Category Archives: Cases of Interest

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…

j0404952
 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!

Judges to e-Discovery Attorneys: ‘Too Bad, So Sad!’

j0386224“Courts Unsympathetic to Electronic Discovery Ignorance or
Misconduct”.

Those were the words glaring back at me from my January 2009 issue of Kroll Ontrack’s Case Law Update and E-Discovery News Practice Points section.  It goes on to state (emphasis added):

“This past year highlighted a major trend in cases concerning issues involving the exchange of electronically stored data: an increase in judicial unwillingness to display compassion or tolerance for negligent e-discovery blunders. Courts are increasingly imposing sanctions for discovery misconduct and for the failure to properly preserve and produce electronically stored information (ESI). In fact, of the approximately 138 reported electronic discovery opinions issued from Jan. 1, 2008 to Oct. 31, 2008, over half addressed court-ordered sanctions, data production, and preservation and spoliation issues. A rough breakdown of the issues involved in these cases is as follows:

–  25% of cases
addressed sanctions.

–  20% of cases
addressed various production considerations.

–  13% of cases
addressed preservation and spoliation issues.

–  12% of cases
addressed computer forensics protocols and experts.

–  11% of cases
addressed discoverability and admissibility issues.

–  7% of cases
addressed privilege considerations and waivers.

–  7% of cases
addressed various procedural issues.

–  6% of cases
addressed cost considerations.”

Roughly one in four cases involving e-discovery resulted in sanctions?  Stunning!  I’m going to assume that my readers don’t intend to commit misconduct, so let’s talk about ‘ignorance’.

j0386152Based on the conversations I’ve been having lately, a lot of attorneys don’t even know there’s a standard, yet.  Well, if you don’t, here it is:

Courts presume (expect) a level of competence in e-discovery.  Great.  How do they determine the level?  Unfortunately, that’s the slippery slope.  It’s being determined every day in courts throughout the nation.  The Court expects that if you don’t possess the knowledge, you’ll find someone who does, and if you fail to do so, you’re going to be liable.

Cases?  Where do I start?  “…willfulness is relevant to the severity of
sanctions imposed, but not to whether sanctions should be imposed.” (Italics added)  Barnett v. Simmons, 2008 WL 4853360 (Okla. Nov. 10, 2008)

This goes to the heart of why I created e-Discovery Insights in the first place.  Any reasonable person understands that when you have new rules, there’ll always be latitude for a time until everyone comes up to speed.  That time is over.  Long over.  The Judiciary is telling us that they’ve had enough and are starting to lose patience with parties who flout the rules, and – like it or not – in many cases they’re completely justified.

You do not want to be in front of a judge who has lost their patience.  Been there, done that.  We’ve already seen the monetary sanctions, but one of these days, an attorney is going to either be suspended or disbarred over an e-discovery foul-up.  Don’t be the first.

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.

I Can’t Really go to Jail over this…Can I?

As sanctions mount for those who have run afoul of the new e-discovery rules, debate is raging about criminal liability.  To some, the threat is very real.  They recommend extreme caution.  To others, it’s nothing more than a scare tactic.  They say the threat of incurring criminal liability over an e-discovery issue is slim to none.

Who is right?

I’ve neglected to link articles from both sides of the debate.  The reason; it’s not my place to criticize the writers – they make very strong arguments, for and against.  It just so happens that, in my opinion, the answer is somewhere in between.  Perhaps the reason many people think that criminal liability
is unlikely to attach flows from the possibility that they’re not thinking broadly enough.  In other words, they’re not taking into account who might be ensnared in the e-discovery net.

ca. 1990s --- Cat Staring at Goldfish --- Image by © Aaron Horowitz/CORBIS

The logic works in reverse.  The higher up in the e-discovery food chain you are, the more likely you’ll be eaten.  The small fry aren’t likely to get themselves in trouble, barring egregious conduct of some sort.  The standard of what would rise to the level of a criminal act may be high – but the liability exists.  So, who should be looking over their shoulder?

The White House (possibly violating the Federal Records Act), A former Broadcom Corporation executive (accused of obstruction of justice) and former Credit Suisse First Boston investment banker Frank Quattrone (also accused of obstruction and witness tampering) who endured a four-year ordeal for encouraging his employees to essentially ‘clean up those files’.

And the lawyers?  Six of them were referred to the State Bar of California for possible ethical violations in the Qualcomm v. Broadcom case.  A crime?  No, but facing various penalties up to and including disbarment, my guess is it feels like a crime to them.

If you reviewed the links, you’ll note that I’m not necessarily
concerned with whether the principal was convicted of – or plead guilty to –
committing a crime.  It’s scary enough just reading what actually happened – or could happen.

We’ve all heard the term, “Ignorance of the law is no excuse.”  That rule-of-thumb applies to e-discovery also.  One can commit a crime without realizing it.

j0387725If you’re a tech, and the boss tells you to delete data – and you simply follow his orders – if he instructed you in order to hide wrongdoing, he’s likely to be in trouble, but what about you?  If the facts are as stated, probably not.  But what if your company has an ESI policy, your boss’ instruction violates that policy, you know this, but you do it anyway?  Did you just become an accomplice to a crime?  Will the common explanation, “I was just following orders” get you off the hook?

Obviously, we’re not taking a crash-course on criminal law today.  There are so many hypothetical scenarios that could occur, with so many different facts that it would be impossible – and irresponsible on my part – to attempt to tackle all of them in a blawg post.

What I endeavor to do is to impress upon you that a snap decision that didn’t make you think twice in the past could burn you in the future.  ESI for it’s own sake doesn’t normally make one think of crimes.  But now, we’ve entered a new arena.  The law is involved, and if data “goes missing” in this context, your adversary – or the court – may infer that something fishy is going on.

Is it worth the time, expense, stress, loss of reputation and threat of incarceration?  The outcome is beside the point.  Even if you’re exonerated, where do you go to get your lost time, money and reputation back?

e-Evidence: Legoland or Humpty Dumpty?

Part II of a two-part series.  Part I appeared 12/03/08.

Forgive me – I’m in a mischievous mood today…

PART II – LEGAL RELEVANCE

j0403058“All the king’s horses and all the king’s men couldn’t put Humpty together again!”

This is a humorous nursery rhyme from my childhood.  Others, like Ring around the Rosey or London Bridge might have illustrated my point well, but those are missing the most important part; with e-discovery, once the opportunity is lost, it’s likely a permanent result.

Let’s say you’ve made it all the way through to this stage,  If that is so, then not only have you located evidence, you’ve established that it’s logically relevant (which in law-speak generally means that the evidence is material to prove or disprove a disputed fact that is of consequence to the action, and has probative value).  That takes care of that, right?

Not so fast.  Now, you have to persuade the court that it’s legally relevant to your case; and that means laying a foundation of admissibility.  Your adversary is going to use every tool at his or her disposal to knock out items that exculpate your client.  Did you take care to make sure that all technical aspects have been satisfied?  A paper trail is one thing, but an electronic trail?  Maybe a game of Twister would be easier.

In law school, we had a ‘mini-checklist’ that would help us remember all the things we had to think about when addressing this type of evidence:

  1. Is it Relevant?j0385258
  2. Is it Authentic?
  3. Does it violate the Best Evidence Rule?
  4. Is it Hearsay?
  5. Is it Privileged?
  6. Is it Parol Evidence?

Techies, take a deep breath.

For our purposes today, I’m not concerned with three through six.  Lawyers will determine the disposition of the evidence once it’s produced.  But what about one and two?  There are a lot of steps leading up to production.  The data may pass through several hands before it makes its way to the legal department.  Let’s take a look.

RELEVANCE (LEGAL)

We discussed logical relevance above.  We have, theoretically, material evidence.  Now, we must lay the foundation (also mentioned above).

AUTHENTICATION

We have to establish that the evidence is what it purports to be.  That’s not simple, even when it’s paper.  We need an electronic trail to follow – and that’s the east part.

First, we have to establish chain of custody.  That means we need to link together the source and all phases it passed through – kind of like a Barrel of Monkeys. If a cutting-edge method was used to procure the data, there could be a scientific challenge to the process. We’ll need expert testimony to walk the court through how the evidence was obtained.

The lawyers aren’t likely to be doing it.  They don’t have the technical know-how, plus, there are ethics issues with lawyers testifying in trials they’re working on.

Techies, let out that deep breath.  If they won’t be doing it, you will!  It means you’d better document everything, then be prepared to testify about it in court.

EPILOGUE

If this exercise proves one thing, it’s that attorneys and technology professionals have separate and distinct – and extremely important – jobs to do.  But in certain areas, they depend on each other.  If IT can’t get access to data, the attorneys may have to file a motion.  If IT establishes that there will be a punitive cost to comply, the attorneys may have to push back – or seek cost-shifting.  As an attorney, if I don’t explain to IT that every step of their process must be documented, am I hurting them?  No – ultimately I’m hurting myself, because I’m the one who will have to establish authenticity in court.

As you can see, the process of bringing ESI to it’s proper form is a series of building blocks, not unlike stacking Lego bricks.  In fact, in evidence law we have a saying; “A brick is not a wall“.

Take care.  Failure to stack the bricks carefully and your wall will likely end up like Jenga or Kerplunk.

Darn…I should have been able to work in Operation

Testing 1-2-3…Are you ‘Really’ Ready for a Litigation Request?

Part II of a two-part series.  Part I appeared 11/24/08.

PART II – ESI COLLECTION

I read a lot of of excellent articles, white papers and documents (as do you)
which present reasonable, astute and prescient approaches to getting a
handle on your company’s ESI (electronically stored information).

However, in virtually all of the materials I see, one important element is missing:

TESTING.

j0433180Buildings run fire drills. Do you run data recovery drills?

Sounds counterintuitive, doesn’t it?  Common sense would tell you that if you’re backing up your data, it should be relatively easy to recover it on demand.  After all, the software “tells” you in your morning report that last night’s run went fine.  But did it?  Is that all that matters?

 Think about it for a moment.  How many spokes are in your hub?  Where are they?  How many people are responsible for protecting the data?  What software do you use?  What hardware?  What media?  Is it easily accessible?  Physically?  Remotely?  Do you handle it in-house or do you depend on outside vendors?  Do you use off-site media storage?  Do you know the time it would require for you to comply with a request to produce data?  Do you have an alternate location to restore it?  It isn’t always restored to the location where it originated, and certainly not when litigation is involved.

Let’s boil it down to one simple question.  What would you do if you received a call with a demand for data – a large quantity of data – that isn’t at your fingertips?

Woman with Headache --- Image by © Royalty-Free/Corbis

It would surprise you how many companies haven’t thought about this.  They do everything right in terms of the front-end of this process, but never anticipate the back-end.  They do a terrific job of thinking about data protection, yet don’t think about more important issues – data integrity and the ability to restore it.

What good is all of this technology if, when the big request comes down, you can’t deliver?  It’s bad enough when this has nothing to do with e-discovery (such as my location in California, where we have to worry about earthquakes), but when it does, there are sanctions on the line – and not just civil sanctions.  Some of the penalties are criminal in nature.

Admittedly, criminal liability would most likely require intentional and/or egregious conduct, but the spectre is out there (I’ll address the facts vs. fictions in a future post).

You don’t want to be the attorney who has to stand in front of the judge and say “I’m sorry, Your Honor.” because you are either experiencing delays in producing the data, produced it very late in the litigation process or are unable to produce it at all.  You might get a response like this one from a Judge in the recent McAfee case – “Heads will have to roll“.

Let’s hope it isn’t your head she’s talking about.

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

j0439550Perception 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.

How many times has IT received a call like this?  “I created a document this morning and I accidentally overwrote it this afternoon.  Can you please restore it for me?”  That’s a problem.  Regardless of what day it may be in the rotation, most companies perform a back-up once per evening.  As such, there is no back-up of the caller’s file.  Unless the over-written file can be restored somehow from the disk it was saved to, the caller is out of luck.

Back-ups are not normally a dynamic process; they’re snapshots in time.  Even if you do full backups every night, theoretically, an infinite number of people may “touch” a file between those two periods.  This is something lawyers would easily understand; but many are not aware of it.

What the lawyers need is for the data to not only be located – and restored, if necessary.  The data must also be preserved.  Nobody must touch or modify that snapshot – a line in the sand, so to speak.  Again, this is something IT would easily understand; but many are not aware of it; nor the massive amounts of storage that may be required to accomplish it.

Also, most rotation schemes involve eventually overwriting the media (Grandfather-Father-Son?  Tower of Hanoi?).  What happens if, like in the recent McAfee case, data is requested that is from the year 2000?

Rows of Drawers at Library ca. 2001

Basic definitions also come into play.  Do all of the parties mean the same thing when they use the terminology?  What is a back-up and a restore?  What is disaster-recovery?  Do you have separate processes for each?  Are they considered the same thing at your company?  What is the intent of the process; ready access to the files or worst-case-scenario access?  Is the data stored on-site or off-site?  Both?

IT is thinking about how feasible it is to access the data.  Attorneys are thinking about Zubulake.

Be careful you’re not creating your own homonyms.  Webster’s Dictionary defines them as, “Two words…pronounced or spelled the same way but have different meanings”.

If Legal thinks it’s one thing and IT thinks it’s another, both groups are going to face some very unpleasant realities down the road.  This would be a good time to get those definitions written down.  Then make sure you’re all on the same page.

Back to the Future – Reebok v. Tristar, 1996 (the “Jerry Maguire” case)

*** NOTE – No privileged or proprietary information is contained in this post. ***

Movie Reel

My first foray into the realm of e-discovery occurred in early 1997 – when it was still just called “discovery”.  I was a Consultant to Sony Pictures Entertainment at the time and Manager of Groupware Services Worldwide, which – unfortunately for me – included responsibility for the company email system.  I was not yet an attorney.

(I have a feeling most of you know where this is going…).

In late, 1996, Reebok Int’l filed suit against Tristar Pictures (at the time a subdivision of SPE) for breach of contract due to the handling of a product placement in the movie, “Jerry Maguire“.  Reebok’s attorneys issued a subpoena for relevant email correspondence between Tristar representatives who were parties to the negotiations.

We faced a serious problem, which was not an unusual one given the time elapsed between negotiations to make a motion picture and the actual production and release of that picture.  The emails were several years old and the Company had done away with the archaic tape backup system used at the time.

A consultant’s job is to find a reasonable method to deliver what a client requests.  As such, I tasked one of our best number-crunchers to figure out what it would realistically take to re-create the prior backup system from scratch, then catalog all of the old tapes to
even give us a starting point as to what would be required for review and production.  Keep in mind that this was a much more difficult feat to accomplish in 1997 than it is today.  The results were striking.  The estimated cost to comply with the subpoena was approximately $250,000!Movie Reel and Film

Obviously, management wasn’t too keen on the idea of spending that sum of money, and thus began a motion by Tristar’s representatives to quash the subpoena due to the high cost, or failing that, shift the burden – or at least a large portion of it – onto the Plaintiff.  Being on the tech side of things – and with a stack of responsibilities on my desk – I moved on to the next “crisis” and have no knowledge as to what specifically transpired after that.  Eventually, the word came down from on high; “you don’t have to worry about producing the data”.  Whew!

I wanted to relay this story because it mirrors exactly how an e-discovery request might fall upon an IT department today.  It also raises several of the most important issues:

Are we able to comply with the request?  How much time/resources will this take away from our other pressing issues?  How much will this cost?  Who will bear the cost?

Luckily, I had at my disposal the qualified brainpower to comply – and had we been asked to proceed, we could have done so.  But it would also have meant taking one of my best minds away from what he was doing, leaving me short-handed with the prospect of making do without him or hiring a temporary replacement and bringing him/her “up to speed”.

The question is, what would happen if you received the request?