eClassics: e-Discovery LOL: “YCDBSOYA!”

Back to the Vault for a reminder of what’s really important this Thanksgiving.  All the best!


This is a tribute to my dad, who passed about 18 years ago.  Without his guidance, who knows where I might have ended up?

What you’re looking at is his tie-clip and cuff link set that I cherish greatly, especially in tough economic times like these.  I haven’t posted as often nor as robustly as I would like lately, and this is the reason.  To a certain extent, you can do business by phone, email or through the internet, but ultimately, “You Can’t Do Business Sitting On Your Ass!”

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It’s Official: I’m a Candidate for Calbar Board of Trustees in District One

Vote RWBLate last week, my nomination as a candidate for the State Bar of California Board of Trustees in District One was certified (I just haven’t had time to mention it until now).  For those who are wondering, District One includes Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Napa, San Francisco, San Mateo, Solano, and Sonoma counties.

Who can vote?  “Any active member of the State Bar, in good standing on the date the eligibility list closes, whose principal office for the practice of law is located within a county that is included within the State Bar district in which there is an election, shall be eligible to vote in the 2016 election.”

I understand that ballots will be mailed out December 31, 2015 and voting concludes February 29, 2016.

More to follow.

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eClassics: The Midnight Ride of Sarah Palin

Colonial Palin

Another one from ‘the vault’ to celebrate the silly season of politics. A lot of people missed the apolitical point of this post, which was that it was all just a tempest in a teapot:

Listen my children to a tale in error
Of the midnight ride of Palin, Sarah
On the tenth of June, in Twenty-eleven;
Many a reporter is now in heaven
Who remembers that famous day and year.

She said to her friend, “If the Alaskans power
By land or sea from the town to-night,
Hang a lantern aloft in the belfry tower
Of the North Church arch as a signal light,–
One if by ‘Times, and two if by ‘Post;
And I on the opposite shore will at most,
Be ready to ride and spread the alarm
Through every Juneau village and farm,
That the lamestream-press means to do me harm!”

Then she said “Good-night!” and with muffled oar
Silently steered to the New Hampshire shore,
Just as the moon rose over the bay,
Where swinging wide at her RV lay
The NY Times, American man-of-war;
A phantom Grey Lady, with each mast and spar
Across the moon like a prison bar,
And a huge black hulk, that was magnified
By its own reflection in the tide.

Meanwhile, her friends through alley and street
Wandered and watched, with eager ears,
Till in the silence around her she hears
The muster of newsmen at the office door,
The sound of typing, and the tramp of feet,
And the measured tread of the cop-iers,
Marching down to their presses on the shore.

Wrapped in silence so deep and still
That she could hear, like a sentinel’s tread,
The watchful night-wind, as it fell
Creeping along from dell to dell,
And seeming to whisper, “All is well!”
A moment only she feels the spell
Of the place and the hour, and the secret dread
For suddenly all her thoughts are bent
On a shadowy something far away,
Where the river widens to meet the bay,–
A line of six boxes that bends and floats
Of 24,199 e-Mails like a bridge of boats.

A hurry of hoofs in a village street,
A shape in the moonlight, a bulk in the dark,
And beneath, from the pebbles, in passing, a spark
Struck out by a steed flying fearless and fleet;
That was all! And yet, through the gloom and the light,
The fate of a nation was riding that night;
And the spark struck out by that steed, in her flight,
Kindled the land into flame with its heat.
She has left the village and mounted the steep,
And beneath her, tranquil and broad and deep,
Is the Mystic, meeting the ocean tides;
And under the alders that skirt its edge,
Now soft on the sand, now loud on the ledge,
Is heard the tramp of her steed as she rides.

It was 9 am by the village clock,
When she came to the bridge in Juneau town.
She heard the bleating of the flock,
And the Twitter of Droids among the trees,
And felt the breath of the Daily Breeze
Blowing over the meadow brown.

You know the rest. In the papers you have read…

So through the night rode Sarah Palin;
And so through the night went her cry of alarm
To every Juneau village and farm,—
A cry of defiance, and not of fear,
A voice in the darkness, a knock at the door,
And a word that shall echo for evermore!
For, borne on the night-wind of the Past,
Through all our history, to the last,
In the hour of darkness and peril and need,
The people will waken and listen to wailin’
The hurrying hoof-beats of that steed,
And the e-Mail message of Sarah Palin.

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Guest Post – John Sadler: What Can You Learn About Teamwork By Playing in a Band?

John Sadler - Teamwork PNG

As a (former, recovering, retired) musician, I relate to this post by my friend, John Sadler:

Playing music in a band is a team activity that can be complicated by the ego issues and creative preferences of the band members, as well as role ambiguity. Over many years of playing music with other people, I’ve learned some behaviors that help a group work well together musically, and others that can make it fall apart. Many of those lessons port nicely to other team activities.

The biggest element of success in a band is to show respect for your bandmates. Other necessary conditions include:

Show up, on time – Clarinetist (among other vocations) Woody Allen has been quoted as saying that “Eighty percent of success is showing up”. It’s important to be dependable and do what you say you’re going to do. It’s equally important to pick bandmates who do the same.

Come prepared and in tune – don’t waste your bandmates’ time by playing your part poorly or wrong if you could have practiced it beforehand. Similarly, nobody wants to stand around while you set up and tune your instrument. If you have a complex kit, show up early and be ready to go when everyone else is.

Listen to the band – not just yourself. A great bandmate is a great listener, and will adapt his or her performance to make the band sound as good as possible. There is a lot to this. When you accompany, your job is to make the soloist sound great. What you don’t play is at least as important as what you do play. Leave space! (AKA silence). Get used to hearing yourself in the context of the band to get a feel for the right volume level. If you’re accompanying a soloist or a singer, make sure you’re not too loud – you may even lower your volume so the featured performer stands out in the mix. What sounds like the right volume when you practice may be way too loud in the context of a band. When you solo, you need to be a bit louder; more importantly, others need to back off. If in doubt. record the performance and listen carefully.

No drunks, no jerks – it’s hard enough to make great music without impairing your ability to think and perform. Give yourself every chance to have sound judgement and the best possible control over your actions. Check your ego at the door as much as possible – there needs to be honest give and take to make great music. You may think that you are a creative genius, but the odds are against it. Few team efforts are improved by verbal abuse, ego games, or infliction of emotional distress. A great band can rise above the limitations of its individual members if everyone is working well together.

Take mistakes in stride – the audience notices how you react to mistakesmuch more than the mistakes themselves. It’s OK to make a mistake. It’s not OK to call attention to it while performing. If someone makes a mistake (and everyone will) during practice, keep playing and have a critique at the end of the song. Remember that you will make mistakes as well – treat people kindly. They’re supposed to be your friends.

Everyone should have a chance to contribute ideas to improve the sound and performance. Everyone should be able to try ideas, especially during practice, that might result in a better sound. So mistakes have to be OK in order to perform at the highest possible level.

Expecting mistakes to happen and handling them with grace is a huge life skill. As bassist Victor Wooten points out in his excellent book The Music Lesson, a “good” note is never more than one fret away. Did you know that you can practice recovering from mistakes, the same as an astronaut practices dealing with emergencies?

Discuss and align your goals together – this one issue is responsible for the demise of many bands. You and your bandmates must agree on goals, whatever they may be, in order to form a cohesive team. If one person needs income or commercial success while the rest want to jam on the porch on a Sunday afternoon, you have a problem. You must decide what kinds of music you will play, what the roles of the members are – to name a few:

  • Who selects the material?
  • Who is the band leader?
  • How many soloists or lead singers are there?
  • Who are the song writers?
  • Who buys the beer? (Just kidding)

Finally, a couple of ideas for performance:

Play it the way you practiced it – Conversely, if you practice poorly, you will perform poorly. Good practice skills are highly underrated! Here’s one pointer that is easy to miss and hard to learn, but works exceptionally well: go slow to go fast. Practice only as fast as you can play smoothly and without mistakes. Speed up the tempo gradually. If you practice too fast, you will be teaching your muscle memory to make mistakes, and you will never play your part well. This general principle applies to almost any physical activity.

By the way, most great soloists practice their solos. Really. They don’t just step up and fake it unless they have to. Yes, there are exceptions, but I’ll bet they worked very hard to become exceptions.

Don’t stop until the song is over – Starting and stopping together are the second steps to sounding like a band (the first step is to play the same song together in the same key and tempo). You need to agree as a band on how you will know the song and tempo, how it will start, and how you will know when to end it. These things do not happen by magic. They happen by agreement, by knowing the material cold, and possibly by years of playing together.

Those are a few lessons I’ve learned the hard way by playing bands since I was a kid. I think many port nicely to the workplace. What do you think?


About the Author

Reprinted by Permission.  Photo credit: Tomasz Budzyński.

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1st Things 1st: The Litigation Hold Letter (A Blast from the Past)

J0309498 All – as part of my ‘repairs’, I’ve looked at some of the blog logs (say that 3x fast) and since this item was posted over six years ago, it’s still ranked as #1 on the site!  So, it seemed like this was the perfect opportunity to republish it.  The letter itself is slightly updated, but the post is reproduced verbatim:

Wow…this is my 100th post!  Who knew I could pontificate this long?

In analyzing the new California Electronic Discovery Act (I’m going to start calling it “CEDA” for short), I might as well start at the beginning.

The first thing that will occur if litigation arises?  There’ll be a bunch of litigation hold letters going around.  I say a bunch because it could manifest several ways; outside counsel to your adversary, outside counsel to inside counsel, inside counsel to the enterprise, the CIO/CTO to the IT department, the CEO to the CIO/CTO…you get the idea.  In some cases, as illustrated above, the letter may not even be coming from an attorney.

What might the letter look like?  Here’s an example of a litigation hold letter theoretically issued from outside counsel to an adversary (in PDF format).  The names were changed to protect the innocent (and the guilty, for that matter).

This is only a sample to give you an idea of what a letter of this kind might look like.  The purpose is to illustrate items you may or may not have thought about.  Like snowflakes, no two letters will ever be exactly the same.  Only a professional with personal knowledge of your specific requirements should ever create and/or issue a litigation hold letter.

Enough disclaimers?  Ok then…chew on this for a Monday.

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Hey – everyone’s raving about the new Star Wars film, so why shouldn’t I get in on it?!?!?!

Speaking purely about the blawg, the week started out like this:


As of this moment, it’s ending more like this:


If you’re a subscriber, hopefully you’re receiving this through your feed.  It’s one – of many – tweaks that were needed to get the site back into shape.

I’m not quite done, but we should be pretty close by Monday. Thanks again for your patience!

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Welcome to My New, Improved(?) Blawg

Just a short note to let you know that I’ve migrated the blawg to a new platform.  It’s a bit of a job migrating 577 posts that have accumulated since 2008, and there are a few tweaks to complete; however, since I depart tomorrow morning for the State Bar of California 88th Annual Meeting, it will remain a work in progress for the next couple of weeks.

I’ll also re-establish subscriber feeds soon.  Thanks for your patience.


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Test-Driving Windows 10: What You Need to Know Before You Upgrade

[…and what to do if you’ve already upgraded]

Windows 10 was released in late July to a lot of fanfare.  Even as a ‘tech-guy’, my rule of thumb is to never install an upgrade to a Windows operating system until Service Pack 1 is released.  But, as is true with many other users, Windows 8.1 (and Windows 8.0 before it) was a big disappointment to me and I figured anything would be better than standing pat.  So, under the dual-philosophies of, “Tech, Heal Thy PC” and “Document it for my readers”, I installed Windows 10 as soon as it became available.

Good thing I know how to fix my technology.  On the plus side, you get to learn from my pain.


Do I regret doing it?  No.  Was it a successful upgrade?  Yes and no.  First of all, there are a lot of tweaks that must be dealt with, but other than being time-consuming, they weren’t particularly difficult.

What was difficult was that Bluetooth support disappeared.  What do I mean by disappeared?  I mean that, not only did it not work, the entire module was missing as if that feature didn’t exist on my PC.  It can be blamed on both Microsoft and Toshiba, my PC manufacturer.  As I found out later, Toshiba didn’t release Windows 10 compatible drivers until about a week after the upgrade was available (which strengthens my advice never to rush to upgrade).

But that was a week later.  I had a problem to address now.  I dug out my old usb mouse (my current mouse is Bluetooth) and got to work figuring it out.  When it comes to troubleshooting these types of problems, patience is a virtue.  There’s always an answer, but it may take time to find it.  In this case, the answer was simple: my driver didn’t work and I had to find one that did work.  The fix, on the other hand took time.  I visited both the Toshiba and Intel sites for support, but being unable to find drivers that specifically identified as being compatible with Windows 10 (or my PC model), I simply started with the next version up from my driver and continued a pattern of install/reboot/remove/reboot, install/reboot/remove/reboot until finally, Bluetooth miraculously reappeared!

Of course, I had to try a lot of drivers – and had a lot of other work to do – so that process took two days.  Not that bad; but the real reason I needed to repair it was that I connect to my smartphone via Bluetooth for other purposes.

Remember, I was willing to take the risk, so I’m fine with the results.  Are you?


As you’re already aware, some very talented people all over the Internet have written articles about functionality and features, but I want to focus on what attorneys need to know, and the most important item is that Windows 10 poses serious risks to your privacy – and the confidentiality of your client information.

You’ll want to start with the privacy settings (which can be located – predictably – under Settings > Privacy) but be warned, depending on your configuration, there will be approximately thirteen separate modules of privacy that you must review, and you’ll have to spend some time in each one (see below):

Windows 10 Privacy

In short, you’re going to find yourself turning a lot of features off.  For most users, this will be sufficient.

For those who wish to go a step further, there are other settings referred to as Telemetry, which Windows 10 has embedded in the software.  It automatically sends your information to them – and it doesn’t provide a means to turn itself off.  I know what you’re thinking.  “I’m staying with my current version!”  That’s not going to work, because just recently, Microsoft began backporting its telemetry software to both Windows 7 and 8.

All is not lost, however.  There are tools available that will mitigate the problem. Personally, I recommend the aptly-named, “Windows Tracking Disable Tool”, which does exactly what it says.  This is a third-party program so as always, practice due diligence and be sure you understand what you’re doing as you’ll be installing it at your own risk.


There’s a lot of debate about installing various patches provided by Microsoft.  I fall squarely in the camp of installing them.  Over the past month, there have been several patches to Windows 10 and I can honestly say that just over a month out, it’s working much better than on day one.  And that brings us full circle around the track to where we began:  Service Pack 1.

Did I say service pack?  That’s the old nomenclature.  It’s not called a Service Release anymore – it’s called Threshold 2.  The best estimates say it’ll likely be available sometime in October.  That’s a fairly rapid turnaround for a service release, compared to the old days.

For those who ‘do as I say; not as I do’, I guess you’ll be idling at the red light a few weeks longer.

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Calbar 88th Annual Meeting – October 8-11, 2015 in Anaheim

Calbar 88th Annl Mtg - Grn

We’re still about one month out from the State Bar of California’s 88th Annual Meeting. Bookmark this link to stay up-to-date about hotels, registration, events and programs.

Want a sneak peek at the latest info?  Here’s the skinny on my program this year:

Saturday, October 10, 2015 – 4:00 PM – 5:30 PM – Program 107:

In My Opinion: A Review of the Latest Technology Rules to Protect Attorney & Client Confidentiality

But wait!  There’s more!  Would you like to see all of the programs from the Law Practice Management & Technology Section?  Download our free app for Apple and Android devices.  All of the programs are listed on the calendar.

Thanks for your continued support.  See you there.  C’mon…it’s the happiest place on earth!

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Guest Post – Peter N. Brewer: LegalTech – Day Two

Peter Brewer Caricature

I think this is the first time I've ever done this on the blog, but immediately following LegalTech, I had to leave for a trip.  However, Peter Brewer, my trusty colleague from the Law Practice Management & Technology Section, was kind enough to write up a guest-post about his experience this year.

<<< I leave it to you to determine which image to my left is the real Peter Brewer:

"The ALM LegalTech West Coast event, historically always venued in the Los Angeles area, was held instead this year in San Francisco at the Hyatt Regency on July 13 and 14. As in the past, the event consisted of keynote sessions, seminars, and importantly, a large vendor exhibit area. The first day had five seminar tracks running consisting of; corporate legal operations, information governance, advanced IT, the cloud and mobile technology, and E discovery. The second day the tracks were four in number and consisted of; information governance, E discovery, information technology, and corporate counsel perspectives. 

I attended only the second day, which kicked off with an interesting discussion of the Ellen Pao versus Kleiner Perkins Caufield Byers case. On the panel were two reporters who covered the trial, and the defense attorney, Lynne C. Hermle, from Orrick Herrington and Sutcliffe. The plaintiff’s attorney, Alan B. Exelrod, of Rudy, Exelrod, Zieff & Lowe, had been scheduled to be on the panel but had to withdraw due to a scheduling conflict. This keynote proved to be a lively hour of informal discussion in which Lynne Hermle gave substantial credit to the jury for their thorough and diligent evaluation of the evidence. 

The keynote was followed by seminar sessions throughout the day, with ample breaks to visit the vendor exhibit hall.  I attended one of the seminar sessions on E discovery, “Every day E discovery: Bringing It In-House or Outsourcing It.” The panelists were knowledgeable; they consisted of an independent consultant, a claims manager, a partner from the major law firm, and a representative of Lexis-Nexis. The discussion was lively, but for my tastes it was a broad overview with much discussion of the concepts but very little grass-roots, take-home practical advice. I came away feeling that the discussion had been thoughtful, but with no better sense of, “where do I start,” or “what are my first steps when I get back to the office.” 

I also attended a session on cyber security. Again, the panelists were well qualified and knowledgeable. The discussion included such things as the availability of data breach insurance, engaging outside consultants to do cyber security audits of your business, and a general, high-level discussion of the topic of data security in the office. Toward the end of the session the moderator opened the discussion up to questions from the audience. I commented to the panel that, while I found the discussion interesting, I would like to have some specific action items that I could take back to my five-attorney law firm and implement, step-by-step. 

The advice that was given in response was to start with written policies and procedures. As in any endeavor, if you don’t know where you’re going, any road will take you there. A cautionary bit of advice that went with the suggestion of developing written policies and procedures was that then you are duty bound to follow them. Failing to observe your own procedures can increase rather than decrease your liability.

It was also suggested that I consider hiring a security consultant to do a risk assessment of my office. Apparently for a firm the size of mine (<10 total staff) this endeavor can run approximately $5,000 – $10,000. While this seems like a sizable chunk of discretionary spending, the cost of a data breach and one’s exposure to liability for it would no doubt be a multiple of many times that amount. 

Contrasting the 2015 event with LegalTech events in years past, one significant difference stood out to me.  In past years there were seminar sessions on a broader variety of topics. There have been sessions on such things as what financial reports a law firm owner should regularly produce and review, sessions on tech gadgets, useful mobile devices, helpful apps, practice management software, and so forth. This year by far the greatest emphasis was on data. Even the vendor exhibit hall, although it did have exhibitors of a variety of useful products, seemed to be heavy on the e discovery and data security vendors. While this information is no doubt useful to some, I found it not very applicable to my small firm’s real estate law practice, where we do not get cases involving discovery of tens of thousands, or more, documents. Circling back to the keynote discussion that kicked off that day, attorney Lynne Hermle said that in the Ellen Pao vs. Kleiner Perkins case Ellen Pao had produced something approaching a million documents. May I be blessed to reach the end of my career without ever having to tackle such a daunting task. 

All in all, the LegalTech event is an enjoyable break from the office, especially for those of us interested in tech.  Are you one of us?  Check your wrist.  If there’s an Apple watch on it, you are inescapably a techie.  It was nice to have this event in Northern California for a change, and the Hyatt Regency was a lovely and accommodating venue.  I hope to see the event back in San Francisco again next year."

Peter Brewer


About the Author:   Peter N. Brewer has been a lawyer for over 35 years, and is also licensed by the California Bureau of Real Estate as a real estate broker.  Peter started his own firm in 1995.  The firm has grown to five attorneys, practicing real estate and lending law.  The firm serves the legal needs of homeowners, purchasers and sellers, real estate and mortgage brokers, agents, brokerages, title companies, investors, other real estate professionals and their clients. Peter and his firm also represent clients in debt collection, creditor representation in bankruptcy, breach of contract matters, and other litigation and transactional work.

Peter obtained his Juris Doctor degree from the University of Santa Clara Law School in 1979 and is also licensed to practice law in all State and Federal Courts in Idaho and certain Federal Courts in Michigan and Iowa (and probably in other states he no longer recalls).  He loves dogs, hates kids, and is generally considered to have an insufferable disposition.

Law Offices of Peter N. Brewer

2501 Park Blvd, 2nd Flr.

Palo Alto, CA 94306

(650) 327-2900 x 12                 

Real Estate Law – From the Ground Up®

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An IT Executive Turned California eDiscovery & Litigation Attorney and Consultant Shares his Personal Insights.