Archive for February, 2009|Monthly archive page

New Thoughts On Native Files

Ralph Losey has an excellent post this week on native files called Should You Go Native ?  As always, Ralph has a very thorough, scholarly approach to the issue and focuses in on several recent decisions to further discuss the issue.

One interesting point that Ralph made was that “going native” will require an investment in some type of  “specialized” software that allows you to review and produce native files.  I posted a comment on Ralph’s site disagreeing with this proposition because it seems to me that this issue can be handled by using a SaaS application.  Hosted software that allows review and redaction of native files with very little up front cost seems an excellent way to eliminate the need for buying an application just to work with native files.

I’ve written a white paper on the criterion for a hosted application and I’m going to be discussing this issue tomorrrow at the EDRR conference in Los Angeles.  I’ll report what I hear on this perspective over the next several days and meanwhile am interested in any and all opinions on this topic.

 

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It’s The Archer, Not The Arrow

That quote is from John Martin , a well known ED consultant, as part of an ongoing thread this past week on the LitSupport listserv. The litigation support community has been in an uproar discussing the seeming inability of a leading e-discovery company to produce it’s own e-mails. Now I don’t want to get into the details of who did what: you can find an excellent article on the dispute on the EDD Update  site. The process is what I want to examine. In this case an ex-employee sued a company for wrongful termination and during discovery the company failed to produce some emails that the ex-employee obtained from another ex-employee. The plaintiff alleged the files were on company hard drives and the company alleged that they were on a backup tape that had become corrupt before the claim was filed for arbitration.

Now several things are interesting to me here. First is that the company seems to misunderstand when their duty to preserve potential evidence springs into existence, asserting that it is only after the filing of a specific claim or action when in this case it appears that there was an internal dispute going on well before that. Second, in an interview company executives say the company was not “legally required” to search its backup tapes, given the expense of reading them. Third, in an interview the CEO of the company says he didn’t know in detail why they didn’t find many of the files but blames a lost laptop for part of the failure. Fourth, in a press release the company states that they do “… not develop or sell solutions that target back-up tapes. We sell solutions that enable parties to conduct efficient and targeted discovery.”

Mmmmm, ok well first to paraphrase the old Dick Gregory joke about “truth justice and the American way” that Neil Aresty and I were reminiscing about just a few weeks ago at LegalTech New York, I thought that backup tapes of archived email were part of “efficient and targeted discovery”. Apparently this company has carved out an entire new exception to the process which is even more odd in light of the blurb on their web site that states their product is an ” … enterprise-wide eDiscovery solution that operates from a central location to automatically perform search and collection of electronically stored information (ESI) from unstructured and semi-structured data stores, such as: workstations, laptops, servers, removable storage devices, archiving and content management solutions.”

No Monday Night Football type disclaimer that says “backup tapes absolutely prohibited.” To the contrary, their web site lists numerous white papers and webinars discussing litigation hold procedures, the fundamentals of the e-discovery process and the importance of a defensible e-discovery preservation and collection process. Yet despite all this, they seem to have lost track of the fact that under the federal rules, not to mention the latest ruling from J.Scheindlin (Securities and Exchange Commission v. Collins & Aikman Corp., 2009 WL 94311 (S.D.N.Y., Jan. 13, 2009) , your obligation is to make these arguments at a meeting with co-counsel as early as possible in the case  and not in newspaper interviews, press releases and blog postings after you lose an arbitration ruling.

Now the reason I didn’t name the company here is that I don’t think the problem is limited to this company. It is exactly the issue that drove Judge Facciola to make his remarks at LegalTech New York about “stubborn attorneys” not learning technology. It is what drove the arbitrator in this case to state “I want this game-playing stopped,” and ultimately rule in favor of the ex-employee. It is was prompted the start of several educational and certification efforts including last weeks Georgetown Law Center’s E-Discovery Training Academy and John Martins ESI Standards Group.

Judges are losing patience with attorneys who don’t understand the technology and , at the same time, don’t understand their obligations under the FRCP.  As Judge Grimm stated in the Mancia decision, lawyers need to pay more attention to FRCP 1 and FRCP 26(g) before they begin to use e-discovery as a weapon. (Mancia v. Mayflower Textile Services Co., Civ. No. 1:08-CV-00273-CCB (D. Md. October 15, 2008).)

As John Martin said, it’s not about the technology folks it’s about the process.

BTW, speaking of educational efforts, two great resources you should consider are the new book by Ralph Losey, Introduction to E-Discovery: New Cases, Ideas, and Techniques from the ABA.  And don’t forget that the ABA TechShow is coming up April 2-4 in Chicago. Multiple tracks including one on Trial Skills chaired by Judge Herbert Dixon of the Superior Court of the District of Columbia and one on E-Discovery co-chaired by Judge Dixon and Browning Marean and featuring the the ubiquitous, effervescent and indefatigable Craig Ball.

The Big Takeaway from LegalTech New York

It’s taken me several days to absorb everything I saw at LegalTech in New York last week. Attendance was good, down abut 10-15% in my entirely unscientific appraisal but that gave us enough room to walk the exhibit hall without fighting crowds and find a seat in most sessions.  ED was of course the major theme with minors in international litigation ( I participated in a great panel on Safe Harbor with Craig Ball, George Rudoy, Deborah Coram and Chris Dale which Chris has reviewed on his blog  ) and web hosting  (see my white paper on the CaseLogistix web site)

 

E-discovery players continue to shift to the left side of the EDRM model but the biggest surprise of the show to me was the lack of reaction to the entry of players from the far left or even off-stage left of that model.  The announcements of the Autonomy acquisition of Interwoven and the Clearwell alliance with ECM drew little or no attention that I could see and have barely been referenced in the psot show reviews I’ve read so far.  I’ve said for over 2 years now that the only way to control ED costs is through effective document management policies and here we have two major ECM companies partnering with ED companies yet it seemed to draw little or no attention.

 
Why? Well certainly because ED companies who don’t play on the left end of the EDRM model are not going to talk about it. But more important, the attorney attendees who reacted focused only on the impact on their firms. Folks, the play is not for the law firm data…. it’s for the clients data!  Clients are working more and more to pull early ED tasks like data collection and culling in-house and this is the way they will do it.  The data is already in-house they just need integrated tools to massage it before they send it to outside counsel. 

The lack of reaction to this obvious shift in focus by clients seems to further support the observation of Judge Facciola in his keynote address that attorneys are lacking in technology skills not from ignorance but stubbornness. They simply aren’t taking the time to learn the basics of handling electronic data and as a result, they dont really know what is important and what is just marketing fluff.  Judge Facciola’s keynote speech was a major revelation because he said what many of us have known for years now: attorneys who willfully refuse to learn the most basic concepts of technology, let alone e-discoverywaste the time of litigants, the money of their clients and the patience of judges. And in the extreme case, like the Fannie Mae decision, the tax money all of us pay.
 
What can we do about it?  Well the Judge noted the lack of action by law schools and bar associations, a failing that I have pointed out on numerous occasions as people such as Browning Marean and Andy Adkins and even myself have attempted to introduce educational efforts at those levels over the past two years. He then he went on to say that when even sanctions as extreme as those in Qualcomm have failed to generate any significant  action perhaps the answer is some form of national technology competency standards, speaking with admiration of the new ED Training Academy at Georgetown as a step in the right direction.
 
Is that just fanciful speculation? Well remember that all bankruptcy practicioners must take a 2 hour course in the ECF system before they can file documents …  and electronic filing of documents is required in all bankruptcy courts. Why then would courts not institute a similar requirement before they allow an attorney to file a motion involving e-discovery? 
 
But the awareness we need is that e-discovery is a process that begins with the data clients already have in their possession and ends with data being produced to other litigants and even the court if the matter goes to trial. The Georgetown Academy is the start we need to generate this awareness but it is, necessarily, a small start. The bigger challenge is to get attorneys paying attention to technology as an essential part of their practice and not think it is something they can pick up in a 60 minute CLE course.