e-Discovery Insights

Tips & Tricks: The Office: Lexis Partners with Microsoft

The partnership I'm referring to was recently revealed at LegalTech in New York, but the benefits won't be available until later this year.

Nevertheless, this is exciting news for anyone with licenses to both LexisNexis and Microsoft Office 2007.  Lexis will be integrated into the Office 2007 suite of products (which includes Outlook and SharePoint) and will be available for Office 2010, when it's released.  This means no more back & forth between the Web and Office when performing legal research.

The new product is aptly named, "Lexis for Microsoft Office".  One interesting item of note; many firms use WordPerfect because of its outstanding legal tools and have been understandably reluctant to migrate to MS Office.  It'll be interesting to see how this new partnership influences the future direction of law firms.

Let me give you my position.  I'm someone who, as a Consultant, is always attempting to travel the shortest distance between two points (which, as we know, is a straight line).  With that in mind, when I've gone into companies, if they have an established suite of products, unless there's a glaring need to change, I try to keep them within the same parameters.

This has absolutely nothing to do with which products I find superior; it's purely in an attempt to limit the number of vendors, and it has a practical purpose (you IT'ers out there know exactly what I mean).  To illustrate (and I'm not pointing fingers here...), how many of you have contacted vendor support for two products, say, Lotus Notes living on a Novell server and had support from both companies deflect from addressing your issue by saying "it's their problem"?

If you have Microsoft Office living on a Microsoft Server, that problem is eliminated because all they can do is point fingers at themselves.

In that context, if a firm is already heavily-invested in LexisNexis and Microsoft products, but still holding on to WordPerfect, perhaps someone in IT thinks this is the time to make a change.

Ever since I joined the executive committee of the State Bar of California's Law Practice Management & Technology Section, my thought processes have modified somewhat to thinking more about 'law practice management' along with the 'technology' aspects.

Check this Blog Hourly Unless in Court, in Tunnel or Asleep!!!

Like it or not, our employers expect us to be 'available' at all hours, as this article indicates.  A junior associate was chastised for not reading his email after-hours and missing an instruction from a senior partner.

This won't be a popular view, but I agree with the senior partner.  This is not an attorney-specific issue.  When I was in IT, we were on-call 7x24.  In fact, in some of the companies I supported, all of our systems were automated, so if a system was down for more than five minutes, it paged us; morning, noon or night (unfortunately, it was usually the middle of the night).

A nurse friend of mine, while observing my activities one evening receiving - and responding to - pages, remarked that my schedule was worse than that of a Doctor!

I place this firmly under the "it's not the old world anymore" department.  In my world, there's no such thing as an eight-hour day, and I suspect that doesn't exist in your world, either.  Believe me, I understand the work/life balance (after months of rarely sleeping through the night due to multiple outage pages, I considered leaving one job).  Like it or not, the world is connected and no matter what time it is, somebody is awake somewhere - and wants to talk to you.

Sure, maybe requiring someone to check e-mail on the hour, every hour is a bit excessive, depending upon the circumstances.  But I certainly make it a practice whenever possible to check my e-mail before retiring for the evening.

Maybe the problem was, the junior associate was too busy on Facebook...

1st Things 1st: The Litigation Hold Letter

Wow...this is my 100th post!  Who knew I could pontificate this long?

In analyzing the new California Electronic Discovery Act (I'm going to start calling it "CEDA" for short), I might as well start at the beginning.

The first thing that will occur if litigation arises?  There'll be a bunch of litigation hold letters going around.  I say a bunch because it could manifest several ways; outside counsel to your adversary, outside counsel to inside counsel, inside counsel to the enterprise, the CIO/CTO to the IT department, the CEO to the CIO/CTO...you get the idea.  In some cases, as illustrated above, the letter may not even be coming from an attorney.

What might the letter look like?  Here's an example of a litigation hold letter theoretically issued from outside counsel to an adversary (in PDF format).  The names were changed to protect the innocent (and the guilty, for that matter).

This is only a sample to give you an idea of what a letter of this kind might look like.  The purpose is to illustrate items you may or may not have thought about.  Like snowflakes, no two letters will ever be exactly the same.  Only a professional with personal knowledge of your specific requirements should ever create and/or issue a litigation hold letter.

Enough disclaimers?  Ok then...chew on this for a Monday and my next post will cover what didn't make it into the CEDA.  It might surprise you.

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...

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):

I Have some Good News & some Bad News...

*** My n/w and phones are out, so I'm coming to you live from the Redondo Beach Public Library, courtesy of their free wireless service...THANK YOU!!! ***

Why did the goose cross the road?  Let's take a gander...

I.T. to the Attorneys and Management:  "Great news!  We can leverage our existing ESI backup and/or disaster recovery systems to solve many of our e-discovery challenges and simultaneously cut costs!"

The Attorneys to I.T. and Management:  "Terrible news!  You can leverage your existing ESI backup and/or disaster recovery systems to solve many of your e-discovery challenges and simultaneously cut costs!"

Why both?  Sauce for the goose is good for the gander - anything that makes it easier for you to access ESI, also makes it easier for your adversary.  But is it that simple?

Key phrases to keep in mind; 'accessible', 'not reasonably accessible', 'inaccessible' and 'cost-shifting'.  The Federal rule states:

“A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C).” Fed.R.Civ.P. 26(b)(2)(B), italics added.

Hot Potato - the e-Discovery Game!

Recently, Kroll Ontrack released their 2nd Annual ESI Trends Report (Full disclosure:  I'm a Registered Partner with Kroll.  In order to procure a copy of the report, they require you to provide some basic information).

<--- Uh-oh...he doesn't look very happy...we can glean two things from this:

1)  He works in IT, and
2)  He just read page 18 of the report

What caught my attention is the growing trend of directing more responsibility for developing strategy - and the corresponding enforcement of policy - toward the Technology department while steering it away from In-House Counsel and/or the Executive Suite.

This shifting trend forestalls major implications within the enterprise, especially when one considers the difference between the statistics for 2007 vs. 2008.  It doubled in the US alone!  This begs the more pressing question, at least in my mind; what about 2009?

e-Discovery Resolutions: Technology

Best wishes for a safe, healthy and prosperous 2009! 

I took a few days off, but found myself pondering what a list of New Year's resolutions for e-discovery professionals might look like.  I tried to make a single list, but as I compiled it I realized that bifurcating it and creating two separate posts - one for law, one for technology - would work better.  How did I decide who went first?  Well, I carefully reviewed the data, factored in the importance of each item, took into account the ego issues that would arise...

...I flipped a coin...Technology won...

    1.    KNOW WHERE YOUR DATA IS

Yes, yes, I know; never end a sentence with a preposition.  In my defense, I don't think that's really a sentence.  If you insist, I'm just going to have to pull a "Winston Churchill" on you (See #1)...

Let's face it, you're running around with a ton of things to do, so nobody actually sits down and draws a map of the enterprise.  And if you're one of the lucky ones who actually has a map, is anyone keeping it up to date?  (What do you mean I can't start a sentence with 'and'?  See #3)...  I can't tell you how many times I've been hired into an operation, asked for a data map and received one that's two years old (Never use 'I' in business writing?  See #2).

    2.    BROADEN YOUR THINKING

What encompasses ESI at your enterprise?  Where is it?  Do you have access to it?  What if it's on someone's personal equipment?  What if it's on the 'web'?  This is a good time to think about all of the places ESI may reside.  Remember, you're not just answering subpoenas here, you're also looking for exculpatory information.  The blade cuts both ways.

Ready, Set, Litigate!

Litigation readiness.  What does that mean?  Sure, I can state clearly that it means you're ready to respond to a litigation hold; maybe "prepared" would be a better word.  What about everything that follows?  How ready are you?

I break it up into five possible scenarios:

1. No lawsuit in sight, but you want to be ready for the future
2. Plaintiff - you sue someone
3. Defendant - someone sues you
4. Internal - Plaintiff and Defendant are within the same organization (e.g. employee suing employer or vice versa)
5. Third Party - you're drawn into a complaint between other parties (e.g. impleader)

How do you get the conversation started when there are so many reasons to put it off?

• "I don't know what the big deal about ESI is."
• "We don't have it in the budget."
• "We don't have time to deal with it right now - try again next cycle."
• "We'll deal with it if and when a problem arises."

Fortunately, most of us recognize that if one waits until an issue arises, it's already too late.  Receiving a subpoena is not an ideal time to find out that you can't comply.  It's also a short-sighted view.  You may need your own ESI to bolster your case, no matter what side of the action you're sitting on.  Perhaps that's the argument to make when attempting to motivate management to act.

e-Discovery Ahead - Watch for Falling Rock!

"Real Men don't ask for Directions."
— Bumper Sticker

No, I'm not being sexist.  Anyone who remembers this classic from the 1980s knows that it spawned several humorous sayings that appeared on bumper stickers, T-shirts, etc.  But this one has a ring of truth to it - and it doesn't apply only to men.  I would modify it somewhat for today's modern technology.  Unfortunately, no one is going to pay good money for a bumper sticker that says, "Real Men and Women don't ask for Clarification."

Peer pressure and group-think can be dangerous at the best of times, but it can be absolutely lethal when e-discovery is involved.  We've all been there.  Big meeting.  Lots of players.  Someone is describing a complex process and a lot of people in the room don't understand, but nobody speaks up.  Understandable.  Who wants to appear ignorant?  Also, some people are gun-shy.  They don't feel comfortable in these situations. Unfortunately, the result is that many leave the meeting and don't really understand what was said.

In our likely scenario, we're going to have highly skilled technology professionals, each with skills their counterparts may or may not understand.  We'll have attorneys, but they'll also be proficient at various areas of the law.  We'll have management, who don't want to have to deal with the issue on a granular level - if they can help it - because that's what they're paying you to do for them.  Oh, and everyone's looking at the clock, hoping to get out by lunch-time.

In a perfect world, everyone will simply cross-pollinate.  We're not in a perfect world.  How are we going to bring everyone up to speed, avoid the potholes and arrive successfully at our destination?