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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


Friday, June 04, 2004

ED and the Founding Fathers  

(06.04.04) It had to happen. Just when I thought that I had seen it all, the constituion is now coming into question with respect to ED discovery.

You think I'm Funny... ?

Well this, is funny. Even Joe Pesci would concede.

You heard that right... the US Constitution.

Now, when our friend Ben Franklin and his colleagues signed that sacred
document, it is debatable whether he was pontificating about the right to
bear arms should extend to an AK-47 in the lady's powder room, but could
he and his cohorts could have been dreaming up protections against a rogue
.pst file or a botched deduplication? Did the founding fathers talk hash
code as they reached for the quill pen and ink well?

A judge in Illinois thought not.

In a reasonable decision this year US v. Segal (not Bugsy but close) WL
635065 (ND Ill 3/32/04) the Chicago court dealing with this white collar
mafia matter (believe it or not, a mafia case out of Chicago... ) found
that the bad guys' claim that the prosecution (the Feds) failed to protect
the afiosos' constitution rights to Cohibas, moonshine, Tommy Guns and
metadata was violated when the Feds failed to inform the wise guys that
they had turned over attorney client (or consigiliari-client) e-evidence.

Last I checked, it was incumbent upon the responding party to make sure it
did not turn over obviously privileged materials designated in a privilege
log. The court agreed and held that there is no constitutional violation
when the recipient does not conduct an attorney client review for the
opposing side.

Ain't that obvious, Guido? C'mon now, make me an offer I can't refuse.

The evidence came in and the bad guys are likely to be slicing linguini
and hoping to wake up free and clear of severed horse heads in their new
home at the Federal Pen.

So why then did this matter even make it into court? Was the judge
fearful of saying nay to the family of Al Capone and John Gotti? Nope,
yet an even more well heeled influential family made sure this issue got
attention... the Federal Courts.

The court in INS v. Doherty, 502 U.S.314,323-24, 116 L. Ed. 2d 823, 112 S.
Ct. 719 (1992) mandated that all such claims must be heard. Anything less
would constitute a violation of a constitutional righ to due process of
law as guaranteed by the fourth and fourteenth amendments. This principal
has been on the books for quite some time now. Even Lucky Luciano could
have seen it coming when Mulane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950) was decided.

Right about the time when Marlon Brando stuffed his jaws with cotton to
perfect the image of Don Corlione in part II, the Supremes came out with
Mathews v. Eldridge, 424 U.S. 319, 348-49, 47 L. Ed. L. 18, 96 S. Ct. 893
(1976) identifying a "property interest" in due process towards discovery
of evidence. Until that point, the only property interest that the mafia
concerned itself with was the speakeasy and the rights to Frank Sinatra's
latest Vegas performances.

Times have changed...

Do I amuse you?

posted by Alexander | 12:52 PM


Tuesday, June 01, 2004

I've Seen the Mountain Top... And It Is Good  

(06.01.04) Attending the MER (Managing Electronic Records) conference was a real eye-opener. Being selected as a featured speaker was an honor. I may have learned more at this show than at the last ten legal technology shows at which I have spoken combined. Those shows may blur together in my memory, but MER is a true standout.

This Chicago event extraodonaire hails from the fine folks at Cohasset, Inc - a leading corporation/think tank/hand-holder in the management of records and electronic data in particular. The engines that run this nation turn to Cohasset to manage their s&%#.

I sort of hate to have to say it, but the mainstay attorneys and legal vendors that pepper the exhibit hall at every LegalTech and LegalWorks show, should really be at the MER event. Attorneys who court their corporate clients or who represent a governmental agency should kiss the spouse and kids goodbye for a few days and take Trans-Capone Airlines to the Windy City. If not for the deep dish Gino's pizza or the stroll down the miracle mile, do it to understand your clients needs and learn how your discovery strategy may (or may not) dovetail with what your clients are doing under the hood. I whispered in a state of disbelief with attorneys from the few law firms represented (Jones Day, Gray Carey, Pillsbury Winthrop and a few others). Can you believe we're the only law firms/attorneys here? What gives?

Exposing MER in my Blawg leaves me with mixed feelings. I feel that I have a duty to keep my loyal Blawgerheads informed about the finest resources in the biz, yet like divulging a good fishing hole or off-the-beaten path Ethiopian restaurant in San Francisco, I really hate to clue others in to this diamond in the rough.

Well, not too rough. The list of registrants read like a the Fortune Power Five-Hundred. Major insurance, banking, textile, food, drug and government corporations and agencies were present in full force. I had beers with Chevron, danish and coffee with the Florida's Natural Growers, shared elevator stops with Allstate and the FBI, waited for an available urinal with the DOJ and major aerospace industries. One of the first people I buddied up with was a fellow who controlled product distribution world wide for products such as zip-lock bags, Raid, Pledge and a variety of other "little known, obscure" (cough, cough) household products. The guy in the hotel room next to mine ran operations for a small shop called Target Stores. Up until that point, my standard fare was dining with attorneys who may have filed briefs against these behemoths. I graduated a cut or two at MER.

As I entered the large luncheon hall (lunch is included with registration as it should be for a 1K plus admission ticket), I avoided the tables full of vendors and conference organizers. True, they represented the few people I initially knew at the conference, but it has always been my rule to never sit with those I know at these gigs. Experience has taught me that the protocol yielding best lunchtime partners is to grab an empty or sparsely populated table and just see who drops in.
Our table, table 16, filled quickly. CIA records clearance professionals, major beverage industry executives, big-firm attorneys, bankers, Big Five accountants and major financial brokerage IT directors passed around the butter cubes. It felt that if that butter was someone spoiled and then lead to a table-wide outbreak of food moderate poisoning, the world just may just possibly stop going 'round.

More impressive than world-reknown companies, agencies and institutions that spawned the delegates to table 16 was the dynamic at the table. Everyone lent an ear, offered a thought and we all learned. Us attorneys explained hos a motion to comple cold be opposed. The records managers The records managers discussed the ramifications of a sudden litigation hold or "stop", as they call it, and how it would impact the world-wide product distribution cycle. The IT folks outlined the benefits of some of the latest records managements applications such as FileNet, Hummingbird and EMC. The coversation was engaging, educational and strangely entertaining. We closed down the dining hall. The Miracle Mile and free nick-nacks offered at the small exhibit hall could not lure a one of us away. We made plans to meet up that evening and continued our discussions late into the night atop of the Hancock Building and at Ditka's... but that is for another Blawg entry....

The MER was filled with hundreds of registrants, each paying a four figure price to attend and leaving their influential organizations for three days. I began to wonder how and why they all came to be there and what prompted the world's most powerful organizations to give them a playground pass.

The answer was universal. "This is the only place to figure out what the hell is going on" was the response I heard over and over again. Think about it. There are no schools that teach "record management" (library siences comes closest ... but it is still way off base). Additionally, the IT folks rarely get to glimpse the day-to-day trials and tribulations of the record managers and vice versa. Same goes for those folks and their inside and outside counsel. As was evident from table 16, each of these groups of professionals speaks a different language and the MER is, when it comes down to it, a foreign language institute. After my third glass of zinfandel at Ditka's, I had expanded my vocabulary to include terms such as RMS (Records Management Systems), "enterprise architecture" DRMs (Data Reference Models), record development life cycle method,capitol investment planning and 'reusable audit component." Meanwhile, my new friends were practicing their accents on "litigation support applications," "blowbacks," "work product privilege" and "redaction." I had not had better language instruction since my immersion program in Catamarca, Argentina during my Junior year in college.

The speakers were dynamic and the handouts helpful, but in the end I learned best at table 16.

Blawgerheads... there is a whole world out there. I saw it! I can identify now with Meriwether Lewis as he excitedly attempted to describe the Clackamas Indians to the colonists upon his return East. I may have no pelts or beads to corroborate my find, but I have some new knowledge a few new friends in my arsenal now... and that can't be beat.

By all means, check out www.choasset.com and expose yourself to the rest of the picture. We've been isolated for too long.

posted by Alexander | 11:21 AM

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