Category Archives: Education

Admissibility, Cases of Interest, e-Evidence Insights, Education, eMail, Scope

e-Evidence Insights: From Innocuous to Probative

MP900401435 If you'll forgive me my lack of time today,  I'd like to link you to a New York Times examination of the case, Skyhook Wireless v. Google (or as I like to call it, the "Jabbar" case).  The reason I'm singling this out is, if you follow the story, you'll see a great example of how seemingly innocuous statements contained in email messages, laid end-to-end, balloon into something much bigger.

Oh, and if somebody sends you an email – and you feel it would be more appropriate to continue the discussion off-line – walk by their office (if possible) or pick up the phone.  Don't email them back, "PLEASE DO NOT! Thread-kill and talk to me off-line with any questions".

If I saw that in document review, where do you think I'd start digging?

eDiscovery 101, Education, Media, Security

e-Discovery 101: Assembly Required

MP900289894 I don’t have any children, but many of my friends and relatives do.  Nevertheless, several years ago, I advised the Los Angeles District Attorney’s Office on their internet privacy program called ‘Protecting Our Kids’.  It shocked them when I demonstrated how easy it would be for kids to circumvent all of their ‘watchdog’ procedures.

So, I thoroughly enjoyed reading this story in which a high school in Connecticut accessed students’ non-secure social media pages, then presented some of their findings at an assembly.

I think you can already imagine the reaction of some of the students who were featured. 

But the creators of the presentation took care only to use images that would not embarrass or offend anyone.  Had they done otherwise, that would be another story.

As it stands, my comment to the offended students – and their parents – is, sometimes, we don’t realize the favor someone is doing for us.  If those same students think twice the next time they’re about to post an item, then the school has accomplished its goal.

Besides…did the message really get through?  Here’s what some of the angry students did first:

They complained on Twitter.

Education, Law, Law Practice Management, Miscellaneous, Technology

LegalTech West Coast – May 17-18, 2011 – New Month, Old Location

Who was the idiot who predicted that LegalTech WC would be history after last year?  From what I know now, it's likely my sources got wind of half the story – that it wouldn't be at the Convention Center anymore – but perhaps never heard the other half; that it's moved back to the Westin Bonaventure Hotel.  See you there!

LegalTech West Coast

eDiscovery 101, Education, Law

e-Discovery 101: Back to School

MP900448856 I tells ya…I don’t get no respect…no respect…

I swore after surviving law school – and the California Bar Exam – that I’d never attempt to learn anything again; nor ever consider taking another bar exam.  I’m pretty sure almost everyone feels that way after running the gauntlet.

But darn it, Ralph Losey talked me into trying out his new online e-Discovery Team Training program, and I’m going to give it a go.  I just want to be clear – I’m not doing this for myself, I’m doing it for you (that’s just the kind of altruist I am).  That’s what I’ll keep telling myself…

I agree with those who believe eDiscovery should be a mandatory course in law schools, so I’m curious to see the program Ralph and his team have put together.  Then, I’ll report my findings to you.

One thing – my schedule is a bit hectic these days, so this may take awhile.  For example, it took me about six weeks to get around to signing up!  Now, where did I put my pencil…

Backup & Recovery Systems, Cost, Disaster Recovery, Duties, Education, Implementation, Science, Scope, Strategy, Technology, Zubulake

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

MP900400964 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…"

Criminal Liability, e-Evidence Insights, Education, Security, Technology, vDiscovery Insights

v-Discovery Insights: Everything ‘Pops’ with Pringles – Just ask the FBI…

Pop: (verb – transitive): slang.  To Arrest, e.g. "Johnny got popped selling heroin."

Courtesy of MSNBC.com, this video illustrates beautifully (if you can call it that in this context) how easily one may hack into your router – and the amount of trouble you may get into as a result.  This is what cyber-crime really looks like.  Do you want to bank on a competent law-enforcement technician believing your explanation, then doing the legwork necessary to establish that you're not a child-pornographer?

Remember when I said I was going to start posting videos on this blog?  Yeah, me either…it was that long ago that I said it, but obviously haven't done it.  Well, I'm going to do it, but in the meantime, I've been sitting on "v-Discovery Insights", which I was diligently saving for the occasion.  I've decided it would be good to use with all of my posted videos – whether they're mine or not – so that you can select them as a category.  So, there you go.  From now on, all videos posted here will have that tag.

Now comes the hard part – deciding whether I want to go back through 325 posts and tag the prior ones!

Education, Implementation, Science, Strategy, Technology

“You Go to e-Discovery Wars with the Army You have…

1 Comment

…not the e-Discovery Army you might want or wish to have."

– Perry Rumsfeld

Ping.chartbeat.net

I don't think I've seen a story re-blogged, re-tweeted and/or re-everything'ed – at least among those who I monitor – as much as the "Armies of Expensive Lawyers, Replaced by Cheaper Software" article that appeared recently in the New York Times.

First of all, we need to remember what headlines are; short statements designed to entice one to inquire further, also known as 'teases'.  Mission accomplished!  Nothing like combining the words, "Expensive Lawyers", "Replaced by" and (horrors!) "Cheaper" in a headline to achieve a visceral reaction.  And the tagline (ouch!), "Smarter Than You Think"?  Really, New York Times?  Without the guidance of humans?

Perhaps you should have looked behind the set to see how Watson was able to apply context to Jeopardy questions.  Coming from a programming background (and I mean, waaaaaaaay back), I was more fascinated by the fact that it got the 'simple' question wrong.  What I mean is, on a binary (0/1, pass/fail or right/wrong, if you prefer) issue, Watson 'thought' Toronto was in the United States – even when the question clearly stated that the correct answer was a city in the United States.

My 2nd-grade teacher, Mrs. Blythe, said, "Always read (or listen to) the entire question (or instruction) and make sure you understand it before proceeding (or buzzing in).  Ok, she never mentioned anything about buzzing in.  How did she illustrate this lesson?  When we walked into class one day, we saw that she had placed a long list of tasks on a chalkboard, all numbered.  Each task was below the other.  She said these were the tasks we were to perform and to simply begin.  Everyone did, except for one person, who remained in their chair.  Why?  Because the last task on the list said, "#10. Do not perform any of the previous nine tasks.", and only one student read them all as opposed to one-at-a-time (No, I'm not going to tell you if I'm the one who read #10.)

When I first saw the NYT article last week, I was going to jump all over it – then I decided to wait.  I was curious how my colleagues would react to it.  Some simply repeated it through Twitter or their blogs, others added a few comments one way or the other (of course I haven't seen them all) and – not surprisingly – Ralph Losey hit a home run, in my opinion, with his analysis.

By coincidence, the same day the NYT article appeared, the LA Times wrote, "Retail jobs are disappearing as shoppers adjust to self-service".  See any parallels?

The issue, as I see it, has nothing to do with jobs.  It has everything to do with efficiency.  I'd also note that while document review – which is what the NYT article is really talking about – is a component of e-Discovery, e-Discovery encompasses much more than document review.  Think strategy, for example.  Watson may be a genius, but 'he's' unable to reason when your opponent is hiding evidence.

Years ago, a headhunter offered me some document review work.  She was paying $25/hr.  At the time, a checker at my local Albertsons supermarket was earning approximately $30/hr and was about to go on strike to demand more.  Prior to that, at the nadir of the dot-com bubble, I'd watched as a plethora of good technology jobs were outsourced to India.  This is what free markets are all about.

I'm not a fan of the language of progress as expressed in corporate meetings.  Matrix, metrix, service-levels, deliverables…ugh…so robotic in nature.  Maybe that's why I migrated to consulting.  But I'll tell you one phrase I – and employers – do like.  Value add.

The focus seems to be, "The machines can now do what I can do!".  To me, the focus should be, "What can I do that the machines can't do?  How do I add value, the result of which is, I'm needed in addition to the machines?

When you ask yourselves that question, you'll always be one step ahead of technological advances, rather than chasing them.

Education, Judges, Sanctions, Spoliation

The Augur Sanction

MP900442519 e-Discovery Santions are increasing!  e-Discovery sanctions are decreasing!  Well, one of those statements is true, but here’s a better question; does it matter?

My pal Bob Ambrogi at Catalyst posted this excellent analysis showing the increase in sanctions.  Of course, when I ran into him at LTNY, we both chuckled over the fact that the latest Gibson, Dunn report states the opposite.  Bob followed-up on his own article with another excellent analysis on the discrepancy.

When it comes to this portion of the e-Discovery discipline, I prefer to look at it as simply “discovery”.  I even have a nifty formula.  The number of attorneys/clients engaging in discovery misconduct is directly proportional to those engaging in e-Discovery misconduct.  The proportion then increases/decreases based upon the bad actors’ knowledge of electronic forensics.  In other words, someone is more likely to engage in trickery if they think they won’t get caught – and when it comes to e-Forensics, in most cases, they don’t even know how we catch them.

Obviously, this doesn’t make me a genius.  If anything, it’s common sense.  But, betwixt and between all the debate about cooperation, I remain firmly in the “I’ll believe it when I see it” category.

This is all beside the point, anyway.  As I’ve stated before, if you look at the total amount of sanctions, it’s still an infinitesimal number when applied to the amount of cases.

Continued education of all parties regarding the process involved still augurs well for the future by keeping honest parties honest – and making dishonest parties at least think twice before acting.

Education, Science, Technology

Exa! Exa! Read all about it!

MP900422455 Megabytes, gigabytes, exabytes.  This article places total global data capacity at 276 exabytes in 2007 (so we know it's already a stale statistic). 

Of course, it goes on to provide you an illustration of how much data this encompasses (e.g. "If I poured pancake syrup on top of Donald Trump's humongous ego, it would take four gazillion years for it to drip down to the plate."), but I prefer this example:

My dictionary gave me an error…it doesn't recognize the word 'exabyte'…which is also why predictive coding is the new, new thing.