e-Discovery California: AB 5: Now Hear This!

The latest on California AB 5 is that a hearing date has been set for March 3rd, 2009.

The 'Missile Command Act'? No, the 'Internet Safety Act'!

I think my career is about to resemble 'Missile Command'.  It was all the rage in the 1980s.  Atari still exists and I was surprised to see that they're still selling it.

The name of the game is to intercept falling missiles (which have an annoying tendency to split off in multiple directions) with silos on the ground (hint; we're the silos).

John Cornyn (R) has introduced the "Internet Stopping Adults Facilitating the Exploitation of Today's Youth Act", or 'Internet Safety Act' (for those of us who can't fit all that in a catchy blog title).  This bill is actually a regurgitation of a bill introduced in 2006.  I think you get the gist from the bill's title, but here's the fine print:

"A provider of an electronic communication service or remote computing service shall retain for a period of at least two years all records or other information pertaining to the identity of a user of a temporarily assigned network address the service assigns to that user."

Anybody besides me thinking about the storage/costs required to retain and/or restore these logs?

That's Part I of the headache.  Part II is who would be covered under this bill; essentially anyone who serves wireless using DHCP.  That's right - it includes that little Wi-Fi router you have at home.  Note to those who brought their wireless router home from the store and just plugged it in; you might want to configure the security feature, lest someone nearby connect through it and start looking at child pornography.  Starting to sweat, yet?  Maybe you will after I mention Part III; you might go to jail for up to 10 years.

Here's the really bad news - there's a Part IV...

Two-Face(d)book: Who Owns your Content 'Today'?

I've been mentioning social networking a lot lately...

The latest is a flap between Facebook and their users over who owns the content of their pages.  Facebook quietly modified their Terms of Use policy to state that they own your content.  That didn't go over well with their user community.  Thousands closed their accounts and others actually prepared to sue over the change.  Then, shock-of-all-shocks, Facebook backed down.

It seems to me this is standard practice lately; quietly modify agreements, then wait to see if anyone notices.  People noticed.  But before you crack open the champagne, two important things to consider:

• Facebook left wiggle room as to what they'll do in the future.  To quote from the WSJ article above:

"Because of the feedback we received, we have decided to return to our previous Terms of Use while we resolve the issues that people have raised."  (Italics added)

Resolve 'what', exactly?

• This issue is entirely beside the point because to me, it isn't about who owns the content, it's about who has access to it.

Every day that your information is up on Facebook, it may be available to everybody, everywhere.  Maybe you should swap that champagne for tranquilizers...

e-Discovery California: AB 5: A Little Legislative Love

If you happen to catch the news, you'll see photos of California state legislators sleeping in all-night session this past weekend as they tried to hammer out a budget agreement to stave off insolvency.

Nevertheless, they found time on Valentine's Day to re-refer AB 5 - the California Electronic Discovery Act - to the committee on the judiciary.

Forgive me if you think this information isn't worthy of a post.  It seems to me that my job is to bring you whatever information is available, then let you decide whether it has merit.

e-Discovery LOL: Courtoons

...from my colleague David Mills at Courtoons...

e(rotic)-Discovery Insights: Thoughts on Valentine's Day 'Sexting'

...something to think about while you plunk down twice the usual price for dinner and a dozen red roses...

Although I run the risk of being designated the official 'Schleprock' of Valentine's Day, this seems like the perfect time to remind you that those steamy 'sexts' you intend to exchange with your wife/husband, or girlfriend/boyfriend, or significant other - or your wife/husband, your girlfriend/boyfriend and your significant other - may become public (I admit, that did kinda make me sound like a wet blanket...it's the heavy burden I carry trying to keep you out of trouble).

And please...get a room!