Tom O’Connor bows out of the DocNative Paradigm

Well all good things come to an end and Anacomp has decided they no longer need me to post on the DocNative Paradigm blog  ……  so starting today I’ll be posting my annoying comments about e-discovery and other things legally technical … or is that techncially legal ….or neither  …  at the Gulf Coast Legal Technology blog, http://gltc.wordpress.com.   (not to be confused with my New Orleans/technology/curmudgeon par excellence blog , http://technogumbo.wordpress.com .)

Best wishes to all the folks at CaseLogistix, especially Jeff Friedman and Chuck Kellner, who are two of the brightest minds in legal technology. 

It’s been a blast being here for the past two years and I hope to see you all somewhere else in the cloud.  Tom O

Is Proportionality All Askew?

Craig Ball had a fascinating post this week on why ED costs so much. Entitled  Are We Paying Five Times Too Much for E-discovery? , the gist of the article is that proponents of proportionality analysis, as Craig puts it, ” ….make no provision for distortion of cost attributable to incompetence and disorganization.  They simply accept the unacceptable and make it their baseline. ”

Hear, hear.  I’ve been saying it for well over a year now. Judge Facciola said it at Legal Tech New York. Two years ago. And Craig hammers home the point again. 

The problem isn’t the new rules or the enormous amounts of data or the increased technical difficulties.  The problem is what we used call, back when I was a network administrator, a “loose nut on the keyboard”.

Craig is more eloquent when he says “And let’s lay the blame where it belongs.  Lawyers’ unwillingness to master electronic evidence is the gash in the side of this Titanic.  Tinkering with the Rules again is rearranging deck chairs when we should be figuring out how to fill the lifeboats.  The Rules are fine.  Their execution is not.”  

What is the solution? Well as I said here several weeks ago, read the rule book shankapotomous.  Once again Craig is more eloquent when he ventures  “Evidence is digital.  That’s not changing.  Embrace the inevitable.  We don’t need conferences to mourn the passing of paper.  We need Manhattan Projects to educate lawyers about ESI.”
And so we return to a recurrent theme among ED commentators. We need not just better but far more education.  That is the best way to reduce ED costs.

Poor EDiscovery Practices in the Real World

Last week, a motion was filed to issue a subpoena to President Obama in the Rod Blagojevich criminal trial in the U.S. District Court in Chicago. The only problem is that when a redacted copy of the subpoena was released to the public, the “redacted” information was available by simply clicking on the redaction.  If this were an e-discovery production the receiving party could have been given privileged information and it seems highly unlikely to me that this type of shoddy technical performance would fall under any definition of “inadvertent” for purposes of a clawback argument or, even more important, an evidentiary waiver of privilege.

Using a redacting tool is not a terribly difficult technical task. If lawyers can’t get this right, how can we expect them to handle the more difficult tasks of e-discovery practice?  It all comes back to education and it’s clear from this, the third major redaction blunder in the past eyar, that lawyers are simply not learning even the most basic technological tools. Even more reason to engage the services of a trusted advisor to help them avoid these types of mistakes.

For more on my thoughts on this subject, see the article on LexTek entitled Blago Redaction Snafu Offers Bad Example of eDiscovery Practice

Survey Says ….

So last week I commented on my work with the The Law Bulletin Publishing Company to conduct their third annual survey of Illinois attorneys regarding their experience with technology and electronic discovery.  The biggest surprise in the survey was the high number (30%) professing ignorance about the FRCP rules on eDiscovery.

I assumed that given the publicity around the 7th Circuit ED Pilot Project, most Chicago attorneys would have a high degree of exposure to the topic by now. I was wrong.  Only 38% of the respondents had heard of the project. Only 24% had heard of the Sedona Conference, only 9% had heard of the Georgetown University Law School ED educational program and, most shocking, only 7% recognized the EDRM project.

These numbers are disconcerting but upon reflection not unusual.  Consider the following.  My old friend Andy Adkins, founder and director of the University of Florida Levin College of Law’s Legal Technology Institute Legal Technology Institute, is a long established expert in the field of law office technology and practice management.  He recently released the 2010 Perfect Practice Legal Technology Institute Study (PP-LTI Study) and guess what he found?

Law firms are consistently failing to embrace even relatively simple technology, like dual monitors, that could increase their efficiency. And when it comes to applications such as document management or case management, the numbers are appallingly low.  A study in 2000 found that less than 50% of legal professionals used a document management system. A decade later, the PP-LTI Study found that 52% did not use a document management system, a number that was skewed upward when you consider that at large firms,  80% of attorneys reported using a DMS.

The numbers in practice management systems are even worse. In 2000, 25% of legal professionals reported using a case management system.  Andy reports that he thought ” … that number would have doubled in ten years,” but the 2010 survey indicated that only 32.7% of respondents were using case, matter, or practice management software, with large firms once again leading the way. 

(By the way, The PP-LTI Study costs $395 but  you can download a free executive summary at the LTI web site)

So what does all this lack of technology usage mean for us in the e-discovery world? Less work, that’s what.

Why?   Because more and more, our clients are bringing their work in house. According to the results of the Association of Corporate Counsel‘s 10th Annual Chief Legal Officer Survey , 29% of the 970 chief legal officers who responded to the survey said they’re planning to add to their departments this year, up from 23 percent last year. Meanwhile, more than a third (34 percent) said they’ve cut spending on outside counsel.

Think it’s just the recession?  No the same survey showed an upswing in caseloads.  Think  it’s  just the older generation?  Recall, if you will, the column by several weeks ago where he mentioned the law student who asked him what was the least amount of ED knowledge he needed to get by.

No, when 5% of the respondents in the Illinois survey said they DIDN’T KNOW what Web application they were using and when commentators like Mike Arkfeld say 99% of the litigators in the country have no idea what they’re doing with e-discovery, I think maybe the reason is that attorneys are not paying any real attention to technology. 

It reminds me of a comment by Jim Keane back when he and Monty Ahalt were trying to get colleagues to embrace e-filing.  Jim said that if doctors used technology the way lawyers did, we’d be attaching leeches to our arms to get blood samples. 

Seems like maybe we’ve progressed to simple blood letting instead of leeches but what’s clear is there is something wrong with the way we educate lawyers. But that’s a column for another day  ….  or two.

3rd Annual eDiscovery Survey of Illinois Lawyers

I recently conducted the third annual survey of Illinois attorneys regarding their experience with technology and electronic discovery for the  Chicago based Law Bulletin Publishing Company.  Responses to this year’s survey (185) were somewhat lower than the previous year, returning to the level of the number of respondents in 2008, the first year of the survey, and also reflected a higher number of small firms than in previous years.  On the other hand, the highly respected annual Socha-Gelbmann Electronic Discovery Survey only had 155 respondents, so perhaps our demographic is consistent with other surveys being taken.

IT staff and lit support personnel were also included in this years survey, which consisted of 18 questions asking about level of exposure to eDiscovery matters and experiences with electronic discovery vendors and products. The final question asked for an opinion on the most important issues in the eDiscovery practice area. 

Also this year, rather than asking respondents to rate their products or vendors, we asked several new questions. The first was “Do you think that e-discovery vendors are effective in defining their services?” 63% said “No” which may well explain why no single vendor or product is garnering significant market share.

We next asked “If you saw an ad for an e-discovery provider in a reputable legal publication, would it influence your decision on which vendor to consult?” 53% said “No” which, of course, means that nearly one half said “Yes.”

Finally, we asked “Do you feel an e-discovery provider that services the entire ED process is more useful than one that only specializes in a portion of the process?” 66% said “Yes” with the most common explanation being similar to this one: “Consistency in handling [all aspects] reduces any chance of duplication of work and/or costs.” The common answer from those who said ‘no’ was, “Some cost-savings are possible with a ‘soup to nuts’ company, however, often times specialists provide better quality of service and degree of expertise than a one-stop shop.”

You can view the full report at LexTek Report, the technology blog for the Chicago Lawyer magazine which is maintained by David Glynn, Director of Research & Product Development at the Law Bulletin.

More Craziness

Here’s a great response to my post on the Gucci v Curveal case by Chris Dale of the E-Disclosure Information Project

The article by the respected US e-Discovery commentator Tom O’Connor Why the Rest of the World Thinks we are Crazy concerns an Opinion of the District Court of the Southern District of New York which orders a Malaysian bank, not party to the proceedings, to produce documents despite a Malaysian statute prohibiting them from doing so. I volunteer to speak on the half of “the Rest of the World”

I took part in an interview recently with Tom O’Connor and with Browning Marean of DLA Piper US. Amongst our subjects was the perpetual collision between US demands for documents (for FRCP and other purposes) and the data protection laws of other countries, particularly the EU. There are many aspects of US discovery which amaze the rest of the world, and not generally in a nice way, but it is your playground, and if you want to use it to fight in, that is up to you. It is not as if any of the rest of us claim to have got things right.

Where US discovery does impinge on the rest of us is when its demands for documents conflict with the privacy, data protection or, in this case, banking secrecy, laws of other countries. The playground bully marches into our yard, and expects us to follow his rules.

It is not in fact quite as simple as that, and it is wise for outsiders to avoid adverse commentary on whether an Opinion of a foreign court is correctly decided under its own law. This is, after all, S.D.N.Y., not some hick court from a flyover state where no one has a passport and no-one could find Malaysia in an atlas. There are lots of factors here going one way or the other: those who seek the benefits of US trade (and particularly its courts) must take its burdens; the US itself benefits from such trade and wants to encourage it in general if not in the case of this particular business; the existence of foreign restrictions on the use of personal data is not exactly a secret; there was already a default judgment against the original defendant; the protection of IP rights is to some extent a matter of national interest; the position under Malaysian law does not seem to be been argued with great thoroughness (though it would be quite fun to apply the same critical analysis to the logic of the Opinion as its author gave to the Malaysian affidavit); the party against whom discovery was sought was not in fact a party to the original dispute. All these factors muddy the waters, and I propose to ignore them all and focus instead on the words “the important interests of the United States” referred to in the Restatement (Third) of Foreign Relations Law of the United States which are set out in the Opinion.

To an outsider, the conclusion that “the interest of the United States outweighs that of Malaysia under the circumstances” implies an alignment between the interests of a private company (the Plaintiff) and the national interest. It reminds me of that splendid time in British imperial history when Lord Palmerston sent the British fleet to blockade Piraeus in 1848 because the Greek government had failed to pay compensation to Don Pacifico, a merchant of Portuguese Jewish birth, who had had the good fortune to have been born in Gibraltar. There were those who doubted that this was a proper use of British power and authority. Palmerston’s magnificent speech, with its evident disdain for any country but his own, might serve as a model for those drafting the Opinions of US courts in this context, as you can see from its famous closing lines:

whether, as the Roman, in days of old, held himself free from indignity, when he could say Civis Romanus sum; so also a British subject, in whatever land he may be, shall feel confident that the watchful eye and the strong arm of England, will protect him against injustice and wrong.

‘Just send in the Navy and teach these foreign chappies to show some respect’ was the attitude which gave “gunboat diplomacy” its name, and the Don Pacifico incident was its defining moment.

The US test, recited in the opinion, is “the extent to which non-compliance with the request would undermine important interests of the United States, or compliance with the request would undermine the important interests of the state where the information is located”.  My hesitation in treading into matters of US jurisprudence does not prevent me from wondering whether the reference to “important interests of the United States” applies narrowly to the facts of the case under consideration, or more widely (as the Opinion itself suggests) to the protection of US intellectual property interests, or whether it refers to the broadest interests of the US vis-à-vis the rest of the world in respect of data collections. I agree with Tom O’Connor that this Opinion, and those which it follows, can only encourage Germany, Italy or France to (as Tom puts it) “make it even harder for US courts to get their documents than they do now”. How will that serve US interests? What will you do? Perhaps you will simply sanction every party who is unable to produce documents. Or maybe you should, Palmerston-like, send round a gun-boat every time a foreign country presumes to raise its own laws in conflict with yours.

What’s In Your Gigabyte?

Interesting post this week on the Lit Support litserv from David Carns at Crowell & Moring, the international law firm with more than 500 lawyers. His original post asked people to define a gigabyte for purposed of e-discovery processing, a reflection of the common trend to price on gigabytes AFTER decompression without telling the client up front that is the practice.

As David put it,   ” … I realize the term GB is in the eye of the beholder, but playing hide-the-ball and using the definition as most benefits your corporation, firm or company is eventually going to go away and a single standard is going to emerge.”

David set up a site for people to answer which of the following four definitions they preferred:

                     Fully decompressed data  

                    Fully decompressed and de-nisted data

                    Data compressed in the course of business (ie, decompress shipping containers)

                    Compressed no matter how done 

The winner by a substantial margin was number 1 with two and three being closely placed and number four falling a distant last. No real surprises there but Davids closing comments were interesting:

“Fully decompressed data was the winner, but it is clear that many other responders have differing opinions. And while my canned responses were far from perfectly worded and open to misinterpretation, it is obvious that we do not have a common standard.  Anyone want to take a stab at a clear, definitive GB standard for the purposes of eDiscovery?”

Indeed. With all the talk of standards being established in the profession, here’s one that begs definition.

Top 10 Things You Need to Know About ED

Last year I did a quick list of my Top 10 tips for e-discovery. I was just asked to revisit that list so here is my updated top 10 along with comments. 

  1. Read The Rules:  The Federal Rules of Civil Procedure lay out the framework for your obligations in handling e-discovery and differ in several aspects from traditional discovery rules.  In addition, your state may have it’s own ED rules which differ from the FRCP.  You need to understand the procedural requirements for the various jurisdictions where you may have litigation arise so start here.
  2. Read the Decisions: Federal judges, notably Facciola, Grimm and Waxse, have spent considerable time issuing opinions which give details on interpreting and implementing the Federal rules. Reading these decisions is essential to understanding how to handle e-discovery so start with a good book on ED basics ( I suggest Electronic Discovery and Evidence by Michael Arkfeld and Electronic Discovery and Records Management Guide by Grenig, Marean and Poteet) then read a good case update blog, preferably one which has an RSS feed.\\
  3. Know The Terms: E-discovery isn’t rocket science but it is technical in nature.  But you learned the Rule against Perpetuities in law school so believe me you can handle this.  Judges do not want to waste time settling arguments between attorneys who don’t know the difference between a PST and an MSG file so get a good ED glossary (the Sedona Conference has one) and make sure you know all the terms.
  4. Know Where Your Data Is: You can’t find it to identify, collect and preserve if you don’t know where it is.  So get with your clients IT folks and make a map of their network with locations, custodians, OS and applications lists and descriptions of data amounts.  Why? Because a map shows us how to go places we haven’t been before without getting lost.  Plus they are incredibly useful in court to show a judge the complexity of your data collection problem.
  5. Talk to The IT department:  They know how to make the map. You’re Lewis and Clark, they’re Sacajawea. You cannot …absolutely cannot … navigate without them.
  6. Talk to The Records Management people:  Records Management is the flip side of the e-discovery coin and your clients RM staff can help avoid the need to waste time and money restoring backup tapes that don’t contain relevant data.  Wait, your client DOES have a Records Management Policy right? 
  7. Make a Records Management Policy: Good records management will save time and money when clients have to collect data and will help avoid sanctions when you have to explain to a judge why some documents are no longer available because they were deleted in the ordinary course of business by the records retention policy. 
  8. Make A Litigation Hold Policy:  Every client needs to have a clear and concise litigation hold policy to deal with procedures for data retention when the litigation hold letter arrives. And it will.
  9. Enforce the Litigation Hold Policy.  Repeat after me: “repeatable, defensible process”. Don’t put the lit hold policy in a manual that just goes on the shelf. This is the biggest mistake you can make and more cases are lost here than in any other phase of electronic discovery. Your opponent marks up a motion for sanctions, you say “but Your Honor, we have a lit hold policy” and the judge says “show me how you implemented it in this case.”  And you can’t.
  10. Meet with inside counsel:  Why? To discuss all of the above. They will need to understand, and be able to explain, all of it in order to work with you.  And you need to be sure they can do exactly that.

Why The Rest of the World Thinks We’re Crazy

This decision was reported yesterday. In Gucci Amer., Inc. v. Curveal Fashion, 2010 WL 808639 (S.D.N.Y. Mar. 8, 2010) a foreign corporation, which was not a party to the underlying action, was ordered to produce documents despite a statute in that corporations country of corporate foundation that prohibited such a production.  And that’s not the crazy part.

Plaintiffs in the case moved to compel the production of documents and information regarding a bank account in Malaysia held by the defendant.  A subpoena was served on United Overseas Bank’s New York Agency which was not a party to the underlying action. The court, even after hearing evidence that such a production was prohibited by Malaysian law and that violation of the law could subject a person to civil and criminal penalties, ordered UOB NY to produce the information.

Why? Here comes the crazy part.

The court looked to a 5 part test which is laid down in the Restatement (Third) of Foreign Relations Law of the United States. The same standard has been upheld by numerous courts around the country, up to and including the U.S. Supreme Court.  The five factors in that test are:

      (1) the importance of the documents or information requested to the litigation

      (2) the degree of specificity of the request

      (3) whether the information originated in the United States

      (4) the availability of alternative means of retrieving the information

      (5) the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine the important interests of the state where the information is located.

The court held that factors one and two weighed in favor of the plaintiffs, the third favored UOB NY and the fourth, since the expense and practicalities of a proceeding in Malaysia meant the information could not be “easily obtained” there, favored plaintiffs. 

The court then noted that the fifth factor was  “of the greatest importance in determining whether to defer to the foreign jurisdiction.”  And should it defer in this case? No because “the United States interest in fully and fairly adjudicating matters before its courts…outweighs Malaysia’s interest in protecting the confidentiality of its banking customers’ records.” 

OK, so the reason is our lawsuits are more important than your statutes protecting confidential information.  Really? That’s the reason?

And when they read this decision in Germany or Italy or France, what will they think?  Probably that they should make it even harder for U.S . courts to get their documents than they do now.

You can read a more detailed disucssion of the case and download a copy of the full opinion at the K&L Gates Electronic Discovery Law site.

BackUp Tapes: Friend or Foe?

I’ve been involved recently in three separate cases where backup tapes have been a major factor in some data recovery efforts.  And not a useful factor unfortunately, although more due to lack of a good inventory of some very old tapes than anything to do with the tapes themselves. Still we’ve been presented with some major issues when dealing with boxes of the normal tape rotation of daily, weekly and monthly and yearly. So I was quite pleased to see an article by Craig Ball in the most recent Law Technology news called “The Lowdown On BackUp Tapes“.  

There are some great tips on working with backup tapes in the article (or, to use the technical term “Tape Tips”) but before I mention several that I think are particularly important, let me mention the biggest issue, which is not technical at all. It’s the people.

Here’s the typical exchange between an attorney (generally outside counsel) and an IT person at the clients shop:

Attorney: hey Charley, I’m looking for some emails and data from the Boise office that deals with that big fire they had out there in ’98. Do you have anything that goes back that far?

IT:  Fire?

Attorney:  Yeah, remember the plant burned down in 98 and about 20 people got killed?

IT: Yeah, that kind of rings a bell. Not sure though, I was working in the Flummox Division IT back then.

Attorney:  Uh huh.  So nobody ever asked you to pull any documents for the litigation around the fire.

IT: Not me, no.  (Editors Note: remember this answer)

Attorney: OK, well, that’ s unfortunate but still I need to gather anything. Can you see if you have data gong back that far.

IT: It’s on backup tapes.

Attorney: Wow, that was fast. You don’t remember the fire but you know you have data on backup tapes?

IT: Everything is on backup tapes.

Attorney: OK, can you pull the Boise tapes for say 1997 and 1998 and give me an index of what’s on them?

IT: I don’t know where they are.

Attorney:  OK, you don’t keep all the tapes in one place?

IT: No each location keeps their own tapes and the Boise shop was sold off to Kumquat FAG in 03.

Attorney:  OK, well can you please check?

IT: Sure

Two weeks later

Attorney:  Charley, never heard back from you on those tapes. Any luck?

IT:  Yeah, we found some.

Attorney: UH, ok where are they?

IT: Here

Attorney: OK, can someone look at them?

IT: We don;t have the software for those tapes any more. I hade Master Blaster do an inventory of the labels.

Attorney: OK. Master Blaster. Is that a company you work with?

IT: No, that’s my night on-call IT guy.  He’s a big Mad MAx fan so, well  …  never mind.

Attorney:  OK, can you send me that inventory?

IT: Sure.

Two weeks later

Attorney: Hey Charley, thanks for sending over that label inventory today. Can you please send the tapes labelled Boise 97 and Boise 98 to the Acme Tape Restoration Company?

IT: Oh no, not the original tapes dude. We would have to copy them.

Attorney:  OK that’s fine.

IT: We can’t copy them.

Attorney: Uh huh. Why not?

IT:  They’re too old  and we don’t have software to do that.

Attorney: OK, I’ll have ACME make copies.

IT: I don;t know man.  What if something happens to them?

Attorney: It’s OK I’ll take responsibility for them. And by the way, I was just looking at a litigation hold letter that Bob at your legal office sent around back in 07 when this case was filed. It specifically lists the Boise backup tapes. I thought you said you hadn’t seen a hold on these tapes?

IT: No dude, that went to Ralph in corporate IT at the main office. I’m head of IT for branch offices. He didn’t send it to me.

Attorney:  But you knew about it.

IT: Sure, everybody knew about it.

I could go on but you get the point.  IT people can be like a well prepared deponent or a 14 year child.  They will answer only specifically the question asked of them and they will adhere to a strict set of grammatical rules  known only to them and their closest confidants. So be sure you know what questions to ask and how to interpret the answers before you begin.

As for Craig’s  article, the two points I found most interesting were the discussion of “non-native” or “virtual” restoration and the reference to the  restore time study done by eMag Solutions. But read the entire article: it’s well written and informative about the technical issues surrounding back up tapes.

You should really have this information before you begin talking to the IT Department.