tag:blogger.com,1999:blog-60038982024-02-28T06:45:23.214-08:00Alextronic DiscoveryAn Electronic Discovery Blog covering News, Articles<br> 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.COMAlexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comBlogger98125tag:blogger.com,1999:blog-6003898.post-13507834124355821092017-04-19T11:48:00.000-07:002017-04-19T11:48:00.693-07:00I'm baaaaack!!Blawgerheads, with so much fluidity, excitement and change in the ESI world these days - I've been encouraged by several colleagues to reactivate this long defunct (7+ years) Blawg, so Alextronic Discovery is baaaaaaack! I look forward to re-entering the Blawgosphere and hopefully providing entertaining and informational tidbits. Stay tuned!!!Alexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-48115062971806125432009-09-14T09:12:00.000-07:002009-09-14T09:15:28.949-07:00Alextronic's State Bar Presentation mentioned in a BlawgHere is an exciting blawg entry from TotalAttorney that references Alextronic's presentation yesterday (at the 82nd Annual California State Bar Meeting in San Diego) entitled New Strategies for Winning the Document Production War. Enjoy blawgerheads:<br />---------------------------------------------------------------------------------------------<br /><br /><a title="blocked::http://www.totalpma.org/blog/day-4-of-the-california-state-bar-meeting/ Permanent Link: Day 4 of the California State Bar Meeting" href="http://www.totalpma.org/blog/day-4-of-the-california-state-bar-meeting/">Day 4 of the California State Bar Meeting</a><br />The morning began with us pondering an interesting question. What would Lincoln do? As a lawyer first and then a President, Lincoln often faced ethical dilemmas which he worked his way through in a smooth and commendable manner. If you despise what you are doing you won’t do it well. In honor of the year of the 200th birthday of Mr. Lincoln, it was an interesting seminar to examine how we would in the modern era use the same principles he applied over a century ago. As you head back to work, if you are faced with ethical dilemmas, ask yourself… What would Lincoln do?<br /><br />E-Discovery has been a very hot topic throughout the conference. This morning’s session was full of useful information about both ethics and rules of discovery. Check out Electronic Discovery for Dummies it is a great reference that highlights e-discovery. There is so much that exists in the files beyond just the data they contain, in fact they can tell you when they were created if and when they were altered and who made these alterations. E discovery is a very expensive process and often the cost is shifted to the requesting party, however most cases look at several factors. Email is the world’s largest communication tool with trillions of messages transmitted each year.<br /><br />The most important lesson I learned today is don’t type anything you do not want discovered! If you are looking to discover almost any document you will likely be able to. If you are looking to hide it, you better have a protective order of some sort. There is Electronic discovery software which can discover how and when the document was altered and by what login name. There was a case where a slanderous document was at issue; the party saying they had never said those things! But the document was filled with slanderous words, and through this software they were able to see that the document had been altered from a different login computer and printed from a different login.<br /><br />For more information check out <a title="blocked::http://www.renewdata.com/" href="http://www.renewdata.com/">www.renewdata.com</a>.<br />It was a wonderful meeting and I look forward to the 83rd Annual State Bar of California Meeting. If you weren’t able to come to this one, check out the Hong Kong conference in early November!Alexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-6537577579918263372008-09-08T23:47:00.000-07:002008-09-09T00:08:38.307-07:00Alextronic and Friends Speak This Month and NextAlextronic (Alex Lubarsky) and friends have a jam-packed E-discovery/ESI speaking agenda this month and next. I hope our dedicated legion of Blawgerheads can join us at the following events (I will be speaking at all but the last event listed below):<br /><br /><ol><li>Litigation Skills for Legal Professionals - Friday, September 26th in Saramento at the Sheraton Grand Hotel - 1230 J. St. from 9am to 4 pm. Register at <a href="http://www.lorman.com/">www.lorman.com</a> </li><li>Preserve Find and Retrieve a Client's ESI - State Bar of California Annual Meeting in Monterey. Sunday, September 28th from 8.30 am to 9.30 am at the Portola Hotel and Spa - 2 Portola Plaza, Monterey, CA. Register at: <a href="http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=11368">http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=11368</a></li><li>Litigation Skills for Legal Professionals - Tuesday, October 14th from 9a.m. until 4.30 p.m. at the Fairfield Inn by Marriott - 8452 Edes Ave. Oakland, CA 94621. Register at <a href="http://www.lorman.com/">www.lorman.com</a> </li><li>Trends in Corporate Data Storage: Information Management and Cost Reduction Techniques teleconference - Thursday, October 30, 2008 from 10 am (PST) to 11 am. This is a webcast. Register at <a href="http://www.lorman.com/">www.lorman.com</a> </li><li>Also, I am not speaking at this event, but I STRONGLY encourage you Blawgerheads to attend tomorrow's FREE webcast entitled 'Implementing a Defensible eDiscovery Process' conducted by Guidance Software and Seyfarth Shaw. This webcast will begin at 11 am PST and I believe it lasts an hour. You can register at <a href="http://www.real-ediscovery.com/">http://www.real-ediscovery.com/</a></li></ol><p> </p><p>It was great seeing many of you at ILTA this year. NYC is just around the corner. I promise another semi-scholarly Alextronic column sometime soon. </p><p> </p><p>- Alextronic </p>Alexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-87885532498387624392008-06-03T21:06:00.000-07:002008-06-03T21:42:16.969-07:00Metadata and Retetention Policies 'Down Under''? You got that right, Mate!<u><span class="blsp-spelling-error" id="SPELLING_ERROR_0">Metadata</span> and <span class="blsp-spelling-corrected" id="SPELLING_ERROR_1">Retention</span> Policies 'Down Under''? You got that right, Mate!</u><br /><br />OK, now we can safely say that the little niche cottage industry called e-discovery has gone global. <br /><br />This year marks the first substantial changes tot he Australian civil code concerning (gulp) data retention policy best practices and <span class="blsp-spelling-error" id="SPELLING_ERROR_2">metadata</span> handling. And you thought them Aussie's only handled boomerangs, Fosters and Vegemite. <br /><br />This month in Sydney a smattering of attorneys, government officials, corporate counsel types and <span class="blsp-spelling-corrected" id="SPELLING_ERROR_3">didgeridoo</span> <span class="blsp-spelling-error" id="SPELLING_ERROR_4">IP</span> professionals will converge around the barbie and discuss natives ... but not the aboriginal type that hang <span class="blsp-spelling-corrected" id="SPELLING_ERROR_5">around</span> <span class="blsp-spelling-error" id="SPELLING_ERROR_6">Uluru</span> and Alice Springs. No, these folks will be 'men at work' discussing the new rules regarding the handling of electronic data and electronic evidence that have been propounded in Victoria and which is taking hold around the red-rock nation/continent from the Sydney harbor all the way to the opal <span class="blsp-spelling-corrected" id="SPELLING_ERROR_7">mine shafts</span> of <span class="blsp-spelling-error" id="SPELLING_ERROR_8">Coober</span> <span class="blsp-spelling-error" id="SPELLING_ERROR_9">Pedy</span>.<br /><br />How can a Yankee get an invite to speak at this gig? <br /><br />I miss Australia. I spent a few weeks there with my wife in the late nineties scuba diving in the <span class="blsp-spelling-corrected" id="SPELLING_ERROR_10">Great</span> Barrier Reef and grilling shrimp when we weren't shopping for aboriginal art and ornate boomerangs. I recall when my dive master, Peter Andrews, asked me as we returned to shore from a mesmerizing fifty foot wall dive off of Port Douglas, "So mate, what is it you do up there?" <br /><br />"E-discovery consulting mostly" I said, quickly realizing that Peter knew as much about e-discovery as I did about the mating habits of a <span class="blsp-spelling-corrected" id="SPELLING_ERROR_11">wallaby</span>. Peter scratched his head and I tried to explain load files, <span class="blsp-spelling-error" id="SPELLING_ERROR_12">deduplication</span>, retention policies, litigation hold protocols and <span class="blsp-spelling-error" id="SPELLING_ERROR_13">metadata</span> to him. After a good ten minutes he suggested we talk about cricket and tap the keg of Victoria Bitter that was knocking around the scuba tanks as we <span class="blsp-spelling-error" id="SPELLING_ERROR_14">zig</span> <span class="blsp-spelling-error" id="SPELLING_ERROR_15">zagged</span> through the reef.<br /><br />I was amazed at how clean and well organized Australia appeared to be as a whole. Each time I would compliment the Aussies on the near-Utopian society they had crafted from a once squalid penal colony, they reminded me that they paid income tax at rate near fifty percent and, in some cases, more. <br /><br />"Thanks for that" I would comment as I strolled the clean and well lit streets and admired public masterpieces such as the Sydney Opera House.<br /><br />It looks like those inflated tax dollars will now be used to pay legislators who will likely have to learn of the saga of Laura <span class="blsp-spelling-error" id="SPELLING_ERROR_16">Zubulake</span> and Coleman Holdings. <br /><br />I admit that I am not familiar with the British style common law that Australia has adopted and that I can guess that the judicial rules committees made the right decision keeping the Tory wigs and rejecting rules that would call out for protracted, <span class="blsp-spelling-corrected" id="SPELLING_ERROR_17">over inclusive</span>, cost-prohibitive data discovery as far as settling on the more appealing <span class="blsp-spelling-corrected" id="SPELLING_ERROR_18">accouterments</span> to liven up the courthouse. Suffice it to say, however, that I would bet dollars to donuts - no, make that dollars to lollies - that somewhere out there in the land down under, a koala bear custody dispute will turn on that one <span class="blsp-spelling-corrected" id="SPELLING_ERROR_19">deleted</span> yet recoverable email that came back out of nowhere to sting the defendant like so many boomerangs. It is the empowerment of the Australian barrister and solicitor to get to the truth via digital evidence that will turn the land down under <span class="blsp-spelling-corrected" id="SPELLING_ERROR_20">right side</span> up. <br /><br />Hell, if they're serving <span class="blsp-spelling-error" id="SPELLING_ERROR_21">Balmain</span> bugs at these Australian e-discovery events, I'll swim there myself and present my paper on the comparative landscape of the <span class="blsp-spelling-error" id="SPELLING_ERROR_22">FRCP</span> and the new E-discovery rules adopted by the Queensland Supreme Court in Brisbane.Alexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-11987652398462473422008-03-25T14:31:00.000-07:002008-03-25T16:39:59.493-07:00The FRCP Amendments Not Just for Federal Practitioenrs Anymore<u><strong>The FRCP Amendments Not Just for Federal Practitioners Anymore</strong></u><br /><strong></strong><br />For quite some time now, attorneys whose practice was limited to the State court system (notably, PI attorneys, family practitioners and small business litigators) were convinced that they wore a cloak of invisibility as far as the ESI-centric amendments to the FRCP were concerned. "ESI is stuff for Federal practitioners to deal with", my law school buddy Glen, who does family law,used to tell me. "I'll worry about it when I take on a Federal matter". I did not want to admit it, but Glen had a point. He could walk into a discovery conference at the Superior Court in San Francisco, admit that his client, the defendant, had on-point email messages out there somewhere but he did not know how to retrieve them and the court would simply accept this and move on to other issues. Glen had few discovery worries. His counterparts practicing in the Federal jurisdiction did not sleep as well at night.<br /><br />Whereas the Federal practitioner - bankruptcy litigator, anti-trust attorney, tribal law specialist, IP counselor and a host of others shiver at the thought of a rule 37 sanction or wake up in a cold sweat from a nightmare in which the cutoff date to hold the rule 26(f) conference had passed, this is not the fate of the state practitioner. Meanwhile the state practitioner, such as the employment discrimination defendant's counsel, worries about mundane items such as the increase in filing fees and who would replace the retiring mean old judge Murphy.<br /><br />Well folks, the playing field has evened in California - or at leas the forces of equalization are now taking shape. Just this month, the California Judicial counsel proposed new electronic discovery rules to bind state practitioners. The state intends to tweak its case management rules of court and amened its Civil Discovery Act. To no one's surprise, the proposed rules are eerily similar to the FRCP amendments. <br /><br />I know what you're about to ask... Yep, these rules apply to the small claims court where litigants cannot be represented by counsel at trial. You got it, Mr. and Mrs. John Qpublic are now subject to rules concerning the identification, preservation, review and exchange of ESI. Who'd of thought?<br /><br />The proposed amendments are now open to public comment and Alextronic is chiming in. It seems a bit much to expect the cast of characters that appear to my amusement on Judge Judy to understand metadata, the benefits of hash values for deduplication and the pros and cons of native format production as opposed to a tiff based production. Alextronic advocates that the court designate a free facilitator well versed in ESI to help small claims litigants and all unrepresented litigants in the Superior Court deal with the new and perplexing intricacies of electronic document management for discovery purposes. If you talk about a safe harbor to most of today's average pro se litigants, they will point to the sailboat dock in the fictional town of Amity Island feaured in the movie Jaws circa 1975. Talk about inaccessible data... to the lay person, this could mean that the CD ROM was kicked under the refrigerator by the cat. You get the picture... <br /><br />On balance, of course, the fact that the more down to earth state court system is moving to adopt the discovery standards, practices and polices of its high-filutant cousin is a breath of fresh air. Just as email and MS Office documents often tell the whole story in a complicated SEC matter or patent dispute, the same ESI is more likely to bring the relevant facts to the forefront in a divorce or slip and fall case. I would bet dollars to donuts that the state court Justices will look back in five years and wonder how on earth the court ever got to the bottom of anything without the required and carefully thought out introduction of ESI to provide the fifty-thousand foot view of the facts.<br /><br />More importantly, many of you Blawgerheads reading or even subscribing to this Blawg know that we all work within a little known niche of e-discovery nerds and ESI pundits and litigation support jocks. Most of us attend the same conferences (with the same short list of keynote speakers who rotate from gig to gig) cough, Browing, cough, George, cough Michael, cough Mary Pat - and we read the same articles and blawgs and vendor web site to ingest the same information in our little, incestuous, closed-circuit ediscommunity. Now, with the California state court in the lead (and the remaining states bound to follow soon) our own off-color art will become the mainstream and the world will soon awake to appreciate the need and, yes, challenges to electronic information as it plays a part in our judicial system. This will change the way the straying spouse thinks of his AOL chat and GPS gadget. The impact will be felt far beyond LTNY and ILTA.<br /><br />It will certainly be interesting to track the soon to follow decisions from the California Appellate courts regarding admissibility of metadata, cost shifting, scope of protective orders, defensibility/admissibility of electronic evidence, best collection and preservation practices and the whole host of hot button issues that have dominated the Federal scene since Laura Zubulake felt disenchanted with her gig at UBS.Alexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-34895699950316741492008-01-20T10:32:00.000-08:002008-01-20T11:18:40.600-08:00Home is Where the Hard Drive Is...<strong>Home is Where the Hard Drive Is...</strong><br /><br />Folks, in the spirit of my '08 New Year's resolution, Alextronic is back on the map at least for now.<br /><br />I had been receiving a bit of flack from my once quasi devout following from the days that this Blawg was daily and then weekly. It slipped to bi-weekly, monthly, every quarter and finally it seemed posts were only going up on leap years. I am constantly amazed at my colleagues that religiously keep up their e-discovery Blawgs and newsletters on a consistent cycle. How on earth do my colleagues do it, each time I receive those enlightening and well written posts which arrive like clockwork. Do they synch them with their garbage bills?<br /><br />The wakeup call came when, to my honor and embarrassment, Robert Ambrogi listed Alextronic as the top e-discovery Blawg in the November issue of Law Technology Product News (O.K., so he listed his favorite Blawgs alphabetically and being Alextronic doesn't hurt given that criteria) bit it was nonetheless an honor to be mentioned. I certainly am most deserving of his criticism that my writer's block seemed to be prolonged and, by my own admission, inexcusable... so guilt and a sudden need to release some ESI related ideas that have been swimming around in my head have lead to this long overdue Blawg entry. <br /><br />I am writing this on my home computer. You don't want to know all the things I do on my home computer and I don't want you to know all the things I do on my home computers. Googling ex-girlfriends, wasting time following Kasparov's chess moves, reading back issues of the the Exile (<a href="http://www.exile.ru/">www.exile.ru</a>), playing Tetris during working hours, tracking photos of the small Ukraine village where I spent a summer picking potatoes and sending the fifteenth threatening e-mail to the guy who owes me Sharks tickets from the Texas Hold 'Em hand I won last June is just the tip of the iceberg... and that is just the quasi respectable stuff...<br /><br />A friend of mine, we'll call him Max, went through a nasty divorce. Max was the kid who always got me into trouble. My parents tried everything to get me to stay away from Max, but Max always had fireworks, shaving cream, eggs and a devious plan mapped out for the neighbors on our way to Ms. Welte's second grade classroom. I remember the day he convinced me to hitch hike to class, we spent three hours trying to flag down some unsuspecting soccer mom (no one stopped) to score a ride that would have brought us a whole two blocks to our elementary school. One day, we found in our mailboxes a free sample of the new flavor of Wrigley's chewing gum. Needless to say, we were noticeably abscent from class that day and spent the same evening toting around a one pound bag of chewing gum after visiting every mailbox in the neighborhood.<br /><br />Max called last month not to suggest that we T.P. the middle school or give Mike a swirley again, but to inform me that he and his wife, who I will call Nedra, were getting a divorce. <br /><br />To Max's credit, he did straighten up a bit in his later years. He was a good father to three kids and only tossed water balloons with them on hot Summer days and not at the local school principle's car. <br /><br />"You're into that computer as evidence shit, right?" Matt asked as he called as the custody battle heated up. "Nedra's asshole attorney wants my goddamn email off of my home PC, that sonnofabitch. Can he really do that shit?"<br /><br />"Ummm, I think so," I replied, feebly.<br /><br />"That can't be legit" howled Max. "Can you check on that for me. I told my lawyer you would help him with this. I'll spring for the cabin next time we fish the upper Sacramento."<br /><br />I could not refuse a longtime friend in pain and I did pay for our fishing cabin during our last four trips - even though Matt brought the cases of Moosehead. I told him about the seminal California case of <em>Playboy v. Welles</em>, where good old (literally) Hugh Hefner was able to 'get at' yet another luscious Playmate's hard drive (literally, again). I had not heard of much else on the home computer front since the <em>Playboy </em>case, so I promised Max I would dig.<br /><br />After strapping on the Lexis account and visiting my favorite ESI web resources, I realized that neither Matt nor my home computer was safe at home. <em>Frees, Inc. v. McMillian </em>(2007 Federal Dist Decision out of Louisiana) says that the home computer is subject to a reasonable discovery request even if it was purchased AFTER the events in controversy took place (because, data off of old computers can be easily copied and exported to the new PC). Also, last year in <em>Clayon v. Mizuho Securities</em>, the defendant wanted to dig around in the Plaintiff's personal PC when the Plaintiff's claims of mitigating damages were disputed. The court allowed access, but gave the right of first harvest to the Plaintiff's own forensic expert and if the results seemed fishy, then the court would allow the requesting party's expert (the defendant's expert in this case) access to the home drive. Things did not look good for Max.<br /><br />When I called Max to tell him the bad news, he responded in typical Max fashion. "I'll just put a Black and Decker Ic1 voltage emitor to the damn thing and give it to the judge while it is still smoking." Max was in construction and new more about voltage emitors than did I, but I told him it was a bad idea. I educated him about adverse inferences and about <em>Teague v. Target Corp, </em>a 2007 No. Carolina case which said that if the PC is destroyed due to a seemingly 'culpable state of mind' the adverse inference attaches. I told Max that there is little that anyone can do wit a voltage emitor which cannot be seen as overly culpable. <br /><br />I did tell Max, however, that there was case law and rational arguments that his attorney could make to argue that the computer did not contain germane evidence that has not already been presented through paper discovery and deposition transcript and that the requesting party in California under the <em>Toshiba </em>decision would likely have to shoulder costs, which may make the other side back down or back off completely. I had a chat with Max's attorney who had just attended his first ESI lecture at a state bar event and had <em>Zubulake </em>down well enough to be dangerous. After a long chat, he asked me if I had any parting advice for him.<br /><br />"Yes," I said, "if you don't want to see your mailbox egged our your house toilet papered, do a good job for Max."Alexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-66327185818437174952007-07-30T14:21:00.000-07:002007-07-30T14:39:00.403-07:00Writer's BlockGoing on nearly a year of writer's block. I am so ashamed. I could blame my slothful lack of diligence on my wonderful three kids all under four and transitioning from Sponge Bob to Spiderman or the office move or the CEB chapter I just finished authoring or the course I am teaching at Cal State East Bay and the law course I am preparing on E-Discovery at Golden Gate U. Law School. I could blame things on my long stint in a training lab trying to learn the ins and outs of EnCase or perhpas it is the goboal warming epidemic that is making me lackadaisical but the truth is I have just been unimaginative and awkwardly uninspired as of late. <br /><br />I vow to crawl out of my inexcusable slump starting with this small post.<br /><br />I just today get a shot in the arm of long overdue inspiration when the highly anticipated Blawgworld book was published featuring a fluffy little article by Alextronic as well as more substantive work by my more deserving colleagues. <br /><br />The link to Blawgrowld is here: <a href="http://www.technolawyer.com/r.asp?L11437&M1" target="_blank">http://www.technolawyer.com/r.asp?L11437&M1</a> Enjoyh Blawgerheads!<br /><br />I want to thank my readers for the near constant badgering and name calling concerning my failure to update this little forum over the past year. Your insults have never made me feel more loved.<br /><br />Look for something of relative substance soon.Alexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-1155869797743223392006-08-17T19:52:00.000-07:002006-08-17T19:56:37.763-07:00ED HumorThe world is in need of some levity more than ever in these troubled times. My friend, Jud Parker sent me this top ten list he is using in connection with promotion of his new biz (OK, here comes the gratuitous Alextronic plug for his friend) Digital Legal Tampa, LLC:<br /><br />Here are the top ten reason to seek help from an E-discovery consultant such as Jud:<br /><br /><br />10. The numbers 16, 26, 33, 34, 37 and 45 look more like a winning lottery ticket than key federal rules which regulate electronic discovery.<br />9. Metadata. Meta what?<br />8. You assume “native” files are those created in Hillsborough County.<br />7. You vaguely recall the terms “EDD” and “ESI” from one of your teenager’s text messages.<br />6. Your only reference for “forensic data recovery” is CSI: Miami.<br />5. You confuse well known electronic discovery plaintiff Zubulake with the leader of a U.N. peacekeeping mission to Darfur.<br />4. You imagine that the Sedona Conference is a retreat for New Age pilgrims.<br />3. Your only context for “spoliation” is the expiration date on a milk carton.<br />2. You guess that the word “petrification” may have stumped last year’s runner up at the National Spelling Bee.<br />1. You need a strategic consulting partner for electronic data discovery and litigation support.<br /><br />See y'all at ILTA!Alexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-1152945607420705822006-07-14T23:10:00.000-07:002006-07-14T23:40:07.436-07:00When will the West(tm) Be Won?I learned from an early age that the quiet kid who sat in the back of Hebrew school was not to be ridiculed for being a nerd, shy or a goober. The quiet kid usually ate our lunch when it came the grading curve. The quiet kid ended up with the chocolate gelt and the hamentashan. I learned that still waters ran deep. I have always respected the apparently inert. They have an innate ability to strike when the iron is hot and run into the sunset.<br /><br />Speaking of sunsets, they happen in the West. What is not happening, though is West itself. Lexis/Nexis following the lead of the likes of Larry Elison of Oracle fame has made some very aggressive acquisitions as of late. CaseSoft (CaseMap), Dataflight (Concordance), Matthew Bender, Best Case Solutions, Applied Discovery, TimeSlips, HotDocs, TimeMatters the list goes on and on... Will it become impossible to practice law without having to pony up to the bargain hunting Brutches (British Dutch) who own Lexis/Nexis and who fear not throwing more of them coveted Euros against them weak greenbacks to own the industry? Will there be a backlash? Will attorneys welcome the Lexisization of the tools of their trade? Will the company truly be able to provide a flowing and somewhat seamless integration with their flagship research tool and the bevy of case management, time and billing, forms and litigation support software packages?<br /><br />So why has the other giant of the West seemed to slumber? I would have bet my wacky pack collection that West would have snapped up Dataflight or perhaps some waning ED processing company which seems to be on life support (Dolphinsearch?) to get into the game. Is West waiting for the market to further soften? Are they just content owning the book and binder lot? Do they have a that ace up their sleeve or are they really just plainly missing critical opportunities to get some footing into the game moving forward? What on earth are they thinking?<br /><br />Maybe West has the next 'it' litigation technology under wraps. Perhaps the perfect Frankenstein is just starting to heave its chest in some obscured and maniacal lab in Minneapolis. Perhaps not.<br /><br />Still waters run deep, but not always. When Mr. Shapiro finally called on the quiet kid in the back, we braced ourselves for his words of brilliance. When all he could do was shrug shoulders and admit that he could not read the passage in Hebrew, we realized that his silence meant just what it was - there was nothing going on...Alexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-1147583392894164292006-05-13T22:08:00.000-07:002006-05-13T22:09:52.906-07:00That coveted link to the free eDiscovery publicationDue to the many e-mail messages I have received lately asking for that coveted link to the free blawgworld... once again, folks, here it is: Enjoy!<br /><br /><a href="http://www.technolawyer.com:80/admin/redirect.asp?LinkID=7068&MemberID=1">http://www.technolawyer.com:80/admin/redirect.asp?LinkID=7068&MemberID=1</a>-<br /><br />AlextronicAlexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-1146817564043881232006-05-05T01:19:00.000-07:002006-05-05T01:26:04.063-07:00Where the new FRCP rules fall a bit short...Alextronic was invited by a Magistrate to comment on the new FRCP rules pertaining to ediscovery and a verbatim copy of the Alextronic two-cents follows. Your comments and constructive criticisms are invited....<br /><br />The Judicial Conference Rules Advisory Committee surmised that the FRCP amendments as proposed aim generally to help the courts differentiate and appropriately treat electronic discovery as opposed to conventional discovery and to "resolve the issues electronic discovery presents". The rules seem to make great strides towards this end, but they can stand room for improvement. <br /><br />It is somewhat surprising that the US Supreme Court approved without dissent or even analysis, the amendments as they stood at the time of the Court's review. The rules, although commendable on the whole and a substantial improvement over the status quo (,ie, no differentiation between electronic data discovery and paper-based discovery), do not go far enough to protect litigants from facing runaway costs which could stifle the administration of justice. Also, some of the rules tend to be vague and could stand some benchmarks so that certain standards can be established as is explained below.<br /><br />For example, the amendment on page 38 discusses parties' obligationd to meet and confer pursuant to FRCP Section 37(a)(2)(B). This meeting will certainly help the litigants narrow issues pertaining to how they will exchange digital evidence, but the mandate under the rule goes only to the preservation, production,"translation" and review of data. The rule is, surprisingly, absolutely silent as to how the subject data should be harvested/collected. In fact, the entire sixty page rule makes no reference as to how data should be harvested. <br />This presents problems because the methodology of data collection can vary drastically. An adverse party can manually open up a pc, for example, and unscrew a hard drive and copy it via a usb cable connection. This method is disruptive and erhaps even rightfully deemed reckless as the target machine is put out of commission for some time and subject to a high likelihood<br />of irreparable damage. Not to mention, this manual method fails to guard against the inadvertant alteration of metatags leading to claims of spoliation and opening a Pandora's box of evidentiary challenges and law and motion headaches.<br /><br />Furthermore, the rule offers technological solutions to the review and production of spreadsheets on page 37 citing cost savings attained by using e-discovery tools to avoid the printing of spreadsheets and other such difficult manual tasks. <br /><br />Curiously, however, the rules remain silent and offer no analysis when it comes to data collection efforts that all parties confronted with e-discovery must undergo. Current technologies allow for a quick, seamless, inexpensive and forensically<br />sound data harvest while antiquated technologies (or the failure to apply technological solutions to this critical stage of the e-discovery process) can result in despoiled evidence, wasted funds and excessive, needless man hours in the effort to move the data from its original location to counsel for review and then to opposing counsel via production and finally into<br />evidence before the Court. The failure of the Rules Advisory Committee to consider this crucial step in the discovery of ESI stands out, in the eyes of this author, as a blaring omission that must be remedied. Given the fact that courts in every jurisdiction (Federal as well as State and administrative) have determined which forensic protocols involved in the harvesting of potentially responsive data should be accepted by the court as forensically sound, these conclusion should be interwoven into the FRCP.<br /><br />Further, along similar lines, the rules do not discuss the benefits of data culling at the point of collection so as to reduce unneccessary hourly and dollar expenditures by parties. The Court in the renown Zubulake IV decision made it clear that a litigant is under "no duty to preserve every shred of paper, every e-mail or every electronic document and every<br />backup tape... [as] such a rule would cripple large corporations..." This critical and correct holding enjoys no support nor visibility within the FRCP. The use of technologies that can quickly and accurately filter out data which all parties can agree is outside of the purview of that which is germane to the issues at hand should be mandated by the Rule. It is<br />surprising to this author that the Rule addresses the remedies of inadvertent disclosure of electronic data in great detail and with much aforethought clearly directed towards such remedies yet the preventative steps that will drastically reduce the possibilities of such inadvertent disclosure (culling out that which is non responsive, irrelevant or otherwise clearly<br />privileged) is given no mention in the Rule. <br /><br />The new rules provide that electronically stored data which is not "reasonably accessible" does not need to be produced unless the requesting party can show good cause. The rules seem to fail to appreciate that with modern forensic capabilities, it is quite uncommon that data can be deemed truly inaccessible. <br /><br />It is appropriate that there exists a scienter analysis providing that data cannot be purposefully "made inaccessible" by the party who would benefit from the absence of that data in the court's record. Sanctions for such malicious destruction of evidence are appropriately provided<br />for in the rules. However, the rules are unclear when it exempts a requirement to produce data which is not "reasonably accessible." Of course, no examples are cited as to what constitutes the terms "reasonable" and "accessible". Based on the technological "savvy" of the producing party, what may be 'reasonably accessible' for one party can vary drastically from that of a dissimilarly situated party. For example, data kept by defendant, IBM, charged with producing ESI contrasted with a defendant restaurant or child care center under a similar obligation will result in a wildly disparate definition of 'reasonably inaccessible data' based on these divergant party's perspective.<br /><br /> The rule provides for a safe harbor from penalties imposed upon a party which allows its ESI to become "lost" or inaccessible due to routine computer usage (,ie, machines rebooted overwriting slack space which may contain deleted data fragments). Forensic technologies can mitigate this data loss and such regular computer usage will, over time, account for less and less inadvertant data destruction as forensic recovery tools continue to improve. This is not to say, however, that the provision of the rule which provides a 'safe harbor'from sanctions for those whose data is rendered inaccessible due to such routine computer usage is not a fair provision. <br /><br />In sum, the rules in certain areas (outside of the well drafted areas concerning inadvertent production of privileged data and the sections which broadly and appropriately define what constitutes 'electronically stored information') can stand to be better defined and further analyzed. That being said, it appears that amendments to rules 16 and 26 requiring the early meet and confer about the above referenced issues pertaining to e-discovery can serve to ameliorate the criticisms raised above.Alexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-1146710602368944102006-05-03T19:32:00.000-07:002006-05-03T19:43:22.380-07:00Shame on me...If your stomach turns at every shameless self promotion that somehow sneaks past your popup blocker or slithers its way into your monthly partner/associate conference call or jumps out of a legal technology 'review' or 'white paper' ghost authored by some editor at Westlaw or Reed Elsevier, then switch off old Alextronic now because you ain't gonna like what is about to go down...<br /><br />This is the lowest I have stooped since I bootlegged a copy of time map for my wife to use in her communication's class oral presentation (sorry, Bob and Greg... the check is in the mail).<br /><br />I am shamelessly and selfishly asking for your vote. I feel like Ross Perot doing this, but Alextronic Discovery is tied for first place in the prestigious technolawyer awards category for 2006 Blawg o f the Year and my loyal readership and Blawgerheads/EDiscovery propellerheads can help push old Alextronic past the finish line by voting at: <a href="http://www.technolawyer.com/tlballot2006.htm" target="_blank">http://www.technolawyer.com/tlballot2006.htm</a><br /><br />In return for your vote, I promise to NOT write a dry and drawn out analysis of the new FRCP and California Rule 212 as amended but I will restate the effects and challenges of these rules in Haiku or via some Kafa-esque stream of consciousness writing style. Hell, I may even rap about these rules if I can get DJ Metatag and MC MD5-Hash to ditch the Eminem tour...<br /><br />With no humility left, I thank you in advance for your support.Alexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-1144642424885211072006-04-09T21:10:00.000-07:002006-04-09T21:13:44.900-07:00Still Haven't downloaded your copy of Blawgworld?A few of you stuck out in some far away orbit out there have yet to download and enjoy Neil Squillante's famed "Blawg World" free .pdf publication. Although some 25,000 blawgerheads have indeed downloaded this phenomenon, Alextronic has heard that some of you are still huntin' for it.<br /><br />To make your life just a tad simpler, here is that coveted link. Enjoy!<br /><br /> <a href="http://www.technolawyer.com:80/admin/redirect.asp?LinkID=7068&MemberID=1">http://www.technolawyer.com:80/admin/redirect.asp?LinkID=7068&MemberID=1</a><br /><br />-AlextronicAlexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-1144462130377061652006-04-07T18:09:00.000-07:002006-04-07T19:08:50.416-07:00Alextronic and the Judge<a href="http://photos1.blogger.com/blogger/6195/274/1600/images[16].jpg"><img style="WIDTH: 117px; CURSOR: hand; HEIGHT: 135px" height="133" alt="" src="http://photos1.blogger.com/blogger/6195/274/320/images%5B16%5D.jpg" width="151" border="0" /></a><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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 <em>my</em> Michael Moore went as quickly as it came.<br /><br />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.<br /><br />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).<br /><br />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...Alexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-1140575358234447532006-02-21T17:34:00.000-08:002006-02-21T18:29:18.286-08:00Pass this on to your Corporate IT Security Guru...I just read this hot-off-the-press article written by Southern California Attorney and E-Discovery Guru, John Patzakis. The article (printed in the February Edition of the ISSA Journal - <a href="http://www.issa.org">www.issa.org</a>) discusses the tangents and intersections between litigation support/GC and corporate security professionals.<br /><br />In essence, Mr. Patzakis effectively argues (and indeeds proves up his theorem) that the trained corporate security professional can serve his or her employer by applying such IT/ corporate security professiona'al talents to the e-discovery (read "data harvesting" and/or "forensic analysis") processes that are becoming more and more staple among the rapidly changing litigation landscape.<br /><br />How and why should the IT/ corporate security professional jump into the e-discovery trenches? This is what Patzakis has to say:<br /><br /><br /><em>To better understand the advantageous role<br />information security departments can play in this<br />equation, it is important to understand the current<br />broken eDiscovery process and the staggering<br />costs associated with it. Unbeknownst to<br />many CISOs, eDiscovery expenses for large companies,<br />which tend to outsource the function, are<br />spiraling out of control. What should be fairly routine<br />computer evidence collection and processing<br />engagements can cost millions of dollars in consulting<br />fees for a single case. According to standard<br />price lists from top eDiscovery providers, a<br />company can expect to pay $11,000 to $15,000<br />for the processing of a single hard drive. Thus, a<br />relatively modest investigation involving 10 computers<br />will likely cost well over $100,000. In addition<br />to a substantially reduced bottom line, these<br />enormous costs force companies to prematurely<br />settle cases or otherwise compromise their litigation<br />strategy, such as by cutting corners that often<br />result in court penalties for noncompliance.<br />A key reason for these high costs involves the<br />traditional role of outside counsels who represent<br />the company and typically oversee and manage<br />the eDiscovery process on a per-case basis. These<br />law firms habitually rely on their own consultants<br />to handle the eDiscovery needs of the case at<br />hand, and both the law firm and their consultants<br />typically approach the issue as a case-specific litigation<br />support project. Thus, the focus is on<br />addressing the immediate case, and not on solving<br />the end client’s long-term problems by establishing<br />a systematic methodology.<br /></em><br />Corporate IT and security professionals routinely address the long term solutions that should be set in place to make the enterprise more efficient and streamlined. That being said, becaue e-discovery is (or should be) a "repeatable" process, would it not make sense to empower these folks to lay the framework for a data harvest or data examination process? Who else, better than the corporate IT/security profesional has the technical knowledge in general combined with the specific knowledge and experience of the enterprise's network and systems topography? It simply makes sense from an operational as well as a cost perspective to empower these folks at the client's site.<br /><br />Now all of you newly minted e-discovery attorneys reading this article, don't begin to tremble. Should the trend suggested by Patzakis take effect and flourish, your skill set would not be displaced but rather, to the contrary, become much more coveted. Both the law firm and its coroporate client will look to the e-discovery attorney as a bridge to cross the gap between the worlds of the litigator at the firm and the executive and the IT/ corporate security professional who supports him or her. This role (now assumed by costly consultants who know neither the firm nor the client nearly as intimately as the e-discovery counsel does) would not only prove to be a big money saver and money maker (constituting billable events each time e-discovery counsel works towards building said bridges) , but it will help the law firm strengthen its relationship with its client. A win-win all around.<br /><br />So pass this on to your IT/ corporate security professional contact at your client site and ask them to take heed (and subscribe to the Alextronic Blawg in the meantime).Alexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-1137965724064950012006-01-22T12:59:00.000-08:002006-01-22T13:35:24.116-08:00EDD ReflectionsEDD Reflections - By Alextronic Lubarsky - Tel. (626)298-9856<br /><br />Having been entrenched in the ED biz since 1999 (and 'old fashioned' paper based litigation support since 1994) makes me, if I do say so myself, a pioneer of sorts. <br /><br />I recall the first time I was exposed to the concept of eDiscovery was in 1997. I had been working at Summation Legal Technologies in San Francisco for many years and was standing in line for the free Thursday lunch... A tradition that I took full advantage of while at Summation and, some may say, stealthily continued after I moved over to Daticon but remained in San Francisco. I am told that I would regularly visit the folks at Summation, coincidentally enough, on Thursdays at noon when I found my stomach particularly empty and wanting. <br /><br />As I was standing in the do it yourself taco line in early '97, Jim Henderson, the co-founder of Summation and the brains behind "blaze" (the technology that indexes the Summation search engine) was in front of me, tinkering with his new Sony VAIO sub-notebook. I always liked to pick Jim's brains because he was always preocupied with refining soon to become standard technologies that the rest of us hadn't heard of yet. He was and is a true visionary.<br /><br />"What's new in the industry, Jim?" <br /><br />"Paper will be less important in the years to come."<br /><br />"Oh, you mean paper is all going to go to .tiff?", I asked.<br /><br />"No, I mean the paper will not be in the equation at all."<br /><br />"Huh?" I was beginning to wonder who spiked the salsa at the taco bar. <br /><br />"We're seeing a need for the email messages and other data from the computer to be directly brought into the review platform without the traditional print, scan, OCR and code methodology," continued Jim. <br /><br />I blinked and scratched my head. My thoughts refocused on the selection of beans before me. "I think I'll do refried, this week", I told myself. <br /><br />I was not quite sure what Jim was talking about. In fact, I could not even envision it really. I felt stupid and went off to chew on my pollo asado and guacamole. <br /><br />A year later, I was waist deep in e-discovery as the product lead at Daticon for a tool that allowed for 'do it yourself' e-discovery called 'Discovery On Demand', later I would become the e-discovery subject matter expert with Fios and unleash this blawg on the topic. There has not been a day since I spoke to Jim in that taco line that I have not had a conversation about e-discovery in some fashion (with the exception to my yearly trekking excursions to the Bolivian/Peruvian Andes - but it may not belong before those descendants of the Incas whom I pass along the ancient trails are retooling their MD-5 hash codes and debating the admissibility of metadata...)<br /><br />One thing that has not ceased to amaze me is the costs of e-discovery. I recall people shelling out six grand a gig (after negotiating the vendor's price down from eight grand or so) and waiting a week or two for the processing to complete its course. I remember when a five gig e-discovery job was mammoth. Now, I deal with cases involving terabytes regularly, I see traditional e-discovery shops charging between $800 to $2,000 per gig ("Would you like .tiffs with your index, sir? ... Have I told you about our chef's special - hosting platform with .tiff on demand?"). I am also seeing forensic labs unleashing technology that can query a drive based on date/key word and then mirror the results in a fashion that is ready for direct export into Summation, Concordance and others for just a few hundred per drive... The progress has been dizzying. <br /><br />Where will things be in a few years from now? I can only begin to guess... I'll have to give a shout out to Jim.Alexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-1136348056530405022006-01-03T19:22:00.000-08:002006-01-03T20:14:16.573-08:00Pre Collection Filtering - A cost saving realityOnce upon a time, the cost saving move was to go the EDD route. The alternative (paper which must be copied, Bates labeled, scanned, coded, boxed, shipped, copied again, stored etc...) was just too scary to fathom.<br /><br />Then along came the unexpected, a way to save on EDD! Just when the electronic data discovery game got good from a cost perspective, it amazed everyone by getting better (and cheaper) via pre process culling. The ability to pay to process only a designated subset of that which had been collected was a Godsend. At $2,000 a gig (in those days) any winnowing down of the information to be processed was as good as money in the bank. Collect everything and then put in some key words to filter down what you pay to process. The greatest thing since chewing gum... or was it?<br /><br />Almost.... but cuttind edge technologies have again stepped up the play. <br /><br />Now, one vendor, Guidance Software, has trumped 'em all in the e-discovery realm. They have software/services that allow for <em>pre </em>collection culling. This means that instead of grabbing the whole darn enchilada (and paying for it too) and saving only by filtering out that which did not have to be subsequently processed, Guidance lessens the loads significantly by allowing the corporation (or law firm representing the corporation) to not have to shell out for anything (even harvesting costs) for the data that is irrelevant or otherwise outside of the discovery request/subpoena.<br /><br />Imagine the implications. This can bring costs down by ninety percent or more by Alextronic's calculations (albeit, Alextronic took algebra twice in high school and only got through it by copying from Lisa McLaren's test after distracting her with a stink bomb... but that's for another blawg entry). Where was I? Yes, if a large pharmaceutical company is defending a patent dispute concerning drug Z's production for the children's medicine market in 2004 and emails and spreadsheets from the Western R&D Department Managers are requested, instead of paying some collection outfit to mop up the entire she-bang, software can be introduced which will run through the enterprise and sniff out date ranges (2004) and key terms "Drug Z" and "Children" and only lift that for processing. The savings are front-ended.<br /><br />Many naysayers will argue that this initial pre-shrunken collection effort is too narrow and therefore can be successfully challenged by the opposition. I say phooey. Look at some of the recent case law including the reknown Zubulake decision which holds that only "relevant" data need be harvested upon a reasonable discovery request or subpoena. If it is clear that the parameters used to filter the collection comport with the scope of the discovery request [ie, if a reasonable person would conclude that reducing the scope of the initial collection to 2004 and the keywords selected where on point, then in all likelihood the courts would uphold and even outright bless (as the courts did in Williams v. Mass Mutual Life, 226 F.R.D. 144 (D. Mass., Feb. 2, 2005), Wiliford v. State of Texas, 127 S.W. 3d 309 (Tex. App. 2004), State v. Cook, 777 N.E. 2d 882 (Ohio App 2002) the actions of the wise and frugal producing party].<br /><br />In sum, the logic is simple. If you or your clients are not pre collection filtering but are only pre process filtering... someone is probably paying too much.<br /><br />Tune in next week when Alextronic discusses the new law firm trend of promoting attorneys to the role of "E Discovery Partner."Alexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-1133595782797743532005-12-02T23:32:00.000-08:002005-12-02T23:54:54.303-08:00Look at me now, Ma!Ever since I lost the bubble gum blowing contest to Warren Gunderson in the second grade (he cheated because his dad owned a candy factory and furnished him with one of the first known prototypes of Bubble Yum while I tried to make do with Bazooka the consistency of flint stones), my mother told me I'd never amount to anything even despite the fact that I went on to learn how to blow a bubble within a bubble.<br /><br />I thought I had proved her wrong when, working at the local pizza parlor, I had perfected the art of dough tossing when my colleagues cut the pie dough into circles from cookie-cutter style templates.<br /><br />Well, if that didn't impress you, Ma, this certainly will: Alextronic has been featured in the new highly touted <a href="http://www.blawgworld.com">"BlawgWorld" 2006, Capital of Big Ideas </a>(check out Alextronic's entry on native review and native production on page three)! This nifty e-publication, sponsored by TechnoLawyer, is a sample platter of Blawgers from around the globe who Blawg about everything from e-discovery to IP litigation to law firm management.<br /><br />In its first day at press, this book reportedly had over 6,000 takers!<br /><br />Stay tuned Blawgerheads for an upcoming entry concerning the benefits of a proactive and forensically sound data retention/collection environment...<br /><br />Now back to my Dentyne... I've settled down a bit in my old age.Alexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-1131179228799673792005-11-04T23:58:00.000-08:002005-11-05T00:27:08.846-08:00The laws they are a changin'It should come as little surprise that (finally) the Federal Rules regarding evidence used at trial (FRCP and FRE) as well as most state rules (,ie, the California Code of Civil Procedure and the California Evidence Code as well as the Alabama Code and others) are finally getting into the "nitty-gritty" as far as language reflecting the reality of electronic evidence is concerned.<br /><br />Some notable changes that will play a key role appear in revised statutory materials as well as "pending" statutes recently promulgated by "advisory committees" such as the Standing Committee of the Judicial Conference and the Civil Rules Advisory Committee. Groups such as the Sedona Group and the George Socha project (can't recall what he calls his new club off hand) may also prove significant enough to be heard and contribute to the formation of these new statutes.<br /><br />What changes can we expect?<br /><br />I don't think you will see litigator's continue to tremble when asked to produce legacy data from Univac circa 1962, TDKSE90's or Wang Mainframes that churned out reports at 2 ghz as Grease was playing at a theater near you. No more holding your breath as you search E-Bay for the Sun Tape Drive produced between 1982 and 1984.<br /><br />Why? Because the proposed amendments to Federal Rule of Civil Procedure 26(b) will require production of electronic data which is reasonably readily available "without excessive burden or costs" - of course lawyers will argue that reasonable minds may differ as to what constitutes excessive burden/costs, but I tend to think that any efforts to revive any technology pre Flock of Seagulls and Iran-Contra would be deemed a bit too troublesome.<br /><br />Some other rules such as 16(b)(5) have already had a face lift so that they explicitly include electronic records within their purview. Rule 26(f) brings electronic data into the meet and confer and mandatory settlement processes, so those depos and yellow pads may now only tell half the story. Rule 26(1) will now require an affirmative disclosure of electronic files that are germane to the dispute to follow the longstanding federal rule 37 which has required such of physical evidence such as paper and the shell casings...<br /><br />California has broadened the definition of discovery via CCP Section 2017.710 so that electronic document depositories and e-mail are specifically named. This helped me recently help a friend win a case against a plaintiff who was playing hide the ball as if he was trying to hide Anna Nicole Smith behind Paris Hilton.<br /><br />Then there is an entire slew of new rules (both recently revised and proposed) that penalize those who intentionally destroy relevant and potentially damaging (to the destroyer) data including erasing but not including inadvertant erasure by starting/stopping one's PC. This probably should have ben called the Kenneth Lay amendment.<br /><br />Even more exciting is the new case law both at the Federal, State and Administrative Court levels. I will save this for another Blawg entry, but I can assure you that all you Blawgerheads will be quite intrigued as to how many different courts have landed with respect to the same issue. Toshiba vs. Zubulake are no longer the big dichotomies out there...<br /><br />By the way, your very own Alextronic will be speaking twice in the next few months (the 6th of December from 5.30 to 9.00 at the LA County Bar) and again for the California State Bar on January 27th through the 29th at the Loews in Santa Monica). Hope to see some of you there.Alexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-1130135624451641232005-10-23T23:28:00.000-07:002005-10-23T23:33:44.456-07:00Alextronic 90210Blawgerheads.... Your very own Alextronic will be presenting a course on the current state of the law and technology with respect to EDD and computer forensics at trial in Beverly Hills, California this coming Tuesday (October 25th) at 6 pm at Lunaria's Restaurant and Jazz Club at 10351 Santa Monica Blvd. (at Beverly Glen) Los Angeles.<br /><br />This event is hosted by the Beverly Hills County Bar Assn., ZANTAZ and Guidance Software and I will be speaking on a phenomenal panel of attorneys and tech gurus. <br /><br />For more details, the link is: <a href="http://www.bhba.org/intus/event3/signup.asp?event_id=1801">http://www.bhba.org/intus/event3/signup.asp?event_id=1801</a><br /><br />Hope to see y'all there!<br /><br />-AlextronicAlexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-1126855292051827982005-09-15T23:33:00.000-07:002005-09-16T00:21:32.076-07:00Will live capture of e-mail make ED processing as we know it obsolete?Will live capture of e-mail make ED processing as we know it obsolete?<br /><br />As rules such as SEC 17(a)4 requiring live capture of e-mail communications by publicly traded entities in the wake of Enron, WorldCom and ten thousand dollar shower curtains (Tyco) begin to be the rule rather than the exception, live capture of electronic communications seem to be more and more the norm. Combine the flow of this tide with the reduced cost of storage and the electronic data does not have to be harvested and massaged and indexed... it's simply already there.<br /><br />In fact, this progression makes sense. History supports it. Early man hunted with poison darts and clubs before Ugtar the Bison hunter concocted a fence and bred bison in a secure area with saber tooth tiger firewalls. Streamlining live data to a digital archive with audit and query capacities results in data instantly searchable and classifiable without necessarily pushing it through the indexing and meta tag extraction exercises.<br /><br />Of course, chain of custody is hardly an issue as the live stream does not necessarily divert from its environment. Deduplication and virus protection can be scripted into the archive via front end filtering. Data which has been live captured can be simply queried for relevance and/or repsonsiveness and then this sub population can be exported into a full fledged litigation support tool for redactions/annotations/production subset numbering and ultimate export into a trial presentation application such as Trial Director or Sanction.<br /><br />This isn't Star Wars. This stuff exists now and the tier one EDD players are moving into this model slowly but surely. If you are interested in a list of companies doing this now, e-mail me at <a href="mailto:alubarsky@enterusa.com">alubarsky@enterusa.com</a> .<br /><br />Of course, in the short term traditional EDD processes will likely continue to grow but this growth will ultimately move sideways as live streamed data is more and more routinely captured. In the meantime, don't throw out that MD5 hash code.Alexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-1125614380036911722005-09-01T15:35:00.000-07:002005-09-01T15:39:40.046-07:00Hot Native Passions Ignite!Hot Native Passions Ignite!<br /><br />No, Alextronic has not gone Harlequin on you. If you were expecting steam to rise from them little spaces between your keyboard as you read this belated Alextronic entry, you will be woefully disappointed.<br /><br />But passions (of a less prurient nature) are erupting around us. I speak of the passions that are invoked when the hot issue of electronic discovery review and production best practices rears its feisty little head.<br /><br />I find that few are actually passionate about having to do a document privilege/relevance review and production, but without doubt the nature and format of that very review almost inevitably invokes deeply rooted primal desires and lusts of such intensities not seen since biblical times before metadata and Zubulake in Eden's garden with the pesty serpent and what's his name and who's her face.<br /><br />Attorneys, paralegals, litigation support professionals and vendors nearly "go to blows" when it comes to electronic review formats. I've recently counted it among my favorite emerging spectator sports as it both entertains and educates. Not unlike watching Texas Hold'em poker marathons.<br /><br />I recently visited a national litigation support director for a large New York based firm. I found him red faced and fuming at the fact that the partner in charge of a large SEC audit response wanted to have all of the data which had been electronically harvested at great expense to the client converted to .tiffs before reviewing. The lit support director, I'll call him Frank, was grinding his teeth and pacing in circles around his small office - carefully avoiding the small mounds of ALC and Ikon labeled banker boxes nearly missing collisions with his cabinets full of DVD's and DLT tapes.<br /><br />"This is going to add another thirty percent to the cost of this project... the client will be steamed" he muttered, "we will bill out for all of those .tiffs when only a smidgen will be actually produced or redacted. This is bullshit!"<br /><br />I tried to change the subject by asking how his fly fishing trip to Alaska last month turned out but to no avail. Frank began to wring his sweaty hands and scratch his head intermittently as he muttered something about the extra time it would require to convert the native data to images. "Hell, we have the tools to do a native review and I hate waiting for tiffs to load." We already have the .idx export file so why send this back to a vendor so they can jack up the bill... tose damn... and... "Frank stopped himself in mid sentence realizing that he was talking to an ambassador from the evil planet "V" and back tracked with noteworthy grace given his emotional state. "Not that I believe you'd inflate a bill, Alex... You know, its just that this new requirement will make everyone vulnerable and I just don't see the logic."<br /><br />I attempted to sooth Frank a bit suggesting that if the partner were to actually see a native review tool in action, he may start to sing a different tune. Frank assured me that the partner in question was someone who was not known to budge. She had blown up at him recently and he was frankly scared to death of her.<br /><br />I offered to take Frank out for beers on Friday and then decided to pop in to meet with a managing partner who I have become friendly with at the firm next door.<br /><br />Michael was surprisingly around and not vacationing in Switzerland or lunching with a client when I asked for him. He didn't have a lot of time but he invited me into his corner office and told me about a sixty three million dollar IP infringement verdict he had recently won before the District Court judge reduced it to a fraction which still represents a king's ransom in the humble world of Alextronic.<br /><br />Michael is somewhat of a lit support guru. We met at a Glasser show where I was speaking on common electronic discovery faux pas and he hung around to ask me why I didn't include failing to check vendor references as one of them. He told me a story about an EDD shop that came in with the low bid only to botch a job so badly, the firm had to request an emergency continuance and a ruling on a discovery motion to be held in abeyance while the EDD shop was replaced (and ultimately sued) by the law firm.<br /><br />Michael had been extolling the virtues of native review but had locked horns with a client who wanted native production as well. The client wanted to keep costs down and any .tiffs or .pdfs created for production after a native review would surely impinge on that endeavor. Michael had spent over an hour on the phone talking corporate counsel out of insisting on a native production. I guess the easily exposed metadata and inability to overlay production numbers and other stamps finally did the trick. Michael performed a quick little exhale as he simulated the motion of dabbing beads of sweat from his forehead as he finished his story. "What a relief it was to finally get these guys to see the pitfalls of a native production" he surmised.<br /><br />As I left Michael's office, I checked my voice message where my friend Scott Sachs had left a detailed description of how he had persuaded a Superior Court judge to order an on-line native review and how opposing counsel was livid at the notion... I thought to myself, move over Jerry Springer - just spend some time with litigaton professionals debating discovery review strategies... that's worth a million former transvestite former klansmen who will reveal their secret crush after the station identification.Alexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-1125026119494490802005-08-25T19:38:00.000-07:002005-08-25T20:15:19.500-07:00Back from ILTAILTA (formerly LawNet) aka International Legal Technology Association pulled off yet another "coup" with its second straight 'conference in a furnace' in Phoenix, Arizona.<br /><br />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.<br /><br />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... <br /><br />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.<br /><br />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.<br /><br />"But", inevitably cries the party with the unpleasant obligation to fend off the request for a complete database, "this is <em>structured</em> 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..." .<br /><br />Phooey, I say.<br /><br />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...<br /><br />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. <br /><br />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. <br /><br />Do you Blawgerheads agree?<br /><br />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).Alexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-1117593555481839132005-05-31T19:36:00.000-07:002005-05-31T19:39:15.486-07:00Vote Alextronic!Alextronic has been nominated as the best ED Blawg in cyberspace! Please cast your vote for Alextronic my fellow Blawgerheads. You can vote at the <a href="http://www.technolawyer.com">Technolawyer Awards</a> and access the ballot at <a href="http://www.mail2web.com/cgi-bin/redir.asp?lid=0&newsite=http://www.technolawyer.com/tlballot2005.htm" target="_blank">http://www.technolawyer.com/tlballot2005.htm</a> Vote once as they have seem to lost their MD5 hash and don't de-duplicate over there...<br /><br />-AlextronicAlexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.comtag:blogger.com,1999:blog-6003898.post-1114469469189554692005-04-25T15:38:00.000-07:002005-04-25T15:51:09.190-07:00Plummeting Prices... What's next?I heard through the grapevine that some mom and pop shops are doing ED processing for some $750 per gig. $750 per gig! I recall people lining up to pay me some four thousand per gig back in the day. With every corner copy shop and litigation support provider doing EDD (or claiming to do so) is it any wonder that the prices have started to sink through the floor?<br /><br />I'm old enough to remember when my father told me about this new machine called a facsimile transmitter. I could not quite grasp the concept until he drove me to his law office to show me the one hundred and ten pound, six thousand dollar monstrosity that he and his partners all chipped in to purchase. It was the talk of the building and curious neighbors were always dropping in to catch a bewildering glimpse.<br /><br />Now we've all got fax machines at home and if you paid anything over two hundred bucks, you paid to much.<br /><br />Of course, the fax machine business is healthy and growing. I suspect ED processing will follow suit. As prices come down, the demand for ED processing should increase with reverse proportionality. I expect this will trigger a long overdue shakeout and some of the newer and less innovative ED shops will have to close their doors while others will capture a larger share of the expanding market while innovating and reinventing themselves to respond to the drastically changing market forces.<br /><br />I do not want to divulge which players out there I would place my bets on, but suffice it to say that I would be somewhat surprised if certain vendors are around another year or two while I would be equally surprised if others do not experience astronomical growth.<br /><br />My brother has been telling me how excited he is to see baseball start up again. Baseball schmaseball... hell, I think this ED game will be the more exciting series to watch.Alexanderhttp://www.blogger.com/profile/04087556093619139489noreply@blogger.com