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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


Sunday, December 12, 2004

Been awhile...  

Blawgerheads,

I hope I haven't forsaken all of you... In the immortal words of the afro inspired 80's power rock junket, Boston, "it's been such a long time... time doesn't wait around... it keeps on goin'."

So, instead of offering my laundry list of excuses (new baby, new home, travel, urgent client matters, death in the family... all true mind you) I will just launch back into Alextronic and pray for your forgiveness and understanding.

So, out of the game for several personal reasons, I returned to the bullpen via a keynote speaking slot at the phenomenal Estrin's Paralegal Super Conference. There, I was able to chat up litigation support managers, paralegals, attorneys, IT folks and friends and foes on the vendor side. Here is the buzz I've come away with...

- The Toshiba Case! (Toshiba vs. Superior Court of Santa Clara County) . Right here in own back yard the Court's thumbed their nose at the omnipresent Shira Sheidlen and her Zubulake decision. In Toshiba, the requesting party wanted Toshiba to pay for the restoration of some 800 archival tapes. Unlike the cost shifting decision in Zubulake, where a seven factor test is used to determine who whips out the checkbook, the California court has focused on the longstanding language found in the FRCP whereby discovery is to be produced "at the reasonable cost upon the demanding party." The court found this language to be "unequivocal" and hence in California if you want the other side's data... well you just have to pay for it and that's the way it is.

This will certainly chill the breath of discovery tactics that a small plaintiff can apply against a larger behemoth such as UBS (and Toshiba). So what is the rationale for a decision that appears to prejudice "the little guy?" Is the court trying to protect the corporate status quo?

The court's logic reads like this: if the requesting party will have to pay, they won't request more data than that which is truly needed... Thereby promoting efficiency and evading overwhelming data discovery responses.

On the flip side, of course, perhaps the smaller firms will shy away from taking on cases with true merit but which may not end up being economically feasible if the firm has to break its bank in discovery just to get to the facts. Further, if a Defendant stands a lot to lose, couldn't that Defendant turn into a puffer fish and present its data universe as being so large that any potential predator will think to itself, "Hey, I don't have the jaws to wrap around that big fish and will therefore hunt for its next meal elsewhere...

On balance, I think the Zubulake is the more reasonable view as it does take many important factors into appropriate consideration...

Other buzzes include...

The acquisition of Summation by a Dutch company that owns an interest in Ringtail... talk about odd bedfellows! Alextronic is not to thrilled with the folks at Summation these days since, in their trademark paranoia, they yanked my hard earned certification status claiming that my relationship to Zantaz makes me an adversary of sort... whatever...

How about this year's record sanction by Phillip, Morris (2.7 million) a drop in the bucket for the Marlboro man, however, for failure to retain documents relevant in a tobacco tort action? The corporate in house folks tell me that this has been a wakeup call to management.

My colleagues in the legal educational environment (I have taught paralegals and law students legal technology for over a decade now) are all abuzz with the recent push by many law schools to put litigation support and e-discovery courses into the core curriculum now that firms report to the schools that their former students are winning and losing big money cases on issues of e-discovery.

I've been typing this with my newborn, Shaina, cradled between my chest and my laptop keyboard while my two year old, Jacob, is throwing Square Bob Sponge Pants shaped Cheez-its at me... it is time to sign off for now...

posted by Alexander | 4:04 PM

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