 |
|
| Alextronic Discovery An Electronic Discovery Blog covering News, Articles and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - alubarsky@enterusa.com - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM |
|
|
Tuesday, March 25, 2008 The FRCP Amendments Not Just for Federal Practitioenrs Anymore The FRCP Amendments Not Just for Federal Practitioners Anymore For quite some time now, attorneys whose practice was limited to the State court system (notably, PI attorneys, family practitioners and small business litigators) were convinced that they wore a cloak of invisibility as far as the ESI-centric amendments to the FRCP were concerned. "ESI is stuff for Federal practitioners to deal with", my law school buddy Glen, who does family law,used to tell me. "I'll worry about it when I take on a Federal matter". I did not want to admit it, but Glen had a point. He could walk into a discovery conference at the Superior Court in San Francisco, admit that his client, the defendant, had on-point email messages out there somewhere but he did not know how to retrieve them and the court would simply accept this and move on to other issues. Glen had few discovery worries. His counterparts practicing in the Federal jurisdiction did not sleep as well at night. Whereas the Federal practitioner - bankruptcy litigator, anti-trust attorney, tribal law specialist, IP counselor and a host of others shiver at the thought of a rule 37 sanction or wake up in a cold sweat from a nightmare in which the cutoff date to hold the rule 26(f) conference had passed, this is not the fate of the state practitioner. Meanwhile the state practitioner, such as the employment discrimination defendant's counsel, worries about mundane items such as the increase in filing fees and who would replace the retiring mean old judge Murphy. Well folks, the playing field has evened in California - or at leas the forces of equalization are now taking shape. Just this month, the California Judicial counsel proposed new electronic discovery rules to bind state practitioners. The state intends to tweak its case management rules of court and amened its Civil Discovery Act. To no one's surprise, the proposed rules are eerily similar to the FRCP amendments. I know what you're about to ask... Yep, these rules apply to the small claims court where litigants cannot be represented by counsel at trial. You got it, Mr. and Mrs. John Qpublic are now subject to rules concerning the identification, preservation, review and exchange of ESI. Who'd of thought? The proposed amendments are now open to public comment and Alextronic is chiming in. It seems a bit much to expect the cast of characters that appear to my amusement on Judge Judy to understand metadata, the benefits of hash values for deduplication and the pros and cons of native format production as opposed to a tiff based production. Alextronic advocates that the court designate a free facilitator well versed in ESI to help small claims litigants and all unrepresented litigants in the Superior Court deal with the new and perplexing intricacies of electronic document management for discovery purposes. If you talk about a safe harbor to most of today's average pro se litigants, they will point to the sailboat dock in the fictional town of Amity Island feaured in the movie Jaws circa 1975. Talk about inaccessible data... to the lay person, this could mean that the CD ROM was kicked under the refrigerator by the cat. You get the picture... On balance, of course, the fact that the more down to earth state court system is moving to adopt the discovery standards, practices and polices of its high-filutant cousin is a breath of fresh air. Just as email and MS Office documents often tell the whole story in a complicated SEC matter or patent dispute, the same ESI is more likely to bring the relevant facts to the forefront in a divorce or slip and fall case. I would bet dollars to donuts that the state court Justices will look back in five years and wonder how on earth the court ever got to the bottom of anything without the required and carefully thought out introduction of ESI to provide the fifty-thousand foot view of the facts. More importantly, many of you Blawgerheads reading or even subscribing to this Blawg know that we all work within a little known niche of e-discovery nerds and ESI pundits and litigation support jocks. Most of us attend the same conferences (with the same short list of keynote speakers who rotate from gig to gig) cough, Browing, cough, George, cough Michael, cough Mary Pat - and we read the same articles and blawgs and vendor web site to ingest the same information in our little, incestuous, closed-circuit ediscommunity. Now, with the California state court in the lead (and the remaining states bound to follow soon) our own off-color art will become the mainstream and the world will soon awake to appreciate the need and, yes, challenges to electronic information as it plays a part in our judicial system. This will change the way the straying spouse thinks of his AOL chat and GPS gadget. The impact will be felt far beyond LTNY and ILTA. It will certainly be interesting to track the soon to follow decisions from the California Appellate courts regarding admissibility of metadata, cost shifting, scope of protective orders, defensibility/admissibility of electronic evidence, best collection and preservation practices and the whole host of hot button issues that have dominated the Federal scene since Laura Zubulake felt disenchanted with her gig at UBS. Labels: california superior court, Electronic Discovery, ESI posted by Alexander | 2:31 PMSunday, January 20, 2008 Home is Where the Hard Drive Is... Home is Where the Hard Drive Is... Folks, in the spirit of my '08 New Year's resolution, Alextronic is back on the map at least for now. I had been receiving a bit of flack from my once quasi devout following from the days that this Blawg was daily and then weekly. It slipped to bi-weekly, monthly, every quarter and finally it seemed posts were only going up on leap years. I am constantly amazed at my colleagues that religiously keep up their e-discovery Blawgs and newsletters on a consistent cycle. How on earth do my colleagues do it, each time I receive those enlightening and well written posts which arrive like clockwork. Do they synch them with their garbage bills? The wakeup call came when, to my honor and embarrassment, Robert Ambrogi listed Alextronic as the top e-discovery Blawg in the November issue of Law Technology Product News (O.K., so he listed his favorite Blawgs alphabetically and being Alextronic doesn't hurt given that criteria) bit it was nonetheless an honor to be mentioned. I certainly am most deserving of his criticism that my writer's block seemed to be prolonged and, by my own admission, inexcusable... so guilt and a sudden need to release some ESI related ideas that have been swimming around in my head have lead to this long overdue Blawg entry. I am writing this on my home computer. You don't want to know all the things I do on my home computer and I don't want you to know all the things I do on my home computers. Googling ex-girlfriends, wasting time following Kasparov's chess moves, reading back issues of the the Exile (www.exile.ru), playing Tetris during working hours, tracking photos of the small Ukraine village where I spent a summer picking potatoes and sending the fifteenth threatening e-mail to the guy who owes me Sharks tickets from the Texas Hold 'Em hand I won last June is just the tip of the iceberg... and that is just the quasi respectable stuff... A friend of mine, we'll call him Max, went through a nasty divorce. Max was the kid who always got me into trouble. My parents tried everything to get me to stay away from Max, but Max always had fireworks, shaving cream, eggs and a devious plan mapped out for the neighbors on our way to Ms. Welte's second grade classroom. I remember the day he convinced me to hitch hike to class, we spent three hours trying to flag down some unsuspecting soccer mom (no one stopped) to score a ride that would have brought us a whole two blocks to our elementary school. One day, we found in our mailboxes a free sample of the new flavor of Wrigley's chewing gum. Needless to say, we were noticeably abscent from class that day and spent the same evening toting around a one pound bag of chewing gum after visiting every mailbox in the neighborhood. Max called last month not to suggest that we T.P. the middle school or give Mike a swirley again, but to inform me that he and his wife, who I will call Nedra, were getting a divorce. To Max's credit, he did straighten up a bit in his later years. He was a good father to three kids and only tossed water balloons with them on hot Summer days and not at the local school principle's car. "You're into that computer as evidence shit, right?" Matt asked as he called as the custody battle heated up. "Nedra's asshole attorney wants my goddamn email off of my home PC, that sonnofabitch. Can he really do that shit?" "Ummm, I think so," I replied, feebly. "That can't be legit" howled Max. "Can you check on that for me. I told my lawyer you would help him with this. I'll spring for the cabin next time we fish the upper Sacramento." I could not refuse a longtime friend in pain and I did pay for our fishing cabin during our last four trips - even though Matt brought the cases of Moosehead. I told him about the seminal California case of Playboy v. Welles, where good old (literally) Hugh Hefner was able to 'get at' yet another luscious Playmate's hard drive (literally, again). I had not heard of much else on the home computer front since the Playboy case, so I promised Max I would dig. After strapping on the Lexis account and visiting my favorite ESI web resources, I realized that neither Matt nor my home computer was safe at home. Frees, Inc. v. McMillian (2007 Federal Dist Decision out of Louisiana) says that the home computer is subject to a reasonable discovery request even if it was purchased AFTER the events in controversy took place (because, data off of old computers can be easily copied and exported to the new PC). Also, last year in Clayon v. Mizuho Securities, the defendant wanted to dig around in the Plaintiff's personal PC when the Plaintiff's claims of mitigating damages were disputed. The court allowed access, but gave the right of first harvest to the Plaintiff's own forensic expert and if the results seemed fishy, then the court would allow the requesting party's expert (the defendant's expert in this case) access to the home drive. Things did not look good for Max. When I called Max to tell him the bad news, he responded in typical Max fashion. "I'll just put a Black and Decker Ic1 voltage emitor to the damn thing and give it to the judge while it is still smoking." Max was in construction and new more about voltage emitors than did I, but I told him it was a bad idea. I educated him about adverse inferences and about Teague v. Target Corp, a 2007 No. Carolina case which said that if the PC is destroyed due to a seemingly 'culpable state of mind' the adverse inference attaches. I told Max that there is little that anyone can do wit a voltage emitor which cannot be seen as overly culpable. I did tell Max, however, that there was case law and rational arguments that his attorney could make to argue that the computer did not contain germane evidence that has not already been presented through paper discovery and deposition transcript and that the requesting party in California under the Toshiba decision would likely have to shoulder costs, which may make the other side back down or back off completely. I had a chat with Max's attorney who had just attended his first ESI lecture at a state bar event and had Zubulake down well enough to be dangerous. After a long chat, he asked me if I had any parting advice for him. "Yes," I said, "if you don't want to see your mailbox egged our your house toilet papered, do a good job for Max." posted by Alexander | 10:32 AM Monday, July 30, 2007 Writer's Block Going on nearly a year of writer's block. I am so ashamed. I could blame my slothful lack of diligence on my wonderful three kids all under four and transitioning from Sponge Bob to Spiderman or the office move or the CEB chapter I just finished authoring or the course I am teaching at Cal State East Bay and the law course I am preparing on E-Discovery at Golden Gate U. Law School. I could blame things on my long stint in a training lab trying to learn the ins and outs of EnCase or perhpas it is the goboal warming epidemic that is making me lackadaisical but the truth is I have just been unimaginative and awkwardly uninspired as of late. I vow to crawl out of my inexcusable slump starting with this small post. I just today get a shot in the arm of long overdue inspiration when the highly anticipated Blawgworld book was published featuring a fluffy little article by Alextronic as well as more substantive work by my more deserving colleagues. The link to Blawgrowld is here: http://www.technolawyer.com/r.asp?L11437&M1 Enjoyh Blawgerheads! I want to thank my readers for the near constant badgering and name calling concerning my failure to update this little forum over the past year. Your insults have never made me feel more loved. Look for something of relative substance soon. posted by Alexander | 2:21 PM Thursday, August 17, 2006 ED Humor The world is in need of some levity more than ever in these troubled times. My friend, Jud Parker sent me this top ten list he is using in connection with promotion of his new biz (OK, here comes the gratuitous Alextronic plug for his friend) Digital Legal Tampa, LLC: Here are the top ten reason to seek help from an E-discovery consultant such as Jud: 10. The numbers 16, 26, 33, 34, 37 and 45 look more like a winning lottery ticket than key federal rules which regulate electronic discovery. 9. Metadata. Meta what? 8. You assume “native” files are those created in Hillsborough County. 7. You vaguely recall the terms “EDD” and “ESI” from one of your teenager’s text messages. 6. Your only reference for “forensic data recovery” is CSI: Miami. 5. You confuse well known electronic discovery plaintiff Zubulake with the leader of a U.N. peacekeeping mission to Darfur. 4. You imagine that the Sedona Conference is a retreat for New Age pilgrims. 3. Your only context for “spoliation” is the expiration date on a milk carton. 2. You guess that the word “petrification” may have stumped last year’s runner up at the National Spelling Bee. 1. You need a strategic consulting partner for electronic data discovery and litigation support. See y'all at ILTA! posted by Alexander | 7:52 PM Friday, July 14, 2006 When will the West(tm) Be Won? I learned from an early age that the quiet kid who sat in the back of Hebrew school was not to be ridiculed for being a nerd, shy or a goober. The quiet kid usually ate our lunch when it came the grading curve. The quiet kid ended up with the chocolate gelt and the hamentashan. I learned that still waters ran deep. I have always respected the apparently inert. They have an innate ability to strike when the iron is hot and run into the sunset. Speaking of sunsets, they happen in the West. What is not happening, though is West itself. Lexis/Nexis following the lead of the likes of Larry Elison of Oracle fame has made some very aggressive acquisitions as of late. CaseSoft (CaseMap), Dataflight (Concordance), Matthew Bender, Best Case Solutions, Applied Discovery, TimeSlips, HotDocs, TimeMatters the list goes on and on... Will it become impossible to practice law without having to pony up to the bargain hunting Brutches (British Dutch) who own Lexis/Nexis and who fear not throwing more of them coveted Euros against them weak greenbacks to own the industry? Will there be a backlash? Will attorneys welcome the Lexisization of the tools of their trade? Will the company truly be able to provide a flowing and somewhat seamless integration with their flagship research tool and the bevy of case management, time and billing, forms and litigation support software packages? So why has the other giant of the West seemed to slumber? I would have bet my wacky pack collection that West would have snapped up Dataflight or perhaps some waning ED processing company which seems to be on life support (Dolphinsearch?) to get into the game. Is West waiting for the market to further soften? Are they just content owning the book and binder lot? Do they have a that ace up their sleeve or are they really just plainly missing critical opportunities to get some footing into the game moving forward? What on earth are they thinking? Maybe West has the next 'it' litigation technology under wraps. Perhaps the perfect Frankenstein is just starting to heave its chest in some obscured and maniacal lab in Minneapolis. Perhaps not. Still waters run deep, but not always. When Mr. Shapiro finally called on the quiet kid in the back, we braced ourselves for his words of brilliance. When all he could do was shrug shoulders and admit that he could not read the passage in Hebrew, we realized that his silence meant just what it was - there was nothing going on... posted by Alexander | 11:10 PM Saturday, May 13, 2006 That coveted link to the free eDiscovery publication Due to the many e-mail messages I have received lately asking for that coveted link to the free blawgworld... once again, folks, here it is: Enjoy! http://www.technolawyer.com:80/admin/redirect.asp?LinkID=7068&MemberID=1- Alextronic posted by Alexander | 10:08 PM Friday, May 05, 2006 Where the new FRCP rules fall a bit short... Alextronic was invited by a Magistrate to comment on the new FRCP rules pertaining to ediscovery and a verbatim copy of the Alextronic two-cents follows. Your comments and constructive criticisms are invited.... The Judicial Conference Rules Advisory Committee surmised that the FRCP amendments as proposed aim generally to help the courts differentiate and appropriately treat electronic discovery as opposed to conventional discovery and to "resolve the issues electronic discovery presents". The rules seem to make great strides towards this end, but they can stand room for improvement. It is somewhat surprising that the US Supreme Court approved without dissent or even analysis, the amendments as they stood at the time of the Court's review. The rules, although commendable on the whole and a substantial improvement over the status quo (,ie, no differentiation between electronic data discovery and paper-based discovery), do not go far enough to protect litigants from facing runaway costs which could stifle the administration of justice. Also, some of the rules tend to be vague and could stand some benchmarks so that certain standards can be established as is explained below. For example, the amendment on page 38 discusses parties' obligationd to meet and confer pursuant to FRCP Section 37(a)(2)(B). This meeting will certainly help the litigants narrow issues pertaining to how they will exchange digital evidence, but the mandate under the rule goes only to the preservation, production,"translation" and review of data. The rule is, surprisingly, absolutely silent as to how the subject data should be harvested/collected. In fact, the entire sixty page rule makes no reference as to how data should be harvested. This presents problems because the methodology of data collection can vary drastically. An adverse party can manually open up a pc, for example, and unscrew a hard drive and copy it via a usb cable connection. This method is disruptive and erhaps even rightfully deemed reckless as the target machine is put out of commission for some time and subject to a high likelihood of irreparable damage. Not to mention, this manual method fails to guard against the inadvertant alteration of metatags leading to claims of spoliation and opening a Pandora's box of evidentiary challenges and law and motion headaches. Furthermore, the rule offers technological solutions to the review and production of spreadsheets on page 37 citing cost savings attained by using e-discovery tools to avoid the printing of spreadsheets and other such difficult manual tasks. Curiously, however, the rules remain silent and offer no analysis when it comes to data collection efforts that all parties confronted with e-discovery must undergo. Current technologies allow for a quick, seamless, inexpensive and forensically sound data harvest while antiquated technologies (or the failure to apply technological solutions to this critical stage of the e-discovery process) can result in despoiled evidence, wasted funds and excessive, needless man hours in the effort to move the data from its original location to counsel for review and then to opposing counsel via production and finally into evidence before the Court. The failure of the Rules Advisory Committee to consider this crucial step in the discovery of ESI stands out, in the eyes of this author, as a blaring omission that must be remedied. Given the fact that courts in every jurisdiction (Federal as well as State and administrative) have determined which forensic protocols involved in the harvesting of potentially responsive data should be accepted by the court as forensically sound, these conclusion should be interwoven into the FRCP. Further, along similar lines, the rules do not discuss the benefits of data culling at the point of collection so as to reduce unneccessary hourly and dollar expenditures by parties. The Court in the renown Zubulake IV decision made it clear that a litigant is under "no duty to preserve every shred of paper, every e-mail or every electronic document and every backup tape... [as] such a rule would cripple large corporations..." This critical and correct holding enjoys no support nor visibility within the FRCP. The use of technologies that can quickly and accurately filter out data which all parties can agree is outside of the purview of that which is germane to the issues at hand should be mandated by the Rule. It is surprising to this author that the Rule addresses the remedies of inadvertent disclosure of electronic data in great detail and with much aforethought clearly directed towards such remedies yet the preventative steps that will drastically reduce the possibilities of such inadvertent disclosure (culling out that which is non responsive, irrelevant or otherwise clearly privileged) is given no mention in the Rule. The new rules provide that electronically stored data which is not "reasonably accessible" does not need to be produced unless the requesting party can show good cause. The rules seem to fail to appreciate that with modern forensic capabilities, it is quite uncommon that data can be deemed truly inaccessible. It is appropriate that there exists a scienter analysis providing that data cannot be purposefully "made inaccessible" by the party who would benefit from the absence of that data in the court's record. Sanctions for such malicious destruction of evidence are appropriately provided for in the rules. However, the rules are unclear when it exempts a requirement to produce data which is not "reasonably accessible." Of course, no examples are cited as to what constitutes the terms "reasonable" and "accessible". Based on the technological "savvy" of the producing party, what may be 'reasonably accessible' for one party can vary drastically from that of a dissimilarly situated party. For example, data kept by defendant, IBM, charged with producing ESI contrasted with a defendant restaurant or child care center under a similar obligation will result in a wildly disparate definition of 'reasonably inaccessible data' based on these divergant party's perspective. The rule provides for a safe harbor from penalties imposed upon a party which allows its ESI to become "lost" or inaccessible due to routine computer usage (,ie, machines rebooted overwriting slack space which may contain deleted data fragments). Forensic technologies can mitigate this data loss and such regular computer usage will, over time, account for less and less inadvertant data destruction as forensic recovery tools continue to improve. This is not to say, however, that the provision of the rule which provides a 'safe harbor'from sanctions for those whose data is rendered inaccessible due to such routine computer usage is not a fair provision. In sum, the rules in certain areas (outside of the well drafted areas concerning inadvertent production of privileged data and the sections which broadly and appropriately define what constitutes 'electronically stored information') can stand to be better defined and further analyzed. That being said, it appears that amendments to rules 16 and 26 requiring the early meet and confer about the above referenced issues pertaining to e-discovery can serve to ameliorate the criticisms raised above. posted by Alexander | 1:19 AM |
|
|
|
|
|
|
 |
||||
|
|||||
