An Electronic Discovery Blog covering News, Articles
and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - firstname.lastname@example.org - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM
Monday, September 14, 2009
Alextronic's State Bar Presentation mentioned in a Blawg Here is an exciting blawg entry from TotalAttorney that references Alextronic's presentation yesterday (at the 82nd Annual California State Bar Meeting in San Diego) entitled New Strategies for Winning the Document Production War. Enjoy blawgerheads:
Day 4 of the California State Bar Meeting
The morning began with us pondering an interesting question. What would Lincoln do? As a lawyer first and then a President, Lincoln often faced ethical dilemmas which he worked his way through in a smooth and commendable manner. If you despise what you are doing you won’t do it well. In honor of the year of the 200th birthday of Mr. Lincoln, it was an interesting seminar to examine how we would in the modern era use the same principles he applied over a century ago. As you head back to work, if you are faced with ethical dilemmas, ask yourself… What would Lincoln do?
E-Discovery has been a very hot topic throughout the conference. This morning’s session was full of useful information about both ethics and rules of discovery. Check out Electronic Discovery for Dummies it is a great reference that highlights e-discovery. There is so much that exists in the files beyond just the data they contain, in fact they can tell you when they were created if and when they were altered and who made these alterations. E discovery is a very expensive process and often the cost is shifted to the requesting party, however most cases look at several factors. Email is the world’s largest communication tool with trillions of messages transmitted each year.
The most important lesson I learned today is don’t type anything you do not want discovered! If you are looking to discover almost any document you will likely be able to. If you are looking to hide it, you better have a protective order of some sort. There is Electronic discovery software which can discover how and when the document was altered and by what login name. There was a case where a slanderous document was at issue; the party saying they had never said those things! But the document was filled with slanderous words, and through this software they were able to see that the document had been altered from a different login computer and printed from a different login.
For more information check out www.renewdata.com.
It was a wonderful meeting and I look forward to the 83rd Annual State Bar of California Meeting. If you weren’t able to come to this one, check out the Hong Kong conference in early November!9:12 AM
Monday, September 08, 2008
Alextronic and Friends Speak This Month and Next Alextronic (Alex Lubarsky) and friends have a jam-packed E-discovery/ESI speaking agenda this month and next. I hope our dedicated legion of Blawgerheads can join us at the following events (I will be speaking at all but the last event listed below):
It was great seeing many of you at ILTA this year. NYC is just around the corner. I promise another semi-scholarly Alextronic column sometime soon.
- Alextronicposted by Alexander | 11:47 PM
Tuesday, June 03, 2008
Metadata and Retetention Policies 'Down Under''? You got that right, Mate! Metadata and Retention Policies 'Down Under''? You got that right, Mate!
OK, now we can safely say that the little niche cottage industry called e-discovery has gone global.
This year marks the first substantial changes tot he Australian civil code concerning (gulp) data retention policy best practices and metadata handling. And you thought them Aussie's only handled boomerangs, Fosters and Vegemite.
This month in Sydney a smattering of attorneys, government officials, corporate counsel types and didgeridoo IP professionals will converge around the barbie and discuss natives ... but not the aboriginal type that hang around Uluru and Alice Springs. No, these folks will be 'men at work' discussing the new rules regarding the handling of electronic data and electronic evidence that have been propounded in Victoria and which is taking hold around the red-rock nation/continent from the Sydney harbor all the way to the opal mine shafts of Coober Pedy.
How can a Yankee get an invite to speak at this gig?
I miss Australia. I spent a few weeks there with my wife in the late nineties scuba diving in the Great Barrier Reef and grilling shrimp when we weren't shopping for aboriginal art and ornate boomerangs. I recall when my dive master, Peter Andrews, asked me as we returned to shore from a mesmerizing fifty foot wall dive off of Port Douglas, "So mate, what is it you do up there?"
"E-discovery consulting mostly" I said, quickly realizing that Peter knew as much about e-discovery as I did about the mating habits of a wallaby. Peter scratched his head and I tried to explain load files, deduplication, retention policies, litigation hold protocols and metadata to him. After a good ten minutes he suggested we talk about cricket and tap the keg of Victoria Bitter that was knocking around the scuba tanks as we zig zagged through the reef.
I was amazed at how clean and well organized Australia appeared to be as a whole. Each time I would compliment the Aussies on the near-Utopian society they had crafted from a once squalid penal colony, they reminded me that they paid income tax at rate near fifty percent and, in some cases, more.
"Thanks for that" I would comment as I strolled the clean and well lit streets and admired public masterpieces such as the Sydney Opera House.
It looks like those inflated tax dollars will now be used to pay legislators who will likely have to learn of the saga of Laura Zubulake and Coleman Holdings.
I admit that I am not familiar with the British style common law that Australia has adopted and that I can guess that the judicial rules committees made the right decision keeping the Tory wigs and rejecting rules that would call out for protracted, over inclusive, cost-prohibitive data discovery as far as settling on the more appealing accouterments to liven up the courthouse. Suffice it to say, however, that I would bet dollars to donuts - no, make that dollars to lollies - that somewhere out there in the land down under, a koala bear custody dispute will turn on that one deleted yet recoverable email that came back out of nowhere to sting the defendant like so many boomerangs. It is the empowerment of the Australian barrister and solicitor to get to the truth via digital evidence that will turn the land down under right side up.
Hell, if they're serving Balmain bugs at these Australian e-discovery events, I'll swim there myself and present my paper on the comparative landscape of the FRCP and the new E-discovery rules adopted by the Queensland Supreme Court in Brisbane.
Labels: ediscovery in Australiaposted by Alexander | 9:06 PM
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.2:31 PM
Sunday, 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