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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


Wednesday, November 26, 2003

Thanksgiving and EDD  

Thanksgiving and EDD

In all the literature I have studied relating to EDD, I have yet to see a scholarly correlation of Thanksgiving and the advent of Electronic Evidence. It boggles the mind that no one has attempted an analysis of the state of digital evidence and its processing components from the perspective of the Pilgrims and the Indians.

I think if you surveyed the crew of the Nina or the Pinta, and asked them there thoughts as to how an encrypted .xls attachment can best be processed for export into Sanction II, they'd tell you to smoke a peace pipe and go catch a wild turkey.

I'd tell you the same.

Have a great Thanksgiving and I'll see my fellow e-discoveryheads on Monday.... Don't slip up like I do each years and say "please pass the MD-5 Hash potatoes Grandma..." I hate it when I do that!

posted by Alexander | 1:03 PM


Tuesday, November 25, 2003

Bates numbering....  

An Ode to Mr. Bates

Norman Bates slashed up blonde fifties floozies in the shower and of the Bates Manufacturing Company created a neat little doozie that increments itself one digit each time the stamp is pounded onto that unsuspecting legal document. When Mr. Bates founded the Bates Manufacturing Company in Orange, New Jersey, little did he know that paralegals the world over would one day come to curse his name. Don't know which Bates is responsible for more nightmares, Norman of the Alfred Hitchcock camp or the good 'ole incremental stamp crazy Bates of New Jersey (ten bucks to anyone that can find his first name on the web).

One thing is for sure, he sure was not blessed with an appropriate name.

Consulting to a large securities class action, the managing partner of Top 10 firm got up in front of the litigation support staff gathered in the war room as a scuffle broke out as to whose Bates schematic would be adopted - counsel A, co-counsel B or co-counsel C's. The managing partner loudly proclaimed - from this day on, we shall collaborate and create one grand scheme... We will let it be known as our master Bates practice.

The room was quiet for about six seconds, finally the red and blue faces could not contain themselves any longer. Senior litigator and lit. Support directors were rolling, yes literally rolling on the floor. This is no EDD wive's tale. I was there. I saw it. I still recall that incident if I find myself in a situation where I should make myself laugh (ie, when my boss tells one of his notoriously unfunny jokes...).

If anything, Mr. Bates is responsible for many strengthened wrists out there (from stamping and re-stamping so many documents, of course). But after computers were buying groceries, allowing chat across the globe, opening the garage door and siphoning hard earned fortunes to off shore virtual casinos in St. Bards, someone got smart and made a Bates labeling machine. No great joke there, but the machine redeemed itself in that one could simply print out a large sheet of incremented alpha-numeric for placement on each document (or each page of each document -that debate will never end) sticky labels. The adhesive on these labels is cool in that it is strong enough to stay put on the document but giving enough to allow itself to carefully be peeled off and refastened to another document when the inevitable mis numbering occurs.

Next came image viewing software which could virtually stamp a "Bates" number on the image being viewed and the user could opt to print with or without the overlay. This virtual Bates Number enabled the user to dictate the color, size, positioning and font of the overlay. No peeling, no stamping, no blue faces. Mr. Bates would be rolling in his grave.

Today, now, ahora miasma, pronto we've got EDD tagging. Fios, for example, is able to create a FENS (Fios Electronic Numbering System) number which assigns a unique number to each electronic document AND at the user's option can further create a Bates overlay on the html rendition of the electronic document as it is displayed over the web via the Prevail application.

Now the big issue is Bates "gaps". Contrary to popular lore, this does not refer to Mr. Bates bad dental work. If I am the producing party and agree to produce my 100 documents but pull the six privileged, if my Bates schematic is 000001, 000002, 0000003 and I pull out them magical six, the gaps will show clearly and the other side will be tipped off as to how much of the loot I'm sneaking into Grandpa's stash box.

"Well, isn't that special? The defense kept six for themselves.... Unleash the hounds... Fire up the motion to compel and get the 30(b)(6) deaf. Lined up! We're going after them magnificent six!"

Not so fast, buddy. New technologies such as those found in Summation and Concordance allow for the renumbering of "production Bates subsets" which effectively recount the produced documents in sequence and don't reveal any gaps. The poker face of Johnny Chen.

But what, then, happens when a different production set with a different schematic goes out to various co-defendants? Well, that means various production "sub sets" exist but there is no uniformity of numbering. If you are still with me, I wish I sat next to you in Mr. Collier's trigonometry class. Copying off of Martin Billings only lead to my having to repeat algebra in Mr. Miller's class in my Senior year... but I digress.

OK, I get it but how can one keep track of all of these different Bates schemes? Cross reference my dear... simple cross reference. Today's litigation database should be able to display a document and then display the paper Bates, the electronic number (FENS) and the various sub-set Bates number schemes. That way, counsel can say this smoking gun is "master Bates" (cough, cough) ABA1254 and FENS number rx4765 and sub set to co-defendant one AX83746 and sub set to co-defendant two knows this document as DFC39438 etc.. .

The more things change the more they stay the same... but they just get a lot more complicated as their efficiencies grow exponentially. Damn it, give me back my big Bates stamping steel wrist buster.

Norman, is that you?

posted by Alexander | 4:11 PM


Monday, November 24, 2003

After the Tone...  

After the Tone, You Will Enter...The Next Frontier

OK, so we've successfully figured out how to discover the elusive e-mail, hidden excel spreadsheet and buried word processing document. We can yank out its metadata, extract its attachments in a method reminiscent of the Spanish Inquisition, view its interiors in a way that would make Paris Hilton blush. Uh huh, we can categorize these little fellas by relevance, privilege, production sub-set etc.... If the little bugger just doesn't want to budge, we can call in the forensic surgeons who can methodically and with great precision dissect each little sector, bit and byte of the stubborn e-data. Yep, we've whipped that piece of the puzzle into shape. We rule the e-data so now what's left to tackle?

Video Synchronized Depositions? Old hat.
Courtroom graphics? Paleeeeze! Can you say Christopher Darden circa 1994?
Hey, hows abouts imaging of paper? Like, the kid next door with the X-Box is already bored with imaging.

So what then?

Get this....

Digital voicemail - the uncharted frontier. Even a Vulcan like Spock can't quite grasp this one yet.

The digital voice mail is the future of automated electronic litigation support. Think about it. If that smoking gun memo wasn't put into the word processor or shot off through Outlook and wasn't scribbled on a piece of paper that found its way into the filing cabinet, then where oh where could that damning communication live? Have you checked your messages today, pal?

As you probably are aware, voice mail today is a complex beast. Long gone are the days when we would rewind the cassette and record over our last three months of messages from spiteful ex girlfriends and United Way contribution solicitations. Today's voice mail is digital. The message is left, it is forwarded, stored, categorized, backed up onto servers and possibly even sent to text pagers.

What kinds of beasts live on these digital voice recordings? Well, if you look at some of the cases out there that have turned on voice mail messages, them fish are lunkers.

I'm not talking about the 911 recording that snagged so many insipid evildoers trying to create a diversion. That stuff has been on the Discovery Channel for years now... I'm talking about the:

Six million dollar settlement when a stock broker was recording dispensing some "very timely" investment tips to his buddy via his buddy's office vm.

Thirty-five million dollar patent infringement settlement when CFO and new employee just snatched away from the competition were discussing the possibility that new employee may have brought with him some "interesting source code."

A defense verdict when the plaintiff made an admission against interest on the voice mail of the defendant which completely negated the plaintiff's negligence cause of action.

The list goes on...

So you're probably thinking that this is all dandy, right?

Not quite so.

Voice mail discovery has its own set of problems. Principal is the fact that most digital voice messages are not "searchable." Granted, some very infant technologies exist which allow for sound matching querying but this field is at a pre TV Pong stage in an era of virtual reality Ninendo.

The hard truth remains that some unlucky human being must listen... yes actually listen to ALL of the captured digital voice data to try to capture that golden snippet of sound.

What about privilege?

Unfortunately, voice mail messages usually don't start like this:

"Hi Bill, this is Sally your attorney with whom you have an ongonig confidential and privileged relationship... let me tell you something that will be of extreme importance to the third prong of your defense."

Ain't that easy folks. It will take a specially trained ear to deduce who lives behind the voice. Is this the voice of the attorney? Sure about that? How can you be sure? If you can prove you are right, then maybe the court will exclude this evidence based on privilege. Is that the doctor calling the patient? Sure? Well if you can prove it then... you get the picture.

Further, what if the client speaks Mandarin or Tagalog? Who are we going to get to screen and evaluate those tapes?

These issues are just a few of many to ponder in an area that we as litigation support professionals and nerds will be hearing much, much more about.



posted by Alexander | 6:02 PM


Sunday, November 23, 2003

Forced to Study EDD?  

Forced To Study EDD?

Although only partially delusional, I have come to the stark realization that not everyone is an EDD academic junkie like myself. When I speak at firms, the majority seem to be engaged in 50's Happy Days style but there is always the sleepy person in the back or the dude with the Game Boy on mute. These are the folks that prefer to learn about Discovery on the cable channel bearing its name and not in a CLE session. I call them the Fonzies.

Well, it appears that there are enough Fonzies in my home state of California to cause a bit of a stir. These folks just ain't gonna take it anymore. They are challenging Californians CLE requirements on the basis of constitutionality - or lack thereof. Heyyyyyy.

Unless you've been living under a rock or hanging out with Potsie, you know that attorneys throughout the country are charged with mandatory education known as Continuing Legal Education (or CLE for short). Attorneys are expected to attend a prescribed number of hours of CLE courses during a set statutory period. Hours spent munching on pizza in large conference rooms or scribbling notes on Hilton memo pads are audited at the end of each period (period cycles are determined by last name in most states and Bar Number sequence in others) and those that have skipped class to ride their motorcycles are sent to a very big detention class where they have to put their head down on their desk and possibly forfeit their milk card and, oh yeah, Bar card at that. Not pretty stuff. Worse than having to fix the broken Hot Rod with Ralph Mouth (episode 18).

There are a few out here in California who vowed to never sit in a class after they wrote the last sentence in their Wills and Trusts Examination Bluebook while 3L's. In 1999, these Fonzies were surprisingly successful in the matter of Warden v. State Bar to do the impossible - they got CLE's declared unconstitutional Lot's of two-thumbs up action happenin' after that victory.

Unfortunately for the Fonzies, the matter was overturned and CLE's came back in 2001. It brought the Fonzies a pain that had not been experienced since the time Joni left to date Spike and the juke box at Arnold's broke down. (episode 24).

That same year, Senate Bill 144 was enacted as sort of a compromise between the bookworms and the class cutters. The originally mandated 36 hours of CLE in a three year period was knocked down to 25 hours. That is still quite a coup d'etat for the Fonzies out there. They got to cruise to Arnold's Diner on their motorcycles at 1:00 instead of 3:00 when the old school bell rang. The kids from Lincoln High were headed back to class when the cool dudes from Jefferson showed up. Double finger, cheerleader grabbing, snap. The Richie Cunninghams however, were less than amused.

In addition to substance abuse, elimination of bias and ethics, California attorneys must learn about law practice management. That's where CLE and EDD marry to produce CLEDD.

Even today's Fonzies may concede that CLEDD credits are a must for any litigator. Look, you gotta sit through this stuff anyways, right? Well why not learn how to collect the smoking gun e-mail from the Defendant (or flag it and try to exclude it based on some privilege if you represent the Defendant)? It's either that or a two hour session on IRS implications on the revocable generation skipping trust. Not cool.

Not surprisingly, the best attended classes at the California Section Education Institute (a CLE drag race at Lookout Point, if you will) deal with litigation technology. The classes that I routinely give with Russ Jackman from the Cal. Bar Law Practice Management and Technology Section sell out in hours at times (could it be the black leather jacket?) The next most popular sessions are on the topics of settlement disputes and then comes ADR. Sorry Richie, chemistry doesn't make the top ten list.

I hear that the Richies and the Fonzies have supercharged their Chevy's and have brought these CLE issues to a state near you. What is your state's CLE requirement? What programs would you like to see offered at your Bar Convention? Would you vote to eliminate CLE altogether?

I will be helping out the Richies and the Fonzies of Cincinnati next month as I speak at a two hour CLE on the topic of, you guessed it, electronic evidence in litigation at the Cincinnati Bar on Friday the 19th. Check it out if you can. There's a great malt shop nearby. Also, those West Coast revellers can catch me on the 11th in San Francisco at the Hyatt Regency through Career Coaches

In the mean time, don't forget to tip Joanie when at Arnold's and keep your CLE's current while considering using CLEDD to do the trick. Cool?

posted by Alexander | 11:55 PM

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