Category Archives: Strategy

Cases of Interest, Criminal Liability, Judges, Law, Strategy, Technology

Case Got Your Tongue? Geek vs. Geek, Hyper-Activity & ‘You’d Better be Dying!’

I'm sure 'yule' (pardon the pun) welcome this opportunity to suspend Xmas shopping for a moment so you can read my last summary of interesting cases for the year.  Folks, I can only say the latest crop borders on the bizarre.  I have two civil and one criminal case for you.

United States Gypsum Co. v. Lafarge North America Inc., 2009 U.S. Dist. LEXIS 99773 (N.D. Ill. Oct. 27, 2009)

"Plaintiff's computer forensics expert was allowed to testify regarding
steps taken by plaintiff to protect its electronically stored trade
secrets, and defendant's computer forensics expert was allowed to
provide his opinion concerning "intrinsic weaknesses" he perceived in
the reports of plaintiff's expert. However, both experts were barred
from offering opinions as to intent of the parties in handling
electronic information."

So, here's what happened.  Both Plaintiff and Defendant attempted to bar the others' expert from testifying.  Instead, the court allowed both experts to testify.  Whoops!  By the way, for the non-lawyers out there, it's entirely normal and customary – in certain instances – for experts to testify but not be allowed to express an opinion (conclusion).  Depending upon the circumstances, the court will leave that to the jury.

Wixon v. Wyndham Resort Development Corp., 2009 U.S. Dist. LEXIS 86337 (N.D. Cal. Sept. 21, 2009).

Score one for good-faith.  What attorney among us hasn't dealt with an adversary who attempts to use every technicality in the book to delay, deny, obfuscate, etc.?  Of course, if you are one of those adversaries, shame on you, but in this case, the court saw right through it and enforced the 'spirit' of the agreement made between the parties.

Zawada v. United States, 2009 U.S. Dist. LEXIS 101368 (N.D. Ind. Oct. 29, 2009).

"A request for court appointment of a computer forensics expert in a
motion by a defendant seeking review of his sentence was denied because
the defendant was not seeking to set aside a death sentence."

Like I said…bizarre…

Everyone, I wish you all the best!  Please, take care out there this holiday season.  Your continued support and feedback is what motivates me to keep on blogging!

Cases of Interest, Law, Metadata, Privilege, Spoliation, Strategy

Case Got Your Tongue? Restless Natives, Whitecaps & a 3-Hour Tour

 

J0437252

This month’s summaries produced a lot of interesting cases and also told me one thing; it’s still mostly about ignorance.  Companies – and the firms that represent them – are continuing to get into hot water because they either don’t know the rules, or don’t comply with them when they do.

A couple of themes became apparent, so I’m using four cases (two each) to address the areas of privilege and native formats.

IT’S MY PRIVILEGE TO DEPOSE YOU

Imagine you’re in the middle of a deposition and the first hint that you’ve inadvertently disclosed privileged information is when your opponent produces it.  What do you do?  Is that considered a waiver?  Those are the facts of Coburn Group, LLC v. Whitecap Advisors LLC, 2009 U.S. Dist. LEXIS 69188 (N.D. Ill. Aug. 7, 2009).  The first thing to assume; your opponent, if they’re on the ball, will virtually always try to claim it’s a waiver because that’s simply good strategy.

However, the judge didn’t see it that way and took into account new rule 502(b)(1) (new as of 9/14/08) and focused on the factors of mistaken production and the reasonable steps taken to correct it.

Major Tours, Inc. v. Colorel, 2009 U.S. Dist. LEXIS 68128 (D.N.J. Aug. 4, 2009) – I don’t care what document is at issue; even a litigation hold letter as in the facts in this case.  Claims of privilege and/or work product doctrine notwithstanding, if it’s relevant to the proceedings it may become fair game.  Act accordingly.

THE NATIVES ARE GETTING RESTLESS

There still seems to be a lot of chatter regarding metadata.  It’s an area ripe for manipulation and abuse because a lot of people don’t really know what it is or how it’s used.  Craig & Landreth, Inc. v. Mazda Motor of America, Inc., 2009 U.S. Dist. LEXIS 66069 (S.D. Ind. July 27, 2009) is more of a traditional case in that the metadata is being requested because it’s relevant to the proceedings.  But see Covad Communications Co. v. Revonet, Inc., “Covad III”, 2009 U.S. Dist. LEXIS 75325 (D.D.C. Aug. 25, 2009) which uses metadata virtually as a cross-referencing tool to address an inconsistency.

Metadata is not one of those terms I repeat often for entertainment value.  When relevant, it can make or break a case.

Be careful when you wade into those legal waters…

[Has anyone else noticed that I use a lot of metaphors that involve H2O?  What’s that about???]

eDiscovery California, Law, Strategy

e-Discovery California: Boo-Hoo-Hoo! No Rule 502!

J0382859 …or Rule 16…or Rule 26, for that matter…

Sorry…I did say my next post was going to be about what didn't make it into the CEDA (California Electronic Discovery Act), but then the ABA and Gibson, Dunn fouled that up with two excellent reports.

As the title suggests, Federal Rule 502, which addresses inadvertent production, clawbacks and subject matter waiver is not emulated in the CEDA.

Also, Rules 16 and 26, which address pre-trial conferences and disclosure respectively, aren't there, either.

The Federal rules may mandate "Meet & Confer" and "Disclosure", but
for those who don't know, California is not a disclosure state; we only
have discovery; so it's not surprising that a version of Rule 26 isn't there.

The key word to remember here is "mandatory".  Although technically 502 could come up at any time, my colleagues and I have been hammering home that the proper time to handle all of the open questions is at the outset of litigation – not after something goes wrong.

The answer?  Simple.  There's nothing stopping you from raising these pre-trial issues and agreeing upon a course of action.  As to how cooperative your adversary might be, well, that's another matter entirely…

Backup & Recovery Systems, Implementation, Strategy

Baby? Meet Bathwater…

2 Comments

J0437389 Not that I want to pick on Computerworld, but…

I was reading their article, "Why IT should start throwing data away" and, while it's a great document with a lot of astute information, it still made my blood boil.  Why?

This is a classic example of a terrific thought process that only considers one side of the equasion.  The perspective is, 'Let's do what we can to eliminate as much data as legally possible to limit the strain on our resources, thwart adversarial e-discovery and lower costs'.

But here's the thing.  Some of that data may exculpate the company and you may really regret deleting it.  Sure, I've talked to many attorneys who operate under the philosophy that the least amount of data available, the better, and you know what?  I don't agree.  At least not without a case-by-case assessment, anyway.

Sauce for the goose is good for the gander.  Don't be so efficient in your data sweeps that you have a defensible legal hold, but leave yourself with no line of defense.

eDiscovery 101, Implementation, Miscellaneous, Strategy

e-Discovery 101: I’m Easy, but I’m not Cheap!

J0438746 …ok, I'm probably not too easy, either…

Law.com posted this article about cost-effective e-discovery in this time of economic turmoil.  Do I think I've covered most of it on this blog before?  Yes, but it's a good summary.  It also supports what I feel is the real necessity in this – and frankly, most other processes – brain power.

You can take the best software products, hardware, vendors – and anything else you want to toss into the mix, but if the people coordinating and managing them aren't up to the requirements, the entire thing will break down.  This is why I'm not impressed when I go to tech shows and the people selling the products are lawyers.  They may be lawyers, but when I ask them a few questions, it's clear most of them don't know a thing about e-discovery.

You can put the worst driver in the world behind the wheel of a Yugo or a Rolls Royce – neither will enable them to drive in the Indy 500…or on the 405 freeway…

Implementation, Miscellaneous, Strategy

WEST LEGALworks – Overview

microcosmHow did we get into this mess in the first place?  Take a look at the photo I snapped with my Curve.  That’s the panelists’ table – where they hung out as they rotated in and out of their particular sessions.  Click on it and look at a larger view.  See that ‘octopus’ on the floor?  One panelist opened his bag to retrieve his business card for me, and a quick peek revealed his version of Noah’s Ark…TWO OF EVERYTHING!  What else could I name the photo except, ‘MICROCOSM’…

An informal poll revealed that about 2/3 of the attendees were attorneys.  I’m not sure whether to be disappointed in this or not.  It does tell us that attorneys are trying to come up to speed, but I wish I saw more IT people there.  My view is that it’s the lack of each groups’ understanding of the other that is a big part of the problem.

What I liked about the organization of this conference was that it was a well thought out progression.

THE BIG PICTURE

Day one started with an excellent overview of the various issues we face.  It began with the typical “State of the Industry”, which highlighted survey results regarding e-discovery (some of which I’ve featured here previously).  They then moved on to litigation readiness, project and process management and cost controls, a discussion of the lack of planning, testing and the obvious pain that would result, and finished up with a discussion of ethics.

The highlight was the luncheon with the Judges’ Panel.  More on that later…

If you’re someone on the cusp, just getting into this process or are a project manager, you got a lot out of day one.  If you’re a reader of this blog, you’ll know that I’ve covered the very same things here.

DRILLING DOWN

Day two, a half-day, was the meaty day for me.  Any time someone is discussing Daubert (in California we call it Kelly/Frye), you know this isn’t going to be simplistic…

They started off with an in-depth look at search & analysis.  Finally, someone is explaining the mess you’ll receive if you don’t understand HOW to search!  If I received a dollar for each time I’ve heard, “Just put a paralegal in a room with the material – that’s all you need.”, I’d be wealthy.  This panel brought that point home.  You’d better know what your strategy is before you make a single search.

The second panel was about working with Special Masters, neutral experts and expert witnesses (that’s where Daubert came up).  Obviously, most Judges know as little about this as the lawyers do, and that complicates matters.  It was a frank discussion of getting all of your ducks in a row, making sure your ducks quack at the appropriate time and knowing what they’re quacking about.

The third session made me chuckle, because I just wrote about it this week – hand-off.  One panelist even used the same word I did; Ownership.

Finally, the conference ended with a discussion of document review and contract attorneys.  I had a prior engagement and was unable to stick around for that one.

I think my biggest suggestion to the organizers would be, if they want to attract more IT people, the panelists must take the extra moment to describe the laws they’re discussing.  For example, when they quote Rule 502, they must keep in mind that the IT attendees – and probably a lot of the attorneys – may not know what that means.

To me, the conference was mostly about the State of the Union – what we’re doing today.  Where I thought we really delved into the future was the Judges’ Panel.  I could barely keep up with my notes, the information was coming so fast!  When I heard a Judge describe e-discovery as a “train wreck”, I knew I’d better pay close attention.  I wasn’t disappointed…hopefully you won’t be, either.

Backup & Recovery Systems, Disaster Recovery, Implementation, Management, Strategy, Technology

Observations on Off-Site, On-Site, Outsourcing & Ownership

j0438776Seems to me there are a lot of companies selling data & e-discovery services with the attitude of, “Place your data responsibilities with us, then sleep well at night”.  Hardware and software are offered in-house, SaaS, appliance, off-site…anything you want can be provided.

My personal opinion; before you start relinquishing responsibility to others, keep one thing in mind – it won’t matter.  You’ll ultimately be responsible in the eyes of the law.

I blogged about this before in my ‘Hot Potato‘ post, among others.  The instinctive thing to do – especially with the added complexity of the e-discovery rules hanging over you – is to contract out and make it someone else’s problem.  Heck, I get that.  I’m a Contractor!  Only thing is, in this case…it won’t work.  Good-faith won’t be enough.

I’m not living in a fantasy world.  Some companies have so much data – including ones I’ve consulted with – it would be virtually impossible to manage in-house.  If I said “Don’t do it!” I would expect you to laugh me out of the room (which would be difficult, since none of you know where my ‘room’ is, exactly).  All I’m suggesting is, before you consider outsourcing data management; whether it be on-site, off-site or a combination of both – or even if you’ve already done so – think about all the risks, especially in these difficult economic times.  Do you have a contingency plan in place?

These are the items I’d be including in a checklist (order of preference is up to you):

Hold on a second.  Let’s begin by answering a fundamental question.  Who will manage this?  You?  The Vendor?

Rural Road from a Car

I know.  Some of you are asking what that means?  After all, regardless of how you proceed, somebody representing the company will be responsible for managing this or serving as liaison, right?  Yes and no.

If you don’t know your ‘stuff’, then aside from serving as liaison, you’ve relinquished your ability to make decisions in the best interests of the company.  Essentially, the Vendor will be advising you, and their interests may conflict with yours – especially if litigation arises.  In the alternative scenario, if you’ve educated yourself – or have hired a knowledgeable representative in-house – you’ll be advising them.

Think this is a distinction without a difference?  Take a look at my checklist and see what you think:

  1. Does the Vendor handle backup, restore, disaster-recovery and/or e-discovery services?
  2. Are all of their products integrated?  (Many Vendors acquired other Vendors to stake a presence in the e-discovery field; it doesn’t mean their products integrate well).
  3. What if the Vendor goes bankrupt?
  4. How will the Vendor respond if/when they’re served with a subpoena as a 3rd-party?
  5. Does the Vendor have their own legal representation?
  6. Who will be responsible for managing the retrieval of data?
  7. How quickly can/will the Vendor respond to a request?
  8. Does the Vendor subcontract any services?
  9. Will an additional Vendor be needed for e-discovery if the 1st Vendor doesn’t have that capability?  Do they already have a secondary Vendor in place?
  10. As we expand – including to other countries/continents – how will the Vendor handle it?

I realize this is a ‘macro’ view.  The list above should open up several more questions, such as how are they backing up your backups?

I would think it would be very important to instruct the Vendor about what you expect, rather than rely on the Vendor to tell you what they’re going to do for you.  There’s no room for ambiguity where e-discovery in concerned.

Alliteration always assists attorneys acting as authors…

Strategy

Anticipation…Anticipa-a-tion…

“Imagination is more important than knowledge.”
— Albert Einstein

HamburgersAnticipation.  Carly Simon sang the song.  Heinz Ketchup made it famous.  It’s the most important thing you need to develop.

What do I mean by that?  Success in e-discovery relies on that old Boy Scout motto – be prepared.  It’s easy to do it when you know what to be prepared about; but what about when you don’t?

Work with me here…this will all make sense, I promise…

In law, you succeed or fail not only based on your ability to build a strong case for your client, but also by anticipating the moves your adversaries will make, preferably before they make them (hence the ‘anticipation’ part), then responding accordingly.

In IT, you succeed or fail not only based on your ability
to manage current technology, but also by anticipating the future direction and growth of that technology – and how to protect against a range of caveats from minor outages to catastrophic failures.

None of these processes is easy to do.  It’s not something that can be taught – but it is something that can be developed with preparation, practice and experience.

Einstein had it right, but I would temper his words a bit.  Like it or not, where e-discovery is concerned, there’s no substitute for knowledge.  If you don’t know the law, lead cases and/or the technology – and how they work together – you’re not going to succeed.  It’s as simple as that.

How will you make an educated guess without the education?

j0387766One of the most common sayings in law is, “Never ask a question to which you do not already know the answer”.  You’ve got to admit, that mantra cuts down on surprises.  Technically, the context would be a deposition or trial, but why can’t we apply it to e-discovery as well?  Let’s ask ourselves the questions instead of our ‘opponent’.

If I’m a lawyer, suppose instead of waiting for my technology support to ask me questions, I asked myself, “What do the technology experts need to know about e-discovery law – and my requirements – that they don’t already know?”

If I’m a technology expert, suppose instead of waiting for the attorneys to ask me questions, I asked myself, “What do the attorneys need to know about our ESI that would help them understand how our data is compiled and how it may be reproduced?”

Do you think maybe you’d show up for the preliminary – and subsequent – meetings better prepared?  Would you perhaps write a white paper to hand out at the meeting?  Would there be less likelihood that crucial information exchange would slip through the cracks?  Would each side be able to retire to their prospective ‘corners’ and have a better idea of what would be coming down the pike?

And the most important question; would the template apply elsewhere and therefore be re-usable?

Example.  If I manage data systems and someone asks for ESI, I’d simply think about producing it for them.  But what if the legal department supplied me with a summary of Zubulake I-V?  Then, litigation or not, my entire thought process would change.  I’d be thinking about accessibility, I’d be thinking about monitoring cost requirements; plus other things I wouldn’t likely have considered before, unless they were requested of me in advance.  And, I’d be doing all of it simultaneously.

I’d be anticipating instead of reacting, cutting both time and costs.  Imagine that!

Duties, Implementation, Scope, Strategy

e-DRiP, e-DRiP, e-DRiP: Who, What, When, Where & Why?

j0437216DRP and e-DRP; what are they and what’s the difference?  Essentially, they’re one and the same; a Discovery Response Plan (Electronic or otherwise).

I prefer to bifurcate readiness and response into separate groups, although some consider them as a single team/process.  I’ve covered litigation readiness several times and for the purposes of this post, I’ll assume that you’ve followed my prior recommendations to the letter and have a readiness team in place (I’m allowed to assume that because it’s my blog).

That was the easy part.

Now, the alarm bell has sounded – a litigation hold has been ordered in response to – or in anticipation of – litigation.  What do you do next?  There are a lot of lists out there, but actually, you can envision the path by thinking in terms of ‘who, what, when, where and why’?

WHO? – THE RESPONSE TEAM

You already have the “readiness” team – now you need the “response” team.  WHO will be on it?  Maybe it’ll be the same people, maybe not, but what you do at the outset will establish the tone for everything that follows thereafter.  You’ll need your technology and legal resources to come together at this point and take care to make sure everybody is clear about their specific role.  WHO will document the procedures?  WHO will serve as your expert witness?

WHAT?j0315598

If you’re either anticipating or responding to litigation, then you have a good idea of WHAT data will be involved.  If not, start thinking about how to find out.  Designate the team members responsible for identifying, accumulating and preserving ESI.  WHAT will it cost to review and produce?  Will that factor into the proceedings?

WHEN?

WHEN did you issue the litigation hold?  WHEN did the relevant custodians receive the notice?  WHEN will you expect acknowledgment from them?  WHEN are the relevant dates at issue in the action and WHEN did they begin preserving that data?  WHEN will you issue periodic reminders to the custodians to assure continued compliance with the hold?  WHEN will the hold be released?

WHERE?

WHERE’S the ESI?  Refer to your data map so you know WHERE you’ll be looking.  WHERE are the ‘nooks & crannies’; essentially anyWHERE that relevant ESI may exist (hint: it might not be on your map).  WHERE will you store the ESI for review?  Do you have sufficient space in-house or will you need an outside vendor?

WHY?

WHY is the ESI relevant to the action and therefore discoverable?  WHY should it be produced?  WHY is it privileged?

HOW?

Depending on what stage you have reached in your own readiness and response programs, you may be asking yourself HOW you’re going to accomplish all of this.  It might not be easy, but there are resources available to you and proper planning in advance will go a long way to assure an even flow.

Implementation, Management, Strategy

Hot Potato – the e-Discovery Game!

Mr. Potato HeadRecently, Kroll Ontrack released their 2nd Annual ESI Trends Report (Full disclosure:  I’m a Registered Partner with Kroll.  In order to procure a copy of the report, they require you to provide some basic information).

<— Uh-oh…he doesn’t look very happy…we can glean two things from this:

1)  He works in IT, and
2)  He just read page 18 of the report

What caught my attention is the growing trend of directing more responsibility for developing strategy – and the corresponding enforcement of policy – toward the Technology department while steering it away from In-House Counsel and/or the Executive Suite.

Kroll IT

This shifting trend forestalls major implications within the enterprise, especially when one considers the difference between the statistics for 2007 vs. 2008.  It doubled in the US alone!  This begs the more pressing question, at least in my mind; what about 2009?

French Fries --- Image by © Royalty-Free/Corbis

To add more of a degree of difficulty to the mix, we’re in a severe economic downturn – IT budgets are being slashed at the very time more responsibility is being dropped in their laps (here’s hoping the potato has cooled off by now).

IT budgets for 2009 were most likely allotted last year (unless you operate on a fiscal year and still have time to do something about it).  Maybe you should already be thinking about an ESI line-item for 2010, if you haven’t got one already!

Remember, a lot of companies don’t have in-house counsel, so those entities are probably ahead of the game, but I’m still of the opinion that there’s no way IT can develop policy in a vacuum.  Also, as much as IT professionals don’t want to become lawyers, lawyers don’t want to become technology experts, either, and would probably welcome the opportunity to toss that potato to IT and never look back!

I’m sorry, but you either need both technology professionals and lawyers to formulate appropriate strategies and policies – or you need them in a single person!

Look, there are a lot of people who fancy themselves as armchair attorneys.  I was one of them.  I dealt with legal matters throughout my career.  I represented myself in court and thought of myself as fairly competent.  After all, anyone can read a law book and understand it if they’re inclined in that area – the same as some people are naturals at math or science.  But I can now also speak as someone who achieved a Juris Doctor degree and passed the California Bar Exam and I can state from experience; I was amazed at how much of the law and procedure I didn’t know!Dead Potato Head

In this context, expecting IT to be completely responsible for developing ESI strategy and policy is a dangerous game.  To the companies moving in that direction, I make one humble suggestion; throw a legal mind is in there somewhere.  Don’t make a fatal mistake!