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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


Saturday, September 18, 2004

Trickle or an Avalanche?  

9.19.2004

I was privileged to be invited to attend a high level strategy meeting at the Davis, Polk firm to discuss the firm's representation of Oracle in the famed Oracle v. Peoplesoft matter. The participants from the firm were friendly and knowledgeable. Oracle certainly must have done its homework before hiring this stellar firm (along with Bingham, McCutchen and other top-notch counsel) to fuel Larry's unquenching desire to maintain his evergrowing empire (and Bonsai tree forests as well as Carp ponds). Bonus question, do Bonsai's grow better in Redwood Shores or Pleasanton?

The meeting meandered around the typical topics concerning litigation support in general. What do you use locally? Who does your scanning? How much OCRing are you seeing? How are you creating Bates Numbers? On site, domestic or off-shore coding? What is your current litigation technology budget? Sanction II or TrialDirector? Using CaseMap? How about TimeMap? Real time transcripts yet? Summation or LiveNote? Ya know, the regular stuff.

Then I asked the question de jour... "So what proportion of electronic data are you processing as opposed to the tried and true (yet costly and sluggish) print, label, copy, box, scan, OCR etc?"

The litigation support gurus both looked at me and slightly bent their necks a bit and rolled their eyes ... " They seemed to scream out silently... c'mon... you know we're asked that sixty three times a day... don't be such a schlameel.

What they did say, was not much different: "It's a bit overrated. All this hype about EDD. We hear about it at the trade shows, read about it in the magazine, but our litigation is still 90 percent paper based. The pleadings and RFP's reference digital data, but in the end, we usually just have paper."

I countered: "But have you not seen the statistics? The George Socha surveys... the pundits who say that ED is a multi-billion (yes, with a 'b') industry that is only in its infancy? Can they be wrong?"

"We think its a lot of hype now... Our day-to-day dealing with even the most tech savvy clients still yields paper in a manner that far exceeds its electronic counterparts."

I was intrigued by this perspective and wondered to myself if anyone actually had statistics as to what average proportion of discovery reviewed in today's modern litigation climate is purely source-to-review application electronic and what start as paper. I thought of my two longtime buddies in San Francisco pounding on doors selling two very different products. Matt sells ED and only ED while Gaylord sells litigation copy services. Gaylord is always buzzing around town with a hand truck and colorful banker's boxes and never has time to grab lunch because of all of the pickups, deliveries and orders he takes in a day. Matt, strolls around with a deduplication and meg to page pricing schedule and is always hitting me up for leads.

Gaylord's looking a bit more buffed these days from years of carrying seventy pound boxes of papers off the hand trucks and into the war rooms... Matt's starting to get a gut and had to strengthen his eyeglass prescription.

I raised my eyebrows in deep thought... the plot thickens...

Makes me think if the folks defending the king of tech may be smart enough not to drink the Coolaide or are they just way off base.

Hmmmmmmm?

As they say, only time will tell.


posted by Alexander | 8:51 PM


Sunday, September 12, 2004

Sake and Kinkos and Gavels oh my!  

9.12.04

So I stroll up to the clerk's counter at the majestic Ninth Circuit Court in San Francisco, surrounded by crystal chandeliers and marble hallowed halls, the place is a bit intimidating if not downright demeaning. It really puts the insignificance of one's self into stark perspective.

My filing of a Petition for Review from a State Court appeal goes without a hitch. I realize that it is soon time for a web cast and I've gotta duck into a nice little nook with my cell and tablet pc close in hand. I ask the clerk if there is anywhere I can get a wireless connection at the courthouse. He tells me about cell phone reception. No, I says, not the cell phone ... ya know, the computer... internet. He says his brother in law once played a hand of blackjack on the internet for real money. Then he tells me there is some kind of computer plug thing in the library.

I run to the library to find that the computer hook up thing is a universal power adapter that someone most likely left behind as they nervously scuttled up the marble stairs to face a nine judge appellate panel clutching gavels and perfecting their imposing frowns... I stroll over to the law librarian and he says that if I am not a court employee, then there is no access for me. "You're not a court employee, are you?" he asks. I feel like lying right there in the State's highest courthouse and literally standing beneath sitting Federal Circuit judges whose murmurs from the chambers above can be heard through the library's ceiling. My good upbringing gets the better of me and I make a mad dash for the nearest Kinkos.

The lack of technology at the Ninth Circuit makes the new advisory proposal concerning e-discovery come as a shock if not a pleasant surprise. The Court has proposed an absolute duty for counsel to notify opposing counsel of electronic evidence which is likely germane to the litigation at hand and a meet and confer is required to facilitate such. Also, if one party can reasonably show a need for preservation, the court's standards for granting such an order has been lowered and we'll see much more in the way of preservation orders in this jurisdiction. The court is also considering requiring digital production via native or .tiff or some other format that is not paper. This will make the litigators just as happy as the environmentalists. The Chief Justice of the Ninth Circuit deserves a kiss from Julia Butterfly whatshername tree sitter... Finally, the courts suggest that responses to RFP's should indicate which types of media have been harvested and reviewed. This will help minimize the "you hid the smoking gun" allegations that are a staple in modern litigation.

The guy at Kinkos directed me to a Starbucks but I did not have the password there. I finally ended up at a sushi joint that specializes in Spider Rolls and DSL connections... Ever tried giving a presentation while chewing on sashimi and knocking down a few sakes?


posted by Alexander | 7:03 PM

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