e-Discovery Insights

Tips & Tricks: e-Discovery Special Master

My colleague Craig Ball writes an excellent guide to the requirements to become an e-discovery special master.  Anyone who might be interested in serving - or simply wants to understand the role of a special master - should definitely give it a look.

2009 ABA Legal Technology: Our Survey Says!

Sorry for not posting as often, folks.  Not to be a broken record, but I'm busy these days...

The American Bar Association recently published the first two volumes of their annual Legal Tech Survey (Disclosure:  I'm a prior member of the ABA, but have no current interest).  I've had a look at some excerpts and they tell a very interesting story:

METADATA

46% of those who responded to their survey report that they use Metadata removal software.  Adobe Acrobat was at the top of the list.  This won't be surprising, but the highest percentage, 86%, are large firms and only 27% are solo firms.  I would assume cost would be a major factor, but also, large firms are more likely to have an IT group that would push use of these products out to the enterprise.

PDAs

Get this.  A whopping 77% reported that they use some form of PDA, with BlackBerry leading the way at 64%.  When drafting your "litigation hold" letters, this is a big one to keep in mind.

MAC ISN'T BIG

e-Discovery California: Brother, Can you Spare a Dime?

I admit...it was really hard not to title this post with a quip from the Terminator, but it's like shooting fish in a barrel, don't you think?

As expected, all five propositions that would have critically affected the California budget, failed.  So, we enter the next fiscal year, beginning July 1st, in big trouble.

At this point, I'm hoping the result doesn't affect AB 5 (it seems we have bipartisan buy-in on it), but I can also wish for pie in the sky; a veto-proof vote.

P.S.  I'm sure some of you are wondering, and the answer is, yes, I voted in the election - by absentee ballot.  I take my civic duty very seriously.  And no, I'm not going to tell you how I voted.

It's no small feat.  Californians have been asked to go to the polls twelve times in the past seven years!

Perhaps this is why less than 20% of eligible voters exercised their right to do so...

Case Got Your Tongue? Mirror, Mirror & Searching the Forest

Another interesting collection of cases crossed my desk, recently.  I'm going to refrain from writing about the "wake-up call" case because it's being cited everywhere.  Besides, if anyone hasn't noticed yet, my entire blog is about that.  Furthermore, we already know about my issues with waking up...

By coincidence, two of the cases involve mirror-images of disks; however, the issues in each are completely unrelated.  Also, we have another illustration of how, when rules aren't followed to the letter, one can destroy a criminal case.

Am. Family Mut. Ins. Co. v. Gustafson, 2009 WL 641297 (D.Colo. Mar. 10, 2009)

YOU GOT IT, I TAKE IT - Plaintiff requested that the court set the protocol for the inspection of the mirror-image of Defendant's hard drive.  The court obliged, and in doing so, provided what I think is an excellent guide for anyone undertaking this process.

Forest Laboratories, Inc. v. Caraco Pharm. Laboratories, Ltd., 2009 U.S. Dist. LEXIS 31555 (E.D. Mich. Apr. 14, 2009)

ZUBULAKE - There's only one way to describe this case; Zubulake Duty applies, except when it doesn't...

e-Discovery California: AB 5: Do You Hear what I Hear?

We're inching closer to a resolution on California AB 5.  The Senate has set a hearing date for June 9.

Talk about a collision course!  Our special election is underway today and polls still indicate that the five propositions relevant to the budget are failing badly.  I'll be posting later tonight or early tomorrow about that.

But since the Governor has championed all of these ballot measures, methinks he's not going to be in a very good mood...

I've seen the Governor's movies.  When he gets angry, something always gets broken.  Let's hope this time we don't have to play Humpty Dumpty and put AB 5 back together again.

e-Discovery California: AB 5 & May 19th - Collision Course?

California has serious budget problems.  May 19th, five propositions, 1A through 1E, are on the ballot of a special election that will directly affect the future of the state (there's a sixth, 1F, but it isn't important for our purposes right now).

If they fail - and all indications are that they will - the state budget shortfall will reach $21.3 billion.  The legislature's Chief Budget Analyst says the state could be broke by July.

See why I'm worried?  This is exactly the same scenario that allowed Governor Schwarzenegger to veto AB 5 (in its previous rendition) the last time!

Will we see a repeat?  Governor, my advice;  please don't play politics with a much-needed set of regulations.

Baby? Meet Bathwater...

Not that I want to pick on Computerworld, but...

I was reading their article, "Why IT should start throwing data away" and, while it's a great document with a lot of astute information, it still made my blood boil.  Why?

This is a classic example of a terrific thought process that only considers one side of the equasion.  The perspective is, 'Let's do what we can to eliminate as much data as legally possible to limit the strain on our resources, thwart adversarial e-discovery and lower costs'.

But here's the thing.  Some of that data may exculpate the company and you may really regret deleting it.  Sure, I've talked to many attorneys who operate under the philosophy that the least amount of data available, the better, and you know what?  I don't agree.  At least not without a case-by-case assessment, anyway.

Sauce for the goose is good for the gander.  Don't be so efficient in your data sweeps that you have a defensible legal hold, but leave yourself with no line of defense.

e-Discovery LOL: Treatment is Available

I can only say this...it's been a very frustrating week - and it's only Thursday!  Thankfully, while I was looking for a gift for mom (Mother's Day is Sunday for those of you who forgot) I stumbled upon a product that no self-respecting e-discovery attorney should be without...

Now, my only decision is, milk or dark?

A Little Hocus Pocus at LexisNexis

If you are a customer of LexisNexis, take note of this article about a data breach.  An excerpt:

"The LexisNexis online information service is warning 32,000 people their personal information may have been improperly accessed in a credit card fraud scheme that postal officials say bilked hundreds."

Physician, heal thyself?

e-Discovery California: AB 5 on the Move

I must confess - I'm not a morning person.  This causes numerous problems for me because, as my friends will tell you, I'm not an afternoon nor evening person, either.  Basically, I have two stages in any given 24-hour period; coffee and the rest of the day.

So, it is with great pain that once again, I crawl out of bed after receiving another - as my uncle used to quip - 'crap-of-dawn' notice from the California legislature regarding AB 5 so I can bring you the news as soon as possible.  Is that dedication, or what?

On April 30th, the Bill was referred to the committee on the judiciary.

Now, where's the !@#$%^ Splenda?!?!?!?