Category Archives: Scope

Tips & Tricks: EDD Toolkit App

MP900448277 The last time I linked you to some eDiscovery calculators was over two years ago.  What’s new?  Well, I happened upon one for my PDA from BlueStar Case Solutions, and the cool thing is, it’s available in Blackberry, iPhone, Android and Windows 7 flavors (even though it says “coming soon!” for Blackberry, the app is available).

Now, you know I don’t endorse products (I’d never even heard of BlueStar until I saw this) – and aside from fiddling with this app, I can’t tell you whether the calculations are accurate or not.  But, if you’re in the middle of a conversation or meeting – or sitting at your desk – and you want to get an idea of what the project cost or time might be, you can create a quick estimate; it’s not like you can’t run the comprehensive numbers later to confirm…

One handy module is an eDiscovery Glossary, with definitions for well over 100 of the terms we use on a daily basis.  So, if you’re just getting into this space, that might be helpful to you as a kind of ‘cheat sheet’ (of course, you may refer to it as ‘reference material’).  I knew the definition to every single term, without having to check.  I’m not sure whether I’m proud or worried!

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…"

Dave Likes PCP, Larry!

Duty of Due care – Duty of Loyalty – Preserve trust property

Commingling – Personal Performance – Legal defense

MP900448452 When you’re studying for the California bar exam and you need to remember about 2,000 pages of law (give or take – when I took the exam in 2007, they’d added California Civil Procedure and Evidence to the federal, modern and common-law rules, as well as Agency & Partnership to Corporations) you create mnemonic after mnemonic; anything that’ll spur instant – and hopefully, total – recall so you can quickly apply the elements (which in the example above, are trustee duties & obligations).

[Just be grateful I didn’t provide my mnemonic for exceptions to a search warrant!  Actually, now that I think of it, maybe some of my readers are law students…I should link to all of my self-made study guides one of these days…]

Anyway, this post is about memory and its primary importance to what we do.  My thoughts on the subject were piqued when I happened to see an interview with the author of “Moonwalking with Einstein – The Art and Science of Remembering Everything”, and I remembered all of the effort that went into memorizing all of that material.

One of the deposition ‘tricks’ that some attorneys employ is to ask the same question over and over, hoping to receive conflicting answers – which may then be used at trial to impeach a witness (of course, an attorney with excellent memory will be tracking this and should be jumping in with “Objection: Asked and Answered.”, to avoid this pitfall, but when a depo stretches out over several days or weeks…).

In our realm, the central theme we return to over & over is the sheer volume of data involved, sometimes millions upon millions of pages.  Technology may be able to keep track of the contents of all of that data for the purposes of comparison for search, concept search or even the newest kid on the block, predictive coding, but what it can’t do is remember the way we humans do it.

In other words, the technology may be able to sniff out a documents’ relevance to another document, but it can’t understand the relevance of the relevance.  Does this make sense?  What I’m saying is, technology understands like-kind information and its relationship to other like-kind information, but only a human can go the next step – understanding why the item is relevant to the issue at hand over and above the pattern the technology recognizes.

Think about – in our new eDiscovery age – the amount of memory it takes to read – and truly comprehend – documents, many times on a subject you have no experience with, then apply them over a case that may go on for years, then be reading a new document or hearing new testimony and suddenly think, “I recall seeing contradictory information in a document I read a year ago…now where did I file that sucker?!”

Take that, Watson!!!

True Disaster-Recovery: What Japan Teaches Us

What if?  Those two words form the initial basis of a disaster-recovery conversation.  Like you, I've seen the heartbreaking pictures from Japan and what gets me is, a country that is known for having the best earthquake-disaster-preparedness in the world has suffered tremendous losses in spite of that fact.

The best laid plans…

Japan's nuclear facilities prepared for a monstrous earthquake, but not an 8.9.  Is there any way to plan for an 8.9?  And if so, at what cost?  Obviously, when contrasted with the devastation we've seen – and may yet see – I wouldn't blame you if you said money is no object.  But in reality, we're rarely given a blank check.  We're required to work within parameters; sometimes very constrictive ones.

Lessons learned:  No matter how thoroughly you plan, it's impossible to prepare for absolutely every contingency that may befall you.  In the future – when memory of this disaster has faded and the passage of time blunts the impact – when envisioning a worst-case-scenario for your disaster-recovery program, if those around you are prone to cut corners, remember Japan.

Predictive Coding: Mutually Assured Destruction?

MP900385972 Ralph Losey: "So…Predictive Coding…for or against?"

Perry Segal: "I'll tell you what.  I'll attend your session, then give you my answer, ok?"

Heck, even if I had a ready answer, after sitting in on a session with these heavy-hitters, I might change my mind, anyway.

What is predictive coding?  I'll give you the short answer directly out of the accompanying documentation:  "Technology that informs the coding of uncoded documents based on their similarity to already-coded documents.  Predictive coding permits us to leverage review decisions across many documents, not just one."

Well, that certainly clears it up.  If this were The Hitchhiker's Guide to the Galaxy, I'd liken it to Infinite Improbability Drive – probably.  Or to put it in terms my mind can get around, predictive coding is sort of like assessing the probability of something being probable or improbable over a series of documents, then retaining the probable and discarding the improbable.  The important part for our purposes is that this is the latest approach to efficiently locating relevant documents – with or without human intervention.

The presenters provided two examples of what we face: 1) a theoretical example of one billion emails, 25% with attachments, that would take 54 years to complete under their scenario, and 2) an actual look into the Lehman Brothers bankruptcy, which started at 350 billion pages, culled down to 40 million pages for review by 70 contract attorneys.

A science fiction example was appropriate after all, since the requirements are astronomical.  I was in technology a long time before I became an attorney and the reality is simple.  Predictive coding – in the right hands – has the potential to be a very efficient element of document review.

What do I mean by "right hands"?  Two things, for the most part: qualified and ethical.  The "qualified" part is self-explanatory.  Ethical?  If a party plays the usual games – or only pretends to be implementing this – the entire process breaks down; hence my reference to Mutually Assured Destruction.

My answer to Mr. Losey at the conclusion of the session?  "I don't think the answer is between 'for' or 'against'.  I doubt we're going to have a choice."

Or, for my sci-fi answer…"DON'T PANIC"…

“IDK”


MP900448337

"Today, more
organizations have a policy than ever before, but only one-third have tested
their policies and nearly half do not know if their policies have been tested."

~ Kroll Fourth Annual ESI Trends Report

I hadn't even opened my copy of Kroll's new report yet; that little tidbit was in their preamble.  It's an excerpt from their section, "A Decade of Discovery".  [The report is free, but you're required to register]

What else disturbs me?  Only 53% of companies have a litigation hold tool in place. 47% either don't have – or don't know if they have – a litigation hold methodology in place.  62% either haven't – or don't know if they haven't – tested their ESI policies.  62%.  Unbelievable!

That's a lot of "I don't knows".  All I keep thinking is, did the survey-respondent ask anybody before they answered these questions?  If not, they're basically admitting they're part of the problem!  Where's the communication!?

The other buzzword you're going to be hearing a lot more of is "ECA", aka early case assessment.  A lot of my colleagues have blogged about it.  You'll see it visually represented as the "ECA Funnel".  The short description is a review of a particular case to determine whether it's worth prosecuting – or defending; usually based on cost analysis and/or drag on resources.

Do you hear that sound?  That's the creaky door of the e-Discovery Insights vault opening to two posts from November of 2008 about proper testing.  Part I covered identification & preservation. Part II covered collection.

This just goes along with my premise; eDiscovery issues are solved at
the beginning, not the end.

Q.E.D.

e-Discovery California: Reasonable Search: SCOTUS Decides Quon Case

MP900443158 We've been waiting for the decision on Quon to clarify Constitutional issues of employee privacy while using an employer-supplied electronic device.  Bottom line: by unanimous decision, the Supreme Court ruled that, under the facts of this case, the search was reasonable and Quon had no 4th Amendment expectation of privacy.  I say "under the facts of this case" because the Court ruled on narrow grounds.

Justice Anthony Kennedy stated quite eloquently, "Because the search was motivated by a legitimate work related purpose,
and because it was not excessive in scope, the search was reasonable."

In my opinion, that's a beautiful sentence.

e-Discovery California: Amended C.R.C. 3.724 “Initial” Meet & Confer & Clawbacks

J0387759 About six weeks ago, I wrote that the new e-discovery California rules didn't include provisions for meet & confer or clawback agreements.

On August 14th, 2009, the Judicial Counsel amended the California Rules of Court 3.724 Duty to Meet and Confer to include the following language:

Unless the court orders another time period, no later than 30 calendar days before the date set for the initial case management conference, the parties must meet and confer, in person or by telephone, to consider each of the issues identified in rule 3.727 and, in addition, to consider the following:

(8)    Any issues relating to the discovery of electronically stored information, including:

    (A)    Issues relating to the preservation of discoverable electronically stored information;

    (B)    The form or forms in which information will be produced;

    (C)    The time within which the information will be produced;

    (D)    The scope of discovery of the information;

    (E)    The method for asserting or preserving claims of privilege or attorney work product, including whether such claims may be asserted after production;

    (F)    The method for asserting or preserving the confidentiality, privacy, trade secrets, or proprietary status of information relating to a party or person not a party to the civil proceedings;

    (G)    How the cost of production of electronically stored information is to be allocated among the parties;

    (H)    Any other issues relating to the discovery of electronically stored information, including developing a proposed plan relating to the discovery of the information; and

(9)    Other relevant matters.

Well…that settles that!