Category Archives: Strategy

Books & eBooks, Scope, Strategy

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!!!

e-Evidence Insights, Metadata, Sanctions, Scope, Spoliation, Strategy, Technology

e-Evidence Insights: There’s a ‘Party’, but Nobody Came

MP900448558 There's a dispute.  There are parties.  There are third-parties.  There are relevant non-parties.  There's discovery.  There's e-Discovery.  There are requests for admissions.  There are interrogatories.  There are witnesses.  There are depositions.  There are responses and 'non-responses'.  Rinse.  Repeat.  Fast-forward: The RFAs have been answered (or not), the Rogs have been addressed (or not), depositions are complete (or not), discovery is closing…and your client is telling you (or you suspect) that your adversary, et al, has not disclosed all of the relevant information.

I'm not talking about the usual gamesmanship (and I shudder to refer to it as such) that occurs in heavy litigation.  There's always a certain 'cat & mouse' feel to the process, for want of a better term.  I'm also not talking about the more obvious example; when the client says something like, "This email from Tom?  I'm sure this isn't the entire thread.  Some of the conversation is missing."  That is something the client knows.  I'm talking about something that can't be taught, but is more instinctual.

Sometimes, things just don't add up.  The evidence is telling you that you're not getting the whole story.  Maybe you caught a tiny phrase in a depo that contradicted something you thought you'd seen in a document.  Maybe a witness referred to something in the wrong tense, which suggests to you that an incident occurred earlier or later than what was originally claimed.  Maybe you just look at the overall litigation puzzle and a piece is missing.  Maybe – and here's where it gets really tricky – something just doesn't feel right.  Now what!?!?!?

Remember when I said, "Know what you don't know?"

The problem is, attorneys are not allowed to go on 'fishing expeditions'.  A suspicion that evidence has been withheld isn't a reasonable basis to support a demand for more evidence.  So, what do you do?  Well, for starters, you can ask yourself if there are any other independent sources available (keeping in mind a subpoena may be required) where you might search.  After all, you may find the answer through the same documents you received as part of the litigation process.  Why?  Because perhaps what didn't feel right was that the documents you received were, 1) too new, too old or the wrong version, 2) altered in some way, 3) out of order or have pages added or missing, etc.

You'd be amazed what a simple internet search turns up…

Remember; what you discover independently may be the smoking-gun that forms the reasonable basis to go back at a party.

Sanctions, anyone?  How do you think people are caught?

You've seen a lot of discussion about electronic documents in native format?  Well, this is one – among plenty of other reasons – why you would want to receive them that way.  However, while the metadata will hopefully tell you what you need to know, it might not.  You may have a document that matches up properly with its metadata, but how is this going to guide you if you've been given the 'wrong' document – or no document at all?

I could go on and on at length, but the problem is, if you're in this position, you don't necessarily know what you're looking for; you just know something isn't right.  So, you have to trust your instincts and act on them – subject to the buy-in and resources of your client, of course.  Following your instincts isn't necessarily a cheap undertaking.

Ronald Reagan said, "Trust, but verify."  Bill Maher said, "Be more cynical."  I agree with both.  After all, you'll tell me the truth, but you'll probably disappoint me…

Backup & Recovery Systems, Cost, Disaster Recovery, Implementation, Management, Science, Scope, Strategy, Technology

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.

Education, Implementation, Science, Strategy, Technology

“You Go to e-Discovery Wars with the Army You have…

1 Comment

…not the e-Discovery Army you might want or wish to have."

– Perry Rumsfeld

Ping.chartbeat.net

I don't think I've seen a story re-blogged, re-tweeted and/or re-everything'ed – at least among those who I monitor – as much as the "Armies of Expensive Lawyers, Replaced by Cheaper Software" article that appeared recently in the New York Times.

First of all, we need to remember what headlines are; short statements designed to entice one to inquire further, also known as 'teases'.  Mission accomplished!  Nothing like combining the words, "Expensive Lawyers", "Replaced by" and (horrors!) "Cheaper" in a headline to achieve a visceral reaction.  And the tagline (ouch!), "Smarter Than You Think"?  Really, New York Times?  Without the guidance of humans?

Perhaps you should have looked behind the set to see how Watson was able to apply context to Jeopardy questions.  Coming from a programming background (and I mean, waaaaaaaay back), I was more fascinated by the fact that it got the 'simple' question wrong.  What I mean is, on a binary (0/1, pass/fail or right/wrong, if you prefer) issue, Watson 'thought' Toronto was in the United States – even when the question clearly stated that the correct answer was a city in the United States.

My 2nd-grade teacher, Mrs. Blythe, said, "Always read (or listen to) the entire question (or instruction) and make sure you understand it before proceeding (or buzzing in).  Ok, she never mentioned anything about buzzing in.  How did she illustrate this lesson?  When we walked into class one day, we saw that she had placed a long list of tasks on a chalkboard, all numbered.  Each task was below the other.  She said these were the tasks we were to perform and to simply begin.  Everyone did, except for one person, who remained in their chair.  Why?  Because the last task on the list said, "#10. Do not perform any of the previous nine tasks.", and only one student read them all as opposed to one-at-a-time (No, I'm not going to tell you if I'm the one who read #10.)

When I first saw the NYT article last week, I was going to jump all over it – then I decided to wait.  I was curious how my colleagues would react to it.  Some simply repeated it through Twitter or their blogs, others added a few comments one way or the other (of course I haven't seen them all) and – not surprisingly – Ralph Losey hit a home run, in my opinion, with his analysis.

By coincidence, the same day the NYT article appeared, the LA Times wrote, "Retail jobs are disappearing as shoppers adjust to self-service".  See any parallels?

The issue, as I see it, has nothing to do with jobs.  It has everything to do with efficiency.  I'd also note that while document review – which is what the NYT article is really talking about – is a component of e-Discovery, e-Discovery encompasses much more than document review.  Think strategy, for example.  Watson may be a genius, but 'he's' unable to reason when your opponent is hiding evidence.

Years ago, a headhunter offered me some document review work.  She was paying $25/hr.  At the time, a checker at my local Albertsons supermarket was earning approximately $30/hr and was about to go on strike to demand more.  Prior to that, at the nadir of the dot-com bubble, I'd watched as a plethora of good technology jobs were outsourced to India.  This is what free markets are all about.

I'm not a fan of the language of progress as expressed in corporate meetings.  Matrix, metrix, service-levels, deliverables…ugh…so robotic in nature.  Maybe that's why I migrated to consulting.  But I'll tell you one phrase I – and employers – do like.  Value add.

The focus seems to be, "The machines can now do what I can do!".  To me, the focus should be, "What can I do that the machines can't do?  How do I add value, the result of which is, I'm needed in addition to the machines?

When you ask yourselves that question, you'll always be one step ahead of technological advances, rather than chasing them.

Cost, Education, Implementation, Science, Scope, Strategy

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"…

Constitution, eDiscovery California, Implementation, Privilege, Security, Strategy, Technology

e-Discovery California: Turn your Head & Cough

MP900386083 How long has it been since I posted something California-specific?  (September 22nd, 2010, in case you wanted to know…)

This opinion piece by a consumer watchdog group (literally named "Consumer Watchdog") does a good job of expressing the tensions between the FTC and the State of California regarding approaches to internet privacy.

Now, I've certainly banged the privacy drum loudly this past year – and I don't intend to focus on it as much in 2011, lest I risk being compared with Chicken Little (by the way, just because a chicken tells you the sky is falling, doesn't mean it's not true) – but my focus has been on the evidentiary risks of not protecting your privacy, whether it be on an individual basis, corporate or somewhere in-between.

This is an e-discovery blog, after all…

Nor do I necessarily agree with the concept of a "do not track" list, as I've mentioned before (because in my opinion, it probably won't work).  There has to be an effort at formulating comprehensive policy, rather than acting like tracking a node is somehow like tracking a telephone number.  What do I mean?

  1. Has anybody thought about how one would manage such a list?  How will one identify the requestor?  By name?  By IP#?  By a unique device name/code?  (Whoops; there goes your privacy).  Suppose the individual has a PC, a laptop and a PDA – and they swap PDAs annually.  How will the database account for this?
  2. Take into account everything above, now add all of the devices in a corporate environment – and we know how often those are refreshed.  Will the firewall be enough?
  3. Now, what about the spouse, the children and all of their devices?  Children are by far the most vulnerable because, a) they already think they're bulletproof and b) they don't yet fully understand the concept of privacy (heck, neither do a lot of their parents!)

On the plus side, there are brilliant minds out there who may actually have answers to some of these issues, but the point I'm making is, you can't just slap a feel-good name on something, then give the public the impression that it's a panacea to all of their concerns.

We're not just talking about preventing annoying sales-calls at dinnertime.  Placating the public without actually achieving the goal will increase the risk (through a false sense of security), not reduce it.

Security, Strategy, Technology

Twelve Drummers Drumming…Thirteen Ph.Ds…

…and a partridge in a pear tree…a little holiday spirit on the 'eve of Xmas Eve'…

Fast on the heels of my post about PDA exposure comes a follow-up on what carriers are doing to address the problem.

Also, the Mobile Marketing Association (MMA) weighed-in on the subject.  The MMA is a lobby for PDA advertisers and publishers so I have to ask myself; are they serious, or just practicing damage control?  I'll give them the benefit of the doubt and wait to see their proposal.

Darn it, I already used up my catchy title so I'll just say it.  Mixed Mobile Arts.  Ok, I feel better.

Disaster Recovery, Security, Strategy, Technology

Yeah, There’s a (tr)App for That…

Pickpocket I'm pretty sure most of you are already aware that you can be tracked through your PDA (for those who don't, start by disabling GPS functionality or – horrors! – turn the device off).  But what other methods are companies using to track you; and while we're at it, how many of them are doing so?  The answer might surprise you.  The Wall Street Journal did some testing on iPhone and Android devices (Blackberrys weren't included).  According to the WSJ, roughly half of the apps sent differing degrees of personal information to 'someone' without the user's consent.

First of all, this is supposed to be a violation of most privacy policies, but in many cases, the policy either doesn't exist or isn't enforced if it does exist.  Second, although many of the culprits insist that they only compile general information, that explanation doesn't hold water.  PDAs have unique identifiers (aka UDID, PIN, etc.) that cannot be masked.  The article likens them to a "supercookie", but they remind me of the days of static IP numbers (for you non-techies, I usually describe an IP number as being similar to a telephone number in which the sequence can be used to pinpoint someone's specific location in the way one would use an area code and a prefix).

Why is this such a big deal?  Because I can mask my IP number by placing it behind a firewall (for you non-techies, a firewall is…oh, just look it up…) but I can't do so with the identifier.  Once someone has that identifier, it wouldn't take them too long to scour the Internet to retrieve your personal information and build a profile of your specific habits.

Do you see the implications?  This goes far beyond advertisers.  This is bad enough on a personal-exposure level, but then add the corporate dynamic.  Suppose Bob Smith, CEO of a publicly-traded concern, has been identified by a 3rd-party and is being tracked.  And suppose Mr. Smith is shown to be visiting the location of a competitor on three occasions.  What's Bob doing?

  1. Interviewing for a new job?
  2. Discussing a merger, buyout or acquisition?
  3. Divulging corporate secrets?

You get the idea.  Paranoid?  You bet!  A true disaster-recovery and/or security specialist deals in the realm of the possible, not just the probable.  Possibility is the primary risk; probability is the degree of risk (does that make sense?).

To put it another way, probability assists a client in making an informed decision about which risks they wish to defend against (or which risks may be accounted for in the budget) after all possible risks have been identified and scaled.

How many corporations, do you think, account for these risks?  Start by asking how many of them have developed a policy that prevents the keeper of a corporate PDA from installing apps without some sort of controls in place.

Implementation, International, Security, Strategy, Technology

If Viagra Treats ED, will PBoR Treat EDD?

MP900403705 Yeah, I know…gratuitious…but I thought you'd come (don't even go there) to expect that from me on a Friday…

Thing is, yesterday I posted about the humor I observed in litigation response, but I wasn't laughing that heartily, believe me.  I didn't have enough time to flesh out the greater point, but for those who've seen the movie, you know what I'm talking about.  For those who haven't, I suggest you do – and not the 2008 remake.  As the team comes together, you'll see everything we see in real-life litigation; mistrust, disorganization, hidden personal weaknesses, incomplete planning/testing, secret and diverging agendas, hubris, the works.

My favorite is how a small slip of paper almost results in a nuclear catastrophe!

As I learned in my early days, it's not enough to point out risks; it must be accompanied by a proposed plan to address those risks.  The federal government (specifically, the Commerce Department's Internet Policy Task Force) is taking a shot at it with this report (warning – link opens 88-page pdf) calling for the creation of a so-called "Privacy Bill of Rights".

Obviously, the easiest thing to do is criticize, but as I've said before, you can't fault people for trying.  At the very least, this opens a dialogue.  But if I were to make some cursory observations, I'd point out – as some of you would also – that an individual's position on their personal right to privacy may not necessarily be best represented by Procter & Gamble, Walmart or AT&T (three of the panelists and/or respondents).

Looking at the list of entities involved in the symposium, I'd certainly be on the lookout for mistrust, disorganization, hidden personal weaknesses, potentially incomplete planning/testing, secret and diverging agendas, hubris, the works.

Ain't that a pill!!!

Admissibility, Cases of Interest, Strategy, Technology

The Drowning Pool

Drowning Repeat after me.  "Facebook and the water cooler are the same thing."  Actually, Facebook is worse, because the water cooler doesn't take notes – it just sits there.  Looks like we may have our precedent-setting case, folks.  Yep, somebody got fired for mouthing-off about her boss on Facebook (or at least that's the claim she's making through the National Labor Relations Board.  Shockingly, her employer cites other grounds).

Gossipping about bosses will never stop, but once again, if you post on Facebook – or include your opinions in email or text – you'd better be fine with the idea of your boss seeing them.

And while venting your spleen about your boss is technically not a fireable offense, think it through a little more.  The boss is going to claim that you're insubordinate – and produce your Facebook posts to show your animosity – which isn't going to help you.  Note to the recently unemployed; comparing your boss to a psychiatric patient probably isn't recommended (whether it's true or not).

But therein lies the interesting twist in this particular case.  The fired employee is putting her own Facebook posts in play to show bias on behalf of her employer.  I guess the court will ultimately decide whether this gambit yields results.  This is one to keep an eye on.