Category Archives: Strategy

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

Speaking: Lost in Translation

“Language is the source of misunderstandings.”
— Antoine de Saunt-Exupéry

j0438482Attorneys.  High-tech professionals.  High-tech professional attorneys.  Management.  Laymen.  Not only do they have to communicate between themselves, they have to communicate with all of the support staff that will handle an EDD issue.

Many cases also involve foreign participants – and, as logic will follow, their data.  Nothing like adding multiple languages to the mix to really complicate matters…

What we got here is a potential failure to communicate.  A potential failure of grandiose proportions.  What steps can be taken to avoid it?

Attorneys follow rules of discovery – electronic or otherwise – from state & federal civil procedure and criminal procedure law.  Procedure is the ‘road map’ of every case.  It’s the nuts & bolts of the legal system – the ‘plumbing‘, if you will..

Technology professionals are tasked with creating a ‘map’ of their hierarchy in order to identify, preserve and collect ESI.

Management has a vested interest in both groups being excellent cartographers.

Does this cover every contingency?  Who else might we – or our colleagues – be responsible for communicating with about this?

Young Businesswoman with Her Finger on Her Lips --- Image by © Royalty-Free/Corbis

Proportion is a major factor.  The larger the parties involved, the likelihood increases exponentially of laymen taking an interest (public or private shareholders, staff, reporters, etc.) who have no experience with either discipline.  The rumor mill starts grinding.  Like it or not, there may be public relations aspects to all of this.

The attorneys and technology professionals who ‘make it happen’ will not likely be directly exposed to this part of the equation, but there is one element they should be concerned about; making sure that the information flowing upward – and downward, for that matter – is accurate and concise for the benefit of those who will be directly exposed.

Credibility is key.  A mistake that initially appears to be harmless can turn into a nightmare for a professional who is held to a particular standard of duty.  These duties may involve split loyalties, and worse, there is a risk to the parties that their duties may diverge.  One may be forced to walk a tightrope.

Corporate executives may have duties to their companies, their counterparts, their shareholders (if they’re structured that way) and the public.  Attorneys – first and foremost – are Officers of the Court, and this duty supersedes all others.  Disseminating incorrect and/or misleading information – even when unintentional – may get these people in hot water.

We all must take care to assure that this doesn’t happen.  That’s our duty.

Testing 1-2-3…Are you ‘Really’ Ready for a Litigation Request?

Part II of a two-part series.  Part I appeared 11/24/08.

PART II – ESI COLLECTION

I read a lot of of excellent articles, white papers and documents (as do you)
which present reasonable, astute and prescient approaches to getting a
handle on your company’s ESI (electronically stored information).

However, in virtually all of the materials I see, one important element is missing:

TESTING.

j0433180Buildings run fire drills. Do you run data recovery drills?

Sounds counterintuitive, doesn’t it?  Common sense would tell you that if you’re backing up your data, it should be relatively easy to recover it on demand.  After all, the software “tells” you in your morning report that last night’s run went fine.  But did it?  Is that all that matters?

 Think about it for a moment.  How many spokes are in your hub?  Where are they?  How many people are responsible for protecting the data?  What software do you use?  What hardware?  What media?  Is it easily accessible?  Physically?  Remotely?  Do you handle it in-house or do you depend on outside vendors?  Do you use off-site media storage?  Do you know the time it would require for you to comply with a request to produce data?  Do you have an alternate location to restore it?  It isn’t always restored to the location where it originated, and certainly not when litigation is involved.

Let’s boil it down to one simple question.  What would you do if you received a call with a demand for data – a large quantity of data – that isn’t at your fingertips?

Woman with Headache --- Image by © Royalty-Free/Corbis

It would surprise you how many companies haven’t thought about this.  They do everything right in terms of the front-end of this process, but never anticipate the back-end.  They do a terrific job of thinking about data protection, yet don’t think about more important issues – data integrity and the ability to restore it.

What good is all of this technology if, when the big request comes down, you can’t deliver?  It’s bad enough when this has nothing to do with e-discovery (such as my location in California, where we have to worry about earthquakes), but when it does, there are sanctions on the line – and not just civil sanctions.  Some of the penalties are criminal in nature.

Admittedly, criminal liability would most likely require intentional and/or egregious conduct, but the spectre is out there (I’ll address the facts vs. fictions in a future post).

You don’t want to be the attorney who has to stand in front of the judge and say “I’m sorry, Your Honor.” because you are either experiencing delays in producing the data, produced it very late in the litigation process or are unable to produce it at all.  You might get a response like this one from a Judge in the recent McAfee case – “Heads will have to roll“.

Let’s hope it isn’t your head she’s talking about.

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!