e-Discovery Insights

Japan Redux: You can lead a Board to Water, but you can't make them Drink

It's been roughly two weeks since the devastating events in Japan.  As I mentioned in my initial post regarding their disaster-recovery efforts, we weren't going to know all of the elements we needed to know at that time in order to make an assessment - and we don't know them now.  On the other hand, we know enough to put them under a magnifying glass.  If you're part of a disaster-preparedness team, a cursory examination of their nuclear mess is a true 'teachable moment'.

Why do I keep harping on this?  Because litigation may take on all of the elements of a disaster-recovery operation in that out of nowhere, you're tasked with finding, restoring and producing massive quantities of information - possibly from several sources and/or geographic locations.  And, somebody has to pay for it (Zubulake, Toshiba, et al).  Oh, and tic-toc - the clock is ticking...

Let me preface this by saying that armchair quarterbacking is easy - and this is not a 'bash Japan' post.  You don't kick someone when they're down (but you do try to learn from their mistakes).  Nor is it an "I told you so" post - at least, not by me.  Let's be honest, for a moment.  Sometimes, when a person says "I told you so", they really did tell you so.  So what?  The issue isn't what they told you, the issues are:

1. Did they tell you something of substance?
2. Did they provide facts & figures to support it?
3. Were they qualified to make the assessment? (i.e. on what basis should you rely on their opinion?)
4. Was it relevant to the concerns at hand?
5. If you answered 'yes' to one through four, did you give their information careful, deliberative and proper consideration?
6. Did you solicit, collect and examine supporting and/or dissenting viewpoints to confirm/contradict the opinion?
7. Was a 'Cost vs. Benefit' analysis performed?
8. Did you adopt all (or some) of their recommendations?
9. Why?
10. Did you dismiss all (or some) of their recommendations?
11. Why?
12. Have you properly assessed every possible risk?
13. Are you qualified to answer question #12, and if not, what other sources should you consult? ("Know what you don't know")
14. What is the timetable to re-convene in order to re-assess the situation and modify the plan, if necessary?

[Add your own questions here]

What are questions nine and eleven about?  You should always be prepared to justify and/or defend your position.  After all, you may have to persuade your bosses today, but you never know who you might have to persuade tomorrow (I'm thinking...a judge?  A jury?)

Last night I read this article from the Washington Post (and others over the past few days) regarding how the Japanese authorities considered risk when assessing how to protect their nuclear plants.  In my opinion, if you commit to the short amount of time necessary to read the entire story, you'll learn more about disaster-preparedness than you ever could in a classroom; unless, of course, they're studying this disaster.

In an island nation, surrounded by volcanic activity, "experts" didn't even consider a major tsunami as part of the plan for the Fukushima Daiichi power plant because it was considered "unlikely".  But, here's an even better question, raised at the conclusion of the story:

"To what degree must regulators design expensive safeguards against once-a-millennium disasters, particularly as researchers learn more about the world’s rarest ancient catastrophes?"

Which leads me to the obvious follow-up:

1. If a catastrophe occurs superior to our level of protection, what will be the likely result?
2. Was this factored into our 'Cost vs. Benefit' analysis?

Two weeks ago, the experts may have thought that the risks were worth it.  But now that radiation is showing up in drinking water as far away as Tokyo?  My guess is, they wish they'd have built the retaining walls a few feet higher.

"Nobody anticipated..."

Don't be Afraid of the Dark - SUNY

I know you hate it when I do this, but I don't have a lot of spare time and Ralph Losey just did another excellent treatise on the "SUNY" case, which sheds some light on when to issue a litigation hold.

I know you want to know about this because my stats tell me that over a year after I first posted it, my sample of a litigation hold letter - which you see over on the left sidebar - is still the most popular item on this blog.

So, I highly recommend you take a look; and pay close attention to the contrast in privileges.  We need all the guidance we can get.

Case Got Your Tongue? Caffeine, Voicemail & 8 is Enough

Mistakes...carelessness...sanctions.  Month after month, I review a plethora of new decisions, looking for something unusual and interesting.  Do I find usually find it?  No.  Look at this summary of nine recent cases that Kroll Ontrack has compiled and what do you see?  Sleight of hand, ignorance of the rules & stall tactics.

Starbucks Corp. v. ADT Sec. Servs., Inc., 2009 WL 4730798 (W.D. Wash. Apr. 30, 2009):  In a case that harkens back to the "Jerry Maguire" case I wrote about over a year ago, the court ruled that just because your emails were backed-up on a "cumbersome old system" doesn't automatically make them "not reasonably accessible".  If that isn't enough, they also said, "...even if the information was ruled not reasonably accessible, good cause existed to order production." [italics added]

There are still people out there who seem to think that the federal rules themselves somehow determine what is - and isn't - reasonably accessible.  In fact, someone wrote a letter claiming this very fact in response to one of the articles I wrote in California Lawyer magazine.

Dead wrong.  The court decides what these parameters are, based on the facts of the instant case.

Vagenos v. LDG Fin. Servs., LLC., 2009 WL 5219021 (E.D.N.Y. Dec. 31, 2009):  The quirk in this case is, defendant was awarded an adverse inference sanction over plaintiff's failure to properly preserve a voice-mail message - even though there was no evidence of bad faith on the part of the plaintiff.  Negligence vs. intent...

Magaña v. Hyundai Motor Am., 220 P.3d 191 (Wash. Nov. 25, 2009):  On appeal, the Supreme Court of Washington applied the three-prong default judgment test (willfulness of violation, substantial prejudice to opposing party and availability of lesser sanctions) and reinstated an $8 million default against defendant.  Parties are still betting against the house; but more and more often, the house wins.

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...

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.

The 'Missile Command Act'? No, the 'Internet Safety Act'!

I think my career is about to resemble 'Missile Command'.  It was all the rage in the 1980s.  Atari still exists and I was surprised to see that they're still selling it.

The name of the game is to intercept falling missiles (which have an annoying tendency to split off in multiple directions) with silos on the ground (hint; we're the silos).

John Cornyn (R) has introduced the "Internet Stopping Adults Facilitating the Exploitation of Today's Youth Act", or 'Internet Safety Act' (for those of us who can't fit all that in a catchy blog title).  This bill is actually a regurgitation of a bill introduced in 2006.  I think you get the gist from the bill's title, but here's the fine print:

"A provider of an electronic communication service or remote computing service shall retain for a period of at least two years all records or other information pertaining to the identity of a user of a temporarily assigned network address the service assigns to that user."

Anybody besides me thinking about the storage/costs required to retain and/or restore these logs?

That's Part I of the headache.  Part II is who would be covered under this bill; essentially anyone who serves wireless using DHCP.  That's right - it includes that little Wi-Fi router you have at home.  Note to those who brought their wireless router home from the store and just plugged it in; you might want to configure the security feature, lest someone nearby connect through it and start looking at child pornography.  Starting to sweat, yet?  Maybe you will after I mention Part III; you might go to jail for up to 10 years.

Here's the really bad news - there's a Part IV...

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.

Disaster, Recovery and e-Discovery - What You Don't Know CAN Hurt You

Part I of a two-part series.  Part II will appear 11/25/08.

PART I - ESI IDENTIFICATION & PRESERVATION

Perception is reality - or so the saying goes.  With e-discovery, perception cannot be reality.  The divergence of these concepts is illustrated by the following statistics:

When queried, a high percentage of law firms and in-house counsel believe the companies they represent are ready to comply with a litigation request.

Apparently, they didn't ask the IT department.  A dismal percentage of IT managers believe they are ready to comply.

A lot of this obvious disconnect can be attributed to lack of communication between the parties.  However, another major element is what's lost in translation.  Do the attorneys understand how IT accomplishes this task - or the difficulty of achieving it?  Does IT understand what the attorneys are asking of them?  Do both groups understand what is encompassed in the term "ESI" (electronically stored information)?

Lawyers are thinking about the litigation hold.  IT is thinking about incremental, differential and full backups.  Never the twain shall meet.

Attorneys - Get with the 'Program'

An interesting survey appeared in the September 2008 issue of the American Bar Association Journal.  The subheading states, "Lawyers Slow to Adopt Cutting-Edge Technology".

I took solace in the statistic that only 2% of lawyers maintain a law blog (assuming readers consider this a blawg then I'm certainly ahead of the pack) and only 8% of law firms follow suit, but as a general trend, the data is somewhat troubling.  It's a symptom of a larger illness.

The number-one complaint against attorneys is lack of communication.  I'm not just speaking in terms of what their employees or clients say - it's also the number-one complaint lodged against them with bar associations.

It's bad enough when the subject is one in which an attorney feels comfortable discussing.  But add complex technology to the mix and that's a recipe for disaster.  In the "wild west" days of e-discovery - before it even had a name - one could get away with mistakes.  Now that the rules have been formalized, the path is littered with attorneys - and their clients - who have suffered greatly for their mistakes.

There's an old saying, attributed to Confucius, which states; "He who does not know, and does not know that he does not know, is a fool".  In the e-discovery world, the new saying is, "He who does not know, and does not know that he does not know, will be sanctioned".