e-Discovery Insights

e-Discovery 101: I'm Easy, but I'm not Cheap!

...ok, I'm probably not too easy, either...

Law.com posted this article about cost-effective e-discovery in this time of economic turmoil.  Do I think I've covered most of it on this blog before?  Yes, but it's a good summary.  It also supports what I feel is the real necessity in this - and frankly, most other processes - brain power.

You can take the best software products, hardware, vendors - and anything else you want to toss into the mix, but if the people coordinating and managing them aren't up to the requirements, the entire thing will break down.  This is why I'm not impressed when I go to tech shows and the people selling the products are lawyers.  They may be lawyers, but when I ask them a few questions, it's clear most of them don't know a thing about e-discovery.

You can put the worst driver in the world behind the wheel of a Yugo or a Rolls Royce - neither will enable them to drive in the Indy 500...or on the 405 freeway...

e-Discovery Creates a Moral Dilemma

Every once in a while, life throws you a curve-ball...

One of the things that surprised me when I was in law school was the graphic detail in many of the cases we studied.  To put it mildly, they don't mince words.  Everything is described specifically and deliberately, down to the smallest detail.  Honestly, it's not for the faint of heart.

When I clerked at the Los Angeles County District Attorney's Office during law school, I worked on one case for three years.  It involved the kidnapping and gang-rape of two women by some very unsavory characters.  How unsavory?  Well, the Defendant in my particular case was sentenced to something akin to 500 years in prison (whenever I tell the story, I always follow up with the quip, "Don't worry - he's up for parole in 325 years...")

My boss gave the case to me because I was much older than the other law clerks and they were having trouble dealing with the graphic testimony.  It was difficult for me as well, but I managed.

Now comes another element to e-Discovery that I hadn't considered.  As you know from my writing, I'm firmly concentrating in the area of corporate law.  You might say that criminal law is a hobby - but I don't think one can ever use that term when someone's liberty is at stake.  The fascinating thing about criminal law is the 'mens rea' (guilty mind) aspect.  How do you crack open somebody's mind and show what they were thinking?  Besides, with these cases, even if criminality is ever in question, we're talking 'white-collar' crime, here.  How bad could it be?

And then I was approached regarding a completely different kind of case...

Case Got Your Tongue? Bray, the SEC goes 'Bad' & Brodie gets the 'News'

Sorry I've been missing in action the past few days.  It's good and bad.  The good?  I'm really busy.  The bad?  I have less time to post.

I've decided to start another periodical series on lead e-discovery cases.  We all have access to these resources, but what I'm endeavoring to do is pick out what I think are the ones you need to know.  As well, I'm going to focus on some of the cases with criminal implications because, 1) it's an area of interest to me, and 2) I continue to expect there'll be more cases that induce criminal liability - both for the clients and the attorneys - and I want you to avoid this minefield.  Yeah, I know, once again it's my theory - but I'm sticking to it!

Also, this will make me a better lawyer because it forces me to take more time reviewing the plethora of cases I receive weekly.  So, in the end, we all benefit.

From now on, whenever you see "Case Got Your Tongue?", it'll be another summary.  I hope you find them helpful.  Let's get started...

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 U.S. Dist. (M.D. Fla. Mar. 4, 2009)

SANCTIONS - Your adversaries are getting more sophisticated, folks.  You can try to bury them with paper and hope that you'll slip by without complying properly with the subpoena - and you can lie about it if you want to, but make no mistake; more of you are getting caught.

SEC v. Badian, 2009 U.S. Dist. (S.D.N.Y. Jan. 26, 2009)

CLAWBACK - This is a back-door way to criminal liability.  The mistake started at the beginning...

e-Discovery LOL: Canada Renames e-Discovery!

So, I was contacted about possibly writing for the Canadian Bar Association magazine, and it got me thinking...how would Canadians put their unique stamp on this process?  Then it hit me...

EH?-DISCOVERY...

[Before I start receiving hate mail, I just want to point out that I lived in Canada for many years...]

e-Discovery California: Action on AB 5???

Well, this is embarrassing...

I received an automated update that there had been action on California AB 5, but after trying all day, I can't confirm that anything has happened.

So, herein lies the dilemma.  Do I post this even though I don't seem to have news or do I refrain and risk looking like a fool if, in fact, something has occurred?

I voted for posting.  All I can tell you is that I received notice at 5:32am today that action had occurred yesterday.  Either I'll let you know - or maybe you'll let me know...

Report to the Principal's Office!

Here's the tough part - you'd better be sure which Principal's office is the correct one.  In my prior post, I discussed Principals and Agents from the perspective of both.  But this one is for attorneys; and again, I feel this is relevant in the arena of e-discovery because there will be corporations - and individual custodians - involved.

The Wall Street Journal posted this article about a case which serves as a cautionary tale of what may happen when attorneys endeavor to serve multiple masters (note: you may be required to register, but it's free).  Ironically, it involves Broadcom (which we know has been at the hub of some very ground-breaking case law involving e-discovery sanctions).

The issue here is that executives were unsure of exactly who their attorneys were representing.  The attorneys represented the corporation, but apparently did not make it clear that they did not represent the executives as well; and I think most of you can understand the inherent conflict of interest that could potentially develop if the interests of both diverge.

This was a critical part of ethics (Professional Responsibility) class in law school and on the bar exam.  The graders wanted to make absolutely sure we knew at all times who our particular client was when representing a corporation.  As stated above, it's the corporation, not you.  If you think you're in jeopardy, there's no middle ground; you must retain your own attorney to protect your interests.

Irell & Manella LLP failed to properly make this distinction clear - and the judge is making them stay after school.

Agent and Principal - Any Interest?

Well, I'm back.  It was a fascinating week and as always, I learned something.  I didn't have time to post, but this article about a case involving Principals and Agents caught my eye.  At first blush, it may seem like this is for lawyers only, but actually this is just as relevant to those who provide e-discovery services.

Agency and Partnership (as they call the subject in law school) covers the various representative relationships - legal and otherwise - that developed from common law and eventually formed the basis of the business structures we see today.  Even though this concept has existed for hundreds of years, California didn't begin testing the subject until the July 2007 Bar Exam (I was one of the Guinea Pigs).

For our purposes, it's a great review of the responsibilities between Principals and Agents.  The most obvious relationship is lawyer to client, but this also applies to those who provide e-discovery services to clients.  The reason I think it's important is that, with sanctions being a very real possibility in these cases, it's a good idea to be reminded that this is not a game.  What we do - and how we do it - has serious consequences.

Storm 'Clouds' Gathering...

If you read my fellow e-discovery bloggers (and I hope you do), they've posted a lot on cloud computing lately - and for good reason.

A few weeks ago, I wrote about the risks of 'off-site' data management.  I didn't refer to it as cloud computing because I was taking a macro view, including items such as off-site media storage and disaster-recovery services.

I happened to come across this article about the subject in the Washington Post, and I really liked their 'what if' approach.  Anyone who reads my posts knows that I promote "healthy paranoia".  I'm always warning about the 'what-ifs'.  Don't be too critical of me, though.  I come by it honestly since it's my job to be paranoid for my clients.  They pay me to anticipate what could go wrong - not what could go right.

As I constantly tell people, you don't need a lock on your front door until the day someone tries to break in.  But then again, if you live your life in its entirety this way, then I guess you don't insure your car, either, because you won't need it until you get into an accident.

Security has to play a major role in any e-discovery plan, especially one that will rely on 'others'.  Better you should be on 'Cloud 9' than walking in the rain...

NOTE TO MY READERS:  I will be out of state next week working on a case.  I don't think there will be an opportunity to post, so please bear with me.  I'll try to get something up as soon as I'm able.

e-Discovery 101: ALSP L.A. Chapter Inaugural Lunch

The Association of Litigation Support Professionals (ALSP) opened a Los Angeles Chapter and I was invited to their inaugural lunch earlier today, which was attended by approximately 65 people.

I like to go to these events to take the temperature of what's going on out in the e-discovery universe and also as a reality check to make sure that I'm delivering relevant information to you.

This was a basic presentation, heavily weighted toward forensic recovery (very few attorneys were present).  I thought it was a great basic template, although I think the presenters went afoul of some of the legal aspects (e.g., when the SEC subpoenas data from 40 board members' laptops - as was the case in their theoretical scenario - there is no reality in which a particular board member may image his or her own laptop and submit it (do I hear 'fox guarding the henhouse', anyone?)

With civil and/or criminal penalties at stake, an independent party to authenticate the process and serve as a testifying witness would be required.  But hey, that's what we lawyers are here for, right?

All in all, a good presentation.  Congratulations to ALSP!

I'm Good Enough, I'm Smart Enough & Doggonit, People Like Me...

...and eventually, I'll write an in-depth analysis of California AB 5 and contrast it with the Federal Rules.  But, take a look at this fine analysis from Law.com regarding how California will deal with Zubulake 'accessible vs. inaccessible' ESI and how it contrasts with the Federal rules.

Finished reading?  Great.  Now let me tell you why nothing in the analysis rattles me.  You should have been treating your ESI as accessible all along.  Here's why:

The law is all about exceptions.  Everyone knows the general rule, but ultimately the facts dictate whether an exception is in order.  At Sony Pictures in 1997, we successfully fought off a request for ESI in a California court because we made the case that it was accessible, but at punitive cost because we'd long since retired that particular backup system and complying would have required a $250,000 outlay (there was no product like Index Engines around in 1997).

I had a very smart professor in law school.  His advice was to always assume the worst-case scenario, then work backwards.  It's actually a very logical approach.  Yes, the flood may be that bad, yes, the stock market may fall that much and yes, your adversary may make a persuasive argument to the judge.

Be an actuary.  They look at everything as 'cost vs. risk'.  Which will likely cost more, paying to protect or paying after the fact?  A young PC user asked me the other day, "Why do I need a firewall?  What are the chances that I will be the one that will be hacked?"  My answer was, "If you want to gamble, that's your call, but here's a short list of things that could happen if you're the unlucky one."

Gamble if you like; but be prepared to face the consequences.