Category Archives: Miscellaneous

Cases of Interest, Criminal Liability, Miscellaneous

e-Discovery Creates a Moral Dilemma

J0422326 Every once in a while, life throws you a curve-ball…

One of the things that surprised me when I was in law school was the graphic detail in many of the cases we studied.  To put it mildly, they don't mince words.  Everything is described specifically and deliberately, down to the smallest detail.  Honestly, it's not for the faint of heart.

When I clerked at the Los Angeles County District Attorney's Office during law school, I worked on one case for three years.  It involved the kidnapping and gang-rape of two women by some very unsavory characters.  How unsavory?  Well, the Defendant in my particular case was sentenced to something akin to 500 years in prison (whenever I tell the story, I always follow up with the quip, "Don't worry – he's up for parole in 325 years…")

My boss gave the case to me because I was much older than the other law clerks and they were having trouble dealing with the graphic testimony.  It was difficult for me as well, but I managed.

Now comes another element to e-Discovery that I hadn't considered.  As you know from my writing, I'm firmly concentrating in the area of corporate law.  You might say that criminal law is a hobby – but I don't think one can ever use that term when someone's liberty is at stake.  The fascinating thing about criminal law is the 'mens rea' (guilty mind) aspect.  How do you crack open somebody's mind and show what they were thinking?  Besides, with these cases, even if criminality is ever in question, we're talking 'white-collar' crime, here.  How bad could it be?

And then I was approached regarding a completely different kind of case…

…a child-porn case, to be exact.  On the defensive side.  Might even entail expert testimony.

The attorney emailed me the new Tecklenburg case (warning: link opens 28-page pdf) from Westlaw that is at issue.  When I saw the words "children & pornography" in the search results in the body of the email, I had a visceral reaction – as I think most of us would.  I didn't even want to discuss the case using email, lest some spam filter – or worse – detect those words in my correspondences.

And therein lies the dilemma.  Attorneys aren't obligated to take a particular case; and certainly consultants aren't, either.  But here, a fundamental principle of our Constitution is at stake – Defendant is innocent until proven guilty.

What would you do?

I'm still thinking…

Duties, Law, Miscellaneous, Sanctions

Agent and Principal – Any Interest?

j0433130 Well, I’m back.  It was a fascinating week and as always, I learned something.  I didn’t have time to post, but this article about a case involving Principals and Agents caught my eye.  At first blush, it may seem like this is for lawyers only, but actually this is just as relevant to those who provide e-discovery services.

Agency and Partnership (as they call the subject in law school) covers the various representative relationships – legal and otherwise – that developed from common law and eventually formed the basis of the business structures we see today.  Even though this concept has existed for hundreds of years, California didn’t begin testing the subject until the July 2007 Bar Exam (I was one of the Guinea Pigs).

For our purposes, it’s a great review of the responsibilities between Principals and Agents.  The most obvious relationship is lawyer to client, but this also applies to those who provide e-discovery services to clients.  The reason I think it’s important is that, with sanctions being a very real possibility in these cases, it’s a good idea to be reminded that this is not a game.  What we do – and how we do it – has serious consequences.

eDiscovery 101, Miscellaneous

e-Discovery 101: ALSP L.A. Chapter Inaugural Lunch

The Association of Litigation Support Professionals (ALSP) opened a Los Angeles Chapter and I was invited to their inaugural lunch earlier today, which was attended by approximately 65 people.

I like to go to these events to take the temperature of what’s going on out in the e-discovery universe and also as a reality check to make sure that I’m delivering relevant information to you.

This was a basic presentation, heavily weighted toward forensic recovery (very few attorneys were present).  I thought it was a great basic template, although I think the presenters went afoul of some of the legal aspects (e.g., when the SEC subpoenas data from 40 board members’ laptops – as was the case in their theoretical scenario – there is no reality in which a particular board member may image his or her own laptop and submit it (do I hear ‘fox guarding the henhouse’, anyone?)

With civil and/or criminal penalties at stake, an independent party to authenticate the process and serve as a testifying witness would be required.  But hey, that’s what we lawyers are here for, right?

All in all, a good presentation.  Congratulations to ALSP!

Miscellaneous, Technology

Facebook – Growing Pains or Pains Growing?

Masai Mara National Reserve, Kenya --- Mother and Baby Elephant --- Image by © Royalty-Free/Corbis

I’m posting this New York Times article about Facebook because it takes more of an in-depth look at why the service exists.

I’m sure some would respond, “to allow people to communicate with each other”, but is that really the answer?

For me, the most telling statistic is in the first paragraph; 100 million members as of August, 2008 and now the 200 millionth member is imminent.  That’s some exponential growth!

Yet, none of them pays a dime.

Miscellaneous

Sorry – I’ve Been at the ‘Bar’

Close-up of a Squirrel Eating North America

…just wanted to drop in to say hello…

Normally, I try to post about three times a week.  Recently, I was honored to be asked to write an analysis of California AB 5 for the State Bar of California’s Solo & Small Firm Section publication, “Trial Style”, so I’ve been squirreled away working on that.

Unfortunately, it’s an exclusive, so I can’t post it here until after it’s published (publish date TBD).  I have more subjects in the queue so they’ll be up later in the week – maybe even tonight…

UPDATE – The editor has informed me that my article will likely be published in the June issue.

Miscellaneous, Rants & Raves!

Webinars, Shmebinars!

j0385401Am I the only one who sits through hour-long e-discovery webinars, only to ‘discover’ that some are low on content and high on marketing?

Don’t get me wrong – I understand we all have to make a living.  This blog is no exception.  Hopefully, I’m giving you content that’s useful and informative – and maybe a little bit entertaining (if there’s any way to make e-discovery entertaining…).  Otherwise, I’d expect you not to return.  Based on the fact that I’ve doubled my subscribers in the past month alone, I’d say people believe they’re getting something of value.

But man, am I getting tired of signing up to webinars and virtually all I get out of the hour is, “Start thinking about where all of your data might be…” mixed in with a sales pitch about a particular product.  In some cases, everything discussed could have been covered on a single sheet of paper in about five minutes!

So, here’s the deal.  As a Consultant, if I’m going to complain then I need to offer alternatives.  My thoughts are, we either need some kind of good-faith rating system by the provider that designates a webinar as “novice”, “intermediate” or “expert”, or I’ll default to the method I use to weed them out now:

If most or all of the presenters are from your marketing and sales departments, I’m not signing up.

Implementation, Miscellaneous, Strategy

WEST LEGALworks – Overview

microcosmHow did we get into this mess in the first place?  Take a look at the photo I snapped with my Curve.  That’s the panelists’ table – where they hung out as they rotated in and out of their particular sessions.  Click on it and look at a larger view.  See that ‘octopus’ on the floor?  One panelist opened his bag to retrieve his business card for me, and a quick peek revealed his version of Noah’s Ark…TWO OF EVERYTHING!  What else could I name the photo except, ‘MICROCOSM’…

An informal poll revealed that about 2/3 of the attendees were attorneys.  I’m not sure whether to be disappointed in this or not.  It does tell us that attorneys are trying to come up to speed, but I wish I saw more IT people there.  My view is that it’s the lack of each groups’ understanding of the other that is a big part of the problem.

What I liked about the organization of this conference was that it was a well thought out progression.

THE BIG PICTURE

Day one started with an excellent overview of the various issues we face.  It began with the typical “State of the Industry”, which highlighted survey results regarding e-discovery (some of which I’ve featured here previously).  They then moved on to litigation readiness, project and process management and cost controls, a discussion of the lack of planning, testing and the obvious pain that would result, and finished up with a discussion of ethics.

The highlight was the luncheon with the Judges’ Panel.  More on that later…

If you’re someone on the cusp, just getting into this process or are a project manager, you got a lot out of day one.  If you’re a reader of this blog, you’ll know that I’ve covered the very same things here.

DRILLING DOWN

Day two, a half-day, was the meaty day for me.  Any time someone is discussing Daubert (in California we call it Kelly/Frye), you know this isn’t going to be simplistic…

They started off with an in-depth look at search & analysis.  Finally, someone is explaining the mess you’ll receive if you don’t understand HOW to search!  If I received a dollar for each time I’ve heard, “Just put a paralegal in a room with the material – that’s all you need.”, I’d be wealthy.  This panel brought that point home.  You’d better know what your strategy is before you make a single search.

The second panel was about working with Special Masters, neutral experts and expert witnesses (that’s where Daubert came up).  Obviously, most Judges know as little about this as the lawyers do, and that complicates matters.  It was a frank discussion of getting all of your ducks in a row, making sure your ducks quack at the appropriate time and knowing what they’re quacking about.

The third session made me chuckle, because I just wrote about it this week – hand-off.  One panelist even used the same word I did; Ownership.

Finally, the conference ended with a discussion of document review and contract attorneys.  I had a prior engagement and was unable to stick around for that one.

I think my biggest suggestion to the organizers would be, if they want to attract more IT people, the panelists must take the extra moment to describe the laws they’re discussing.  For example, when they quote Rule 502, they must keep in mind that the IT attendees – and probably a lot of the attorneys – may not know what that means.

To me, the conference was mostly about the State of the Union – what we’re doing today.  Where I thought we really delved into the future was the Judges’ Panel.  I could barely keep up with my notes, the information was coming so fast!  When I heard a Judge describe e-discovery as a “train wreck”, I knew I’d better pay close attention.  I wasn’t disappointed…hopefully you won’t be, either.

Miscellaneous

WEST LEGALworks Feb. 26-27, 2009

Just a quick note to let you know I’m attending the conference, “Electronic Discovery and Records Retention: Beyond Faith Based Electronic Discovery” at the Four Seasons Hotel in Beverly Hills, CA today and tomorrow.  Hope to run into some of you there!  I’ll post my observations…

UPDATE – SATURDAY, FEB. 28, 2009

Well, we can sure tell I’m a blogger and not a reporter or “Twitterer”.  If I were, I’d have updated you on the fly.  I was there to learn – and most importantly, to make sure that what I’m relaying to you is a true and accurate representation of what I see out in the world.  Good news.  It is.  Having observed all of the people tapping away at laptops and PDAs, I guess I’m still ‘old school’.  I believe the speakers deserve my attention – unless of course there’s something critical that must be handled immediately – then I’m on my BlackBerry like the rest of them.  But, I paid attention to the sessions and took notes by hand.  This was my practice in law school also.  It makes me focus better.

FULL DISCLOSURE

It’s very important that I’m always honest with you.  That was my commitment when I started this blog.  As such, I want to disclose that I wasn’t originally planning to attend the conference, but did so as a guest of my friends at the Los Angeles Daily Journal.  I’ve advertised in their sister publication, California Lawyer.  They did not ask me for anything in return – they didn’t even know I wrote a blog.  What they did want is my assessment of the conference as a whole.

Ok, now that we’ve gotten that out of the way, if you still want to continue, I’m creating two posts.  I’m not doing a post for day one and a second for day two.  I’m doing one as a general overview, which tells us where we are, but the Judges’ Panel was so amazing to me, it deserves its own post.  I think you’ll agree if you read it.

Again, I appreciate your patience.  I came down with a bug and am a little late getting all this to you, but hopefully you’ll feel it was worth the wait!