Category Archives: Implementation

Sisterhood of the Traveling Red-Leather Pants

Note:  This post may end my chances of finding gainful employment for the next several years…

Cranberries --- Image by © Royalty-Free/Corbis

I’m going a little off the reservation today.  Post after post, I’ve repeated various mantras:

  • This is a team undertaking
  • You’ve got to sell it to management
  • Everybody needs to be on the same page
  • Get everyone into a room

Great.  So I’ve told you what needs to be done.  This raises the question; how do you do it?  Well, someone is going to have to make the ‘sale’, and here’s a good starting point.  The Times Online has an excellent article, “How to give a great presentation“.  It provides a framework of ten useful tips to deliver your message clearly and concisely and helps you keep the attention of your audience.

Tip #7, ‘Throw in surprises’, brought back one of my favorite memories.  In 1994, I was consulting at Hughes Space and Communications.  The group I was working with was outsourced to EDS.  Now, this was an engineering group – jeans and informal shirts were commonplace.  EDS is a Texas firm with a very ‘white collar’ approach.  Needless to say, these philosophies didn’t mix very well.  EDS’ management began implementing formal rules that the Hughes folks weren’t used to; one of which was the “No Denim” policy.  Anywhere else, this probably wouldn’t have been a big deal, but this was Southern California in the 1990s – it had a serious downward effect on morale.

I had an idea.  We had a bi-monthly, mandatory ‘all-hands’ meeting that about 50 people attended.  I waited until everyone was seated and the meeting began.  Then, I strolled into the room – directly in front of the stage so everybody could see me – wearing a pair of bright-red leather pants.  As I passed the stage, I turned to management and said, “Hey, it’s not denim!”  It brought the house down and quickly reduced the tension level from DefCon 1 to DefCon 5.

Note to prospective employers:  I’m mu-u-u-ch better now…

But here’s the background.  There was no malicious intent on my part.  EDS’ management was fully aware of the morale problem and when I approached them prior to the meeting and told them, “I’m going to do something in the all-hands meeting to try to boost morale”, they were all for it!  The bottom line is that it accomplished the goal; it reduced tension between the two groups thereby facilitating a better cooperative relationship.

My office is in El Segundo, not far from the old Hughes offices (it’s Raytheon now).  Fifteen years later, whenever I run into one of my colleagues from that period, the first thing they say to me is, “Remember that meeting where you wore the red leather pants?”.

Never underestimate the power of an effective message…

e-Discovery Resolutions: Technology

Best wishes for a safe, healthy and prosperous 2009!

j0438855I took a few days off, but found myself pondering what a list of New Year’s resolutions for e-discovery professionals might look like.  I tried to make a single list, but as I compiled it I realized that bifurcating it and creating two separate posts – one for law, one for technology – would work better.  How did I decide who went first?  Well, I carefully reviewed the data, factored in the importance of each item, took into account the ego issues that would arise…

…I flipped a coin…Technology won…

1.    KNOW WHERE YOUR DATA IS

Yes, yes, I know; never end a sentence with a preposition.  In my defense, I don’t think that’s really a sentence.  If you insist, I’m just going to have to pull a “Winston Churchill” on you (See #1)…

Let’s face it, you’re running around with a ton of things to do, so nobody actually sits down and draws a map of the enterprise.  And if you’re one of the lucky ones who actually has a map, is anyone keeping it up to date?  (What do you mean I can’t start a sentence with and‘?  See #3)…  I can’t tell you how many times I’ve been hired into an operation, asked for a data map and received one that’s two years old (Never use ‘I’ in business writing?  See #2).

2.    BROADEN YOUR THINKING

What encompasses ESI at your enterprise?  Where is it?  Do you have access to it?  What if it’s on someone’s personal equipment?  What if it’s on the ‘web’?  This is a good time to think about all of the places ESI may reside.  Remember, you’re not just answering subpoenas here, you’re also looking for exculpatory information.  The blade cuts both ways.

3.    FORMALIZE POLICY

This is no time to be fooling around.  You do not want to be caught without policies in place when litigation arises.  You won’t be able to put the genie back in the bottle, so get together and create sensible company policy, implement it and make sure everyone knows what their role is (don’t make me cite #1 again…).

4.    TAKE BOXING LESSONS

Regarding resolution #3…hey, I didn’t say it would be easy, did I?  Depending on the ‘buy-in’ at your firm, you may meet a lot of resistance.  People don’t like to change their habits.  This is why you have to create policies that make sense, sell them to management, then make sure management stands behind you.  Otherwise, this will fail.

5.    BE KIND TO THE LAWYERS

Everybody has a job to do.  Yes, unless the attorneys have some experience with technology, they may think everything can be produced “yesterday”.  They don’t know about your budget issues, your workload or the limitations of your existing technology.  Your job is to make them understand what you can – and can’t – do, and set reasonable deliverables.  Remember, their licenses are on the line.

Ready, Set, Litigate!

Businessman on Start Line of Running Tract --- Image by © Royalty-Free/CorbisLitigation readiness.  What does that mean?  Sure, I can state clearly that it means you’re ready to respond to a litigation hold; maybe “prepared” would be a better word.  What about everything that follows?  How ready are you?

I break it up into five possible scenarios:

  1. No lawsuit in sight, but you want to be ready for the future
  2. Plaintiff – you sue someone
  3. Defendant – someone sues you
  4. Internal – Plaintiff and Defendant are within the same organization (e.g. employee suing employer or vice versa)
  5. Third Party – you’re drawn into a complaint between other parties (e.g. impleader)

How do you get the conversation started when there are so many reasons to put it off?

  • “I don’t know what the big deal about ESI is.”
  • “We don’t have it in the budget.”
  • “We don’t have time to deal with it right now – try again next cycle.”
  • “We’ll deal with it if and when a problem arises.”

Fortunately, most of us recognize that if one waits until an issue arises, it’s already too late.  Receiving a subpoena is not an ideal time to find out that you can’t comply.  It’s also a short-sighted view.  You may need your own ESI to bolster your case, no matter what side of the action you’re sitting on.  Perhaps that’s the argument to make when attempting to motivate management to act.

If that doesn’t work, there’s always the fact that trying to do anything in a piecemeal fashion results in much higher cost.  And if that doesn’t work, management needs to understand that they have duties to uphold – and it’s very easy to violate them when you’re not aware of the rules (oh, and the court won’t necessarily absolve you for being ignorant of the rules – there is a presumed level of competence).

Litigation isn’t just segregated to a small portion of a company.  It requires activating resources from all over the enterprise; HR, IT, Legal (internal and external), Management, etc.  Ever tried getting all of these parties in a room for a meeting?  I have.  Depending on what everyone has on their plate at that particular moment in time, it can take weeks!

Do you really want to be dealing with this at the last minute?  What about e-discovery software?  What
about storage?  Who will review the ESI?  What about your adversary?  Do you have the expertise to know that they’re complying with your ESI requests in good faith?  Who will oversee all of this?

3D Rendering. Very high resolution available! Use it for Your own composings!

The problem with this discipline is that it’s hard to know what questions to ask unless everyone who has a hand in the process is in the same room.  It’s like smashing the atom.  One question generates a whole host of other questions and before you know it, you’ve opened Pandora’s Box.

Start with question #1 – who belongs in the room?

If you have policies in place, everyone knows their responsibilities.  When a litigation hold is issued, duties are already pre-defined.  This is critical, because when they say “hold”, they mean “hold“.

Will your response be more like The A-Team, or the Keystone Cops?

Businessman Crossing the Finish Line --- Image by © Royalty-Free/Corbis

e-Discovery Ahead – Watch for Falling Rock!

“Real Men don’t ask for Directions.”
— Bumper Sticker

QuicheNo, I’m not being sexist.  Anyone who remembers this classic from the 1980s knows that it spawned several humorous sayings that appeared on bumper stickers, T-shirts, etc.  But this one has a ring of truth to it – and it doesn’t apply only to men.  I would modify it somewhat for today’s modern technology.  Unfortunately, no one is going to pay good money for a bumper sticker that says, “Real Men and Women don’t ask for Clarification.”

Peer pressure and group-think can be dangerous at the best of times, but it can be absolutely lethal when e-discovery is involved.  We’ve all been there.  Big meeting.  Lots of players.  Someone is describing a complex process and a lot of people in the room don’t understand, but nobody speaks up.  Understandable.  Who wants to appear ignorant?  Also, some people are gun-shy.  They don’t feel comfortable in these situations. Unfortunately, the result is that many leave the meeting and don’t really understand what was said.

In our likely scenario, we’re going to have highly skilled technology NorwayRockprofessionals, each with skills their counterparts may or may not understand.  We’ll have attorneys, but they’ll also be proficient at various areas of the law.  We’ll have management, who don’t want to have to deal with the issue on a granular level – if they can help it – because that’s what they’re paying you to do for them.  Oh, and everyone’s looking at the clock, hoping to get out by lunch-time.

In a perfect world, everyone will simply cross-pollinate.  We’re not in a perfect world.  How are we going to bring everyone up to speed, avoid the potholes and arrive successfully at our destination?

I won’t be considered a genius by pointing out that communication is key.  Think about this for a moment.  This is a complicated dynamic.  My complaint with a lot of the literature I see is that they give advice as if human beings are robots; suggesting that we all act predictably and in lockstep with each other.  Human beings don’t function that way.  Like it or not, you’ll be dealing with egos, hubris, politics, territoriality, agendas, ambition, laziness, strengths and/or weaknesses – and that doesn’t even take into account the differing skill-sets!

That’s reality.  So, let’s not waste our time pretending it doesn’t happen.  Let’s focus on getting it done in spite of all of those things.

My dad was a smart guy.  He grew up on a farm in Saskatchewan and eventually ended up in the retail business.  He was a plain talker.  In my early days, he would commiserate with me when we discussed these very issues and the frustration involved.  His advice to me was so simple, I’m almost embarrassed to post it; find a way to explain yourself using a comparison that everyone in the room can relate to in some way.

Dad always used a car as his example.

You know what?  It works.  And you know when it works.  It’s amazing what happens when the light bulb comes on, that ‘deer-in-headlights’ look disappears and you know you’re actually getting your point across.

j0437195Here’s an example.  Many years ago, before it became a dynamic process – email systems had to be taken down for lengthy periods of time for maintenance.  We tried to perform these actions when it would least affect the company (read: I never got much sleep).  But companies are international – any hour of the day, they’re ‘open for business’ somewhere in the world.  Someone was always going to be inconvenienced.  As such, it was inevitable that we were going to receive calls regardless of how many advance notices we issued, and as the Manager, it was my job to field them.

Trying to explain to an irate executive traveling in Poland (who, I might add, has the authority to fire me) why he can’t access his email will not be accomplished by saying, “We have to take the database off-line in order to perform maintenance to compact it.”  Remember, these are people who don’t understand technology.  The inevitable reply was, “I don’t care.  Run the maintenance on the thing without taking it down.”

Enter the car. “Sir, I completely understand your frustration, but unfortunately, this is the way the software is designed.  When you have to change the oil in your car, you can’t do it with the engine running, right?  Well, our system operates exactly the same way.  There simply isn’t a way to do it without taking the database off-line.”

You’d be surprised how well it works.  It doesn’t mean they still won’t be angry – it’s unavoidable – but at least they understand.  Knowing our audience is important.   There’s a time and place for complex language, but not here.  Our listener gets the impression that we’re being condescending or they should just leave it to us because we know what needs to be done.

I gave an example involving technology, but it doesn’t really matter what discipline is involved.  The bottom line is, somebody isn’t going to understand us, and they deserve our consideration.

A favorite memory I have is when we had a major system crash.  If there was ever a time when the term ‘grace under pressure’ applies, it’s then.  Before long, the phone started ringing.  There was realistically only one way we were going to fix the problem, but a manager was under a lot of pressure and wanted to implement a radical, untested fix – one that would ultimately make the problem worse.  Try as I might, using every technical term I could think of, I explained how this would turn a contained, fixable issue into one that would spiral out of control – but due to panic, he wasn’t hearing me.  Finally, I simply said, “Look, what you’re proposing to do is equivalent to trying to kill a flea with an elephant gun.”  He dropped the idea on the spot.

Something to think about before you walk into the next meeting with the attitude, “It doesn’t matter what I say – they won’t understand me, anyway…”

If everyone makes an effort to communicate better, we’ll avoid the pitfalls and end up here, instead…

large_falling_rock_tap_house

What is Electronic Evidence? Answer: A lot more than you might Think!

Part I of a two-part series.  Part II will appear 12/04/08.

PART I – LOGICAL RELEVANCE

A cardinal rule, known to law students everywhere, was broken.  “When on a break from the bar exam, don’t discuss a specific part of it with anyone – and if you absolutely must, ask permission first!”  The reasoning behind this rule; to prevent students from freaking out because inevitably the other student will point out something they themselves missed, thus setting off a chain reaction of worry, panic and distraction.

There I was, on a break from the California Bar Exam, and another student really wanted to discuss the evidence question with me.  We had a pleasant conversation – as pleasant as it could be between two stressed-out bar candidates in the middle of a three-day exam.  We discussed the facts as they pertained to the question and the issue of whether each piece of evidence put before us was authentic.

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All was going well until I pointed out the ones that were legit, but weren’t admissible in court.  The pallor of my counterpart changed noticeably.  That’s when he realized that he’d done a great job analyzing whether each piece of evidence was authentic, but forgot the next step – determining whether each was admissible.

Finding evidence is just the beginning.  If all of your dominoes don’t line up properly, it will never be admitted.  The technology gurus have a huge role to play and may not even be aware of it.

A few years ago, if you explained to the average person what electronic evidence – or e-evidence was, then asked them to give you an example, 99% of them would have given you the same answer – e-mail.  We’ve all read news stories about this individual or that one who was caught red-handed through his or her e-mail messages.

Later, another example started showing up more often – text messages.  Just ask the former Mayor of Detroit how that turned out for him…

ESTATUAS DE JARDIM

In law school and on the bar exam, the testers took pride in finding ways to slip a piece of written evidence right by a student by putting it into a form that he or she wouldn’t normally think of as “written”; engraving on a tombstone, label on a medicine bottle, a license plate.  We’re conditioned to think of written evidence as something more mainstream, like a letter, a book or a bill of receipt.

A lot of e-evidence is still written – but now it’s written to computer hard drives, DVDs and cellular phones.  Just like law school students, we have to broaden our thinking and remember that virtually any device that can save, store – or even process electronic information (e.g. RAM in printers/fax machines) may qualify. Then, we have to remember the really tough part – many of these devices are mobile.  They could be virtually anywhere in the world.

Let’s take a hypothetical look at Jane Doe.  She works for a multi-national corporation, “Multi-Corp”.  She has an office in Los Angeles and one in Tokyo, and an apartment in each city as well.  She has a desktop computer in each office, plus a laptop to use when she’s out in the field, at home or traveling.  She stores some of her work on the company file servers.  She’s taken to transferring work from her laptop to her home computers in both Tokyo and L.A. – because she likes them better (the boss doesn’t know).  It’s annoying for her to connect the machines directly, so she either hooks up wirelessly through her router or uses her thumb drive.  She has two cellular phones (one is personal) and a PDA.

Multi-Corp is sued by Uni-Corp, and the Plaintiffs subpoena Jane’s correspondences.  Am I the only one with a headache?  Probably not.

If I’m in the IT department at Multi-Corp, I have to think of every possible device – and the location of each – where relevant data may be stored (let’s hope Jane remembers to tell me about the thumb drive).  Then, once I do, I have to locate the data on the device itself.  What if I need to retrieve it from back-up media?  What happens if a device – and the data it contains – is owned/managed/outsourced to a third party (e.g. the file servers or the cellular phones)?  How do I get them to grant me access when they don’t want to be dragged into a lawsuit?  Do they have to do so?  I might have to ask the legal department.

If I’m in the Legal department at Multi-Corp – or in their outside counsel’s office – I’m depending on the expertise of my IT resources, but I’m also worried about issues that IT doesn’t normally think about; chain-of-custody being a prime example.  I’m looking for data that will exonerate the defendant and relevance is only one issue.  I’m also responsible for making sure it’s admissible and I don’t want it thrown out on a technicality.  How can I impress this and other concepts upon people who don’t work directly for me?

Meanwhile, both departments – and management – are thinking about the costs and whether the Plaintiff’s subpoena is too broad in its scope.

A lot of questions.  A lot of concerns.  I will endeavor to address all of them in tomorrow’s post.

Listening: How a Dog became a Cat & other ‘Tails’

Today is Thanksgiving, and aside from wishing you a safe and happy holiday, I thought I’d have a little fun.  Everybody’s talking turkey, so let’s talk about dogs and cats instead…

“There’s a reason we have two ears and one mouth”.  That old proverb is admonishing us in a subtle way; listen more and speak less.

Jack Russell Terrier Snarling --- Image by © Royalty-Free/Corbis

Many years ago, someone told me a great story about a design team, tasked with making improvements to a client’s dog.  A long narrative follows about how the various team members come up with all sorts of creative ideas about what they can do to accomplish this goal.  To make a long story short, by the time they’re done, the dog’s design has been improved so much that it’s now a cat – a really fantastic cat!

The team is thrilled, and they can’t wait to present the results to the client.  But when the client sees the cat, he says, “You’ve done a great job here, but what I asked for was a better dog.”

Whether you’re an attorney, a technology professional – or somewhere in between – it’s important to always remember that somebody is your client – or customer.  Highly-skilled individuals forget this sometimes.  It can be a product of hubris, but I’m not concerned with that.  I’m referring to the more common reason; the perception that your audience won’t understand what you’re saying or doing.  Complex activities go on behind the scenes that can be very difficult
to explain to someone outside of your particular field of expertise, so why not just do it, get it done, then get back to them when you’re finished?

The Leaning Tower of Pisa, Tuscany, Italy

What other two disciplines are in danger of exhibiting this train of thought more than law and technology?  Contrary to
popular belief, a trial does not seamlessly take place like it appears on Law & Order, and techies don’t shout “I want tactical and database assimilation by 0-900!” – at least not that I’ve experienced.  Your computer won’t say to you, “I’m sorry, Dave, I’m afraid I can’t do that.” but your IT Manager might.  If you adopt an ivory tower attitude toward e-discovery under these circumstances, you may find yourself in the Tower of London instead.

EDD (electronic data discovery) may require so many human resources with such specific skill-sets (IT, Management, Inside and/or Outside Counsel, Consultants, Paralegals, Tech-Support) that the risk of mis-communication – or complete lack thereof – becomes great.  You forget to listen carefully, and worse, refrain from going back to
the source for more input and guidance when necessary.  Attorneys refer to this as ‘assuming facts not in evidence’.

The line becomes blurred.  Who is the client?  It’s easy to lose sight of the fact that – for most of the parties involved – the company itself is the client!

I solve this problem by assuming that everyone is my customer; and this may include everyone inside of my department as well.  It’s true if you think about it.  Anyone I owe a deliverable to technically is my customer – even if we work together.

Keeping this in mind helps me remember that I have four primary goals:

  1. Understand my tasks – if I don’t, keep asking questions until I do
  2. Perform them competently and efficiently
  3. Deliver exactly what my customer requires by the agreed-upon deadline (or find and present suitable alternatives if conditions outside of my control delay or prevent a deliverable from being met)
  4. Communicate clearly and concisely with my customer at all stages of the project – even if the news is unpleasant.

Following this simple formula will hopefully get you through the ‘dog’ days of litigation.

Money Pot or Money Pit? The ‘Proactive vs. Reactive’ Debate

j0382668Want to re-create the experience of salmon swimming upstream?  Try convincing the higher-ups that making an initial capital outlay to implement highly-efficient technology will benefit them in the long run.

Want to re-create the experience of salmon swimming upstream in a tsunami?  Try doing it in our current economic environment, while IT budgets are being slashed; and the highly-efficient technology you want to implement is a new discipline that almost nobody understands.

I’ve been making the”proactive” argument my entire career.  Certainly, I always had logic on my side, and lined up all of the metaphors to support my position.  Who would possibly argue against fixing potential leaks before the dam bursts?  “Don’t be penny wise and pound foolish!”.  “You can pay now or pay a lot more later!” (my brilliantly-usurped line from the Fram oil filter guy).

The problem is, you may win the argument, but still lose the debate.  CIO magazine illustrates this point beautifully.  There are a mass of sinister forces working against you; not the least of which is, to a lot of executives, the IT department is like that not-too-popular uncle they keep in the attic.  A necessary evil.  Their mantra is, “IT should be seen, but not heard”.  You end up running into four common issues and one exception:

  1. Management looks at IT as a non-revenue-generating cost center, and as such doesn’t want to fund it.
  2. Management has no idea what you’re talking about.  They won’t fund it.
  3. Management actually listens to you and even likes what they hear.  Then comes the dreaded result, “That’s a great plan, but we simply don’t have room for it in the budget.  We can’t fund it.”.
  4. Management likes it and wants you to implement it, but thinks it can be done on a shoe-string.  They fund it, but just enough to set you up for failure.
  5. Management funds it!Pennybags

First of all, views one through four are highly short-sighted.  I phrase it this way.  In IT, we produce nothing!  Our job is to make sure that everyone else can do THEIR jobs.  Management sometimes doesn’t see the bigger picture.  They don’t realize that a catastrophic failure means that the revenue-generating parts of the company will not be able to generate revenue.  In short; time is money.

Times are changing, though.  Some companies have broadened their definition of the IT department and have brought them in to support projects that actually generate revenue.

Also, one can’t blame management all the time.  If it’s not in the budget, it’s not in the budget.  That changes your mandate.  How do you move yourself up in the pecking order?  If management can’t see the big picture, it’s your job to MAKE them see it!

This is where IT and Legal can really cooperate to achieve a beneficial
result for both departments – and by default, the organization as a
whole.  How?  By using the one thing that is the singular goal of most attorneys:

PERSUASION!

Legal eagles face dire consequences for failure.  Their licenses are on the line.  IT knows what it feels like when they can’t deliver what’s requested of them – it’s already happened many times.  And the organization?  Somebody will end up paying the penalty.  Everybody has skin in this game.

This is a true opportunity for IT and Legal to come together to play to each other’s strengths.  Get into a room together.  Formulate a plan.  Then persuade management as a team.  This has to happen!