Archive for March, 2010|Monthly archive page

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.