Although I run the risk of being designated the official ‘Schleprock’ of Valentine’s Day, this seems like the perfect time to remind you that those steamy ‘sexts‘ you intend to exchange with your wife/husband, or girlfriend/boyfriend, or significant other – or your wife/husband, your girlfriend/boyfriend and your significant other – may become public (I admit, that did kinda make me sound like a wet blanket…it’s the heavy burden I carry trying to keep you out of trouble).
And please…get a room!
…a little humor for a Monday morning…
The following two quips are from people commenting to me about my blog that left me thinking, “I wish I’d thought of that!”
Regarding the practise of e-discovery itself:
“It’s the wave of the present.”
Regarding my recent post about Twitter, MySpace and Facebook:
“Tweeting on Twitter is like taking a shower on Main Street.”
Have a great week!
Note: This post may end my chances of finding gainful employment for the next several years…
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…
I wanted to draw your attention to my new blogroll, which sits on the left sidebar. Over the past several years, I’ve consulted many e-discovery resources and these are among my favorites. I highly encourage you to check them out. The topic is so broad that nobody can know everything, and having a body of resources to consult gives all of us a great advantage.
For anyone who has been reading my posts, you’ve seen that my goal is to deliver a serious message with a little bit of humor. It shouldn’t be construed to mean that I don’t take the subject very seriously. This is a very stressful discipline and my sense of humor has always kept me going.
Also, there was no need for me to re-invent the wheel. As you will see if you visit these blogs, there are some very impressive, talented people out there who are making all of our jobs easier.
I decided that my blog was not going to be a repeat of what others are already doing so well; I write from my own perspective, of one who sits in those rooms and conducts those meetings – those of us who are tasked with ‘getting it done’, if you will.
Those who share that responsibility will likely agree with my observation that theory is usually much easier than practice, e.g., in theory, the boss funds your project, in practice, maybe not.
I suppose this might be the e-discovery version of Dilbert, except I have no artistic talent (my readers will ultimately judge whether I have any writing talent, either). Although I will say that one of my best friends is a cartoonist and I’m considering having him put some pictures to my words this year.
2009 presents the latest set of challenges. Let’s hit the ground running!
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…
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.
Best wishes for a safe, healthy and prosperous 2009!
I 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.
The ABA Journal published an article about things you should never put in an e-mail. As usual, the article spawned a lot of interesting comments and I was more fascinated with a couple of them than with the story itself.
First, many people couldn’t understand how a rational person – who would never write the same thing in an actual letter – would do so in an e-mail. Second, a few lambasted the authors for providing a method to “evade the law”. Third, and I admit I’ve used this example, it was suggested that one should never send an e-mail that they wouldn’t want their mother to see. Based on some of the expletive-laced e-mails I’ve received in my career, I sure wish the senders had run them by their mothers…
There’s a reason we have anti-theft devices for our homes and cars. They’re preventative measures. Not only are they a hindrance, but in some instances, they give people time to think about what they’re doing.
If we really want to address where the process breaks down, there’s only one place to look; time. Time to reflect. Time to calm down. Time to reason. In the olden days, someone had to take care to craft a letter. They had to address the envelope. They had to put a stamp on it. Then, they probably had to walk or drive somewhere to put it into a mailbox. Now, all we have to do is type our stream of consciousness as quickly as we can – limited only by how many wpm we can produce – then press SEND.
I type 70wpm. If only someone would invent the anti-send device…
We’re victims of ease and efficiency. Here’s my scientific view. The easier something is – and by default, the more efficient it is – is directly proportional to our ability to screw it up! We’re under so much time pressure and it’s so easy to use, do we really need to proof-read or check for content? Nah, just send it now and worry about following-up later.
I also take issue with the attitude that giving someone essentially what amounts to an e-mail ‘Dos & Don’ts’ list is somehow equivalent to assisting in the commission of dishonest or illegal acts. That’s quite a leap.
Whenever a discussion takes place, some may use the information gleaned from it for nefarious purposes. Does that end the debate? Teaching a class how to properly use a gun doesn’t automatically make them murderers (although, if you had reason to know that one of them might become one, that’s a different story).
There are many legitimate, legal and appropriate reasons to include details in e-mails and conversely, to leave them out. For example, if you were seeking advice from your attorney, privilege would attach. What difference should it make if it’s a face-to-face conversation or by email?
Unfortunately, it does make a difference.
It’s fine that you addressed confidential information to exactly the
right person. The problem is that email can be intercepted and/or forwarded, with dire consequences.
Companies have e-mail policies for this very reason. People will always put stupid, embarrassing or inappropriate things in messages; we don’t need to address that here. The open question is, when does an e-mail cross the threshold from being simply inappropriate to becoming actionable.
A little more thought before you hit the send button may help you avoid a different threshold; the threshold of pain.
Almost everyone is familiar with the term “Blog”, which is a combination of the words “weB” and “LOG”. Not so familiar is the term “Blawg” which is a humorous play on words and refers to blogs about legal matters, normally written by lawyers, law students or law professors.
So which type am I writing? Good question. Well, obviously I was a law student (but I have no desire to relive that experience or the stress that accompanies taking the California bar exam). Now, I’m a lawyer (mom is very proud – oh, and mom, I wouldn’t make any bets on my ever becoming a professor…). But prior to that, my area of expertise had been exclusively technology – with an emphasis on the legal aspects of compliance, policies and procedures.
That’s the thing about e-discovery. It’s like Jekyll and Hyde; part law, part technology.
On the one hand, it’s a pure extension of civil procedure law; for those who haven’t had the pleasure, civil procedure is like a combination of law and algebra – and I was hardly a fan of algebra. At least it isn’t property law. Don’t even get me started on property law – if anyone mentions the “rule against perpetuities” I tend to break out in hives…
On the other hand, one absolutely cannot address an e-discovery issue without some very competent people in the IT department getting involved. Now, these are two groups that don’t tend to mix together well since they speak different languages.
But right now, all over the nation, an executive is calling the head of the Legal Department and asking, “Bob, what are you doing to prepare us for all of these new e-discovery rules?” and then Bob is placing a call to the CIO or the CTO and asking, “Steve, what are you doing to prepare us for all of these new e-discovery rules?”. Hopefully, Steve has someone he can call…most likely Steve will be calling me – or someone like me.
This site will be a great resource for both the legal and technology professional who is tasked with unraveling this very complex discipline. Luckily, I speak both languages.
Allow me to introduce myself. My name is Perry L. Segal, Esq. and I’m an attorney licensed in the state of California. I’ve also been a Management & Technology Consultant for over twenty years.
I specialize in electronic discovery. A recent poll suggests that 25% of attorneys in the United States expect e-discovery to be the most prevalent issue over the next decade. It is also expected to grow to a $4 billion industry next year alone.
E-discovery poses massive challenges for corporations large and small. My goal is to make e-Discovery Insights a central repository for information and resources – a bold statement, yes. But I believe my unique combination of experience in the areas of technology and law will allow me to collect and post information relevant to your concerns.
I hope one day soon, when people have an e-discovery issue, they’ll simply know to go to e-Discovery Insights to get the answers. This is my pledge to you.
Let’s start the journey!