e-Discovery Insights

I Need Jobs

I want to do something different.  The problem is, I'm not having much luck being hired.  I'm temperamental, moody, stubborn, and definitely march to the beat of my own drum.

I'm also euphemistic...

When I know I'm right, I stick to my guns - even at the risk of being wrong - which, I'm not embarrassed to say, I have been.  I wish people would just do what I say and stop questioning me so much!

I've pissed off so many people at work that - I like to joke - H.R. has a chair with my name embroidered on it!  It's gotten me fired, too.

People don't understand how my mind works - they just know that somehow, it works.  My spectacular failures are only bested by my even-more-spectacular successes.

My education's a little thin.  My mind was too restless to sit in a classroom, so I didn't finish college.  But I'm telling you, I've got some killer ideas and I can make them into reality; whoever I work with will make a lot of money.

I'm going to interview at this really cool tech company.  I think I can do great things for them.  It's on my calendar for Monday.  I'm just wondering one thing...

Do you think Apple Inc. will hire me?

The Bench: Latest on California Budget Cuts

From the LA Times:  "Budget cuts to worsen California court delays, officials say".

Five years to get to trial in San Francisco and other nightmares.  Boy howdy!

Cascades: Good for Mountains, Bad for News Orgs

First things first.  My beloved Cubs rewarded my visit with a 13-3 loss to the Marlins, marking this as the most lopsided score over the 15+ years I've been making this journey.  Now, firmly ensconced in San Francisco - and with my state bar duties dispensed with for the week - we can return to more pressing matters...

How many of the execs swallowed up in the News of the World Scandal thought they'd ever be arrested in their lifetimes?  None.  In fact, a high percentage of the general public would agree with them.  But people-who-you-normally-wouldn't-expect-to-be-arrested are arrested.  And some of them eventually go to jail.

While you watch the slow and painful erosion of the Murdoch empire - and the collateral damage causally connected to it - I hope you consider one ingredient to add to your schadenfreude; you're watching a large-scale version of how your criminal or civil matter will unfold if you don't deal with it when it's manageable.

Of course, yours won't likely be this big or this public - or this expensive - but this is how it'll start; a molehill that, over time, grows into a mountain.  Or, in this case, a mountain range.  eDiscovery rules & regulations, litigation readiness programs and early case assessment are all designed to staunch the bleeding and, if instituted early enough, prevent the wound altogether.

You have to be willing to take the pain.  Like they always say, the first cut is the deepest.

Glossary of Excuses

Risk.  What is it, exactly?  Here are a few good definitions:

"The possibility of suffering harm or loss; danger."

"Product of the impact of the severity (consequence) and impact of the likelihood (probability) of a hazardous event or phenomenon."

"The quantifiable likelihood of loss or less-than-expected returns."

"The amount of statistical gamble that someone (usually management) is willing to take against a loss. That loss can for example be either in profits, reputation, market share, or franchise."

Ok...so, knowing that all of this is on the line, why do I keep hearing words like, "Underestimated", "Miscalculated", "Unexpected" and "Unanticipated" every time something goes wrong?

I'm unimpressed.

The latest is the crack (or should I say, sun roof) that appeared in the fuselage of a Boeing 737.  As either lawyers or techies, our miscalculations are bad enough, but when these people miscalculate (as in our previous study of Japan's nuclear mishap), other people die!

As a human being, I have to at least give Boeing credit for stepping up to the plate and publicly acknowledging their mistakes.  As an attorney?  Well...that's another matter, entirely.

A company I worked with many years ago hadn't implemented any disaster-planning.  When their catastrophic event occurred (prior to my arrival), they were essentially out of business for close to three weeks before the systems could be rebuilt.  In another incident, one of my direct reports was fooling around with an Exchange server and ended up accidentally deleting one of the accounts.  Too bad it happened to belong to the CEO...

Yep, disregarding risk may result in a death...but in our disciplines, it's more likely to be one of us!

Japan Epilogue: (Un)Safe Harbor: 10% x 50 Years = Prison?

We started with a premise:  A disaster has occurred.  What now? 

We segued into a limited examination:  Were we properly prepared?  Why or why not? 

Now, comes the all-too-familiar Watergate-esque finale:  What did we know; and when did we know it?

According to this comprehensive report, officials were warned that there was a 10% risk within a 50-year span of a tsunami swamping the protective barriers of the Fukushima Dai-ichi nuclear power plant - and disregarded it.  What result?

• Human toll: incalculable
• Environmental damage due to radiation contamination: incalculable
• Damage to 'hard assets' (plant, equipment, etc): incalculable
• Near-term cost to replace loss of % of daily supply of electricity to Japanese citizens: incalculable
• Evacuation and relocation costs: incalculable
• Current financial losses to shareholders of TEPCO: $30 billion dollars of market value
• Errors and Omissions losses to insurance carriers: incalculable

I could go on, but you get the idea.  Now for the bad news.  That's not the worst of it.  How about:

• Liability of executives, government officials, etc. for negligence.  I'm referring to all liabilities (i.e., not just financial issues), since some parties may enjoy sovereign immunity; but that doesn't address their political liabilities.
• Liability of executives, government officials, etc. for criminal negligence.  Think that it isn't a distinct possibility?
• Liability of corporate executives to their shareholders for massive losses due to lack of reasonable prudence.

You know what?  I have to stop now.  This feels ghoulish.

The point I'm making is, certainly, this is about as bad as a disaster gets, but we can all learn from it because there's only one item we need to change - scale.  Plus, the most important thing relevant to us in the real-life case study we're now seeing is what happens when we're wrong.

Worried eDiscovery clients always ask me how they're ever going to do everything right.  I tell them, there is no such thing.  It's impossible to anticipate everything, but as a rule of thumb, the fallback position is the basic negligence standard:

Knew, or should have known.

If they acted in good faith based on what they knew or should have reasonably anticipated at a given point in time - and present a defensible position as to why they acted - they'll likely preserve safe harbor.  Naturally, one can never completely account for the odd rogue judge.  The day all judges rule alike is the day I give a specific answer.  In the meantime, you do the best you can.

The key is in making sure you have the appropriate harbor pilot.

True Disaster-Recovery: What Japan Teaches Us

What if?  Those two words form the initial basis of a disaster-recovery conversation.  Like you, I've seen the heartbreaking pictures from Japan and what gets me is, a country that is known for having the best earthquake-disaster-preparedness in the world has suffered tremendous losses in spite of that fact.

The best laid plans...

Japan's nuclear facilities prepared for a monstrous earthquake, but not an 8.9.  Is there any way to plan for an 8.9?  And if so, at what cost?  Obviously, when contrasted with the devastation we've seen - and may yet see - I wouldn't blame you if you said money is no object.  But in reality, we're rarely given a blank check.  We're required to work within parameters; sometimes very constrictive ones.

Lessons learned:  No matter how thoroughly you plan, it's impossible to prepare for absolutely every contingency that may befall you.  In the future - when memory of this disaster has faded and the passage of time blunts the impact - when envisioning a worst-case-scenario for your disaster-recovery program, if those around you are prone to cut corners, remember Japan.

The Completion Backward Principle

"An IT executive turned California e-Discovery Attorney and Consultant shares his insights - with an emphasis on facilitating the relationship between legal and technology professionals."

Remember that?  It's the mission statement of this blog, as I explained in my flagship post almost two years ago.  So, how's that workin' out for you?  This survey from Recommind says not so well.  According to their results, cooperation between IT and Legal has deteriorated across all platforms.

Yes, there's probably an economic component here - Recommind notes this - but I agree with their assessment.  It doesn't explain the extreme change over a single year.

As we all know, statistics may be interpreted several ways.  Here's my take.  If I were to wager, I'd bet that many of these entities tried in good faith to get legal and IT to work together; and what we're seeing in the 2010 report is that the groups didn't get along and have either given up or severely curtailed their joint activities.  Communication breaks down rapidly once bad will develops.

The Gartner Group predicts that companies will escalate the process of hiring what they refer to as "Legal and IT Hybrids" to "mediate" between the two departments.  Hello?  Haven't I been saying this all along?

Subtlety isn't working, so I'll be direct.  There's the phone.  Call me.  I can fix it.

Ok...you can call collect...

Bumper to Bumper, Part II: Steve Jobs is Wrong

Any guesses as to which guy is Steve Jobs and which guy is the customer?  Hint: Steve Jobs always wears black.

If you read Part I of this series, in closing, I asked whether the "bumper" solution was a good decision from a management standpoint.  My opinion?  Yes, but only if you look at it from a purely financial perspective.  From a customer service/relations standpoint, it's a disaster.

Let's review the progression of events, from initial customer complaints to Apple's eventual response:

1. Denial - "There is no problem."
2. Blame the Customer - "You're holding it wrong!"
3. It's all in your Head - "Our s/w is erroneously telling you that you have a problem."
4. Blame your Competitors - "Everyone else has the same problem."
5. Denial II - "There is no problem, but we'll give you a free bumper."

What's the 1st thing that comes to mind?  This isn't indigenous to Apple.  I've heard this song before.  Where do think the joke, "That isn't a bug, it's a feature." comes from?  I just think that with Apple's dedicated user culture, they have a better chance than most to pull it off; but that doesn't make it right.

I've spoken to career Apple customers who are so incensed by what they term the arrogant attitude of the company (usually referring to Jobs, specifically) that they've finally had enough.  Apple can afford to lose them, but that's not really the point, is it?

So where's the eDiscovery tie-in?  Where do I start?  You might be in a corporate IT department.  You might be inside counsel.  You might be outside counsel.  You might be me - a consultant, positioned somewhere in-between all of them.  What are you going to do when management adopts the attitude:

1. Denial - "We don't need to implement this."
2. Blame the 'Customer' - "The client doesn't want it."
3. It's all in your Head - "We don't need to comply with the rules."
4. Blame your competitors - "Nobody else is implementing it."
5. Denial II - "We'll take our chances.  If litigation arises, we'll look at it then."

The difference between Apple and you?  They have a public relations issue and face class-action lawsuits.  You - and/or your management are likely to face serious sanctions.  But don't worry; that's only if something goes wrong...

 

Bumper to Bumper, Part I: e-Lessons Learned from Antennagate

If you're a long-time reader of this blog, you know that I used to post frequently about relationships between techies and management and how successful interaction between them is critical to the success of an undertaking; internally and externally.  As you can see from the headline, I'm using Apple's response to the iPhone 4G 'debacle' as a teachable moment.  Some will take issue with my use of the word debacle, but I'm speaking in terms of the negative press this issue has generated.  Caveat: I own an iPod Touch (but you already knew that).

If your initial thought is to wonder how any of this applies to eDiscovery, read on...

PART I:  STEVE JOBS IS RIGHT

Make no mistake.  Steve Jobs knows his customers - and so do I.  My first real exposure was when I was tasked with managing the only MAC network at Hughes Space and Communications (this goes back to 1993-94).  I quickly learned about the culture of MAC users.  As often happens to me - and many of you, I suspect - once that item was on my resume, the MAC element became a regular part of many of my future projects.

Stevie and I had a convo and we agreed on several points: 1) There's a hardware issue (not that we'll admit it), 2) the problem affects a relatively small number of customers, 3) a plurality of dedicated customers will back us, no matter what we do, 4) if we're forced to issue a recall, it could cost billions, 5) we know that a bumper/case/duct tape will solve the problem (not that we'll admit there is one) for most customers, so 6) let's go that route and offer a free bumper/case/duct tape (sorry, couldn't resist that last one).

The cool thing about #6?  We know that a lot of customers who do have the problem won't act.  On the other hand, we also know that others who don't have the problem will; in the end, probably a wash.

If you've perused articles on the issue - and read the accompanying comments - you'll probably note that the scenario has played out the way Stevie and I thought it would.  Overall, reaction has been favorable, and every time someone posts an article or comment critical of the solution, they're usually swamped with 'the faithful' calling them whiners and defending Apple, usually making the effort to express how much they love their iPhones.

So, was it a good decision from a management standpoint?  And where's the eDiscovery tie-in?  I'll bring it all home for you in "Part II: Steve Jobs is Wrong"...

Spam Available at Walmart

Too bad it's this kind of spam, not this kind. 

It's 'Security Awareness Friday' here on e-Discovery Insights.  I'm not picking on Walmart; I'm simply using them to illustrate that this may happen to anyone.  Microsoft's IE 8 has security problems as well.

Here's a news flash; IT and Security departments aren't in sync about how they're dealing with these issues.

What's my mission statement for this blog?  Facilitating the relationship between legal and technology professionals.  Maybe I should add 'facilitating the relationship between technology and technology professionals'...