e-Discovery Insights

ESI: Miami (LegalTech Keynote Summary)

Yes, this post is a summary of what I saw at LegalTech at the Los Angeles Convention Center on Thursday. 

No, it didn't take place in Miami.  But, if the title said ESI: Los Angeles, nobody would get the joke, would they?

Besides, I would never be able to use this catchy title unless something happened in Miami, and I can't wait that long!

First of all, I'd like to thank Monica Bay.  She's a linchpin of LegalTech, and was also nice enough to cite my blog on her own blog, The Common Scold. I had a lot of meetings scheduled, so I was only able to attend the keynote presentation and one other session.  This is my summary of the keynote.  I'm knee deep in depositions, so I hope to be able to post a summary of the other session on conducting e-discovery abroad over the weekend.  Please bear with me.  I want to take my time so I can do quality posts for you.

The moderator was Carole Basri from Corporate Lawyering Group, LLC.  She's also an Adjunct Professor at the University of Pennsylvania Law School.  Next was Tom Allman, a retired general counsel, who is the editor of The Sedona Principles (2nd Edition).  Last were two judges - and you know how much I like judges - the Hon. Dave Waxse, U.S. Magistrate, District of Kansas and the Hon. Andrew J. Peck, U.S. Magistrate, Southern District of New York.

My 1st observation - not a criticism - we're in downtown Los Angeles with AB 5 (the California Electronic Discovery Act) sitting on Gov. Schwarzenegger's desk awaiting his signature.  No California or 9th Circuit judges on the panel.  Darn!

Don't Cry for Me Argentina...

Are you kidding me?

Governor Mark Sanford of South Carolina isn't smart enough to refrain from writing steamy love emails to his mistress?  I hope he likes having his personal life splattered all over the front page...

Loose lips, sink ships...
Loose lips, sink ships...
Loose lips, sink ships...
Loose lips, sink ships...
Loose lips, sink ships...

e-Discovery California: AB 5: Hammer Time!

 

AB 5

was enrolled

and on its way to

Governor Schwarzenegger's

desk at 10:30 a.m.

yesterday.

...that is all...

Case Got Your Tongue? "Don't Tase Me, Bro!!!"

Here I go with my latest summary of lead cases I think are of interest.  When it comes to electronic devices that might be subject to e-discovery, I thought I'd thought of everything.  I was wrong...

Ford Motor Co. v. Edgewood Properties, 2009 U.S. Dist. LEXIS 42001 (D.N.J. May 18, 2009)

USE IT OR LOSE IT - This is a classic example of where technical minds weren't properly involved from the outset of litigation and that lack of involvement resulted in a waiver.  The Defendant properly sought production of documents in native format with metadata intact.  The problem is, Plaintiff complied by delivering the documents in TIFF format.  Plaintiff waited six months to request the data again in native format and another two months to make a motion before the court.  The court deemed eight months too long and as a result, ruled Defendant waived its right to receive the documents in native format.

I admit I'm inserting my opinion here, but let's face it; the incoming data should have gone straight to a technical mind for immediate analysis.  A cursory review would have discovered the issue and Defendant could have addressed it within a reasonable time.  On the other hand, if Defendant knew about the issue and was simply tardy in addressing it, shame on them.

McGarry v. Becher, 2009 U.S. Dist. LEXIS 40879 (S.D. Ind. May 13, 2009)

"DON'T TASE ME, BRO!!!" - This potential class-action criminal case may be summed up in one sentence.  The court ruled that memory from tasers is both discoverable and not burdensome on the Defendant.  Add tasers to your list of electronic devices!

1100 West v. Red Spot Paint and Varnish Co., 1:05-cv-1670-LJM-JMS (S.D. Ill. June 5, 2009)

KHARMA CHAMELEON - Don't waste any more time here.  Go directly to Ralph Losey's blog, e-Discovery Team (do not pass go and do not collect $200) and read his treatise on this case; the best post about attorney ethics - or lack thereof - I've seen in a long time!

Let's Talk (Legal)Tech!

Legaltech West Coast takes place next week.  I'll be attending all-day Thursday, June 25th.  I'll also be at the networking breakfast at 7:30am and the keynote presentation at 9:00am.

I'm not a big fan of self-promotion (which is a bit counter-intuitive for someone who owns their own business) but I've finally posted a photo on my 'About' page so at least you'll know what I look like.  [Note: I'm about 30 pounds lighter since that photo was taken.  Why does that matter to you?  It doesn't; I just like saying it...]

If you'll be attending and want to meet, by all means, send me an email.  I look forward to running into you there!

Facebook, et al: "Evidentiary Gold Mines"

I haven't re-visited social networking lately, but this article on Time.com is a favorite.  Their exact quote is, "Lawyers, however, love these sites, which can be evidentiary gold mines."  Then, of course, it goes on to list some of the nightmare scenarios in which Facebook posts became evidence, among other things (divorce being a very common reason, but by no means the only one).

Tip:  If a lawyer loves something, you'd better take note (unless it's you they love; in that case, demand a pre-nup...).

Let's put it this way.  Yes, Twitter may change the way we live, but not necessarily the way you expect.

**FLASH** - Late word comes in to the blog-room that Governor Schwarzenegger was seen frantically digging on Facebook looking for nuggets to address the California budget shortfall...we're going to be completely out of cash in less than 50 days...

Guess I'm in a snarky mood today...did I mention I'm not a morning person?  Have a great weekend everyone.

e-Discovery LOL: AB 5 Explained

e-Discovery California: AB 5: Pass! To Consent Calendar

This will probably never happen again.  I was actually up early and sitting at the PC when my latest update on California AB 5 arrived in my inbox.

Yes, that actually is yours truly on the left - hey; I told you I'm not a morning person...

The bill passed its first reading in the senate yesterday (you'll recall I posted on this hearing earlier), will have its second reading today, then it's on to the consent calendar for the third and final reading (explanation here).

Will the third time be a charm?  Stay tuned!

2009 ABA Legal Technology 2: The Count

Fast on the heels of my prior post about the ABA Legal Technology Survey, comes more excerpts that I think are of interest...

Attorneys;  you really need to take note of these statistics.  This is where technology is taking us, and you have a clear choice.  You can either jump on the bandwagon...or end up chasing it!

One interesting item I noted was that, in many cases, survey results for 2009 were either at par with 2008 or even slightly lower.  Based on my experience - and my observations of exponential growth in many of these areas - my theory is that this is purely due to the economic downturn.  Margin-of-error would explain some of it, but no other factors I can think of would produce this result.

PDAs REVISITED

60% of survey respondents say they use PDAs (BlackBerry's, etc.) in the courtroom - hopefully not while the court's in session (I've seen that icy glare from the judge more than once!).  Only 39% reported doing so in the 2007 survey.  That's quite a jump in a short period of time.

e-DISCOVERY REQUESTS vs. DEMANDS

54% report that they receive e-discovery requests (on behalf of their clients, of course).  46% indicate that they make e-discovery requests.  An interesting bi-bifurcation, here.  Receipt of e-discovery requests is growing relatively steadily, whereas making e-discovery requests was at 74% in 2007, 50% in 2008 and 46% in 2009 - a sharp drop-off.

ATTORNEY BLAWGING

e-Discovery California: Surprising Announcement!

I'm somewhat shocked to announce that the Board of Governors of the State Bar of California have appointed me to their Law Practice Management and Technology Section Executive Committee for a three-year term, commencing September 2009.

Mom is very proud...