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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


Tuesday, December 09, 2003

An EDD Standards Committee Is Born  

An EDD Standards Committee Is Born

It had to happen... Standardization in the EDD world is at our doorstep.

When I was a charter member of my high school computer club, Kevin Hackman got his hands on this game for the Apple II+ called Tai Pan. It was the first simulation video game ever. The player managed a fleet of ships along the Asian sea silk trail whereby silk was traded at various ports for opium, cannons and silver. The wise user would purchase products at attractive prices and know when and where to sell the bounty for a profit. Of course, if enough cannons were not traded the user would surely fall prey to the scores of Pirate ships commandeered by Black Bart which outgunned the user's trading ship.

If any one knows where a copy of Tai-Pan can be had these days, I would be forever indebted.

Colin Fisher wanted a copy of Tai-Pan from Kevin but he had a Franklin and we had Apples. His Franklin didn't read Tai-Pan so while we played Tai-Pan, poor Colin was relegated to pong.

Litigators have lived in fear of being Colin-ized on the EDD front. Not unlike a run in with Black Bart, the firm or corporation that has not standardized its systems and procedures may not be able to effectively process and review data which could prove decisive in high stakes litigation.

Fortunately, the American Bar Association (ABA) saw the binary code on the walls and in 1999 established Civil Discovery Standards committee. Although the amendments to the standards pertaining to EDD remain in draft form as of the time of this writing, here is a glimpse of a few of the proposed EDD standards which Alextronic believes make sense and support:

1. All parties are encouraged to "meet and confer" as a standard discovery stage to discuss how electronic evidence will be requested, gathered and produced. If there are any unusually complex e-discovery items which a party may seek, an EDD consultant, magistrate or referee should be selected.

2. Parties should agree that harvesting should be done by a disinterested third party expert/vendor and not by attorneys or party litigants themselves.

3. In a native electronic document production, a party who does not own the software application to load a particular file, the requesting party should make arrangements to obtain such software.

4. Parties are encouraged to stipulate as to the authenticity of certain elements of electronic data, such as certain metadata fields (date, character etc...).

5. Issues concerning a waiver as to any privilege must be considered in advance.

These are but a small sampling of the proposed standards promulgated by the ABA. We can expect similar proposals from the Sedona group, the FRE and State legislatures.

We are now at an exciting juncture whereby the standards for EDD aren't yet solidified and exist as drafts available for comment. That means that YOU can actually chime in and share your ideas about a draft standard or even propose your own standard. It won't be that easy to implement your own ideas when these proposals are set in stone.

posted by Alexander | 11:31 PM


Sunday, December 07, 2003

Streaks and Geeks  

Streaks and Geeks

Sunday afternoon... I'm flipping through all 72 channels... golf, football, a coin auction, more football and NASCAR. Yawn. I'll go do something on my Blawg...

I've struggled with a major disability throughout my lifetime: my chronic disinterest in professional sports. I couldn't tell you who played in the Superbowl last year and, with my interests grounded in law, technology, travel and motorcycles, I can discuss the BNA (Bureau of National Affairs) with a thousand times more fluency than I could the NBA. The only kinds of helmets I've ever handled don't come with face guards. You get the picture...

Although my atypical indifference to professional sports has freed up countless Sundays and Mondays and my wife says it is one of my best attributes as we flip from the Discovery Channel to the History Channel when all of my college buddies are at tailgate parties at the Oakland Arena and Candlestick Park (to which they have long, long since stopped inviting us).

Being professional sports agnostic does have its very notable detriments. I cannot begin to count the myriad of "power lunches" I have attended - a white male amongst a sea of other such white males... when things are just rolling along until the dreaded question hits like a cluster bomb dropped by the Northern Alliance in Kandahar...

"So, Alex who you have on tomorrow's game?"

I've mastered spilling my coffee at that very instant and I can invoke sneezing and coughing fits on cue. If I can sense that the B-52 is on its war path, I may opt for a strategic diversionary bathroom break where I pray that when I return the conversation will have meandered back from the Bucaneers to Blackberries.

Of course, with every rule there is an exception. Rather than instinctively shunning all things sports, I have developed passion for high school football. This started back in 1985 when as a San Mateo High School Bearcat, I rooted my team on from deep within the band section where I was lead cymbal player. That Junior year as well as my Senior year which followed, I clashed my cymbals as our team won the Regional State Championships back-to-back... not only did the Bearcats go undefeated those years, but they went, get this "unscored upon." At least in that respect, my friends on the football team and myself had something in common during our high school years.

But seriously, after 24 straight shutouts, the Bearcats made the history books... Several players went into the Pac 10 and/or the NFL and to this day the school still honors that football team with dedication ceremonies, achievement awards, team updates etc... . It was the biggest thing in Northern California High School Football ever.. that was, of course, until the De La Salle Spartans came on the scene.

De La Salle is a Catholic school in a nondescript San Francisco suburb known as Concord. It is right out of the movie American Beauty ... you'd expect to see Kevin Spacey's character among the throngs of balding parents in the stands comparing keyless remotes to their Hummers. Concord is as sterile as it comes. Cookie cutter tract houses break a continuum of strip malls... it is the type of place that makes you think about death.

So what's so special about a high school in a lifeless San Franciscan suburb? The school's football team. The school is on a bit of a winning streak. They have gone undefeated for eleven years. You read that last sentence correctly, De La Salle Spartans haven't lost a football game since early 1992 during the first Bush administration. That is what you call a streak .

Now this is no little po-dunk team playing in the farm leagues, De La Salle plays in the State's (and perhaps the Nation's) toughest high school league. In fact, over the years the team has invited undefeated teams throughout the country over for a rough and tumble game of ball and those visiting teams all, without exception, flew home bruised and battered by a bunch of suburban, clean cut Catholic boys. Last month, ESPN for the first time in its history... dared to televise a high school football game. The shootout involved a team from the South that was rumored to be able to actually put up a fight. Huh! As usual, the team flew back to Shreveport, Lousiana with their bruised heads bowed in shame and De La Salle didn't even bother to celebrate this 145th straight game of their streak.

They are now at 150 and pushing. No other football team in history has matched this record. Imagine if a law firm or attorney went a decade without a defeat. It is simply unfathomable.

So everyone out here has been itchin' their heads. How can a run of the mill Catholic school in suburbia produce such a national winning streak? A key player carrying the team for a season or two would explain this but a 150 games spanning over a decade... how on earth? Surprisingly, when you look at the team, they don't appear to be anything particularly lethal. The team is of average size and weight and speed. But 150 straight wins against the creme de le creme? What gives?

For every high school sports junkie out in the Bay that you ask, you'll get three responses and none of them will bear any semblance to the other. It is the Bigfoot mystery of suburbian high school sports. You didn't ask, and you may not care, but here is the Alextronic theory:

The administration at De La Salle high school intelligently outsourced the support behind the football team. They didn't count on one head coach or hope for one star athlete... they built a team to build a team.

De La Salle has always recruited the best support from across the country ... Head coach Bob Ladouceur located the top defensive line coaches, the most sought after offensive coaches, coaches plucked from the corn fields of the Midwest that have done nothing but lived and breathed point after touchdown squads. The world's greatest punt return trainers have been enlisted. The team even has an "equipment coach" that is constantly researching the latest gear that could give the team that edge. There are even coaches for the coaches. At last count, De La Salle had twelve... count them... 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 coaches dedicated to the varsity team. A greater team of national experts had not been assembled since Oppenheimer lead the Manhattan Project scientists in Los Alamos in 1943.

So what on earth does all this high school football talk have to do with E-discovery?

Well, I firmly believe that a law firm that simply puts an e-discovery savvy litigation support manager in place, without more, is a Jefferson high school - the firm will win some and lose some and will hold its breath a lot. However, the firm that seeks out an electronic discovery vendor or consultant who itself has bent over backwards to hand pick an all star team of EDD gurus that can back the firm's litigation support manager will be the De La Salle of the legal world. Will the firm win 150 straight... ? Probably not. Will the firm who has the best of the best backing it's litigation support team find itself at a substantial advantage over the law firm boasting at best a "plain vanilla" litigation support inside and outside team...? You know the answer.

Go Spartans!











posted by Alexander | 6:23 PM

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