Category Archives: Law

Dancing ‘Geek to Geek’ – Judges’ Panel Weighs in on California AB 5, ‘Train Wrecks’ and the ‘Mayflower’

If this keeps up, I’m going to rename this site the ‘Hot Potato‘ blog…

j0404952
 I’ve posted ad nauseam about how parties want to rid themselves of the e-discovery hot potato, but throwing it to the Judge?  Not so fast, says the Hon. Andrew J. Wistrich.  You can try, but he won’t play the game!  That was one of the morsels from the Judges’ Panel, which also included the Hon. Maureen Duffy-Lewis and the Hon. Carl J. West.

I like Judges.  They’re always more candid than I expect, and as some of you have probably figured out from my prior writing, I like candor.  Don’t beat around the bush, don’t use fancy language, just tell me what you mean!  I certainly got a lot of that from this panel.  It was the best 75 minutes a person interested/involved in e-discovery could spend, because it tells us where things are headed in the minds of the Judges – and ultimately, they’re the ones we are speaking to, not only our adversaries.

What was the most important concern to the panel?  Cost!

Judge West lead off the discussion and to my delight, he immediately weighed in on California AB 5, noting the pending March 3rd hearing and saying he expects the Bill to be adopted either by late this quarter or the next.  My take?  California finally reached a budget deal, so we’ll see if that development facilitates the passage of AB 5.

Judge West was concerned about two seemingly-contradictory provisions in the Bill; one, which discusses imposition of sanctions, and the other, which defines Safe Harbor.  He noted there were several exceptions to Safe Harbor that might incur sanctions.  That reminded me of law school.  As my professor used to constantly warn, “Everyone knows the rule, but they’ll test you on your knowledge of the exceptions to the rule”.

He also mentioned that more and more, he’s seeing each party provide a technology expert at hearings, and that many times it becomes an ‘expert versus expert’ issue.  That’s when he coined the phrase, credited to another Judge, that the parties should have their respective experts ‘dance geek to geek’.  I just want the Judge to know I haven’t worn horn-rim glasses since grade school…

Judge Duffy-Lewis spoke next…

She’s involved with what we refer to in California as ‘Fast Track’, but she came right out and said it; e-discovery hearings in her courtroom sometimes resemble “train wrecks”.  She said this occurs because she doesn’t see cases until they’re 90 days out and many of the lawyers wait to file motions until their case is about to be heard.

She would like to see attorneys dive right in as soon as possible and not wait.  They should begin submitting motions early related to issues of privilege, preservation and notice.

A major issue is how to handle privileged documents.  For example, I don’t want to turn over to the other side a document that contains information I’m going to use to impeach my adversary.  That’s easier when you’re talking about a paper document, but not so easy when the particular statement you need is buried in a 20-page email thread between multiple custodians that contains other relevant statements.

Judge Duffy-Lewis’ solution was to create something called an Impeachment Log.  The attorneys submit the documents to her, then she makes the determination, preserving the privilege.  Brilliant!

What does she see in the future?  Recommending a status conference will become virtually mandatory for e-discovery issues, and she predicts the appointment of special masters will become more prevalent.

Judge Wistrich completed the trifecta.  Talk about candor!  He’s a Magistrate Judge of the U.S. District Court for the Central District of California (I’m a member also) so his was the Federal view.

Judge Wistrich didn’t mince words.  He said the “rules have helped, but haven’t solved the problem.”

What problem?  The adversarial system and the natural tension created by asking parties – that by virtue are required to keep things close to the vest – to break that habit to cooperate on e-discovery issues.  He said the parties are going to have to get around that problem because in many cases, the experts are going to ask for – and be granted – access to their adversaries’ data.

He also said he’s “uncomfortable” because, “I’m not sure I know enough”, and is “concerned” that e-discovery is going to end up adding another layer – experts – to the front-end of the process, further bogging it down.

Still, like Duffy-Lewis, he says attorneys had better be prepared to take the pro-active approach.  He clearly understands his role and will not let the parties try to shift decisions to the bench that don’t belong there.

He also discussed Mancia v. Mayflower Textile Servs. Co.,
2008 WL 4595175 (D.Md. Oct. 15, 2008) and its effect on Rule 26(g).  I wasn’t surprised that Chief
Magistrate Judge Paul W. Grimm would be cited at the conference, since he’s one of the pioneers in this area.  Wistrich said that, when faced with issues of good faith, he orders the parties to videotape all further meet & confer discussions.  Strangely, he noted, their behavior improves immediately.

Bravo!

The ‘Missile Command Act’? No, the ‘Internet Safety Act’!

A5200_Missile_CommandI think my career is about to resemble Missile Command.  It was all the rage in the 1980s.  Atari still exists and I was surprised to see that they’re still selling it.

The name of the game is to intercept falling missiles (which have an annoying tendency to split off in multiple directions) with silos on the ground (hint; we’re the silos).

John Cornyn (R) has introduced the “Internet Stopping Adults Facilitating the Exploitation of Today’s Youth Act”, or ‘Internet Safety Act’ (for those of us who can’t fit all that in a catchy blog title).  This bill is actually a regurgitation of a bill introduced in 2006.  I think you get the gist from the bill’s title, but here’s the fine print:

“A provider of an electronic communication service or remote computing service shall retain for a period of at least two years all records or other information pertaining to the identity of a user of a temporarily assigned network address the service assigns to that user.”

Anybody besides me thinking about the storage/costs required to retain and/or restore these logs?5_Day

That’s Part I of the headache.  Part II is who would be covered under this bill; essentially anyone who serves wireless using DHCP.  That’s right – it includes that little Wi-Fi router you have at home.  Note to those who brought their wireless router home from the store and
just plugged it in; you might want to configure the security feature, lest someone nearby connect through it and start looking at child
pornography.  Starting to sweat, yet?  Maybe you will after I mention Part III; you might go to jail for up to 10 years.

Here’s the really bad news – there’s a Part IV…

Once again, all I think about is Zubulake.  The moment you’re required to retain a record for two years, it may be adjudged ‘accessible’ for Zubulake purposes – and not just the ones covered under this Act, which, as I previously mentioned, specifically targets child pornography.  Any purpose of litigation may be fair game to subpoena these logs!

You think maybe Senator Cornyn knows how to push a bill through Congress by piggybacking it on the hot-button terms that frighten all parents to death?

This Act really could be the legal equivalent to ‘Missile Command’ (or starfish, or octopus…).  The tentacles could reach virtually anywhere.  I’ll be monitoring this closely, as should you.  If it becomes law, it could be…Missile Command - The End

e-Discovery California: AB 5: A Little Legislative Love

j0308987If you happen to catch the news, you’ll see photos of California state legislators sleeping in all-night session this past weekend as they tried to hammer out a budget agreement to stave off insolvency.

Nevertheless, they found time on Valentine’s Day to re-refer AB 5 – the California Electronic Discovery Act – to the committee on the judiciary.

Forgive me if you think this information isn’t worthy of a post.  It seems to me that my job is to bring you whatever information is available, then let you decide whether it has merit.

Obama’s CrackBerry Addiction: e-Discovery Intervention?

To My Readers:  No matter what your political leanings may be, today is an example of what’s great about the United States; the peaceful, seamless transfer of power.  So, in honor of the inauguration, I felt it appropriate to jot down some observances I’ve made lately regarding the Presidency, e-evidence, privilege…and why I think they’ve got it all wrong…

Businessman Using a Palm Pilot

e-Discovery Insights:  Keep this on the down-low.  I have it on good authority that Barack Obama’s going to be in the nation’s capitol on Tuesday.  Let’s all plan to get him in a room and confront him on this whole ‘BlackBerry‘ problem.

Readers:  What’s the big deal?  He’s a thoughtful guy.  He’s responsible.  He can control himself.  Why are all of these lawyers making such a big deal out of this?

e-Discovery Insights:  Because PDAs are subject to subpoena, that’s why.

What’s the difference between your PDA and Obama’s BlackBerry?  Absolutely nothing.  You have the same exposure he does!  At least he might be able to invoke Executive Privilege in certain circumstances; meanwhile, you’ll be hoping for ‘run-of-the-mill’ privilege.

Now comes word the White House staff has been told they may not use instant messaging (IM).  Check out this quote – contained in the above link – from Reginald Brown, a former associate White House counsel for President Bush:

“These lawyers — [incoming White House Counsel] Greg Craig in
particular — come out of a law firm environment and knows how onerous
e-discovery has been for clients
,” (italics/bold added).

I’m feeling sooooooooo cool with my career choices right now…

j0438808Seriously though, I’m actually disappointed.  In my opinion, this is exactly the opposite of the approach I would like to see them take.  Why?

Because technology is HERE, it’s not going away, and it’s time we started accepting that fact and adapting to it rather than restricting it.  This administration may prevent their aides from using IM, but someday, it’s going to be used.  Wouldn’t the better way be to educate the staff, put some trust in them, implement policy and let them use the tools that exist solely to make communication easier?

Preposterous?  Inconceivable?  Impossible?  Unattainable?

I’ll ponder that while I watch the swearing-in of the first African-American President of the United States of America.

I Have some Good News & some Bad News…

*** My n/w and phones are out, so I’m coming to you live from the Redondo Beach Public Library, courtesy of their free wireless service…THANK YOU!!! ***

j0178660

Why did the goose cross the road?  Let’s take a gander…

I.T. to the Attorneys and Management:  “Great news!  We can leverage our existing ESI backup and/or disaster recovery systems to solve many of our e-discovery challenges and simultaneously cut costs!”

The Attorneys to I.T. and Management:  “Terrible news!  You can leverage your existing ESI backup and/or disaster recovery
systems to solve many of your e-discovery challenges and simultaneously cut costs!”

Why both?  Sauce for the goose is good for the gander – anything that makes it easier for you to access ESI, also makes it easier for your adversary.  But is it that simple?

Key phrases to keep in mind; ‘accessible’, ‘not reasonably accessible’, ‘inaccessible’ and ‘cost-shifting’.  The Federal rule states:

A party need not provide
discovery of electronically stored
information from sources that the party
identifies as not reasonably accessible
because of undue burden or cost. On motion
to compel discovery or for a protective order,
the party from whom discovery is sought
must show that the information is not
reasonably accessible because of undue
burden or cost. If that showing is made, the
court may nonetheless order discovery from
such sources if the requesting party shows
good cause
, considering the limitations of
Rule 26(b)(2)(C).
Fed.R.Civ.P. 26(b)(2)(B), italics added.

j0178039The courts sought to define the parameters in a series of rulings, commonly referred to as ‘Zubulake I, II, III, IV & V‘!  These are not new rulings by any means (2003-2004), and I dealt with a case on this very issue in 1997, but because so many IT groups are ramping up their e-discovery bona fides at this time, this would be a good opportunity to revisit Zubulake and make sure you understand the implications.

In the normal course of business, one might implement a solution, then policy follows.  This is definitely one of those times where you should be thinking about policy – and consulting your legal resources – before you implement the solution or modify your current one.  After all, a lot of IT professionals don’t read cases nor know of their implications.

I can’t count how many times I’ve been asked, “How long do we have to keep this stuff?”  Is it possible 37 days is enough?  Gippetti v. UPS, Inc., 2008 WL 3264483 (N.D. Cal. Aug. 6, 2008)

Think about it; what does “keep” mean, exactly?  What does “stuff” mean, exactly?  Can a single data retention policy apply to “everything” or only certain types of ESI; and should you apply a different retention standard to various forms of ESI, based on their use?

Let’s say you have a policy that you delete ESI after X months.  Do you retain or destroy the backup media?  Do employees thwart you by archiving data to their office PCs – or worse – store it on the internet, a personal PC or a thumb drive?

This should be part of your thinking as you craft policy.  It matters whether you can answer those questions.  If not, be prepared for an unpleasant surprise when your adversary comes looking for this information.

e-Discovery Resolutions: Law

Best wishes for a safe, healthy and prosperous 2009!

Fellow attorneys, we lost the coin-toss…but think of it this way, by virtue of being ‘second’, our post ends up ‘first’, so it’s really a lose-win…

Blog DummiesBesides, I’m a techie and an attorney – I was gonna win either way…

1.    KNOW WHAT YOU DON’T KNOW

Nobody expects you to be an expert.  Who am I kidding?  Of course they do!  The problem is, an expert on what?  You can learn the law, but in order to be effective, you need to know something about technology (otherwise, you’re really going to annoy the techies when you talk to them).  Would it hurt to learn a little bit about how things work?  The resources are available – use them!  Go to IT and ask them to educate you, or educate yourself.

If I can do it, so can you…after all, you’ve got to know your limitations…

2.    BROADEN YOUR THINKING

This is on the ‘Technology’ list, too, and for good reason.  Do you know what encompasses ESI at your
clients’ enterprise?  Where is it?  Do they have access to it?  What if it’s on
someone’s personal equipment?  What if it’s on the ‘web’?  What about your adversary?  Are they being forthcoming about their ESI?  How will you ascertain that?  Remember,
you’re not just issuing and answering subpoenas here, you’re also looking for
exculpatory information on your clients’ own systems.  The blade cuts both ways.

3.    KNOW YOUR CASE LAW

This is uncharted territory.  Everyone is learning as they go – including judges.  If you’re not keeping up with changes in case law, you’re eventually going to get yourself into trouble.  There are several resources at your disposal that will email the cases to you on a regular basis.  Subscribe to one and stay current!

4.    KNOW YOUR STATE LAW

We tend to think about e-discovery rules in Federal form.  A lot of what we do involves national and multi-national corporations – and they’re ‘everywhere’.  Their disputes won’t necessarily be Federal in nature; and we may also have to deal with ‘choice of law’ issues.  No matter what your jurisdiction, state e-discovery rules may be in play.  It’s your responsibility to know which states have implemented proprietary rules and how they affect your case.  And be on the lookout for states with e-discovery rules on the horizon.

5.    BE KIND TO THE TECHIES

A lot of people treat technology support like they do the dial-tone on a telephone; when they pick up the handset, they expect it to be there no matter what.  Remember, techies spend a lot of their time trying to explain complex technology to people who don’t always understand it, yet are responsible for 1) managing it, 2) paying for it and/or 3) using it on a daily basis.  Sometimes the frustration shows.  Don’t just bark requests at them – be specific and work with them to understand what you need and whenever possible, why you need it.

e-Discovery California: AB 5 – Electronic Discovery Act

j0309434Back in October of this year, I wrote about Governor Schwarzenegger’s veto of AB 926 (e-discovery California rules) and humorously predicted, “They’ll be Ba-a-a-ck!“.  Well, it didn’t take long…

Noreen Evans (D-Napa) has introduced AB 5, the “Electronic Discovery Act”, which is winding its way through the system.
It’s virtually identical to AB 926, but contains an urgency clause,
which means that if the Governor signs it, it’ll take effect
immediately.

Some were of the opinion the issue was dead for a year.  I didn’t share that view.  No, I don’t have a crystal ball (or a Magic 8-ball, for that matter).  I’m not The Amazing Kreskin – assuming anyone remembers him.  To be honest, my opinion sprang from pure logic.  These rules must be implemented if we’re to have any uniformity in California courts.  The only concern to me was how long it would take to enact.

Will the Governor sign the bill?  What does the Magic 8-ball say?

[UPDATE Feb 6, 2009 – There’s been further action on AB 5]

e-Evidence: Legoland or Humpty Dumpty?

Part II of a two-part series.  Part I appeared 12/03/08.

Forgive me – I’m in a mischievous mood today…

PART II – LEGAL RELEVANCE

j0403058“All the king’s horses and all the king’s men couldn’t put Humpty together again!”

This is a humorous nursery rhyme from my childhood.  Others, like Ring around the Rosey or London Bridge might have illustrated my point well, but those are missing the most important part; with e-discovery, once the opportunity is lost, it’s likely a permanent result.

Let’s say you’ve made it all the way through to this stage,  If that is so, then not only have you located evidence, you’ve established that it’s logically relevant (which in law-speak generally means that the evidence is material to prove or disprove a disputed fact that is of consequence to the action, and has probative value).  That takes care of that, right?

Not so fast.  Now, you have to persuade the court that it’s legally relevant to your case; and that means laying a foundation of admissibility.  Your adversary is going to use every tool at his or her disposal to knock out items that exculpate your client.  Did you take care to make sure that all technical aspects have been satisfied?  A paper trail is one thing, but an electronic trail?  Maybe a game of Twister would be easier.

In law school, we had a ‘mini-checklist’ that would help us remember all the things we had to think about when addressing this type of evidence:

  1. Is it Relevant?j0385258
  2. Is it Authentic?
  3. Does it violate the Best Evidence Rule?
  4. Is it Hearsay?
  5. Is it Privileged?
  6. Is it Parol Evidence?

Techies, take a deep breath.

For our purposes today, I’m not concerned with three through six.  Lawyers will determine the disposition of the evidence once it’s produced.  But what about one and two?  There are a lot of steps leading up to production.  The data may pass through several hands before it makes its way to the legal department.  Let’s take a look.

RELEVANCE (LEGAL)

We discussed logical relevance above.  We have, theoretically, material evidence.  Now, we must lay the foundation (also mentioned above).

AUTHENTICATION

We have to establish that the evidence is what it purports to be.  That’s not simple, even when it’s paper.  We need an electronic trail to follow – and that’s the east part.

First, we have to establish chain of custody.  That means we need to link together the source and all phases it passed through – kind of like a Barrel of Monkeys. If a cutting-edge method was used to procure the data, there could be a scientific challenge to the process. We’ll need expert testimony to walk the court through how the evidence was obtained.

The lawyers aren’t likely to be doing it.  They don’t have the technical know-how, plus, there are ethics issues with lawyers testifying in trials they’re working on.

Techies, let out that deep breath.  If they won’t be doing it, you will!  It means you’d better document everything, then be prepared to testify about it in court.

EPILOGUE

If this exercise proves one thing, it’s that attorneys and technology professionals have separate and distinct – and extremely important – jobs to do.  But in certain areas, they depend on each other.  If IT can’t get access to data, the attorneys may have to file a motion.  If IT establishes that there will be a punitive cost to comply, the attorneys may have to push back – or seek cost-shifting.  As an attorney, if I don’t explain to IT that every step of their process must be documented, am I hurting them?  No – ultimately I’m hurting myself, because I’m the one who will have to establish authenticity in court.

As you can see, the process of bringing ESI to it’s proper form is a series of building blocks, not unlike stacking Lego bricks.  In fact, in evidence law we have a saying; “A brick is not a wall“.

Take care.  Failure to stack the bricks carefully and your wall will likely end up like Jenga or Kerplunk.

Darn…I should have been able to work in Operation

e-Discovery California Rules: They’ll be Ba-a-a-ck!

j0339246Relief – or opportunity?

Governor Arnold Schwarzenegger ‘terminated‘ – albeit temporarily – Assembly Bill No. 926, the proposed e-discovery California rules (Sorry – I just couldn’t help myself).

Depending upon the source you consult, you’ll either take the Governor at his word that his veto is due to the lack of a budget agreement, or perhaps you’ll suspect that other political considerations are involved.  Politics are politics.  Although I’ve been preparing for implementation of the new e-discovery California rules, I’ve also been around politics long enough to know that these things rarely happen on schedule.

Make no mistake, formal rules are coming to California.  In several states, they’ve already arrived.  This is a ‘golden’ opportunity for Corporations and Law Firms in California – or serving California – to get ahead of the game.

The State Bar of California concurs.  “Several major cases in recent years highlight the perils of electronic discovery
gone wrong and illustrate the risks of failing to have in place document preservation
procedures and litigation hold policies.”

I couldn’t have said it better myself.