A thought-provoking article from Fortune Magazine…
All posts by Perry L. Segal
Webinars, Shmebinars!
Am I the only one who sits through hour-long e-discovery webinars, only to ‘discover’ that some are low on content and high on marketing?
Don’t get me wrong – I understand we all have to make a living. This blog is no exception. Hopefully, I’m giving you content that’s useful and informative – and maybe a little bit entertaining (if there’s any way to make e-discovery entertaining…). Otherwise, I’d expect you not to return. Based on the fact that I’ve doubled my subscribers in the past month alone, I’d say people believe they’re getting something of value.
But man, am I getting tired of signing up to webinars and virtually all I get out of the hour is, “Start thinking about where all of your data might be…” mixed in with a sales pitch about a particular product. In some cases, everything discussed could have been covered on a single sheet of paper in about five minutes!
So, here’s the deal. As a Consultant, if I’m going to complain then I need to offer alternatives. My thoughts are, we either need some kind of good-faith rating system by the provider that designates a webinar as “novice”, “intermediate” or “expert”, or I’ll default to the method I use to weed them out now:
If most or all of the presenters are from your marketing and sales departments, I’m not signing up.
e-Discovery California: AB 5 Passes First Reading
Late word comes that Assembly Bill 5 has passed its first reading by unanimous vote.
What happens next? You want me to explain the California legislative process?
Luckily, I brought along the experts to explain it to you.
And so, the game continues…
e-Discovery 101: Iran 1 – Marine 0
There’s nothing to add to this story. Apparently, blueprints and other information about the Presidential helicopter, Marine One, were snatched from a defense contractor’s supposedly-secure computer system by someone with an Iranian IP address. How secure is your data?
Dancing ‘Geek to Geek’ – Judges’ Panel Weighs in on California AB 5, ‘Train Wrecks’ and the ‘Mayflower’
If this keeps up, I’m going to rename this site the ‘Hot Potato‘ blog…
I’ve posted ad nauseam about how parties want to rid themselves of the e-discovery hot potato, but throwing it to the Judge? Not so fast, says the Hon. Andrew J. Wistrich. You can try, but he won’t play the game! That was one of the morsels from the Judges’ Panel, which also included the Hon. Maureen Duffy-Lewis and the Hon. Carl J. West.
I like Judges. They’re always more candid than I expect, and as some of you have probably figured out from my prior writing, I like candor. Don’t beat around the bush, don’t use fancy language, just tell me what you mean! I certainly got a lot of that from this panel. It was the best 75 minutes a person interested/involved in e-discovery could spend, because it tells us where things are headed in the minds of the Judges – and ultimately, they’re the ones we are speaking to, not only our adversaries.
What was the most important concern to the panel? Cost!
Judge West lead off the discussion and to my delight, he immediately weighed in on California AB 5, noting the pending March 3rd hearing and saying he expects the Bill to be adopted either by late this quarter or the next. My take? California finally reached a budget deal, so we’ll see if that development facilitates the passage of AB 5.
Judge West was concerned about two seemingly-contradictory provisions in the Bill; one, which discusses imposition of sanctions, and the other, which defines Safe Harbor. He noted there were several exceptions to Safe Harbor that might incur sanctions. That reminded me of law school. As my professor used to constantly warn, “Everyone knows the rule, but they’ll test you on your knowledge of the exceptions to the rule”.
He also mentioned that more and more, he’s seeing each party provide a technology expert at hearings, and that many times it becomes an ‘expert versus expert’ issue. That’s when he coined the phrase, credited to another Judge, that the parties should have their respective experts ‘dance geek to geek’. I just want the Judge to know I haven’t worn horn-rim glasses since grade school…
Judge Duffy-Lewis spoke next…
She’s involved with what we refer to in California as ‘Fast Track’, but she came right out and said it; e-discovery hearings in her courtroom sometimes resemble “train wrecks”. She said this occurs because she doesn’t see cases until they’re 90 days out and many of the lawyers wait to file motions until their case is about to be heard.
She would like to see attorneys dive right in as soon as possible and not wait. They should begin submitting motions early related to issues of privilege, preservation and notice.
A major issue is how to handle privileged documents. For example, I don’t want to turn over to the other side a document that contains information I’m going to use to impeach my adversary. That’s easier when you’re talking about a paper document, but not so easy when the particular statement you need is buried in a 20-page email thread between multiple custodians that contains other relevant statements.
Judge Duffy-Lewis’ solution was to create something called an Impeachment Log. The attorneys submit the documents to her, then she makes the determination, preserving the privilege. Brilliant!
What does she see in the future? Recommending a status conference will become virtually mandatory for e-discovery issues, and she predicts the appointment of special masters will become more prevalent.
Judge Wistrich completed the trifecta. Talk about candor! He’s a Magistrate Judge of the U.S. District Court for the Central District of California (I’m a member also) so his was the Federal view.
Judge Wistrich didn’t mince words. He said the “rules have helped, but haven’t solved the problem.”
What problem? The adversarial system and the natural tension created by asking parties – that by virtue are required to keep things close to the vest – to break that habit to cooperate on e-discovery issues. He said the parties are going to have to get around that problem because in many cases, the experts are going to ask for – and be granted – access to their adversaries’ data.
He also said he’s “uncomfortable” because, “I’m not sure I know enough”, and is “concerned” that e-discovery is going to end up adding another layer – experts – to the front-end of the process, further bogging it down.
Still, like Duffy-Lewis, he says attorneys had better be prepared to take the pro-active approach. He clearly understands his role and will not let the parties try to shift decisions to the bench that don’t belong there.
He also discussed Mancia v. Mayflower Textile Servs. Co.,
2008 WL 4595175 (D.Md. Oct. 15, 2008) and its effect on Rule 26(g). I wasn’t surprised that Chief
Magistrate Judge Paul W. Grimm would be cited at the conference, since he’s one of the pioneers in this area. Wistrich said that, when faced with issues of good faith, he orders the parties to videotape all further meet & confer discussions. Strangely, he noted, their behavior improves immediately.
Bravo!
WEST LEGALworks – Overview
How did we get into this mess in the first place? Take a look at the photo I snapped with my Curve. That’s the panelists’ table – where they hung out as they rotated in and out of their particular sessions. Click on it and look at a larger view. See that ‘octopus’ on the floor? One panelist opened his bag to retrieve his business card for me, and a quick peek revealed his version of Noah’s Ark…TWO OF EVERYTHING! What else could I name the photo except, ‘MICROCOSM’…
An informal poll revealed that about 2/3 of the attendees were attorneys. I’m not sure whether to be disappointed in this or not. It does tell us that attorneys are trying to come up to speed, but I wish I saw more IT people there. My view is that it’s the lack of each groups’ understanding of the other that is a big part of the problem.
What I liked about the organization of this conference was that it was a well thought out progression.
THE BIG PICTURE
Day one started with an excellent overview of the various issues we face. It began with the typical “State of the Industry”, which highlighted survey results regarding e-discovery (some of which I’ve featured here previously). They then moved on to litigation readiness, project and process management and cost controls, a discussion of the lack of planning, testing and the obvious pain that would result, and finished up with a discussion of ethics.
The highlight was the luncheon with the Judges’ Panel. More on that later…
If you’re someone on the cusp, just getting into this process or are a project manager, you got a lot out of day one. If you’re a reader of this blog, you’ll know that I’ve covered the very same things here.
DRILLING DOWN
Day two, a half-day, was the meaty day for me. Any time someone is discussing Daubert (in California we call it Kelly/Frye), you know this isn’t going to be simplistic…
They started off with an in-depth look at search & analysis. Finally, someone is explaining the mess you’ll receive if you don’t understand HOW to search! If I received a dollar for each time I’ve heard, “Just put a paralegal in a room with the material – that’s all you need.”, I’d be wealthy. This panel brought that point home. You’d better know what your strategy is before you make a single search.
The second panel was about working with Special Masters, neutral experts and expert witnesses (that’s where Daubert came up). Obviously, most Judges know as little about this as the lawyers do, and that complicates matters. It was a frank discussion of getting all of your ducks in a row, making sure your ducks quack at the appropriate time and knowing what they’re quacking about.
The third session made me chuckle, because I just wrote about it this week – hand-off. One panelist even used the same word I did; Ownership.
Finally, the conference ended with a discussion of document review and contract attorneys. I had a prior engagement and was unable to stick around for that one.
I think my biggest suggestion to the organizers would be, if they want to attract more IT people, the panelists must take the extra moment to describe the laws they’re discussing. For example, when they quote Rule 502, they must keep in mind that the IT attendees – and probably a lot of the attorneys – may not know what that means.
To me, the conference was mostly about the State of the Union – what we’re doing today. Where I thought we really delved into the future was the Judges’ Panel. I could barely keep up with my notes, the information was coming so fast! When I heard a Judge describe e-discovery as a “train wreck”, I knew I’d better pay close attention. I wasn’t disappointed…hopefully you won’t be, either.
WEST LEGALworks Feb. 26-27, 2009
Just a quick note to let you know I’m attending the conference, “Electronic Discovery and Records Retention: Beyond Faith Based Electronic Discovery” at the Four Seasons Hotel in Beverly Hills, CA today and tomorrow. Hope to run into some of you there! I’ll post my observations…
UPDATE – SATURDAY, FEB. 28, 2009
Well, we can sure tell I’m a blogger and not a reporter or “Twitterer”. If I were, I’d have updated you on the fly. I was there to learn – and most importantly, to make sure that what I’m relaying to you is a true and accurate representation of what I see out in the world. Good news. It is. Having observed all of the people tapping away at laptops and PDAs, I guess I’m still ‘old school’. I believe the speakers deserve my attention – unless of course there’s something critical that must be handled immediately – then I’m on my BlackBerry like the rest of them. But, I paid attention to the sessions and took notes by hand. This was my practice in law school also. It makes me focus better.
FULL DISCLOSURE
It’s very important that I’m always honest with you. That was my commitment when I started this blog. As such, I want to disclose that I wasn’t originally planning to attend the conference, but did so as a guest of my friends at the Los Angeles Daily Journal. I’ve advertised in their sister publication, California Lawyer. They did not ask me for anything in return – they didn’t even know I wrote a blog. What they did want is my assessment of the conference as a whole.
Ok, now that we’ve gotten that out of the way, if you still want to continue, I’m creating two posts. I’m not doing a post for day one and a second for day two. I’m doing one as a general overview, which tells us where we are, but the Judges’ Panel was so amazing to me, it deserves its own post. I think you’ll agree if you read it.
Again, I appreciate your patience. I came down with a bug and am a little late getting all this to you, but hopefully you’ll feel it was worth the wait!
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):
Hold on a second. Let’s begin by answering a fundamental question. Who will manage this? You? The Vendor?
I know. Some of you are asking what that means? After all, regardless of how you proceed, somebody representing the company will be responsible for managing this or serving as liaison, right? Yes and no.
If you don’t know your ‘stuff’, then aside from serving as liaison, you’ve relinquished your ability to make decisions in the best interests of the company. Essentially, the Vendor will be advising you, and their interests may conflict with yours – especially if litigation arises. In the alternative scenario, if you’ve educated yourself – or have hired a knowledgeable representative in-house – you’ll be advising them.
Think this is a distinction without a difference? Take a look at my checklist and see what you think:
- Does the Vendor handle backup, restore, disaster-recovery and/or e-discovery services?
- Are all of their products integrated? (Many Vendors acquired other Vendors to stake a presence in the e-discovery field; it doesn’t mean their products integrate well).
- What if the Vendor goes bankrupt?
- How will the Vendor respond if/when they’re served with a subpoena as a 3rd-party?
- Does the Vendor have their own legal representation?
- Who will be responsible for managing the retrieval of data?
- How quickly can/will the Vendor respond to a request?
- Does the Vendor subcontract any services?
- Will an additional Vendor be needed for e-discovery if the 1st Vendor doesn’t have that capability? Do they already have a secondary Vendor in place?
- As we expand – including to other countries/continents – how will the Vendor handle it?
I realize this is a ‘macro’ view. The list above should open up several more questions, such as how are they backing up your backups?
I would think it would be very important to instruct the Vendor about what you expect, rather than rely on the Vendor to tell you what they’re going to do for you. There’s no room for ambiguity where e-discovery in concerned.
Alliteration always assists attorneys acting as authors…
e-Discovery California: AB 5: Now Hear This!
The latest on California AB 5 is that a hearing date has been set for March 3rd, 2009.
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…
Once again, all I think about is Zubulake. The moment you’re required to retain a record for two years, it may be adjudged ‘accessible’ for Zubulake purposes – and not just the ones covered under this Act, which, as I previously mentioned, specifically targets child pornography. Any purpose of litigation may be fair game to subpoena these logs!
You think maybe Senator Cornyn knows how to push a bill through Congress by piggybacking it on the hot-button terms that frighten all parents to death?
This Act really could be the legal equivalent to ‘Missile Command’ (or starfish, or octopus…). The tentacles could reach virtually anywhere. I’ll be monitoring this closely, as should you. If it becomes law, it could be…