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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


Thursday, November 13, 2003

Try to Guess When this Change Was Made?  

The Drafting Committee of the Federal Rules of Civil Procedure Made its First Major Revision to FRCP 34 as follows:

"The inclusive description of "documents" is revised to accord with the changing technology. It makes clear that Rule 34 applies to electronic data compilations from which information can be obtained only with the use of detection devices, and that when the data can as a practical matter be made usable by the discovery party only through respondent's devices, respondent may be required to use his devices to translate the data into usable form."

Any guesses when this change to the Federal Rules accommodating technology took place?

Take a guess:

A. 1984
B. 1970
C. 1990
D. 1993
E. 2001


If you guessed that this change took place in the past thirty years, you'd be wrong! The amendment took effect in 1970! B. is the correct answer.

And you thought that the legislature was just beginning to realize the importance of digital discovery! Huh!

posted by Alexander | 8:50 PM


Lawyers and Not So Lucky Fish  

After passing the bar and trying the big firm thing out for a while, I decided that I needed to test my father's theory. My father always told me that as far back as he could trace our heritage... back to the days when great, great, great Grandpa Lubarsky left the Shtetl near Lvov, Poland to join Levi Strauss and a few other ragged Ashkenazi expatriates venturing to California on the heels of the gold rush, no Lubarsky ever worked for another man. "It's in our genes," my father insisted, "we just can't do it."

Rather than trying in vain to fight the forces of DNA, I left the construction defect litigation department at the large San Franciscan law firm and sought for a place to hang my shingle.

Being the miser that I am, I instinctively avoided traditional office space with buzzing halogen overheads. My old high school friend, Dung Nguyen, had just opened up a travel agency in the heart of the East San Jose, California’s immense Vietnamese community - the second largest Vietnamese neighborhood outside of Asia next only to that of Westminster in Southern California. Dung insisted that I commission his friend to paint a sign in Vietnamese and run a few ads in the local ethnic newspaper. "As a first generation Vietnamese, I can guarantee you that you will thrive in this neighborhood," he would tell me.

"But I don't speak a word of Vietnamese, Dung" I countered.

"That's why you will be so successful out here," he explained, "Us Vietnamese don't trust our own when it comes to lawyering. We want to hire the white Jews because we think that they know how to work the system." Although the logic escaped me, I blindly followed his lead. Dung had a sixth sense that never seemed to fail him. He launched what is reported to be the first internet based travel agency before I had my first Prodigy password.

As usual, Dung was right. Within a month I was inundated with Vietnamese clients. Dung would help me with the interpretation and I would borrow his Vietnamese speaking agents to work the front desk and answer the phone. I learned enough Vietnamese to say, "I do not speak Vietnamese, come back or call back later." The plan was working.

Then came the Asian Arowana.

The Asian Arowana is the Vietnamese "good luck fish". The Vietnamese are steadfast in their conviction that those who open a new business without placing an Asian Arowana in an aquarium within the first month of business are destined for unparalleled financial disaster that would make the Great Flood look like a the drizzle of Portland in March. It took me a while to figure out why all of my Vietnamese clients would ask "where's the fish?" before they would inquire about the status of their personal injury case or generation skipping trusts.

After weeks of being labeled "the fishless luat su" ("lawyer" in Vietnamese) I looked into one of these creatures if only to avoid the subject of marine life during every new client intake consultation. The local Asian aquarium sold these grotesque looking fish. They started in the neighborhood of nine-hundred dollars for a silver creature that looked like a cross between a sardine, an eel and Uma Thurman. There was no way I was going to drop nine bills on one of them ugly suckers. Superstitions be damned!

One day I complained to Dung that I had thought business was slowing down. "Maybe it is because I still don't know how to give out my phone number in Vietnamese," I guessed. Dung was adamant that it was my fish free office that was the source of my insecurity. "How can you expect to do well when you still don't have an Arowana?" he would reply.

The next day I walked in and there was the ugliest looking nine-hundred dollar fish I'd ever seen. It glared at me as it swam in circles amidst a large tank next to my Shepard's Citators and Witkin Treatises. "You're not going to be able to handle the onslaught of business now" said Dung - still ever the wise sage and giver of fishy gifts.

Lo and behold that ugly fish did its job. I was settling whiplash cases left and right and processing Amerasian Legalization Petitions with the INS at record rates. People were lining up for my simple wills and I couldn't keep pumping out the Chapter 7 filings fast enough.

Life was good and I owed it all to a talisman with dorsal fins.

Then one of my Vietnamese clients, Huu Minh Tran, hit pay dirt. The insurance agency accepted our inflated offer and he was cut the biggest settlement check anyone had seen this side of Saigon. He was so happy with me, he bought me a large bottle of Meukow Cognac and a live turtle. I got the cognac part but a turtle? What gives?

"It's so that the good luck fish won't be lonely" he explained as he shook the green critter from a plastic bag into the aquarium. "This will double your luck as you have doubled mine" he said in between sips of a tapioca pearl iced tea and drags of his Marlboro.

I actually grew attached to the turtle almost immediately. I named him Fluffy.

There was one big problem, Fluffy was amphibious but he was stuck in a tank with no shore in sight. I couldn't stand to see the little guy constantly swimming day after day with no respite. I was losing sleep over it. I would have nightmares where I would be treading water in a vast sea along side a sinking schooner.

Finally, I had an idea, I could find something that floats and perhaps Fluffy would perch himself happily on his little island. I tried a Frisbee, but Fluffy was too heavy. I tried a broken two by four, but he couldn't seem to climb onto it. Then as I searched around the office, I found some Styrofoam packing material inside of a box that used to house a Sony computer monitor. Perfect!

I placed a slab of the Styrofoam in the aquarium and Fluffy took right to it. I had never seen a more content turtle since the Teenage Ninja series.

The next day I walked into the office and Dung's face was pale white. "What's wrong?" I asked Dung. He was speechless, he stepped aside to reveal the fish tank which looked as if it had been replaced with skim milk. The Styrofoam had dissolved into the water and the lucky fish was dead. Fortunately, however, Fluffy was swimming around blissfully.

"This is a very bad omen," said Dung. He ran out of the office mumbling something about how he was going to pick up a Vietnamese sandwich. For the first time since he opened his business, he never returned that day.

My 4:00 appointment came in, saw me trying to net the dead Asian Arowana from the aquarium and promptly asked that I substitute out of his case. My 5:00 took one peek at the scene of the crime and coolly walked out of the office. The word hit the street fast. The Jewish lawyer killed his Vietnamese lucky fish. My clients fled faster than the American GI’s during the fall of Saigon.

Now I've heard of attorneys that have overcome natural disasters that have leveled their offices. I've seen them bounce back after the insolvency of their key clients... but I never, never heard of an attorney that could get past the complicit demise of their lucky fish.

Within two months, I was working as an account representative at Lexis/Nexis and my office was subleased to a Karaoke club.

Fast forward to today - a decade later (yesterday, actually). I am co-sponsoring a litigation support event in San Francisco on behalf of Fios with my former co-workers at Summation. Among a host of other duties, I was charged with handing out name tags. One name tag was for a Dung Bui Trinh, Chief County Counsel of Santa Clara County. So, I give Dung his name tag and explain that I once shared an office in Santa Clara County with a Vietnamese friend also named Dung and that I practiced law in that area for a bit.

It turns out that Mr. Bui Trinh and I knew a lot of the same people in the Vietnamese community back in my old East San Jose stomping grounds. We started chatting about how e-discovery could really transform the county's outdated litigation support strategies. Dung began to tell me of how he is currently defending a large wrongful death suit against the county and how he needed some assistance reviewing the hard drives and CD's that are being requested by opposing counsel for relevance and privilege and... and... he froze, twitched and a solemn glare stretched across his face... "you're not that attorney that killed his lucky fish are you?"

posted by Alexander | 6:29 AM


Wednesday, November 12, 2003

Where else should I look?  

A Top Ten List of Hard to Find Data Hideouts

A few of the folks that attended my "webinar" asked me if I could create a checklist of sorts that could be used by the litigator who endeavors to uncover every shred of e-data that could house that proverbial smoking gun that may be used by or against his or her client.

Well, although, I do not submit that the following list is by any means comprehensive in scope, I will highlight a few of the "behind the ears" areas where too few data harvesting professionals remember to scrub. (I am assuming that the data harvester will request production of the "commonplace" sources of electronic evidence such as hard drives, backup tapes, removable media, file servers etc...).

1. Don't forget to ask for "mirror disks" these are not necessarily backup disks but they are servers with "mirror images" that are supposed to take over if the counterpart server dies. I've heard that counsel have found data on these mirrors when their counterpart was not produced or corrupted.

2. Thumb drives. Defendants are carrying around their smoking guns on their key chains these days. These little doo-dads are expected to store a gig of data by next year.

3. Digital film. You'd be surprised what may not be in the hard drive but on the digital video recorder.

4. Software itself. If the data cannot be accessed, you may need to examine the types of software used to create the data in question. What program is used? What is the version or release number of that program? What OS was the program written on? Was the application customized in any way?

5. Source code "escrows." Hard to explain, just ask for it if you find yourself in any trade secret type of litigation.

6. Home computers. Don't forget that almost half of all corporations today promote a certain amount of home office computing.

7. PDA's and Blackberrys. Data files stored in Personal Digital Assistants can unleash a treasure trove.

8. Printer memory. The printer itself may have captured the smoking gun, even if the computer is nowhere to be found.

9. PCMCIA memory cards. Most people are unaware that these cards can actually store evidence.

10. Cell phones. Believe it or not, more than one large piece of litigation has turned on a text message sent and received between two cellular phones.



posted by Alexander | 12:53 AM


The Birth of a Blogger  

If I had dared call Richard Theissen, the undisputed king of the second grade sand box, a" blogger", he surely would have kicked my behind. Well, he kicked my behind anyhow nearly every day until I befriended Charles Schofield in the fourth grade. You see, Charles was about as big as Richard and somewhat fearless. Although everything wasn't rosy for Charles. Charles' mom was a health food nut and he always came to school with a frown and Brussels sprouts. If he was lucky, he ate a fruit roll for dessert.

My mom bought pop tarts.

The equation was simple, pop tarts for Charles and Richard would go another day without making me eat sand. It was the best deal going since I traded my brother's prized Rick Barry basketball card for Todd Brenneck's entire Wacky Pack collection while my brother was away at camp.

Now, I am reminded of those bygone days where I could find shelter in the shadow of Charles for a pack of frosted blueberry or s'mores flavored pop tarts. The folks at Fios have graciously sponsored my very own Blog (they came up with the name, not me - I have to set the record straight on that one.) I guess it will slowly grow on me. Be that as it may, I have not been exposed to a more efficient and fun vehicle for reaching so many fellow e-discoveryheads out there. This will be devilishly fun.

Without the support and encouragement of key folks at Fios, I would continue to struggle with my complex as a hopelessly nonblogworthy being. Today, blogger stardom seems to be within my grasp. Someday, my name will shine in binary code (or at least it will be formatted for export as a metadata field in a litigation support application). If only Richard Theissen could see me now.

I want to thank the many individuals that attended my "webinar" today. I appreciate all of the complimentary messages and calls I've been receiving. I hope to see y'all back on Thursday the 20th at 10 am (PST) when we will go over the top ten cases defining electronic discovery.

- Alex(tronic?) Lubarsky, LL.M, Esq.


posted by Alexander | 12:22 AM

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