Category Archives: Miscellaneous

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.

Miscellaneous, Strategy, Technology

If You Don’t Know what it IS, Figure Out what it ISN’T

MP900385419 I'm squarely on the tech-side today and as you can probably tell by the headline, I want to discuss the value of the process of elimination in detecting – and solving – technical issues.  Unfortunately, the main ingredient needed is the one few of us possess – patience.  However, we come by that honestly, since usually, a technical meltdown is immediately followed by phone calls, emails, trouble-tickets and any one of our newfangled methods of contact.  And they all want one thing.  Fix it!  Fast!

So, naturally the one thing we need – steady, calm deliberation – is the first thing to go.  The problem?  You can panic, but it isn't going to solve the problem any faster.  I've always looked at technical support as a thankless job.  People expect systems to work all of the time.  If they do, congratulations.  It's not likely anybody will ever thank you.  However, if they don't, they're all looking for you – and some are carrying weapons (ok, it's not quite that bad…).

If you've ever received a direct call from the world-wide CEO about something like this, first, congratulations again (you must be important), however, this is an excellent opportunity – once you stop sweating.  When this happens to me, I don't delay, I don't mumble, I tell them straight exactly what I know (assuming I know anything), then I tell them exactly how I plan to address it.  My experience has consistently been that the execs become more angry when they experience an information vacuum than when you tell them the truth – even if it's bad news.

Ok, so you've leveled with the boss.  Next steps?  I don't need to lecture you on most of that because you already know.  But what if nothing is working, the vendors aren't supporting you because they blame each other, and you're at a dead end?

Then, as stated, you'd be amazed how effective it can be to start at the outside and work your way to the center.  Pick off issues one-by-one.  Try the 'wrong' devices and see if they work.  Maybe that'll isolate a hardware problem, for example.  Just remember, there are no shortcuts.  It's hard work.

I always remember a particular nightmare scenario.  At this particular company, the execs wanted the latest-and-greatest devices hot off the presses, even if we'd never had an opportunity to test them – and in one case I remember very well, Microsoft refused to certify or support a particular device because they hadn't tested it, either.  Did this stop the execs?  No.  They still insisted we swap them out anyway.  I'm sure you can guess what happened next.

How did I solve it?  I just started eliminating what couldn't be causing the issue.  Slowly, hardware and software were eliminated from the mix until finally, it was isolated down to the culprit.  Then the issue was figuring out what was wrong with it.  Eventually, we did.  But speaking of lack of shortcuts, I personally read over 200 technical documents to get from where we started to where we finished – and it took about three days.

That's why I became a lawyer.  It's such a stress-free job by comparison…

Implementation, Law, Miscellaneous

Federal Privacy Bill doesn’t ‘Track’

Following California's introduction of an online privacy bill, Senators Kerry and McCain have introduced one at the federal level.  Formal name:  Commercial Privacy Bill of Rights Act of 2011.  At first glance, the federal bill seems watered-down compared to the California version.  This isn't necessarily surprising, since the same can be said about dueling spam legislation between California and the Feds.

However, the federal bill is lacking a prime component of the proposed California bill; a "Do Not Track" provision.  Also, the federal bill would vest a lot of the rulemaking power in the FTC.

I did note that some of Silicon Valley's heaviest hitters came out in favor of the federal bill, but seemed more luke-warm to the California bill.  What should we glean from that?

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

eMail, Miscellaneous, Security

Try the ‘Breach’ Cobbler

Here's an email I received yesterday from Kroger/Ralphs supermarkets:

Ralphs_logo

Dear Perry Segal,

Kroger wants you to know that the data base with our customers' names and email addresses has been breached by someone outside of the company. This data base contains the names and email addresses of customers who voluntarily provided their names and email addresses to Kroger. We want to assure you that the only information that was obtained was your name and email address. As a result, it is possible you may receive some spam email messages. We apologize for any inconvenience.

Kroger wants to remind you not to open emails from senders you do not know. Also, Kroger would never ask you to email personal information such as credit card numbers or social security numbers. If you receive such a request, it did not come from Kroger and should be deleted.

If you have concerns, you are welcome to call Kroger’s customer service center at 1-800-Krogers (1-800-576-4377).

Sincerely,

The Kroger Family of Stores