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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, April 07, 2006

Alextronic and the Judge  


My brother is a documentary film maker. He is a good one too. He actually has won both an oscar and an emmy. He lives in New York and is well respected in his profession. His professional idol is Michael Moore, whom he has met. He tells the story of how nervous and excited he was to have had enjoyed the rare opportunity to chat ever so briefly with such a living legend of the documentary world. They briefly met when they were both at Cannes receiving an award at the 2001 film festival. My bro. can recall each syllable he nervously uttered during his brief encounter with Moore. He still vividly describes each facial twinge and subtle eye movement and feigned attempt at interest made by Moore just for my brother during his enchanted encounter which he will recount for decades to come and which Moore certainly promptly and completely forgot about as he moved past my brother to the spread of brie cheeses, wines and oversized red grapes at that post award party.

What Michael Moore is to an up and coming documentary film-maker, Judge Shira A. Scheindlin of Zubulake fame is to an e-discovery Blawgerhead such as myself.

The folks at Jones Day and Guidance Software invited me to an exclusive evening out at Dodgers Stadium this week to join their guest of honor, Judge Scheindlin. Of course, like all other ED junkies, I came to be introduced by Judge Scheindlin via the series of Zubulake decisions (I through IV) concerning cost shifting for backup tape restoration, the type/amount of data one is expected to preserve and/or collect, how inaccessible data should be treated as far as collection duties are concerned, and what constitutes data spoliation amount other cutting-edge issues). I have been speaking to large audiences and class rooms about the impact of these four decisions for years now. I later came to learn of the Judge's other decisions involving subjects ranging from drug sentencing to the NFL draft and sexual harassment (hey, wait a minute, I think those are synonymous!) which I have found just as interesting (although much less e-discovery relevant) as Zubulake.

So, I'm in that crowded private baseball box and I finally see my opportunity to approach the legendary Judge. I quickly make my move just as she finished her fruit plate and as that Jones Day partner who had been monopolizing her went to get a second hot dog towards the end of the third inning. I shamelessly pounced.

The Judge did not seem particularly eager to talk about Zubulake. In fact, she did not seem that eager to talk to me. Not a surprise,. I guess. But I wasn't going to concede defeat. I had waited too long to finally meet Ms. Zubulake.

I awkwardly introduced myself and the Judge was polite. As things warmed up a tad, we ended up having a brief chat about legal education as we both teach law and I am starting to teach my students Zubulake. Then, just as I was about to impress the Judge with my knowledge of the Culbro case involving Havana Cuban Cigars, Mr. Jones Day came back munching on his foot long and swigging his MGD mumbling something about the Sedona conference and the Judge reengaged. Like the cub feeding on the carcass when the papa bear returns, I sheepishly slithered away back to my seat in the rain somewhere at the top of the fourth.... And that was it... my moment with my Michael Moore went as quickly as it came.

All in all, it was a joyous night. The game did not get rained out as all had expected and the home team won in an exciting 5-4 finish in the last inning. I met a lot of interesting folks and someone gave me a really cool Jones Day clock. I also learned (from the Judge) that the new proposed rules will really shake things up, so the Ediscovery conferences of next year will be full of new fodder.

Proposed rule 34(a) will allow for the request for production of a static database. The next section, 34(b) will actually charge a responding party with the duty to provide tech support and data translation services on an as needed basis so that the requesting party truly receives usable data they can get into for review. Rule 26(b)(2)(b) will provide a rebuttable presumption that inaccessible data need not be produced. Due to the rebuttable nature of this statute, it is clear that plaintiff's counsels will attempt to argue that very little is truly inaccessible in their effort to show cause that the data should be produced to them. In any case, inaccessible data still must be preserved as is readily accessible data if the content of the data falls into statutorily enumerated categories of data which must be preserved (a la SEC 17(a)(4) type of regulations).

At the end of the evening, I somehow found my rental car through the rain and (more amazingly) made it back to my hotel and curled into bed with a smile on my face as I had achieved the goal of meeting one of my idols and will enjoy those bragging rights for years to come...

posted by Alexander | 6:09 PM

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