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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 |
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Wednesday, May 26, 2004 Partner or Peddler? Entering The Twilight Zone (05.26.04) The parallel universe (or universes) concept is fascinating. Under this science-fiction like theory, our universe is not alone. To the contrary, our universe exists amongst other similar universes which are nearly identical. Nearly being the operative word. As no two human beings are completely identical – every Big Mac bun nestles small disc like pickle portions rotated at a slightly different degree. Our almost identical universes in the parallel universe concept exist along side one another in almost perfect harmony. Of course, the allure of a parallel universe is the interesting contradictions that could percolate into view. The small inconsistencies that may not be logical or even possible in our universe may be the norm in our parallel universe. In our parallel universe, Madonna may be an insurance agent, frogs may fly and the sun may rise in the West. Everything else would be a mirror image of our reatlity… that is everything except for the fact that our eerie twin would boast an unlikely, harmonious alliance between electronic discovery vendors and their attorneys/litigation support professional clients – perhaps the most baffling, inconceivable inconsistency found among our parallel universe. This inconceivable marital bliss amongst E-discovery vendors and their clients as well as their clients’ clients, manifests itself in a universe where electronic evidence is requested, obtained, processed, produced and presented at trial in a nearly flawless and highly effective manner. In this imperfect universe, there exists a somewhat strained relationship between vendors and their attorney and litigation support manager clients. Rather than embracing attitudes which manifest themselves in constructive communications, mutual collaboration and teamwork, vendors and their clients often find themselves struggling with a dynamic that is largely adversarial. Back to Nirvana Seasoned NASCAR racer Scott Riggs counts on Valvoline engine lubricants to get him to that finish line in record time. He waives the Valvoline flag and Valvoline waives the Scott Riggs (Chevrolet) flag. Valvoline is present at his practice track, the pit and the qualifying laps. It is hard to distinguish the endeavor and enthusiasm between the Valvoline folks and the driverRiggs. Riggs enthusiastically test drives new Valvoline products and offers his input to R&D. Riggs understands that his own success is Valvoline’s success and vice-versa. This alliance between client and customer represents a mutually beneficial partnership. In the end, both Riggs and Valvoline are winners. We litigation support folks and attorneys could stand to get a bit of grease underneath our fingernails. We could learn a little from the NASCAR folks and their automotive industry partners. Finger Pointing In our actual universe, few law firms, government legal offices and in-house corporate counsel can point to many victory laps which were the result of a true client-customer alliance. Unfortunately, more often than not, lack of communication and collaboration yield a sub-par litigation support effort. This result may stem from a certain level of mistrust or a belief that the goals of the electronic evidence provider clash with those of the litigator and his or her clients. Which side is responsible for fostering such destructive notions? Is it the vendor that is suspected of viewing the client as just another prospect that may fill that looming monthly quota? Is it the client who deems the Electronic Evidence vendor as an aggressive salesperson looking out for his or her own interests? Although there may be shreds of truth to the stereotypes, in essence this profiling is destructive and drives a wedge between two parties that truly need each other’s skills, trust and respect to bring about desired results. Crossing the Universal Divide How can we in this broken universe adopt the success of the parallel universe of ED-Vendor and client collaboration? True to the concept of collaboration, this will require both parties to take some of the following initiatives: I. Clients should not hesitate to ask their vendor to become involved in the initial strategic planning of a digital evidence strategy. Don’t wait until the discovery cutoff deadlines get tight, bring your vendor in from the get-go. After all, if counsel is in the midst of analyzing the scope, strategy and goals of e-discovery, what better resource is there than the professional that confronts these same issues on a daily basis and therefore knows what work and what does not work? II. Vendors should query their clients and try to understand their particular strategic goals and pricing considerations. III. Both parties should discuss any potential legal or evidentiary obstacles which may preclude the admission of favorable evidence or compel the inclusion of damaging evidence. IV. Both the vendor(s) and the client(s) need to make a concerted effort to really get to know one antoher. The vendor should invite key members of the client’s outfit to tour their offices and attend their seminars and workshops. Legal counsel may wish to invite the vendor to firm functions such as retreats and CLE presentations. More importantly, if feasible the legal professionals and e-discovery professionals should get to know each other as individuals. A lunch or Friday afternoon beers can really turn a slightly strained quasi-adversarial relationship into a friendship. V. Clients should not be afraid to “think outside of the box” and ask vendors to engage in some unconventional projects. Vendors have tremendous resources at their disposal in the way of access to current legal authorities comprising e-discovery and experts in the industry who may be available to advocate for the client in a hotly contested electronic evidence discovery dispute. Clients can ask their vendors to undertake some of these research or consultative endeavors. VI. Vendors should be sure to address organizational concerns with the client. Retention policies, the ability to restore backup archival DLT tapes, existing methods of communication between counsel and the client should be understood by the vendor. VII. Both should assign multiple contact persons to the matter at hand. A sales representative, manager of litigation support, partner overseeing the litigation and customer support representative will be key, however additional players should be identified and brought on board so that there is little chance for a ‘communication blackout.’ Client executives, experts, litigation support consultants and trainers, head paralegals, associates and IT staff at both the law firm and vendor site need to get acquainted with one another. Contact information should be swapped and weekend contact numbers need to be exchanged. VIII. A vendor must quickly run a conflict of interest check. If the vendor is conflicted from the litigation, this is not a death blow to a partnership. The vendor may exclude himself from this particular litigation altogether (and remain in touch with the client and ready to partner on the next case) or the vendor may attempt to form a “Chinese Wall” and engage the project if he or she can insure that no entity (person or machine) at the vendor site that will work on the new matter is also working on the conflicting matter. IX. Both parties must not be afraid to show they are fallible. Like any other partners (spouses, law partners, business partners) there will be snags and tough times. Understand this truism in advance and expect a few road blocks along the way. Anything less will be setting up everyone involved for disappointment. X. Share in the success. A successful result stemming from the combined forces and efforts of a law firm and an electronic discovery vendor is a testament to the capabilities and determination of both. Celebrate your success and, above all, your lasting partnership. Pat Yourself on the Back and Take the Lead Striving for a true collaborative partnership by implementing the above efforts will let you find unity with your universe while putting your team in the pole position of the litigation. posted by Alexander | 11:00 PM Are You Up on Your DRP's? (05.26.04) Document Retention Policies (DRP's), although not the sexiest subject to burst onto the scene along with electronic evidence, electronic filing and e-briefs, is perhaps one of the more critical concerns for the legal professional and their clients. Although the DRP's may languish a bit in the shadows of their more popular colleagues, the DRP can (even more than the documentary evidence with or without its metadata itself) "turn a case." So, just what is a DRP? A DRP is a rule or standard requiring a person or company or other entity that maintains documents (electronic or otherwise) to "hold on" to those documents for a finite (and in some rare instances, infinite) period of time because in theory such documents may become germane in a future dispute or audit. Remember when you were encouraged to "hang on" to your automobile maintenance receipts just in case a potential purchaser down the road requested a complete upkeep history? Do you hang on to your tax returns knowing that they may be requested if you later on apply for a home loan? Well, these are common examples of how we are encouraged to engage in our own little DRPs in modern life. In the world of litigation, however, DRP's are not simply "advisory" - such policies are mandated by statute. Some recent examples of such broadly sweeping statutes include the much publicized Sarbanes-Oxley Act of 2002 (requiring SEC and corporate retention of financial transaction documentation). Perhaps even more well known of late than Sarbanes-Oxley is the Health Insurance Portability and Accountability Act of 1996 (more commonly known as "HIPPA"). This legislation mandates the retention and security of medical and health insurance documentation both in paper and electronic mediums. DRP's tend to be industry specific. Attorneys are mandated by the Model Rules of Professional Conduct as well as State Statutes (Business and Professions Codes) and also by case law to retain client files for a set period. All of the claim forms, pleadings and settlement correspondence pertaining to your fender bender matters in Wisconsin must be maintained for three years while the will you drafted for your client Ted Testator in Oregon must be maintained forever (or until Ted's demise). More important than your own retention requirements will be your clients obligations pursuant to a controlling DRP. If your client is a physician facing a med-mal lawsuit, then as counsel you must understand what DRP's control your client's practice. Further, you are also going to need to do some digging to confirm whether or not your client indeed followed such protocols. If your client is a pack rat like myself, he or she essentially is immune from violating this type of legislation, but if that client is prone to send his or her files to the shredder bin or has an itchy 'delete button' finger, you may need to advise your client to change his or her ways to comply with the DRP in the industry. By the way, be VERY cautious about advising your clients as to how to be compliant with a DRP. Although you may feel such advise is in the best interest of the client and that without such an education, your client is likely to violate DRP protocols, by rendering this advise - you are exposing yourself it to a malpractice lawsuit if it turns out that your advise is off target. Many large law firms have entire departments that bill for such advise and there are DRP and preventative legal care consultants that make a living dispensing their wisdom on this issue. It may be best if you simply practice law within your specialty and let the experts sell their consulting services and assume the liabilities attached thereto. Even if you wisely refrain from flexing your DRP muscles in front of your clients, you as a legal professional must still try to stay current with the prevailing DRP's influencing the industry or industries that of your clients. I am often asked the sixty-four thousand dollar question - "How do I figure out what (if any) DRP's control my client's business practices?" Great question, tough answer. A search in Google or Lexis on Westlaw (industry news) for "retention polic*" AND (then type your client's industry) will often bear fruit. Also, check the controlling State or Federal Codes. If all else fails, a search within case law (Findlaw.com and LexisOne.com are great free case law search tools) may reference the DRP. You may be surprised to learn that some DRP's are entirely case law created and not an act of Congress or state legislature. Finally, check the umberella organization that controls your client's industry. The AMA for doctors, for example, which (much like the ABA) have promulgated standards which are expected to be followed in the realm of retention policy. Today, the majority of American corporations either have no retention policy in place or they have a retention policy that is simply not being followed or enforced. This just spells trouble, I'm talkin' capital, twenty-six point font, bold "T" trouble too... Insist that your client maintain an actively followed, regimented internal DRP which satisfies the requirements of the DRP's in the industry. One common reaction you may get from your client is: "Wow, we keep so much of our records in digital format, how can I translate that to a DRP?" Remind your client that the "D" (Document) now legally includes anything that conveys information - paper, digitial data (binary code), stone tablets, smoke signals the whole thing... Then assure your client that the electronic storage actually will make life easier for him or her. It is much more cost effectie and organazationally optimal to embrace a system that manages electronic data than dealing with boxes and filing cabinets. Anyone savvy enough to be reading this blawg will know that... but you may have to do a bit of convincing to your client. To do so - resource that you may want to reference is the 'litigation readiness' flow chart accessed at www.fiosinc.com/ - this model will help your client 'see the light.' Once your client has followed your advise and drafted a DRP (ideally with the assistance of an outside consultant or litigation readiness professional), make sure your client creats mechanisms to insure that the policy will indeed be followed. It should be easily accessible in the employee handbook, the intranet and availabe in print from HR and all levels of management. Further, someone at the client site should be charged with the task of randomly auditing the policy to make sure it is actually being followed. Your client will emerge a more efficient and litigation resistant entity and should the ugly head of litigation surface, you and your client will be in an optimal position to effectively resopnd. posted by Alexander | 12:03 PM Tuesday, May 25, 2004 Gettin' FAT (05.25.04) Just got out of the documentary, "Supersize Me" and I am now repenting for every Big Mac and Happy Meal I have consumed over the past three decades. I'm ordering a fruit salad for lunch tomorrow. Speaking of getting fat, I am still catching wind of that old wife's tale which maintains that a deleted file will not later haunt litigation. Those that still hold on to this erroneous theory need a calorie intake. They gotta get FAT. A deleted file still lives on your hard drive, it just gets kidnapped and stowed away in a dark, hidden place. A seasoned crime scene analyst can usually survey the scene of the crime and then unearth the victim from its shallow grave. In fact, this forensic truism has been transitioned into legal authority. The court in State v. Townsend, 57 P.3d 255 (2002) opined that counsel has a duty to grasp the fundamentals of "deleted" electronic evidence and should instruct its clients to retrieve that which is germane or "go after" such "deleted" data from the opposition. So where does the so called deleted document get stashed? The answer lies within the File Allocation Table (FAT) which maintains links to all electronic records produced on a computer be they deleted or not. Hard drive disks are separated into unique sectors and surfaces. A deleted document can be chopped up and its remains distributed to various parts of the disk. Only the FAT can provide the treasure map needed to collect the pieces and sit down at the jigsaw table. A trained forensics or EDD consultant can help you get FAT without stuffing you with chicken McNuggets. What about metadata? Not to worry, these informational nuggets (sans the honey-mustard sauce) which can reveal modifications, revisions, bcc recipients, page counts, directory structure, author, custodians etc... get moved along with the corpse of the deleted data. These fundamentals are unearthed along with the so called deleted document. It's like unearthing King Tut AND his golden sarcophagus. What if the other guys don't want you digging in their grave yard? There is a wealth of case law that can help you support a motion to compel FAT data. Also, FRCP Rule 34(a)(2) authorizing on-site inspections can often pave the way for the discoverability of documents that a computer user thought were deleted. Rule 33 interrogs and Rule 30(b)(6) can also unearth the hidden gems. So next time someone tells you it has been deleted, tell 'em that this is not time for a diet. Ask for the FAT files and while you are at it, go ahead and supersize it. posted by Alexander | 8:38 PM |
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