Category Archives: Education

Education, Miscellaneous, Technology

e-Discovery Insights Selected by U.S. Library of Congress for Historical Archive

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Folks, I don't know what else to say about this, except to provide you with the following excerpt I received this morning:

"The United States Library of Congress has selected your website for inclusion in the historic collection of Internet materials related to Legal Blawgs. The Library of Congress preserves the Nation's cultural artifacts and provides enduring access to them. The Library's traditional functions, acquiring, cataloging, preserving and serving collection materials of historical importance to the Congress and the American people to foster education and scholarship, extend to digital materials, including websites."

I think I just achieved immortality!!!

Backup & Recovery Systems, Cost, Criminal Liability, Disaster Recovery, Education, Implementation, Law Practice Management, Scope, Strategy

#CalBar Solo & Small Firm Summit Recap

MP900439382 Yeah, I know.  The summit ended Saturday at noon.  It's been a busy week for me, but better late than never.  I had to skip the Thursday sessions, but arrived early Friday morning.  I was backing up another one of my LPMT colleagues in the tech lab, so between his presentations and mine, I didn't get to attend anyone else's sessions, which was a shame, because there were some good ones.  I did catch the bulk of Stephen Fairley's morning keynote on marketing and SEO.  I can only say this; the man is right on about what he was saying.  It was similar to the advice I received from my web guru, Clint Brauer.  Bottom line; if you're going to make a serious attempt at creating an online presence, you need to understand how your information will propagate to the 'web before you develop web sites, create accounts, etc.

I didn't know what to expect for my labs on disaster planning, but for both sessions (I did the identical presentation back-to-back) I had full houses.  The attendees asked a lot of good questions – which is the first indication they're not bored – and although we had some technical difficulties, I was able to illustrate how, in some cases, a few minutes is all it takes to create a basic backup strategy.

Day three, Saturday, I took in the morning keynote on "Multitasking Gone Mad", or, how the more we multitask, the less we accomplish.  Now, this was Irwin Karp presenting – who also preceded me on the LPMT committee – but I'll tell you, the idea of doing one thing at a time is something to strive for, but awfully hard to accomplish.

The second session should really make the eDiscovery people excited.  It covered hearsay (civil, for the most part), but guess what the starring attraction of most of the examples was?  Electronic evidence!  For example, the presenter showed a slide from a traffic camera of a car colliding with a truck at an intersection.  Another was a photo of a simple bar code (not a QR code, like the one you see on my right sidebar).  In both instances, the question was, is this hearsay?  As usual, the answer was, it depends on your jurisdiction.

The third session was one that eDiscovery professionals most likely wouldn't be attending.  It covered the activity up to and including the arrest of a client.  As you know, I also handle criminal cases, so again, this was a good refresher for me.

So, basically a quick in-and-out, and barring any changes to the schedule, my next presentation will be at Calbar's annual meeting in September.

Education, Implementation, Law Practice Management, Strategy

A Lawyer Walks into an #LPMT Presentation…

MP900448335 No, I'm not going to post every time I make a presentation – unless there's something interesting to note.  In this case, my colleague Gideon Grunfeld and I presented on law practice management issues.  He covered attorney advertising and reputation-protection online and I covered – what else – protecting your data in the cloud, via social media, on your PDA, etc.  I also ran the attendees through the new California State Bar Opinion 2010-179 re: wireless networks.

Now, this was a group of tax attorneys, which is not in our usual wheelhouse, and being as we were the first presenters at 2:30 PM, I assumed we wouldn't get more than 15-20 people.  Then they started having to bring in extra chairs…then more extra chairs…and by the time we concluded, they were standing in the hallway; we estimated close to 50 people!

What's the significance?  Well, first of all, we knock ourselves out to try to do quality presentations, so it's no fun presenting to an empty room, but second of all, I was heartened that these attorneys wanted to know this material.  We took a bunch of quality questions, also.

Things are looking up!

eDiscovery California, Education, Law Practice Management

e-Discovery California: #LACBA Tax Night Panel – 06-15-11

00443095 This just in:  I’ll be appearing on a panel with my LPMT colleague, Gideon Grunfeld, at the annual LACBA Tax Night series of CLEs on Wednesday, June 15th from 2:30 – 3:30 PM.  Here’s the synopsis:

“Gideon Grunfeld (Rainmaking for Lawyers) and Perry Segal (Attorney, and Management and Technology Professional) lead a discussion of the impact of technology on law practice management, from blogging and business development to data security, storage, and the Cloud.”

Education, Implementation, Law Practice Management, Strategy

A Lawyer Walks into an #eDiscovery Presentation…

MP900422817 Last night, I did a one-hour presentation, "How to Lose an eDiscovery Case in 30 Days", to a room full of seasoned lawyers – and a couple of judges – for the Los Angeles County Bar Association Litigation Inn of Court.  I've been a member of this group for approximately two-and-a-half years and, having discussed eDiscovery at length with the members over the usual cocktails and dinners, I tailor-made my 20-slide talk to focus on what I believe they wanted – and needed – to know.

Slide #1 was my nine-point outline of what I would cover over the hour.  Forty minutes later, I was still on that slide.  The Inn of Court uses an open-question format.  Unfortunately, in our space, one question opens a can of worms, which spawns multiple follow-up questions.  Obviously, it's a good thing that there were so many questions – and the attendees can always read through my presentation at their leisure – but, as someone who is always observing those who are observing me, it illustrates how much farther there is to go.  I could have easily stretched the talk to two hours and still would have likely run out of time.

When I present at the CalBar Solo and Small Firm Summit June 24th, I may have to switch to the despotic method and hold questions until the final ten minutes.  It's a tough call.  Every question I was asked last night was substantive and important – and deserved an answer.  The problem is, with only an hour available, the best one may hope for is completing an overview.

To put it another way, I made it through the meal, but didn't get my dessert.

Cases of Interest, Duties, Education, Implementation, Judges, Law, Miscellaneous, Sanctions, Strategy, Technology

#LTWC 2011 – Day 2: The Dancing Itos Meet the #DigitalRoachMotel

Dancing Itos I'm sure you've noticed I'm using hash tags in my subject titles.  I picked up a lot of followers on Twitter during the conference and the former tag allows others following LTWC to find my summaries easily.  If you're already following me, you've seen the latter tag before.  We'll get into that, below.  As always, my disclaimer from my Day One post remains the same.

I am the man of steel!  Ok, maybe I'm the man of aluminum!  Ok, I'm thinking more along the lines of the man of caffeine.  I attempted to do the impossible; attend every single session available on day two.  I'm sure plenty of others do so, but I'll admit, when you do this, coupled with quick meetings prior to the commencement of the day, on every break and even afterwards, I can't speak for others, but I resembled some kind of zombie by the time I approached the parking garage (ask the person who met with me at the end of the day).  You know why?  Because, save for the final session, I sat in the front row (which is something I always do).  For one thing, I'm live-commenting on the event via Twitter, plus, it keeps me engaged, which is important because I'm there to drink in every bit of knowledge I can – not to sit in the back and collect CLEs (not that I don't love CLEs…).

The keynote, "Trial by Sound Byte", was given by Manny Medrano.  I've met Manny before and if you're from the L.A. area, you've likely seen him on local networks, covering cases like the OJ Simpson murder trial.  Manny's a very personable guy and is even more so as a speaker.  He contrasted his desire to cover hard news cases with the network's desire to cover celebrity cases, such as the death of Anna Nicole Smith.  He focused heavily on the issue of media coverage and how it may interfere with justice rather than simply telling the story.  Put simply, news reporters and networks are as apt to let the confidential cat out of the bag as social media users.  He cited a few examples (some that we've covered on these pages) but what I liked was his hard-line approach to violators.  He believes in harsh penalties (monetary, if possible) when there are egregious instances of juror misconduct.  I agree wholeheartedly and have said so many times.  Closing observation: this is probably the first time I'd heard the term, 'Dancing Itos', since 1996.  A decade later, during the last criminal case I worked on for the D.A.'s office, the day the verdict came out, our sitting judge took ill, so we had a substitute.  I walked into the courtroom and sitting at the bench was none other than Judge Lance Ito.

On to session one, covering "Electronic Discovery in the Cloud", with the 'legend', Tom O'Connor.  He was supposed to be presenting alone, but was joined later by Brett Burney.  This was an unexpected treat for me because last year, I stood in for Brett at another conference when he was stuck in Ohio and couldn't come.  The whole thing was hastily arranged and I basically did it sans notes.  Brett and I had never met in person, so it was great to finally put the face to the name.

This session was a perfect antithesis to the cloud presentation I attended on day one.  Here, we covered all of the risks & rewards of cloud computing.  In particular, the biggest bone of contention is how much control the vendor retains over the data.  In some cases, a law firm that agrees to those terms may actually violate their code of ethics by turning control of confidential client information over to another without their consent.  This was a more sobering – and in my opinion, more realistic – overview of what cloud computing is all about.

That's when it hit me; as far as your data is concerned, the cloud is like a digital roach motel.  Your data checks in, but it may never check out.  Or, for a little California emphasis, call it the Hotel California.  Your data can check out any time it likes, but it can never leave…

Time for the lunch session, "A View from the Bench" which was led by two Federal Magistrates, Jay C. Ghandi and Suzanne H. Segal (no rel.).  Judge Segal presented to my litigation group only two or three months ago on jurisdictional matters.  I'm presenting an eDiscovery CLE to the same group in about two weeks and if I could just get the videotape from this session and play it, I'd let my attendees watch it while I sneak up and eat all of their cream-cheese desserts.  It's exactly what I'm going to be saying, which is, in a nutshell:

  • It's never too early in the process to bring in your technical assistance,
  • You must plead with particularity regarding eDiscovery matters,
  • Take as many of the decisions as possible out of our hands and you'll make us happy,
  • Get your clawback agreements in place,
  • You've had enough time to understand this stuff, so if you screw up, we'll sanction you!

*Sigh*  The latter statement seems to be more in force in Federal jurisdictions, but I suspect that – in California's case, anyway – that's because our rules came into power in 2009, not 2006 like the Federal rules.

The judges presented us with a hypothetical scenario regarding a corporate sexual harassment case and we analyzed the mistakes that were made during the process.  The gist of the issues were more focused on a paralegal performing attorney functions and making decisions that only an attorney may make, but what bugged me most was that, in a personal misconduct case, when the misconduct was reported, the paralegal contacted the subject of the accusation.  This particular fact tidbit had nothing to do with their presentation and was likely just a by-product, but I would say this to you.  If you become aware of that type of misconduct (which will trigger respondeat superior), here's my advice.  Do not pass go.  Go directly to whoever is responsible for overseeing these matters, call the accused into a meeting, have them sign a document informing them of the complaint while simultaneously arranging to collect an image of all of the person's data that you can.  And do not let them access any of it until you're done.

Why?  Because your job is also to protect the corporation; and the corporation may be held liable for any additional misconduct of its members.  If you inform the accused perpetrator, what might they do?  Go back to their office and start deleting incriminating emails?  Who knows?  The point is, you must issue a true litigation hold on the spot and preserve an image of all of the information you can.  Think I'm being harsh?  I know of organizations who do this, exactly.  In fact, one of them will put the accused on leave without even informing them of the basis of the accusation.  Doesn't that sound like being found guilty, until proven innocent?  Yep.  Welcome to Corporate America.  But I digress…

Next session was "The Top 5 Ethical Concerns for Lawyers in E-Discovery", presented by Brett Burney (again, who I didn't know was going to be there).  This was a nuts & bolts session and was very clear.  The slides spelled out what our duties are, what the rules say (both eDiscovery and ethics), the supporting and dissenting case law and links to resources.  Obviously, the longer one has occupied this space, the more one knows of these matters, but I've never thought it to be a bad thing to attend a refresher.  It's very easy to forget.

Here's what I have to say about the last session.  Do you recall what I wrote yesterday about the first session?  Ditto.  My brain was fried at this point, anyway.  And so, we shall not speak of it again…

All in all, a great conference for me.  See you next year!

Education, Implementation, Law, Miscellaneous, Strategy, Technology

#LTWC 2011 – Day 1: Kumbaya?

MP900309157 If I blog late on a Friday afternoon – but there's no one here to read it – did I make an impression?  I say this because Google Analytics tells me you all go home Friday afternoon – and virtually nobody reads me from home on the weekend.  Seriously, I apologize for being so tardy with my updates, but when I'm busy, I'm busy.  Of course I could hammer out something fast – which is what we've gotten used to these days – but even though it's a bit stale, I'd still rather take a bit of time and be substantive.  With that in mind…

The usual – and annoying – disclaimer:  Please be advised that this year, I was given an all-access pass to the conference in my capacity as a 'legitimate' blogger (I laugh every time I type that…).  Also, I was provided with a discount code for your benefit – or for the benefit of people you know.  As is always the case, nobody associated with LegalTech asked me to do anything more than what I usually do;  mention LegalTech and give the dates of the conference.  All other posts about the conference are my views alone and nobody has editorial control over what I write, except me (otherwise, I wouldn't accept the pass in the first place).  Ok…to the substance…

I was arriving from out of town and even though I'd given myself plenty of lead time, a last-minute-accident on the freeway guaranteed that I wouldn't make it to the opening keynote.  However, I wasn't too concerned.  The speech was, "Social Media & the Law".  I think we've covered that quite a bit as it is, although David Pashman, the speaker, delved into the Communications Decency, Digital Millennium Copyright and Stored Communications Acts.  I also had to miss the Plenary session for a lunch meeting, but wasn't too upset, since that one covered, "Why the Legal Industry Needs to Embrace Technology", by Tim Hart.  We know, Mr. Hart, we know!

This leads to the session in-between.  Here's the deal.  The scheduled speaker didn't come and the replacement wasn't prepared to cover the subject.  He even admitted he didn't understand what some of the slides were supposed to mean.  As such, I have no idea what they were trying to say, nor did I learn anything.  However, I'm cutting him some slack because he was obviously thrust in at the last minute.  I missed a speaking engagement last year and stranded my co-panelists because the judge in my trial said, "You're not going".  We're lawyers and technologists and it happens, usually at the most inopportune time.  We move on.

After lunch, I went all-tech with "Big Clouds and Small Clouds – Law Firm Experiences with Cloud Computing".  We had three young guys (remember, 'young' is relative) on the panel who were very excited about the technologies they were working with, which is always refreshing.  Especially since, in my capacity, my job is to temper excitement and prevent corporations and law firms from misusing the same technology.  Unfortunately, the new, new thing is usually the most dangerous for my clients.

This leads to my other observations; first, I couldn't confirm that the attorneys at the firms served by these guys really understood how much control of their data they'd actually relinquished to the cloud – and the risk that accompanies that decision.  Second – and if you follow me on Twitter, you've already seen this – I don't think they were worried enough.  That could be where the 'young' part factors in.  When I see this, I usually assume that the techs have never experienced a major outage, because if they had, they're usually a lot more cautious.

I know what you're thinking; I could have just put up my hand and asked them.  But, I wasn't trying to embarrass anyone, plus, these sessions are 75 minutes long.  I could also have opened up a can of worms that would have wasted a large part of their presentation and I wasn't about to do that.  I walked away with the thought that what they've done is exciting – as long as it's adequately explained and signed-off on by their bosses, and a comprehensive disaster-plan is developed.  I know…they're the party and I'm the wet blanket who tells them to go home.

The last session of the day was, "Partnering for Success: Inside and Outside Counsel Working Together".  I have to say, I loved this session!  Why?  Because, they told the truth.  Let me flesh that out a bit.  People at these things all tell the truth from their perspective – that isn't the issue.  What I mean is, this group told the greater truth, also known as the dirty little reality that very few people want to talk about.

Specifically, their flowchart had an accommodation for "e-Discovery as Extortion" and explained how one should change strategy to address it.

I'm fully aware that it's distasteful for both lawyers and techies to discuss some of our experiences because everyone keeps talking about the 'cooperation proclamation' and 'dancing geek to geek'.  Make no mistake, we get closer to those ideals every day.  But, here's my greater truth; that hasn't been my personal experience in many cases.  And when we don't discuss the realities of acrimonious litigation, I think we do a disservice – especially if you take into account that, in these situations, your adversary is counting on you to perform in good faith – while they don't.

I can't tell you quite as much about their presentation as I'd like because unfortunately, their slides weren't available.  They're going to send them to me eventually, but in overview as a whole, they did a great job of covering the issues between inside and outside counsel and the pertinent case law, assessments and strategies that each should know to better facilitate a good result for the client.

After that, I was supposed to attend three cocktail receptions – at the same time.  Thrice is nice, but the best I could do was split myself in two and attend LegalTech's reception and a benefit by Catalyst for Japan earthquake relief.

All in all, a great start to the conference and an excellent finish to day one.  Coming up next?  My summary of day two.  I hope to post that tomorrow.

Backup & Recovery Systems, Disaster Recovery, eDiscovery California, Education, Law Practice Management, Strategy, Technology

e-Discovery California: Upcoming Presentations & Activities – May/June 2011

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I thought it might be a good idea to share my presentation & conference schedule for the next couple of months…this will also explain why I haven’t had as much time to post; I have deadlines!

May 17-18th:  As mentioned prior, I’ll be attending LegalTech next week in downtown Los Angeles.  At the moment, I’m planning to attend both days.

June 1st:  I’m presenting a one-hour CLE for general credit at the Los Angeles County Bar Association Litigation Section Inn of Court, titled, “How to Lose an eDiscovery Case in 30 Days“.  The synopsis:

“The steps you take in the first 30 days leading up to the initial ‘Meet & Confer’ can make or break your case.  This program will discuss what to do before, during and after to keep you on track.”

June 24th:  I’ll be making two one-hour CLE presentations in the computer lab (.5-hour general & .5-hour ethics credit, limited to 25 people per lab) at the California Bar’s Solo and Small Firm Summit at the Anaheim Marriott, titled, “Earth, Wind, Fire, Flood & ESI: Disaster-Planning for the Law Office“.  The synopsis:

“A ‘disaster’ encompasses a lot more than you might think. The ‘physical’ office is covered; what about the ‘virtual’ office? If you suffer a catastrophic failure on Monday, can you be back in business Tuesday morning? Are there ethical issues? It’s 2 am. Do you know where your data is?”

Hey, that’s what I get for writing synopses at the last minute, late at night.  How many times do you think a tech-weenie like myself has used the line, “It’s 2 am. Do you know where your data is?”  (Answer: Too many times!!!).

I’m sure Hillary Clinton thanks me.