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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, February 11, 2004

Alextronic Laments....  

Alextronic Laments....

Thus far, Alextronic has refrained from editorializing. However, countless columns concerning gigs versus megs, tiffs versus html, auto extraction versus manual coding has made Alextronic a dull boy.

Truth is, there is a whole bunch of cool stuff in this ever evolving EDD world that makes Alextronic wanna get on his laptop and tap away but there is little that inspires him to clench his fist and pump his arm towards the stars not unlike the Bolsheviks as they supported Lenin driving the Romanovs from the Winter Palace.

Today, however, Alextronic has met his waterloo. Somethin' out there is buggin' him even more than unexpanded Excel cells or a password protected zip attachment with a stealthy virus just waitin' to be unchained.

The focus of his Ire - Vendor Created Electronic Data "Certification Programs."

Now, Alextronic has gone through more certification programs than he'd care to remember. Beginning with the Bear badge that the Den father of Pack 545 was reluctant to award him after his tepee crashed down and broke Sam Schwarz' arm at the Indian campfire. Then there was the coveted Malibu Grand Prix go-cart license. Who could forget the pro marksman target certificate from Summer camp? One of his most notable certificates was his PADI SCUBA certificate earned once he finally was able to differentiate the air intake bc from the snorkel.

Those were the heady days for Alextronic. Later however, life dealt Alextronic a rough hand... certifications no longer were dollied out on exotic Caribbean islands or next to the video game machines and S'mores roasts... the DMV, the State Bar, the grueling Summation and Concordance certificates and the not as grueling certification program offered by CaseSoft on the shores of Florida filled his time with pre-test jitters and nightmares of showing up late for the examinations naked... but that's for another blawg.

The one certificate that Alextronic will not be shooting for is this questionable if not downright shady "E-Discovery Specialist" gig (or rig?) that has bubbled to the surface of the swamp. The particular program in question raises the eyebrows a bit more than it raises the EDD IQ out there in litigation support land.

Perhaps it would be best not to name the vendor that is the self-proclaimed certifying agency for "E-Discovery Specialists". Alextronic would liKe to pRint the name, but resOlved to Let it sLide.

Now when Alextronic buckles himself into coach for that sure to be turbulent flight to Law Net, he probably would slam that Bloody Mary a bit easier knowing that the pilot and co-pilot were "certified" by the FAA and not Jet Blue Airlines. Alextronic prefers that his dentist is not certified by Crest Toothpaste and his team of relentless criminal defense attorneys be licensed by some State Bar and not by Lexis/Nexis or West. .. you get the picture.

There are certain reputable and largely unbiased groups and people out there who really could piece together an objective certification scheme for e-discoveryheads. Talkin' about the Browning Marions, the George Sochas, the likes of Ken Withers and Joan Feldman, the Michael Arkfelds and other luminaries that serve as the forward thinkers in this increasingly complex dimension. It may even be plausible for highly reputable and independent organizations such as the Sedona Group or the ABA to put together a certification program. Let's face it, a certification for E-Discovery is not some trivial matter. Fortunes, lives and futures can literally turn on a piece of evidence and in today's world it is almost more likely than not that such evidence lives in binary form. Do we really want to allow one for profit entity to unilaterally set the standards as to what constitutes competence with respect to electronic discovery strategy, collection, processing, review and forensic analysis? Aren't' the stakes a bit too high to just let the first person to step up to the plate make the rules? Would one not rather see vendors offer classes and training seminars and possibly hand out cutesy diplomas rather than become presumptuous enough to self proclaim authority to "certify" one as an "E-Discovery Specialist"?

Certification is serious business. The public has come to rely on those who are certified to handle complex chores such as doctoring, lawyering, driving and counseling. If anyone can essentially create an industry wide "certification program" and thereafter designate industry "specialists" just by jumping in and doing so, does that not dilute the value of the certification? Where does that leave the largely unsophisticated public? Public policy should dictate that legislated standards should be put in place before the grant of any power to certify a specialist of any professional discipline. Surely, certification of a sophisticated and downright critical art such as electronic discovery (as opposed to an individual software product per se) should be issued in accordance with publicly approved standards not unlike the cosmetologists or paralegal's certificate. Think about it. One needs to meet state specified standards to apply the hair gel but the standards associated with presenting complex evidence in a court of law are essentially up for grabs.

Something just ain't quite right...


posted by Alexander | 8:24 PM


Sunday, February 08, 2004

You've Been Served  

You've Been Served

Just back from NYC Legal Tech and then an immediate vacation in balmy Palm Springs with the wife and sans the little one to unwind from trade show booth burnout. I apologize for the large gab in substantive discourse fellow bloggerheads...

Now as the pretzel vendors on Broadway and 42nd fade into the oblivion along with the shooting stars over the Palm Springs desert, I reenter the atmosphere as I once again maintain the controls of the USS Alextronic.

Stardate February 9th, 2004.

One question that came up quite a bit at Legal Tech NYC (and thankfully did not ever arise as I sipped margaritas in La Quinta, California below swaying palm trees) was whether or not the requesting party really had "teeth" to force an IT person or some other such source of adversarial secrets into a deposition so that the screws can be tightened and the spotlight positioned right into the IT interrogee's eyes:

"So, Mr. Network Manager.... let me reposition these matchsticks between your pinkie toes ... ahhhh, now are you a bit more inclined to reveal where the CFO's PST's are backed up to... or do we really need to get serious and bring in the Clay Aiken CD?"

Well, in many States the Clay Aiken method clearly falls into the cruel and unusual punishment category, but in California, if Clay fails we have Code of Civil Procedure Section 2025(e)(2).

Yep, this nifty code section which arose out of the recently refurbished Discovery Act calls for the mandatory appearance for deposition of "the person most knowledgeable" of a party's electronic data storage methods (both live and archival) who can "thoroughly explain" how and where information is organized so that it may "be gathered for discovery purposes." This code can require such a fountain of wisdom to appear "within seventy-five miles of the company's principal California business office OR within the county where the action is pending."

This is the effective State counterpart to the well known Federal Rule 30(b)(6) however this State statute is a bit more flushed out and directed when it comes to the pursuit of the source of electronic evidence.

So call off the German shepherds, extinguish them cigarettes and yank out the ceiling fan, we in California have the teeth to get at that elusive electronic data.

Those of you in New York, Pennsylvania, Ohio, Florida and Texas will find that you have similar state statutes. I have yet to survey the other 45 states, but I am willing to bet that those who do not yet have such legislation in face will soon find such in place soon.... Until then there is always the reliable iron maiden and stretch rack.

posted by Alexander | 8:02 PM

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