All – as part of my ‘repairs’, I’ve looked at some of the blog logs (say that 3x fast) and since this item was posted over six years ago, it’s still ranked as #1 on the site! So, it seemed like this was the perfect opportunity to republish it. The letter itself is slightly updated, but the post is reproduced verbatim:
Wow…this is my 100th post! Who knew I could pontificate this long?
In analyzing the new California Electronic Discovery Act (I’m going to start calling it “CEDA” for short), I might as well start at the beginning.
The first thing that will occur if litigation arises? There’ll be a bunch of litigation hold letters going around. I say a bunch because it could manifest several ways; outside counsel to your adversary, outside counsel to inside counsel, inside counsel to the enterprise, the CIO/CTO to the IT department, the CEO to the CIO/CTO…you get the idea. In some cases, as illustrated above, the letter may not even be coming from an attorney.
What might the letter look like? Here’s an example of a litigation hold letter theoretically issued from outside counsel to an adversary (in PDF format). The names were changed to protect the innocent (and the guilty, for that matter).
This is only a sample to give you an idea of what a letter of this kind might look like. The purpose is to illustrate items you may or may not have thought about. Like snowflakes, no two letters will ever be exactly the same. Only a professional with personal knowledge of your specific requirements should ever create and/or issue a litigation hold letter.
Enough disclaimers? Ok then…chew on this for a Monday.
The last three words from this short Beverly Hills Cop video clip sum up my analysis of the opinion:
I wrote public comments to COPRAC (The State Bar of California Committee on Professional Responsibility and Conduct) re their interim versions of the opinion and, in a rare step, I’m posting a verbatim excerpt because my assessment of this opinion remains unchanged. One modification – I bolded a quote, because the Committee adopted my definition verbatim in their opinion (page three, footnote six):
“I’m seeing a very common thread in COPRAC’s reasoning that afflicts those who understand technology at a more surface-level; the tendency to think of it in physical, rather than ethereal terms. In other words, the Committee has focused on the word evidence, instead of the word electronic. Take water, for example. Whether it exists in a lake, a bathtub, or a glass, it’s still water. It’s the same with evidence. Whether it exists as writing on a tombstone, a paper document, or in electronic form (e.g. sitting on a flash drive), it’s still evidence. It’s the medium that should distinguish it for your purposes. That’s the contrast missing here.
Whereas the Committee has done a better job of defining parameters such as clawbacks and laying out accurate mistakes by our hapless attorney, once again, it descends into conduct that isn’t eDiscovery-based; but competence-based. This opinion relies too much on unrelated reasoning, such as “assumes”, “relying on that assumption” and “under the impression”. That’s not an eDiscovery problem; that’s a general competence problem. It’s also not what the audience needs. If they’re attorneys licensed in California, they’ve presumably passed both a Professional Responsibility course and the MPRE exam and know – or should know – their duty of competence. It’s not as if an attorney retains a med-mal case, then immediately “assumes” or is “under the impression” that s/he’s a doctor and can read an x-ray. But I could intertwine those facts with this opinion and make it about medical experts. What attorneys specifically need to know is how their actions, or lack thereof, in the procurement, assessment and handling of electronic evidence morph into a violation. This is a highly specialized area unto itself. See my previous example. The x-ray is electronic evidence. Proper acquisition is one matter; analysis, forensic or otherwise, is quite another. That doesn’t just include the adversary’s evidence. It also includes the Client’s evidence. In this scenario, one is seeking to exculpate the Client through all available means – not just via the adversary.
Contradictions also exist in Footnote Six on page three that states, “This opinion does not directly address ethical obligations relating to litigation holds.”. I respectfully submit that the opinion goes on to do exactly that. Perhaps this is due to the criteria set forth in Footnote Six being inaccurate as defined. In a legal setting, Attorney is charged to know what the Client does not, and this may involve issuing litigation hold instructions to their own Client; not just third parties or adversaries. If attorney was interacting with the CIO or CTO (The “Information”/”Technology” chiefs, perhaps s/he could reasonably reply on their assessments. But here, attorney is interacting with the CEO who likely has no intimate knowledge of what goes on in the IT department. It should read, “A litigation hold is a directive issued to, by or on behalf of a Client.” Otherwise, how does the competent Attorney protect a Client who, in good-faith, endeavors to do the right thing or protect themselves when a Client, in bad-faith, engages in intentional spoliation? One of those scenarios exists on page two, when the eDiscovery expert, “tells Attorney potentially responsive ESI has been routinely deleted from the Client’s computers as part of Client’s normal document retention policy”.
Understanding these nuances and acting on them is the very definition of competence as applied to an eDiscovery attorney – or an attorney who engages the services of a third-party eDiscovery vendor. In this arena, eDiscovery is like a game of falling dominos; once competence tips over, the rest (acts/omissions, failing to supervise, and confidentiality) will logically follow. As they say, timing is everything.”
Conclusion: The opinion does a good job of explaining fundamentals of the eDiscovery process, but in my opinion, doesn’t go nearly far enough.
I just took a look through this top page. I've only posted ten times (including this one) in almost an entire year! I've got to try to step up my game, but honestly, it's going to be difficult as I get busier and busier. I'll do my best; in the meantime, here are my upcoming program(s) at the State Bar Annual Meeting in San Diego (I used the (s), because for one program, I'm making a guest appearance but am supposed to be in two places at once!):
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Leveraging Technology to Win the Discovery Game: Program 31
Thursday, September 11, 4:15 p.m. – 5:15 p.m.
This is tentative. There's a meeting of the Council of Sections simultaneously with this program and since I will be assuming the role of Co-Chair at the conclusion of the Annual meeting, I need to be there.
I'm hoping to make my way to this session and appear for the last thirty minutes or so. But be warned; if I'm delayed, I might not make it. My colleague, Alex Lubarsky is presenting, so either way, I encourage you to check it out as he's extremely knowledgable.
This program will cover the rules and new technologies governing electronically stored information (ESI). Learn about cutting edge litigation technology advancements that will result in cost savings and streamlined management of ESI.
CLE: 1.0 Hour of Which 0.5 Hour Applies to Legal Ethics
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The National Security Agency and Attorney Confidentiality: How to Protect Your Clients: Program 63
Friday, September 12, 2:15 p.m. – 3:45 p.m.
The National Security Agency (NSA) has been heavily featured in the news. While the agency collects our data, how does it use it? This program will address the NSA’s data collection and the unique challenges it presents to lawyers. Learn how to protect yourself and your clients' confidence.
CLE: 1.5 Hours of Which 0.5 Hour Applies to Legal Ethics
As you can imagine, questions about the NSA come up a lot in my presentations when I discuss attorney confidentiality, but with the outright panic I'm starting to see due to all of the misinformation out there, I feel it is time to address the issue in-depth. We're going to spend ninety minutes exploring attorney ethical obligations, what the NSA says they do vs. what they really do and how you can best protect client confidences – hopefully without experiencing a meltdown in the process.
That's it for this year. Hope to see you in San Diego!
I'm presenting a webinar with my good friend and past-LPMT-Chair Robert
Metadata: Legal and Ethical Challenges:
Avoiding Information Risks With Various File Types,
Electronic Redactions, Location-Tracking, “The Cloud” and eDiscovery.
This is a live,
90-minute CLE webinar/teleconference with interactive Q&A Thursday, May 2nd,
2013 from 1:00pm-2:30pm EDT, 10:00am-11:30am PDT.
And yes, as the subtitle suggests, this is not a 101 presentation. If you're interested in checking it out, click-through to the Strafford web site for more info; and stay tuned. I have many more of these in the pipeline.
Last week, I attended day one of the Executive Counsel Exchange in Los Angeles, as has been my custom the past three years. Just to clarify, this conference is sometimes referred to as the Executive Counsel 'Institute', but the actual program is called, "The Exchange" and the theme is, "e-Discovery
for the Corporate Market".
The reason this particular conference is so beneficial is that attendees share their day-to-day experiences confronting the many eDiscovery challenges we know so well. I've always considered the practical much more important than the theoretical – mostly because people, situations and budgets don't tend to comport to the (IMHO) wishful thinking that appears in many overly-optimistic project plans.
Take a look at the agenda. If these look like the kinds of issues you see, think about attending. The next event will be held in late March in San Francisco.
This news is so important to me – and most likely, to you as well – that I actually dropped what I was working on so I could bring it to you asap! I wanted to make sure you’re aware of the implementation of these new ESI guidelines, which took effect yesterday. Here’s the press release, and here’s a direct link to the guidelines page which includes a checklist and model stipulated order.
I'm going to be on a roundtable panel at the Thomson Reuters 'eDiscovery and Legal Technology in Practice' Conference 2012 in San Francisco. It's an all-day event, taking place on December 5th. It's a terrific agenda; here's the scoop on my specific panel:
12:00pm – 1:10pm
Under Fire: Defending and Challenging a Motion against Technology-Assisted Review – A mock Meet and Confer (26f) hearing.
Nicole Armenio – Kroll Ontrack Solution Architect Perry Segal – eDiscovery Attorney and Management Consultant, Charon Law Hon. Socrates Peter Manourkian – Judge of the Superior Court, County of Santa Clara
It's entirely possible that by 1:00pm, the attendees will all be thinking about lunch…
Why have I been missing in action the past couple of weeks? Because I over-committed, that's why! Note to self: Don't propose two presentations for the CalBar 85th Annual Meeting, thinking that only one will be selected…WRONG!!! So, to kick-off my re-appearance on this blawg, here are my two upcoming presentations in Monterey:
eDiscovery eVolution: Crawl, Walk, then Run Your Case! (Program 25)
Strategy matters, and litigation is a term of art and a
little showmanship. Learn how to strategize during a case to get the
most out of each other for the clients' benefit.
Presenters: Perry L. Segal, Derick Roselli
CLE: 1.0 Hour General Credit
This is going to be a good one, because I'm taking the role of attorney (type-casting) and my LPMT colleague, Derick Roselli, takes the role of technology expert; which is his true specialty at HP/Autonomy. We're going to do a walk-through of a case from the perspective of the attorney consulting with his expert on a case, from start to finish.
It's essential to conduct due diligence regarding a
vendor's security practices to insure the confidentiality of client
data. Even if the data is believed to be secure, it may violate an
attorney's legal/ethical obligations. Learn the next step– assuring
client communications are secure and ethical.
Presenters, Perry L. Segal, Donna Seyle
CLE: 1.5 Hours of Which 1.0 Hour Applies to Legal Ethics
Donna Seyle is another of my LPMT colleagues, and we're going to do a practical examination of attorney ethics rules – both ABA and California – as they pertain to data and social media interaction in the cloud. Our goal is to explain to attorneys how even a secure cloud may violate ethical obligations to the client if additional precautions are not followed.