Category Archives: Law

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!!! ***


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…


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…


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.


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!


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.


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

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…


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.


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


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.


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.