Category Archives: eDiscovery 101

My Analysis of Calbar Formal Opinion 2015-193: eDiscovery & ESI? “Don’t Be Stupid”

The last three words from this short Beverly Hills Cop video clip sum up my analysis of the opinion:

I wrote public comments to COPRAC (The State Bar of California Committee on Professional Responsibility and Conduct) re their interim versions of the opinion and, in a rare step, I’m posting a verbatim excerpt because my assessment of this opinion remains unchanged.  One modification – I bolded a quote, because the Committee adopted my definition verbatim in their opinion (page three, footnote six):

“I’m seeing a very common thread in COPRAC’s reasoning that afflicts those who understand technology at a more surface-level; the tendency to think of it in physical, rather than ethereal terms.  In other words, the Committee has focused on the word evidence, instead of the word electronic.  Take water, for example.  Whether it exists in a lake, a bathtub, or a glass, it’s still water.  It’s the same with evidence.  Whether it exists as writing on a tombstone, a paper document, or in electronic form (e.g. sitting on a flash drive), it’s still evidence.  It’s the medium that should distinguish it for your purposes.  That’s the contrast missing here.

Whereas the Committee has done a better job of defining parameters such as clawbacks and laying out accurate mistakes by our hapless attorney, once again, it descends into conduct that isn’t eDiscovery-based; but competence-based.  This opinion relies too much on unrelated reasoning, such as “assumes”, “relying on that assumption” and “under the impression”.  That’s not an eDiscovery problem; that’s a general competence problem.  It’s also not what the audience needs.  If they’re attorneys licensed in California, they’ve presumably passed both a Professional Responsibility course and the MPRE exam and know – or should know – their duty of competence.  It’s not as if an attorney retains a med-mal case, then immediately “assumes” or is “under the impression” that s/he’s a doctor and can read an x-ray.  But I could intertwine those facts with this opinion and make it about medical experts.  What attorneys specifically need to know is how their actions, or lack thereof, in the procurement, assessment and handling of electronic evidence morph into a violation.  This is a highly specialized area unto itself.  See my previous example.  The x-ray is electronic evidence.  Proper acquisition is one matter; analysis, forensic or otherwise, is quite another.  That doesn’t just include the adversary’s evidence.  It also includes the Client’s evidence.  In this scenario, one is seeking to exculpate the Client through all available means – not just via the adversary.

Contradictions also exist in Footnote Six on page three that states, “This opinion does not directly address ethical obligations relating to litigation holds.”.  I respectfully submit that the opinion goes on to do exactly that.  Perhaps this is due to the criteria set forth in Footnote Six being inaccurate as defined.  In a legal setting, Attorney is charged to know what the Client does not, and this may involve issuing litigation hold instructions to their own Client; not just third parties or adversaries.  If attorney was interacting with the CIO or CTO (The “Information”/”Technology” chiefs, perhaps s/he could reasonably reply on their assessments.  But here, attorney is interacting with the CEO who likely has no intimate knowledge of what goes on in the IT department.  It should read, “A litigation hold is a directive issued to, by or on behalf of a Client.”  Otherwise, how does the competent Attorney protect a Client who, in good-faith, endeavors to do the right thing or protect themselves when a Client, in bad-faith, engages in intentional spoliation?  One of those scenarios exists on page two, when the eDiscovery expert, “tells Attorney potentially responsive ESI has been routinely deleted from the Client’s computers as part of Client’s normal document retention policy”.

Understanding these nuances and acting on them is the very definition of competence as applied to an eDiscovery attorney – or an attorney who engages the services of a third-party eDiscovery vendor.  In this arena, eDiscovery is like a game of falling dominos; once competence tips over, the rest (acts/omissions, failing to supervise, and confidentiality) will logically follow.  As they say, timing is everything.”

Conclusion:  The opinion does a good job of explaining fundamentals of the eDiscovery process, but in my opinion, doesn’t go nearly far enough.

The “Exchange” 2015

TGCIJust a brief reminder that Today's General Counsel and Institute kicks off their multi-city stop of "The Exchange" – E-Discovery for the Corporate Market at The Bar Association of San Francisco, March 16-17, 2015.

I'm on the faculty and will be one of the moderators of session two Monday, March 16th at 10:15am:  "IG in the "eWorkplace Era and its Impact on eDiscovery".

As many of you know, I'm a big fan of this particular conference due to its round-table format where everyone is encouraged to participate.  Registration remains open, so it's not too late.  I've been provided a special code for my corporate and law firm readers only:


This is a vendor-sponsored event, so unfortunately, no outside vendors are allowed.

See you there!

eDiscovery 101: BYOD = BYOA (ASPIRIN)

MP900438810In the upcoming Calbar book, The California Guide to Growing & Managing a Law Office, I do a side-by-side comparison between the benefits and detriments of BYOD.  I'm sure the same sort of comparison takes place in meetings at all kinds of companies.  There's no doubt that on paper, many aspects of BYOD might yield productivity gains and other benefits for the enterprise.

[Note:  In the book, I lay out information in the format of pros and cons because the goal is to inform a reader of the positives and pitfalls so they can make an informed decision.]

So, what's my opinion?  If I was the consultant, in most cases, I'd likely fall into the 'against' column.  Why?  I'll get to that in a moment.

For those of you who don't know my background, at one time or another, I pretty much did every job on the operations side of IT before I ever became a lawyer.  This allows me to look at facts through a wide-angle lens.  The way my mind works, I literally imagine an issue as a 3-D photograph.  Let's apply that to BYOD:

We start by playing 'swap' for a moment.  Imagine coming into work one morning and all of the desktops are different brands and chipsets; some of them are Windows, but a mix of XP, Vista and Seven, others are Macs with various versions of the O/S and still others are Linux boxes.  Now, you may actually see that in some concerns, for good reason.  But I'm talking about literally a different box on each desk in the office.

That would be kind of hard to manage, wouldn't it?

Maybe it wouldn't seem like it to you, but again, I'm thinking very broadly.  We're not just dealing with realities, we're dealing with expectations.  What do I mean by that?

When I read most of the articles that address BYOD, they speak in terms of locking down various functions on a device, such as email, via Exchange, for example.  But that''s not how I'm thinking; and it won't be how the employees/consultants will be thinking, either.

Nope.  If it's a device supporting their job, they expect everyone up the chain to be able to support the entire device – not just components of it.  And, the enterprise should expect this as well, since a non-functioning device will ultimately affect productivity.

It means that your help-desk, field service technicians, level II (and level III) support will have to be proficient with every make and model of Windows Phone, Blackberry, iPhone and – if you'll pardon the pun – every flavor of Android.  Oh, and did anyone give any thought as to how you're going to back them up in such a manner that the company owns/controls the data?

That's what it means, Jelly Bean.

So, if you're considering BYOD, I hope the decision-makers are taking this into account and formulating policy.  Never mind that I didn't get into the fact that, if litigation arises, staff may have to turn over their personal devices for imaging or examination.  I also didn't get into how growth highly affects BYOD.  We all know the person who runs out and purchases the brand-new, untested, unpatched version of X the moment it's on the market.  Apple Maps, anyone?

I hope you bought the 1000-count bottle…

How I Spent My Day at LegalTech West Coast

MP900309173Have I ever gotten a LegalTech summary posted quickly?  I don't think so.  It seems like every year, the conference falls on a busy week for me.  No exception this year; in fact, regretfully, I was only able to stay for the first day.

As always, I want to inform you that I attended as a guest of the provider, ALM.  However, nobody at ALM ever attempts to influence what I write about the conference and as you know by now (hopefully), I write what I see.  So, without further delay, here goes…

Usually, I find that the day starts out strong and ends more weakly.  You get tired drinking in all of that info, especially now that the format has changed slightly to less sessions of 90 minutes each.  This year, the converse was true.  The day seemed to start out a bit quite, but by the end of the day, there was a very noticeable pick-up in both energy and attendance.

Scheduling is still the biggest problem; the more events you attend, the more people you know, which is both a positive and a negative:

Positive:  You have a lot more to do and will end up attending more events.

Negative:  You stop every ten feet to chat with all of the people you know and end up arriving late to every session.

I started with the keynote, presented by Kevin Genirs, Global General Counsel, Investment Banking, Barclays & Former General Counsel, Investment Banking, Lehman Brothers.  The topic was, "2008 vs. 2012: Lessons from Lehman Brothers".  From an informational standpoint, it was excellent.  An insider's view of the Lehman Brothers implosion – how can that not be fascinating?  However, it really didn't have anything to do with "Legal-Tech", so to speak.  To me, that didn't matter, as listening to the information from someone who was on the front lines served to humanize the event.  It's not the same as reading the cold facts in a newspaper or online, or watching them on TV.

As far as session choices, due to having been swamped prior to arriving at the conference, I literally made my choices on the fly.  This became amusing when I attended interesting sessions, only to discover that friends and colleagues were presenting them.

Session one was, "Guarding Against the Enemy Within", which pointed out that you're more likely to experience a security breach from within an organization than from without.  It's funny, because I'm presenting a very similar talk on Friday, June 22nd at the Calbar Solo & Small Firm Summit.  They think the way I do; that people, deliberately or accidentally, are more likely to facilitate a breach than via an outside attack.  The session was high on substantive content and I got a lot out of it.

After the lunch break, I attended, "Dealing with Data Theft".  I don't think I need to elaborate on the subject matter.  As I mentioned, I was pleased to find that a colleague, Wayne Lee from Verizon, was one of the presenters.  Again, a very substantive presentation by this panel.  Along with the presentation, we were also given a copy of Verizon's 2012 Security report.  If you're not familiar with it, you should be.

To finish out the day, I switched tracks and attended, "Exploring Hot E-Discovery Trends: FRCP Amendments, Social Media, and Emerging Case Law".  Again, I was pleased to discover that my colleague, Ron S. Best, was one of the presenters.  I didn't get as much out of the session because, unfortunately, it was geared to a beginner-to-intermediate audience.  That's by no means a bad thing, based on the participation of the attendees – the room was bursting at the seams.  What's gratifying is that each year, the increase in awareness and interest in these fields is palpable.

My biggest regret was that I couldn't stay for day two, but we do what we can, right?  See you there next year!

e-Discovery 101: YMMV

From LeClairRyan’s e-Discovery 4-1-1 Newsletter:


I’m forced to use disclaimers a lot during my presentations.  Of course, this applies to many other areas of law practice, however, with the dizzying speed in which contradictory case rulings are being decided in eDiscovery specifically, I think their disclaimer is far more eloquent than what I usually say:

“It depends…”

From the Vault: e-Discovery 101: Twitter MySpace Away on Facebook

[This is the 1st time I've retrieved a post from the archives.  It was my 28th, from February 4th, 2009.  The reason I'm doing so is, this seems to be the most popular article I've written, in terms of republishing, anyway.  Maybe people just like the title.  I recently granted permission for it to be reprinted for an attorney malpractice CLE course in New Jersey April 26th, and it occurred to me; I didn't really have any subscribers back then, so it's likely almost none of you have ever seen it.]

* * * * * * * * * * * * * * * * * * * * * * * * * * *


I've been looking at Twitter, MySpace and Facebook recently…

"I hate my job!"  "I don't want to do this anymore!"  "I pay my staff too much!"

Who wrote this?  Attorneys!  I'm picking on attorneys because they should know better, but my point is simple; live your life online and it'll come back to haunt you, someday.  Hello???  You do know this stuff may be discoverable, right?

Since it's fast approaching, here's a President's Day story for you…

An underling wrote to a General – who would go on to be President of the United States – regarding an act of treason.  The underling was profligate, rambling on and on about the facts of the case, anecdotal details et al, until finally getting to the point; the request for the General to sign-off on an executive order of execution.

The General was not amused.  In his order authorizing the execution, he decided to 'send a message' when he sent the message.  His order contained two words:

"So do."

The underling got the message.  Upon execution of the order, he sent a follow-up to the General:


In the above story, the names were changed to protect the innocent (which means I couldn't find a link to provide, even though I know the story – in some variation – actually occurred.  My recollection is that the missive was sent to General Washington during the American Revolutionary War).

Are you getting the message?


Everybody's seen this on TV – the Miranda warnings.  I'm adopting two of the four Miranda rights as our new e-discovery mantra:

You have the right to remain silent.  Anything you say can and will be used against you in a court of law.

You may be dealing with an adversary who has deep pockets.  What do you think happens the moment a dispute – or threat of one – occurs?  In the old days, they'd hire a private investigator to gather data on the principals, their attorneys, their contacts, heck, even their pets! 

Now, they just do a web search.

There's an old saying; if we could be convicted for what we're thinking, we'd all be in jail!  Forget about 'conviction' for a moment.  Anything you say, no matter when you said it, may be fair game in court to show bias, prior inconsistent statement or a host of other possibilities.  You are creating a record – possibly permanently – of your thoughts.  If you think that deleting them makes them go away, it doesn't.  They can still be recovered in many cases – by someone like me.

If you are operating under the notion that this is personal – and professional litigation is separate – think again.  Anything that can be used to create a profile of how you might carry out your professional duties may be fair game.

Paranoid?  You should be.  You have to be your own filter.  Before you post, ask yourself whether you're OK with the concept that anyone on earth might see it – forever.  If the answer is yes, go ahead.  Post it.  Otherwise, keep it to yourself.

This is e-discovery 101.  Common sense.  We all possess it; we just have to execute.

e-Discovery 101: Assembly Required

MP900289894 I don’t have any children, but many of my friends and relatives do.  Nevertheless, several years ago, I advised the Los Angeles District Attorney’s Office on their internet privacy program called ‘Protecting Our Kids’.  It shocked them when I demonstrated how easy it would be for kids to circumvent all of their ‘watchdog’ procedures.

So, I thoroughly enjoyed reading this story in which a high school in Connecticut accessed students’ non-secure social media pages, then presented some of their findings at an assembly.

I think you can already imagine the reaction of some of the students who were featured

But the creators of the presentation took care only to use images that would not embarrass or offend anyone.  Had they done otherwise, that would be another story.

As it stands, my comment to the offended students – and their parents – is, sometimes, we don’t realize the favor someone is doing for us.  If those same students think twice the next time they’re about to post an item, then the school has accomplished its goal.

Besides…did the message really get through?  Here’s what some of the angry students did first:

They complained on Twitter.

e-Discovery 101: Back to School

MP900448856 I tells ya…I don’t get no respect…no respect…

I swore after surviving law school – and the California Bar Exam – that I’d never attempt to learn anything again; nor ever consider taking another bar exam.  I’m pretty sure almost everyone feels that way after running the gauntlet.

But darn it, Ralph Losey talked me into trying out his new online e-Discovery Team Training program, and I’m going to give it a go.  I just want to be clear – I’m not doing this for myself, I’m doing it for you (that’s just the kind of altruist I am).  That’s what I’ll keep telling myself…

I agree with those who believe eDiscovery should be a mandatory course in law schools, so I’m curious to see the program Ralph and his team have put together.  Then, I’ll report my findings to you.

One thing – my schedule is a bit hectic these days, so this may take awhile.  For example, it took me about six weeks to get around to signing up!  Now, where did I put my pencil…