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
Thursday, February 19, 2004
Don't Forget to Network Don't Forget to Network
Until recently, networking primarily meant to me hanging at the local cigar club or dragging myself to the next reunion. In EDD land, however, networking may hold more keys to success than its schmoozing alter-ego.
The astute requesting party will certainly query the other side as to what it may or may not have living inside its network. However, the attorney deposing the adverse IT dude or dude-ette needs to have a basic understanding of networks so that the inquiry can yield fruit and so that the attorney and his or her meandering line of inquiry smacking of network naivete does not become the butt of the chuckles back at the other guy's IT water cooler.
The first rule is that the attorney should look the part. Walk into the depo with the rules of evidence tucked under one arm and the latest issue of Wired in the other. Make sure you strap on a PDA, pager or Blackberry to your belt. Compare your general appearance to any of the DEVO album covers circa 1978 and if there is even a faint resemblance you're halfway there.
Amble into the conference room with confidence and ask the court reporter if he or she will be conducting real-time stenography in Amicus II format. Have your laptop with you with a wireless d-link card flashing like the Macy's Christmas tree.
Next, memorize a bit about networks. You may not need to know the history of Java or the difference between TCP and UDP protocols nor will you be expected to distinguish bridges from routers, but at least know what a LAN is (Local Area Network that runs within an office structure) and a WAN (Wide Area Network that tends to connect remote office structures together via telephone lines, microwave or even satellite - the internet is an example of a massive WAN). Less common is a peer to peer network which connects two independent computers together or connects computers to a printer. Peer to peer technology is common in small law firms and businesses and is included in Windows 95 and beyond.
Also, know that a network is composed of a server or client work station, network interface card(s), cabling and a network OS (operating system) such as NT. A machine hooked into the network and utilizing it (the client computer or printer etc....) is known as a "node."
Most critically, however, know where files tend to be kept. In a client-server architecture the server acts as the "brains" of the network and tends to store and process applications with the clients (the terminals connected to the server) simply are receptacles for the data "served" to them by the server. This is critical when you are trying to figure out where that smoldering gun e-mail .pst file may live. You may want to devote less time inquiring about the work stations and more time understanding how the shared drive paths (UNC) on the network are configured. Of course, a user can opt to take data served to him or her and then store it locally on his or her own hard drive on the work station, so don't completely ignore the possibility that the evidence sought may exist on the drive and not the server. Ask the IT person if the individual users maintain there own private directories and if these directories exist in areas of the network that may extend beyond the scope of the office (ie, can the users access the network from home via a virtual private network (VPN) and then sore data on home computers? - if so, you will want to request mirror images of those home drives).
Don't forget to ask the IT individuals which folders on the network are "shared" and accessible by multiple users. Who has access to shared folders? What is the path to the shared folders? Are these folders password protected or otherwise secured?
Perhaps most critically, don't fail to include backup procedures in your query. Find out how often the network server is backed up. Is it backed up on the whole, or are certain directories backed up? Is the backup automatic? To what media is data backed up (tapes, CD's, on-line storage vaults etc...)? Where is this backup media kept? Is it rewritten? If so, how often? What processes or technology is required to restore backed up media? What, if any, retention policy (read, destruction policy) does the corporation follow?
This basic understanding of network structures and usage will make you a more formidable presence during the deposition and will facilitate the revelation of discoverable data that will hopefully contain your smoking gun or at least your smoldering slingshot. Once you have accomplished your task of making the other guys reveal their data landscape so that your side can thereafter narrowly request such data from the server, you can pat yourself on the shoulder, head down to the local watering hole and partake in the more entertaining type of networking.
posted by Alexander | 12:59 AM
Sunday, February 15, 2004
AOL Matters AOL Matters
No not the web service provider, but the area of law, silly.
Chatting up lit. support peepes, litigators and clients on the ever evolving topic of ED, I have come to realize that one really needs to get a handle on the area of law that these folks find themselves in to get a real read on their concerns and objectives.
The corporate counsel are very concerned with retention policies and compliance in the face of Sarbanes-Oxley and other legislation which is constantly applying pressure on their clients.
Medical malpractice and health care professionals are very concerned with the authenticity of medical reports entered into evidence via e-discovery. The Supreme Court decision in Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993) which explored the reliability of contradicted expert medical testimony and documentary evidence has caused legal nurse consultants to inquire whether or not computer forensics can be implemented in order to determine if medical electronic evidence had been altered or otherwise changed and therefore could be deemed inadmissible. They are also goo goo over thee Federal courtÂs treatment of medical evidence in light of new tort reform via the holding of Wray v. Gregory, 61 F.3d 1414 (9th Cir. 1995). There, the courts limited the admission of scientific medical data when the veracity of such data could be called into question, forensic analysis is the determining tool when it comes to sifting the incontrovertible data from suspect data.
Then there are the insurance defense practitioners who are always concerned with ways to keep the evidence out be it via motions for protective orders, objections to requests or privilege review.
Labor and employment litigators love metadata. So when did that slimey bastard terminate my employee? Was it after she shot off the e-mail message saying, "I told you Manager Marvin, I am a happily married woman..."? Did Marvin open it? Was it printed?
Don't even get me started with IT litigators. They want every shred of electronic data under the moons of Jupiter. A .pst or .nsf file with its attendant Word or WordPerfect attachments is child's play to these folks. They are always asking me if we can open a .zxp or .erg file ... things that without fail elicit my "let me get back to you on that" out.
The Government wants cost quotes. The substance of the processing seems to take a back seat to their obligation to get a minimum of three competing quotes by vendors on their much coveted "approved provider lists."
The solo guy wants to know if he can do EDD on his own. After I explain the options, costs and learning curve for do it yourself EDD they then, without fail, ask for my business card as they'd rather dump the job on a professional as long as the price is right.
The anti-trust attorney (up against the DOJ) wants to know how e-data can be hosted and how easy or difficult it would be to share a platform with co-counsel. They are also big query buffs. Always wanting to pontificate on the advantages of Boolean verses segmented verses concept based... .
Maritime and immigration attorneys want to know what the heck is EDD again... is that some kinda protocol drafted during the latest round of the Hague convention or is it a soup?
Mass tort litigators like to know that ED will work with their current systems. Can I combine it wiht the paper? Can I throw it into Concordance? Does it come with Ginzu knives?
Constitutional and Civil Rights attorneys ask if they can get a freebie. Our cause is righteous and you will be a part of it... I get suckered into that one all the time.
Environmental attorneys always ask something, but I can never really understand anything they say. They lose me after their fifth recitation of CERCLA and the Clean Air Act. We usually end up making plans to go camping and tabling the EDD discussion.
PI attorneys approach... but I usually can't address their concerns cuz I'm too busy running like hell in the other direction.
I could go on but then again I hate to generalize. posted by Alexander | 10:06 PM