Category Archives: Management

The Completion Backward Principle

"An IT executive turned California
e-Discovery Attorney and Consultant shares his insights – with an
emphasis on facilitating the relationship between legal and technology
professionals."


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Remember that?  It's the mission statement of this blog, as I explained in my flagship post almost two years ago.  So, how's that workin' out for you?  This survey from Recommind says not so well.  According to their results, cooperation between IT and Legal has deteriorated across all platforms.

Yes, there's probably an economic component here – Recommind
notes this – but I agree with their assessment.  It doesn't explain the
extreme change over a single year.

As we all know, statistics may be interpreted several ways.  Here's my take.  If I were to wager, I'd bet that many of these entities tried in good faith to get legal and IT to work together; and what we're seeing in the 2010 report is that the groups didn't get along and have either given up or severely curtailed their joint activities.  Communication breaks down rapidly once bad will develops.

The Gartner Group predicts that companies will escalate the process of hiring what they refer to as "Legal and IT Hybrids" to "mediate" between the two departments.  Hello?  Haven't I been saying this all along?

Subtlety isn't working, so I'll be direct.  There's the phone.  Call me.  I can fix it.

Ok…you can call collect…

Bumper to Bumper, Part II: Steve Jobs is Wrong

Any guesses as to which guy is Steve Jobs and which guy is the customer?  Hint: Steve Jobs always wears black.

If you read Part I of this series, in closing, I asked whether the "bumper" solution was a good decision from a management standpoint.  My opinion?  Yes, but only if you look at it from a purely financial perspective.  From a customer service/relations standpoint, it's a disaster.

Let's review the progression of events, from initial customer complaints to Apple's eventual response:

  1. Denial – "There is no problem."
  2. Blame the Customer – "You're holding it wrong!"
  3. It's all in your Head – "Our s/w is erroneously telling you that you have a problem."
  4. Blame your Competitors – "Everyone else has the same problem."
  5. Denial II – "There is no problem, but we'll give you a free bumper."

What's the 1st thing that comes to mind?  This isn't indigenous to Apple.  I've heard this song before.  Where do think the joke, "That isn't a bug, it's a feature." comes from?  I just think that with Apple's dedicated user culture, they have a better chance than most to pull it off; but that doesn't make it right.

I've spoken to career Apple customers who are so incensed by what they term the arrogant attitude of the company (usually referring to Jobs, specifically) that they've finally had enough.  Apple can afford to lose them, but that's not really the point, is it?

So where's the eDiscovery tie-in?  Where do I start?  You might be in a corporate IT department.  You might be inside counsel.  You might be outside counsel.  You might be me – a consultant, positioned somewhere in-between all of them.  What are you going to do when management adopts the attitude:

  1. Denial – "We don't need to implement this."
  2. Blame the 'Customer' – "The client doesn't want it."
  3. It's all in your Head – "We don't need to comply with the rules."
  4. Blame your competitors – "Nobody else is implementing it."
  5. Denial II – "We'll take our chances.  If litigation arises, we'll look at it then."

The difference between Apple and you?  They have a public relations issue and face class-action lawsuits.  You – and/or your management are likely to face serious sanctions.  But don't worry; that's only if something goes wrong

 

Bumper to Bumper, Part I: e-Lessons Learned from Antennagate

BumperCar_Front If you're a long-time reader of this blog, you know that I used to post frequently about relationships between techies and management and how successful interaction between them is critical to the success of an undertaking; internally and externally.  As you can see from the headline, I'm using Apple's response to the iPhone 4G 'debacle' as a teachable moment.  Some will take issue with my use of the word debacle, but I'm speaking in terms of the negative press this issue has generated.  Caveat: I own an iPod Touch (but you already knew that).

If your initial thought is to wonder how any of this applies to eDiscovery, read on…

PART I:  STEVE JOBS IS RIGHT

Make no mistake.  Steve Jobs knows his customers – and so do I.  My first real exposure was when I was tasked with managing the only MAC network at Hughes Space and Communications (this goes back to 1993-94).  I quickly learned about the culture of MAC users.  As often happens to me – and many of you, I suspect – once that item was on my resume, the MAC element became a regular part of many of my future projects.

Stevie and I had a convo and we agreed on several points: 1) There's a hardware issue (not that we'll admit it), 2) the problem affects a relatively small number of customers, 3) a plurality of dedicated customers will back us, no matter what we do, 4) if we're forced to issue a recall, it could cost billions, 5) we know that a bumper/case/duct tape will solve the problem (not that we'll admit there is one) for most customers, so 6) let's go that route and offer a free bumper/case/duct tape (sorry, couldn't resist that last one).

The cool thing about #6?  We know that a lot of customers who do have the problem won't act.  On the other hand, we also know that others who don't have the problem will; in the end, probably a wash.

If you've perused articles on the issue – and read the accompanying comments – you'll probably note that the scenario has played out the way Stevie and I thought it would.  Overall, reaction has been favorable, and every time someone posts an article or comment critical of the solution, they're usually swamped with 'the faithful' calling them whiners and defending Apple, usually making the effort to express how much they love their iPhones.

So, was it a good decision from a management standpoint?  And where's the eDiscovery tie-in?  I'll bring it all home for you in "Part II: Steve Jobs is Wrong"…

Spam Available at Walmart

J0422476 Too bad it's this kind of spam, not this kind

It's 'Security Awareness Friday' here on e-Discovery Insights.  I'm not picking on Walmart; I'm simply using them to illustrate that this may happen to anyone.  Microsoft's IE 8 has security problems as well.

Here's a news flash; IT and Security departments aren't in sync about how they're dealing with these issues.

What's my mission statement for this blog?  Facilitating the relationship between legal and technology professionals.  Maybe I should add 'facilitating the relationship between technology and technology professionals'…

Tips & Tricks: The Office: Lexis Partners with Microsoft

0000000540_20060919015544_paper The partnership I'm referring to was recently revealed at LegalTech in New York, but the benefits won't be available until later this year.

Nevertheless, this is exciting news for anyone with licenses to both LexisNexis and Microsoft Office 2007.  Lexis will be integrated into the Office 2007 suite of products (which includes Outlook and SharePoint) and will be available for Office 2010, when it's released.  This means no more back & forth between the Web and Office when performing legal research.

The new product is aptly named, "Lexis for Microsoft Office".  One interesting item of note; many firms use WordPerfect because of its outstanding legal tools and have been understandably reluctant to migrate to MS Office.  It'll be interesting to see how this new partnership influences the future direction of law firms.

Let me give you my position.  I'm someone who, as a Consultant, is always attempting to travel the shortest distance between two points (which, as we know, is a straight line).  With that in mind, when I've gone into companies, if they have an established suite of products, unless there's a glaring need to change, I try to keep them within the same parameters.

This has absolutely nothing to do with which products I find superior; it's purely in an attempt to limit the number of vendors, and it has a practical purpose (you IT'ers out there know exactly what I mean).  To illustrate (and I'm not pointing fingers here…), how many of you have contacted vendor support for two products, say, Lotus Notes living on a Novell server and had support from both companies deflect from addressing your issue by saying "it's their problem"?

If you have Microsoft Office living on a Microsoft Server, that problem is eliminated because all they can do is point fingers at themselves.

In that context, if a firm is already heavily-invested in LexisNexis and Microsoft products, but still holding on to WordPerfect, perhaps someone in IT thinks this is the time to make a change.

Ever since I joined the executive committee of the State Bar of California's Law Practice Management & Technology Section, my thought processes have modified somewhat to thinking more about 'law practice management' along with the 'technology' aspects.

Check this Blog Hourly Unless in Court, in Tunnel or Asleep!!!

J0403717 Like it or not, our employers expect us to be 'available' at all hours, as this article indicates.  A junior associate was chastised for not reading his email after-hours and missing an instruction from a senior partner.

This won't be a popular view, but I agree with the senior partner.  This is not an attorney-specific issue.  When I was in IT, we were on-call 7×24.  In fact, in some of the companies I supported, all of our systems were automated, so if a system was down for more than five minutes, it paged us; morning, noon or night (unfortunately, it was usually the middle of the night).

A nurse friend of mine, while observing my activities one evening receiving – and responding to – pages, remarked that my schedule was worse than that of a Doctor!

I place this firmly under the "it's not the old world anymore" department.  In my world, there's no such thing as an eight-hour day, and I suspect that doesn't exist in your world, either.  Believe me, I understand the work/life balance (after months of rarely sleeping through the night due to multiple outage pages, I considered leaving one job).  Like it or not, the world is connected and no matter what time it is, somebody is awake somewhere – and wants to talk to you.

Sure, maybe requiring someone to check e-mail on the hour, every hour is a bit excessive, depending upon the circumstances.  But I certainly make it a practice whenever possible to check my e-mail before retiring for the evening.

Maybe the problem was, the junior associate was too busy on Facebook…

Observations on Off-Site, On-Site, Outsourcing & Ownership

j0438776Seems to me there are a lot of companies selling data & e-discovery services with the attitude of, “Place your data responsibilities with us, then sleep well at night”.  Hardware and software are offered in-house, SaaS, appliance, off-site…anything you want can be provided.

My personal opinion; before you start relinquishing responsibility to others, keep one thing in mind – it won’t matter.  You’ll ultimately be responsible in the eyes of the law.

I blogged about this before in my ‘Hot Potato‘ post, among others.  The instinctive thing to do – especially with the added complexity of the e-discovery rules hanging over you – is to contract out and make it someone else’s problem.  Heck, I get that.  I’m a Contractor!  Only thing is, in this case…it won’t work.  Good-faith won’t be enough.

I’m not living in a fantasy world.  Some companies have so much data – including ones I’ve consulted with – it would be virtually impossible to manage in-house.  If I said “Don’t do it!” I would expect you to laugh me out of the room (which would be difficult, since none of you know where my ‘room’ is, exactly).  All I’m suggesting is, before you consider outsourcing data management; whether it be on-site, off-site or a combination of both – or even if you’ve already done so – think about all the risks, especially in these difficult economic times.  Do you have a contingency plan in place?

These are the items I’d be including in a checklist (order of preference is up to you):

Hold on a second.  Let’s begin by answering a fundamental question.  Who will manage this?  You?  The Vendor?

Rural Road from a Car

I know.  Some of you are asking what that means?  After all, regardless of how you proceed, somebody representing the company will be responsible for managing this or serving as liaison, right?  Yes and no.

If you don’t know your ‘stuff’, then aside from serving as liaison, you’ve relinquished your ability to make decisions in the best interests of the company.  Essentially, the Vendor will be advising you, and their interests may conflict with yours – especially if litigation arises.  In the alternative scenario, if you’ve educated yourself – or have hired a knowledgeable representative in-house – you’ll be advising them.

Think this is a distinction without a difference?  Take a look at my checklist and see what you think:

  1. Does the Vendor handle backup, restore, disaster-recovery and/or e-discovery services?
  2. Are all of their products integrated?  (Many Vendors acquired other Vendors to stake a presence in the e-discovery field; it doesn’t mean their products integrate well).
  3. What if the Vendor goes bankrupt?
  4. How will the Vendor respond if/when they’re served with a subpoena as a 3rd-party?
  5. Does the Vendor have their own legal representation?
  6. Who will be responsible for managing the retrieval of data?
  7. How quickly can/will the Vendor respond to a request?
  8. Does the Vendor subcontract any services?
  9. Will an additional Vendor be needed for e-discovery if the 1st Vendor doesn’t have that capability?  Do they already have a secondary Vendor in place?
  10. As we expand – including to other countries/continents – how will the Vendor handle it?

I realize this is a ‘macro’ view.  The list above should open up several more questions, such as how are they backing up your backups?

I would think it would be very important to instruct the Vendor about what you expect, rather than rely on the Vendor to tell you what they’re going to do for you.  There’s no room for ambiguity where e-discovery in concerned.

Alliteration always assists attorneys acting as authors…

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!!! ***

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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!