All posts by Perry L. Segal

e-DRiP, e-DRiP, e-DRiP: Who, What, When, Where & Why?

j0437216DRP and e-DRP; what are they and what’s the difference?  Essentially, they’re one and the same; a Discovery Response Plan (Electronic or otherwise).

I prefer to bifurcate readiness and response into separate groups, although some consider them as a single team/process.  I’ve covered litigation readiness several times and for the purposes of this post, I’ll assume that you’ve followed my prior recommendations to the letter and have a readiness team in place (I’m allowed to assume that because it’s my blog).

That was the easy part.

Now, the alarm bell has sounded – a litigation hold has been ordered in response to – or in anticipation of – litigation.  What do you do next?  There are a lot of lists out there, but actually, you can envision the path by thinking in terms of ‘who, what, when, where and why’?

WHO? – THE RESPONSE TEAM

You already have the “readiness” team – now you need the “response” team.  WHO will be on it?  Maybe it’ll be the same people, maybe not, but what you do at the outset will establish the tone for everything that follows thereafter.  You’ll need your technology and legal resources to come together at this point and take care to make sure everybody is clear about their specific role.  WHO will document the procedures?  WHO will serve as your expert witness?

WHAT?j0315598

If you’re either anticipating or responding to litigation, then you have a good idea of WHAT data will be involved.  If not, start thinking about how to find out.  Designate the team members responsible for identifying, accumulating and preserving ESI.  WHAT will it cost to review and produce?  Will that factor into the proceedings?

WHEN?

WHEN did you issue the litigation hold?  WHEN did the relevant custodians receive the notice?  WHEN will you expect acknowledgment from them?  WHEN are the relevant dates at issue in the action and WHEN did they begin preserving that data?  WHEN will you issue periodic reminders to the custodians to assure continued compliance with the hold?  WHEN will the hold be released?

WHERE?

WHERE’S the ESI?  Refer to your data map so you know WHERE you’ll be looking.  WHERE are the ‘nooks & crannies’; essentially anyWHERE that relevant ESI may exist (hint: it might not be on your map).  WHERE will you store the ESI for review?  Do you have sufficient space in-house or will you need an outside vendor?

WHY?

WHY is the ESI relevant to the action and therefore discoverable?  WHY should it be produced?  WHY is it privileged?

HOW?

Depending on what stage you have reached in your own readiness and response programs, you may be asking yourself HOW you’re going to accomplish all of this.  It might not be easy, but there are resources available to you and proper planning in advance will go a long way to assure an even flow.

DISCLAIMER

This blog site is published by and reflects the personal views of Perry L. Segal, in his individual capacity.  Any views expressed herein have not been adopted by the State Bar of California’s Board of Trustees or overall membership, nor are they to be construed as representing the position of the State Bar of California.

The purpose of this blog site is to provide information and insight about e-Discovery law and technology.  The information and insight contained in this blog site are provided only as general information for educational purposes, which may or may not reflect the most current legal or technological developments.  No representation is made about the accuracy of the information.  The blog topics may or may not be updated subsequent to their initial posting.

By using this blog site you understand that this information is not provided in the course of an attorney-client relationship – or any other client relationship – and is not intended to constitute legal advice.  This blog site should not be used as a substitute for competent legal advice from a licensed attorney in your state.

Perry L. Segal does not wish to represent anyone desiring representation based upon viewing this blog site in a state where this blog site fails to comply with all laws and ethical rules of that state. This blog and any related web sites are not intended for those viewers in any state where the blog or web sites fail to comply with all laws and ethical rules of that state.

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!!! ***

j0178660

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.

j0178039The courts sought to define the parameters in a series of rulings, commonly referred to as ‘Zubulake I, II, III, IV & V‘!  These are not new rulings by any means (2003-2004), and I dealt with a case on this very issue in 1997, but because so many IT groups are ramping up their e-discovery bona fides at this time, this would be a good opportunity to revisit Zubulake and make sure you understand the implications.

In the normal course of business, one might implement a solution, then policy follows.  This is definitely one of those times where you should be thinking about policy – and consulting your legal resources – before you implement the solution or modify your current one.  After all, a lot of IT professionals don’t read cases nor know of their implications.

I can’t count how many times I’ve been asked, “How long do we have to keep this stuff?”  Is it possible 37 days is enough?  Gippetti v. UPS, Inc., 2008 WL 3264483 (N.D. Cal. Aug. 6, 2008)

Think about it; what does “keep” mean, exactly?  What does “stuff” mean, exactly?  Can a single data retention policy apply to “everything” or only certain types of ESI; and should you apply a different retention standard to various forms of ESI, based on their use?

Let’s say you have a policy that you delete ESI after X months.  Do you retain or destroy the backup media?  Do employees thwart you by archiving data to their office PCs – or worse – store it on the internet, a personal PC or a thumb drive?

This should be part of your thinking as you craft policy.  It matters whether you can answer those questions.  If not, be prepared for an unpleasant surprise when your adversary comes looking for this information.

Hot Potato – the e-Discovery Game!

Mr. Potato HeadRecently, 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.

Kroll IT

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?

French Fries --- Image by © Royalty-Free/Corbis

To add more of a degree of difficulty to the mix, we’re in a severe economic downturn – IT budgets are being slashed at the very time more responsibility is being dropped in their laps (here’s hoping the potato has cooled off by now).

IT budgets for 2009 were most likely allotted last year (unless you operate on a fiscal year and still have time to do something about it).  Maybe you should already be thinking about an ESI line-item for 2010, if you haven’t got one already!

Remember, a lot of companies don’t have in-house counsel, so those entities are probably ahead of the game, but I’m still of the opinion that there’s no way IT can develop policy in a vacuum.  Also, as much as IT professionals don’t want to become lawyers, lawyers don’t want to become technology experts, either, and would probably welcome the opportunity to toss that potato to IT and never look back!

I’m sorry, but you either need both technology professionals and lawyers to formulate appropriate strategies and policies – or you need them in a single person!

Look, there are a lot of people who fancy themselves as armchair attorneys.  I was one of them.  I dealt with legal matters throughout my career.  I represented myself in court and thought of myself as fairly competent.  After all, anyone can read a law book and understand it if they’re inclined in that area – the same as some people are naturals at math or science.  But I can now also speak as someone who achieved a Juris Doctor degree and passed the California Bar Exam and I can state from experience; I was amazed at how much of the law and procedure I didn’t know!Dead Potato Head

In this context, expecting IT to be completely responsible for developing ESI strategy and policy is a dangerous game.  To the companies moving in that direction, I make one humble suggestion; throw a legal mind is in there somewhere.  Don’t make a fatal mistake!

Sisterhood of the Traveling Red-Leather Pants

Note:  This post may end my chances of finding gainful employment for the next several years…

Cranberries --- Image by © Royalty-Free/Corbis

I’m going a little off the reservation today.  Post after post, I’ve repeated various mantras:

  • This is a team undertaking
  • You’ve got to sell it to management
  • Everybody needs to be on the same page
  • Get everyone into a room

Great.  So I’ve told you what needs to be done.  This raises the question; how do you do it?  Well, someone is going to have to make the ‘sale’, and here’s a good starting point.  The Times Online has an excellent article, “How to give a great presentation“.  It provides a framework of ten useful tips to deliver your message clearly and concisely and helps you keep the attention of your audience.

Tip #7, ‘Throw in surprises’, brought back one of my favorite memories.  In 1994, I was consulting at Hughes Space and Communications.  The group I was working with was outsourced to EDS.  Now, this was an engineering group – jeans and informal shirts were commonplace.  EDS is a Texas firm with a very ‘white collar’ approach.  Needless to say, these philosophies didn’t mix very well.  EDS’ management began implementing formal rules that the Hughes folks weren’t used to; one of which was the “No Denim” policy.  Anywhere else, this probably wouldn’t have been a big deal, but this was Southern California in the 1990s – it had a serious downward effect on morale.

I had an idea.  We had a bi-monthly, mandatory ‘all-hands’ meeting that about 50 people attended.  I waited until everyone was seated and the meeting began.  Then, I strolled into the room – directly in front of the stage so everybody could see me – wearing a pair of bright-red leather pants.  As I passed the stage, I turned to management and said, “Hey, it’s not denim!”  It brought the house down and quickly reduced the tension level from DefCon 1 to DefCon 5.

Note to prospective employers:  I’m mu-u-u-ch better now…

But here’s the background.  There was no malicious intent on my part.  EDS’ management was fully aware of the morale problem and when I approached them prior to the meeting and told them, “I’m going to do something in the all-hands meeting to try to boost morale”, they were all for it!  The bottom line is that it accomplished the goal; it reduced tension between the two groups thereby facilitating a better cooperative relationship.

My office is in El Segundo, not far from the old Hughes offices (it’s Raytheon now).  Fifteen years later, whenever I run into one of my colleagues from that period, the first thing they say to me is, “Remember that meeting where you wore the red leather pants?”.

Never underestimate the power of an effective message…

Drum Roll…New Blogroll!

CB064019It’s amazing what one can accomplish while simultaneously watching college Bowl games…

I wanted to draw your attention to my new blogroll, which sits on the left sidebar.  Over the past several years, I’ve consulted many e-discovery resources and these are among my favorites.  I highly encourage you to check them out.  The topic is so broad that nobody can know everything, and having a body of resources to consult gives all of us a great advantage.

For anyone who has been reading my posts, you’ve seen that my goal is to deliver a serious message with a little bit of humor.  It shouldn’t be construed to mean that I don’t take the subject very seriously.  This is a very stressful discipline and my sense of humor has always kept me going.

Also, there was no need for me to re-invent the wheel.  As you will see if you visit these blogs, there are some very impressive, talented people out there who are making all of our jobs easier.

I decided that my blog was not going to be a repeat of what others are already doing so well; I write from my own perspective, of one who sits in those rooms and conducts those meetings – those of us who are tasked with ‘getting it done’, if you will.

Referee Signaling Score --- Image by © Royalty-Free/Corbis

Those who share that responsibility will likely agree with my observation that theory is usually much easier than practice, e.g., in theory, the boss funds your project, in practice, maybe not.

I suppose this might be the e-discovery version of Dilbert, except I have no artistic talent (my readers will ultimately judge whether I have any writing talent, either).  Although I will say that one of my best friends is a cartoonist and I’m considering having him put some pictures to my words this year.

2009 presents the latest set of challenges.  Let’s hit the ground running!

e-Discovery Resolutions: Law

Best wishes for a safe, healthy and prosperous 2009!

Fellow attorneys, we lost the coin-toss…but think of it this way, by virtue of being ‘second’, our post ends up ‘first’, so it’s really a lose-win…

Blog DummiesBesides, I’m a techie and an attorney – I was gonna win either way…

1.    KNOW WHAT YOU DON’T KNOW

Nobody expects you to be an expert.  Who am I kidding?  Of course they do!  The problem is, an expert on what?  You can learn the law, but in order to be effective, you need to know something about technology (otherwise, you’re really going to annoy the techies when you talk to them).  Would it hurt to learn a little bit about how things work?  The resources are available – use them!  Go to IT and ask them to educate you, or educate yourself.

If I can do it, so can you…after all, you’ve got to know your limitations…

2.    BROADEN YOUR THINKING

This is on the ‘Technology’ list, too, and for good reason.  Do you know what encompasses ESI at your
clients’ enterprise?  Where is it?  Do they have access to it?  What if it’s on
someone’s personal equipment?  What if it’s on the ‘web’?  What about your adversary?  Are they being forthcoming about their ESI?  How will you ascertain that?  Remember,
you’re not just issuing and answering subpoenas here, you’re also looking for
exculpatory information on your clients’ own systems.  The blade cuts both ways.

3.    KNOW YOUR CASE LAW

This is uncharted territory.  Everyone is learning as they go – including judges.  If you’re not keeping up with changes in case law, you’re eventually going to get yourself into trouble.  There are several resources at your disposal that will email the cases to you on a regular basis.  Subscribe to one and stay current!

4.    KNOW YOUR STATE LAW

We tend to think about e-discovery rules in Federal form.  A lot of what we do involves national and multi-national corporations – and they’re ‘everywhere’.  Their disputes won’t necessarily be Federal in nature; and we may also have to deal with ‘choice of law’ issues.  No matter what your jurisdiction, state e-discovery rules may be in play.  It’s your responsibility to know which states have implemented proprietary rules and how they affect your case.  And be on the lookout for states with e-discovery rules on the horizon.

5.    BE KIND TO THE TECHIES

A lot of people treat technology support like they do the dial-tone on a telephone; when they pick up the handset, they expect it to be there no matter what.  Remember, techies spend a lot of their time trying to explain complex technology to people who don’t always understand it, yet are responsible for 1) managing it, 2) paying for it and/or 3) using it on a daily basis.  Sometimes the frustration shows.  Don’t just bark requests at them – be specific and work with them to understand what you need and whenever possible, why you need it.

e-Discovery Resolutions: Technology

Best wishes for a safe, healthy and prosperous 2009!

j0438855I 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.

3.    FORMALIZE POLICY

This is no time to be fooling around.  You do not want to be caught without policies in place when litigation arises.  You won’t be able to put the genie back in the bottle, so get together and create sensible company policy, implement it and make sure everyone knows what their role is (don’t make me cite #1 again…).

4.    TAKE BOXING LESSONS

Regarding resolution #3…hey, I didn’t say it would be easy, did I?  Depending on the ‘buy-in’ at your firm, you may meet a lot of resistance.  People don’t like to change their habits.  This is why you have to create policies that make sense, sell them to management, then make sure management stands behind you.  Otherwise, this will fail.

5.    BE KIND TO THE LAWYERS

Everybody has a job to do.  Yes, unless the attorneys have some experience with technology, they may think everything can be produced “yesterday”.  They don’t know about your budget issues, your workload or the limitations of your existing technology.  Your job is to make them understand what you can – and can’t – do, and set reasonable deliverables.  Remember, their licenses are on the line.

e-Discovery California: AB 5 – Electronic Discovery Act

j0309434Back in October of this year, I wrote about Governor Schwarzenegger’s veto of AB 926 (e-discovery California rules) and humorously predicted, “They’ll be Ba-a-a-ck!“.  Well, it didn’t take long…

Noreen Evans (D-Napa) has introduced AB 5, the “Electronic Discovery Act”, which is winding its way through the system.
It’s virtually identical to AB 926, but contains an urgency clause,
which means that if the Governor signs it, it’ll take effect
immediately.

Some were of the opinion the issue was dead for a year.  I didn’t share that view.  No, I don’t have a crystal ball (or a Magic 8-ball, for that matter).  I’m not The Amazing Kreskin – assuming anyone remembers him.  To be honest, my opinion sprang from pure logic.  These rules must be implemented if we’re to have any uniformity in California courts.  The only concern to me was how long it would take to enact.

Will the Governor sign the bill?  What does the Magic 8-ball say?

[UPDATE Feb 6, 2009 – There’s been further action on AB 5]

Ready, Set, Litigate!

Businessman on Start Line of Running Tract --- Image by © Royalty-Free/CorbisLitigation 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.

If that doesn’t work, there’s always the fact that trying to do anything in a piecemeal fashion results in much higher cost.  And if that doesn’t work, management needs to understand that they have duties to uphold – and it’s very easy to violate them when you’re not aware of the rules (oh, and the court won’t necessarily absolve you for being ignorant of the rules – there is a presumed level of competence).

Litigation isn’t just segregated to a small portion of a company.  It requires activating resources from all over the enterprise; HR, IT, Legal (internal and external), Management, etc.  Ever tried getting all of these parties in a room for a meeting?  I have.  Depending on what everyone has on their plate at that particular moment in time, it can take weeks!

Do you really want to be dealing with this at the last minute?  What about e-discovery software?  What
about storage?  Who will review the ESI?  What about your adversary?  Do you have the expertise to know that they’re complying with your ESI requests in good faith?  Who will oversee all of this?

3D Rendering. Very high resolution available! Use it for Your own composings!

The problem with this discipline is that it’s hard to know what questions to ask unless everyone who has a hand in the process is in the same room.  It’s like smashing the atom.  One question generates a whole host of other questions and before you know it, you’ve opened Pandora’s Box.

Start with question #1 – who belongs in the room?

If you have policies in place, everyone knows their responsibilities.  When a litigation hold is issued, duties are already pre-defined.  This is critical, because when they say “hold”, they mean “hold“.

Will your response be more like The A-Team, or the Keystone Cops?

Businessman Crossing the Finish Line --- Image by © Royalty-Free/Corbis