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and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - email@example.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
Thursday, August 25, 2005
Back from ILTA ILTA (formerly LawNet) aka International Legal Technology Association pulled off yet another "coup" with its second straight 'conference in a furnace' in Phoenix, Arizona.
Yup, Arizona is no treat in August. Vendors need to learn NOT to give out chocolate in Phoenix in August. Please. The fine folks at ILTA probably cut their costs in half by signing up this month as opposed to December or January where Phoenix is really a treat, but it appears that they channeled those savings back into the show and the revellers could actually watch the saved dollars dance before them via phenomenal events such as a firework display topping off one of countless booze-filled receptions. Oh yeah, some impressive speaking talent was lined up too. One Arizona attorney who gave a very basic yet quasi-dynamic presentation on ED (please don't go over the Zubulake factors again... pretty please...) was a key litigator responsible for putting the cuffs on Charles Keating during the Lincoln Savings and Loan debacle in the eighties.
For me, ILTA (and NY Legal Tech) is akin to my high school reunion. It was truly enthralling to reconnect with the firm in South Carolina who I set up with Summation in 1994 or the firm in Arizona who I am now setting up a war room complete with Introspect, Sanction and CaseMap/TimeMap 4. I particularly relished in the recurrent complaints from my colleagues that I am not keeping this Blawg current. I was honored that such Blawger legends such as Dennis Kennedy actually noticed the stagnant state of Alextronic and wryly commented on such. These many more than valid crtiticms that stirred up my guilt (and shame) enough to sit down and bang this entry out...
I won't dwell on the vendor parties and gooey gossip that swirled around like the hot Scottsdale breeze, but do want to shine some light on the growing and increasingly thorny issue of discoverable electronic evidence in the form of strcutured database information.
I have been consulting on several cases recently where the parties want more than them .pst and .nsf files. They want the database itself. I'm not talkin' Crystal reports that package up key snippits of information from a database, but these folks want the whole enchillada. They want to see the db's structure, content, fields. They want to run searches and tweak the lookup tables and custom reports. Parties want to sit in the application and smell it, feel it, drive it.
"But", inevitably cries the party with the unpleasant obligation to fend off the request for a complete database, "this is structured data. You can't have it because you can change it! These are not documents! This must be work product privileged. We can't review it in any efficient or effective fashion. You're killing us with this request..." .
Phooey, I say.
A database clearly can contain discoverable, germane and critical information that will often be of immeasurable assistance to the trier of fact. Such a database can without exception be replicated and the privileged records may be retained. Partially privileged records will be a bit tricky. Although they obviously cannot ride along with a fully functional replica of a discoverable database, I suppose they can possibly be generated as screen shots and then redacted via annotations that overlay an image file format whereas the privileged pieces can be dressed up with redaction skirts and bibs. They would not "work" like their unpetrified cousins, but it's the only work around I can come up with now as I type this and pop aspirin to push away the effects from last night's Lex Solutio party at Barcelonas...
The courts appear to be viewing database records residing in their attendant database application as no different than e-mail messages with attachments. As they should be. Just as a .xls formula may be discoverable and, indeed, a party may be able to launch a copy of an .xls file in Excel itself to test formulas in accounting scandal related lawsuits, it would logically follow that the same can be done in an Oracle or Peoplesoft or SAP or Access database.
Of course, as entire database applications themselves become routinely sought after in discovery, a secure area for their review by adverse parties will be the bigger issue. This space must provide a home in which replicas of the database applications can be hosted, reviewed and essentially produced after privilege/relevance review for the other side to fiddle with. I predict ED vendors will set up or partner with highly secure data centers to host discoverable replicas of requested databases themselves whereby the requesting party can come in and massage that data and work with it to prove their case. Security, bandwith, storage space, licensing, training and inadmissibility grounds for objecting to the entry of such data at trial will all be hot issues as the databases themselves (in tandem with the tradition e-mail, MS Office files, paper documents and transcripts) prove to be more and more fair game to the discovery process in both the State courts as well as the Federal and administrative tribunals.
Do you Blawgerheads agree?
OK, now I've got to go unpack my hot sauce, cowboy boots, peyote and rattlesnake tails and start planning for next year's ILTA extravaganza (thankfully, in Florida this next time around). posted by Alexander | 7:38 PM