By Cary J. Calderone, Esquire
Sometimes I miss just being “the lawyer.” Working as a pure lawyer, I outline the facts and the issues, the laws provide the foundation for my analysis and whenever possible, I explain the conclusions we may reach. And, with very few exceptions, that is that.
Largely, the lawyer is focused on the facts, the rules and precedence. There are certain requirements and frequently, there is little room for variance. In this rather new area of Document Retention and Electronic Discovery (“DRED” for short) this is changing.
More frequently the law around DRED has set forth guidelines of “reasonableness” and then, depending on the particular company structure, industry, and the current state of technology, there may be more than one approach that would bring about an acceptable level of risk for the desired legal compliance. With DRED consulting, I have to play the role of a consultant, which means I need to know and understand why things are the way they are on a technological and business level, before I can suggest a path for change. Good lawyers in this space recognize that they have to take on some of the tasks of consultants, even if we do not like it.
So who decides what is reasonable? In practice, a judge would want to see a set of policies that have been created by considering structure, industry, technology, and business needs. As I mentioned in Best Practices for Managing Electronic Data: Chickens or Eggs whatever the policy, it needs to be followed and enforced company-wide for it to withstand legal scrutiny. So now instead of a lawyer dictating the rules, the consultant must elicit information from various department heads and members. Collaboration, which may be a common realm for Dr. Phil lead counseling may not be with the newly enlisted stakeholders in corporate document management, and it is crucial.
Many books and articles that describe best practices for management consulting explain methods and available tools for collaborative creation. And while I believe that “negotiated implementation” a specific form of collaboration brings about higher rates of adoption, i.e., success, too many consultants, management gurus, and how-to books fail to adequately examine and/or describe the people at the table. Let me explain. The best example I have came from a Business School professor Dr. Terri Griffith ( one who focuses on negotiated implementation). She presented an exercise to her class where they were divided into teams and each team was to work together to create a jungle survival plan. Everyone felt they needed to contribute and share their opinions or collaborate. However, in one group, no one asked about the experience and background of their members. It turns out, one student was a Navy SEAL with survival training expertise and the rest of the group members had absolutely no real-world experience in wilderness survival and quite possibly had never even been camping. So, why did everyone need to share their opinions equally in this collaborative exercise?
In the world of document management, we have a minimum of two worlds colliding, and frequently 3 or more. Authors Randolph A. Kahn and Barclay Blair describe 4 quadrants in their highly regarded book Information Nation. We have legal and IT and depending on the size of the organization and the particular industry, perhaps compliance and records management departments. Regardless of the number of people at the table, when it comes to designing a company-wide policy there will be no initial consensus on even the basic policy terms. For example, “Dr. Phil, how long should we keep email?” Legal might say 3 months is plenty of time if it is not something that needs to be retained according to a Records Retention Schedule. Knowledge managers would like to keep good stuff for many years, if not for ever. Most others will have ideas somewhere in between those two extremes.
For negotiated implementation to work best, I believe we need to know the “whys” and realistic limitations of any policy. The “whys” are important because when people know “why” it makes it easier for them to remember and because they can see that their and the organization’s needs have been considered they are more likely to adhere to the policy. Somebody who has made a valid suggestion for improvement feels better knowing it was not adopted because the technology was not able to accomplish it or it was cost-prohibitive, as opposed to feeling like their idea was not seriously considered.
There are many advantages to collaboration, but it may not be necessary or even advisable if you have the document management version of a Navy SEAL in your group. If you do, then the most efficient way to move forward is by starting with their best idea, understanding why it works, and fine-tuning it or not, with your group’s suggestions – these will be based on their needs so even by merely listening you are increasing their motivation for compliance. Dr. Phil might refer to this as “being heard.” It is still negotiated implementation but it is a shortcut to good results and will avoid protracted fruitless meetings and the need for someone to sooth over hurt feelings. We know that department heads who previously were separate and isolated must be involved and sign off on this process, sometimes because the law actually requires it. We know these participants may not have previously worked together or get along very well. So if we can get good results quickly, everyone will benefit by saving the company money and, being able to get away from the document management negotiations table, and back to their separate, primary job functions.
July 1, 2008
Last From Legal Tech West 2008-Keynote by Magistrate Judge Laporte
By Cary J. Calderone, Esquire
Judicial perspective on E-Discovery- by the Honorable Elizabeth D. Laporte, Magistrate Judge, U.S. District Court, Northern District of California
Judge Laporte addressed an audience that understood that in the last year about 100 billion gigabytes of business information was subject to compliance regulation. Emails, which included business and personal email, were now fodder for lawsuits and criminal indictments. So, the Judge noted, “litigation readiness is more important than ever.” She gave examples that explained when meta-data should probably be produced and examples of when native versus non-native formats might be necessary. My favorite observation the Judge shared was that, if you are going to claim you were surprised by this litigation matter, and that was why you did not have a litigation hold in place and any data that was destroyed or altered hold was purely accidental…you should not also try to make the argument that you should not be required to produce data because it is protected as attorney work product, prepared in anticipation of a legal matter. Scary that Judge Laporte believed she should remind the audience that while these were two legitimate points they should be raised separately. If argued together they become an oxymoron and cancel each other out. Perhaps all lawyers need the occasional reminder not to suspend logic and common sense when making multiple arguments in their efforts to aggressively and completely represent the interests of their litigation clients.
The Judge commented that the obligation for when a party must start to preserve evidence is when litigation is “reasonably anticipated” and that this was not a “bright line.” She also reminded the audience to review the Local Rules for each Federal District Court as they would likely contain important e-discovery information. For example, in the Northern District of California local rules require that parties at the Meet and Confer discuss whether voice mail needs to be preserved. She also quotes another Judge explaining that there will be no “drive-by” Meet and Confers and that real effort of all parties is expected to meet and resolve any discovery challenges. To accomplish this Judge Laporte recommends the parties be: 1) reasonable, 2) candid, and 3) credible, in their e-discovery efforts. For the Meet and Confer she pressed for lawyers to know enough to make accurate representations to the court and have alternatives for collection of discoverable materials. This can involve the in-house IT personnel, outside experts and the in-house General Counsel and sometimes the outside lawyers will bring outside IT experts to the Meet and Confer. There should be no uncertain terms and lead counsel must be acquainted with what they need to know, which includes what data is in your custody and control and what data is likely to be relevant. Furthermore, you must be willing to make mid-course corrections and adjustments to the legal hold as the case unfolds. Otherwise, she believes Courts will continue to use sanctions to keep the litigants “honest and trying to do their best.” Although I had not visited Judge Laporte’s courtroom while researching my “Federal Court for Discovery? Be a Boy Scout!” article, I am happy to note that doing so would not have altered the conclusions I reached and most likely would have bolstered my arguments for litigants to “be prepared.”
Judicial perspective on E-Discovery- by the Honorable Elizabeth D. Laporte, Magistrate Judge, U.S. District Court, Northern District of California
Judge Laporte addressed an audience that understood that in the last year about 100 billion gigabytes of business information was subject to compliance regulation. Emails, which included business and personal email, were now fodder for lawsuits and criminal indictments. So, the Judge noted, “litigation readiness is more important than ever.” She gave examples that explained when meta-data should probably be produced and examples of when native versus non-native formats might be necessary. My favorite observation the Judge shared was that, if you are going to claim you were surprised by this litigation matter, and that was why you did not have a litigation hold in place and any data that was destroyed or altered hold was purely accidental…you should not also try to make the argument that you should not be required to produce data because it is protected as attorney work product, prepared in anticipation of a legal matter. Scary that Judge Laporte believed she should remind the audience that while these were two legitimate points they should be raised separately. If argued together they become an oxymoron and cancel each other out. Perhaps all lawyers need the occasional reminder not to suspend logic and common sense when making multiple arguments in their efforts to aggressively and completely represent the interests of their litigation clients.
The Judge commented that the obligation for when a party must start to preserve evidence is when litigation is “reasonably anticipated” and that this was not a “bright line.” She also reminded the audience to review the Local Rules for each Federal District Court as they would likely contain important e-discovery information. For example, in the Northern District of California local rules require that parties at the Meet and Confer discuss whether voice mail needs to be preserved. She also quotes another Judge explaining that there will be no “drive-by” Meet and Confers and that real effort of all parties is expected to meet and resolve any discovery challenges. To accomplish this Judge Laporte recommends the parties be: 1) reasonable, 2) candid, and 3) credible, in their e-discovery efforts. For the Meet and Confer she pressed for lawyers to know enough to make accurate representations to the court and have alternatives for collection of discoverable materials. This can involve the in-house IT personnel, outside experts and the in-house General Counsel and sometimes the outside lawyers will bring outside IT experts to the Meet and Confer. There should be no uncertain terms and lead counsel must be acquainted with what they need to know, which includes what data is in your custody and control and what data is likely to be relevant. Furthermore, you must be willing to make mid-course corrections and adjustments to the legal hold as the case unfolds. Otherwise, she believes Courts will continue to use sanctions to keep the litigants “honest and trying to do their best.” Although I had not visited Judge Laporte’s courtroom while researching my “Federal Court for Discovery? Be a Boy Scout!” article, I am happy to note that doing so would not have altered the conclusions I reached and most likely would have bolstered my arguments for litigants to “be prepared.”
More Legal Tech West 2008
By Cary J. Calderone
Data Privacy Issues for Multinational Corporations. Or, what kind of food do they serve at your jail?
Data compliance in the USA and EU is an important and evolving area of document retention and electronic discovery law. One of my first research projects involving electronic data was for a company looking to pro-actively set and maintain good e-document retention policies and plans for their multi-national company which included a publicly traded US Corporation. On the one hand, we have Sarbanes-Oxley requirements for managing corporate computer data that contains content and processes of a company’s financial record keeping and technology systems. On the other hand, we have European Union privacy-protection rules prohibiting even the collection and review of emails which contain personal information.
So I raised my hand and asked a question. The very informed panel, which included Amor Esteban, Partner, Shook Hardy & Bacon LLP, Mark Smith, Senior Associate, Winston & Strawn LLP, Tom Hopkinson, Director, Forensic Technology, KPMG Europe LLP and Moderator, Omid Yazdi, Managing Director, Forensic, KPMG LLP explained part of the reason for this divergence was due to the history of European countries and their experiences with Totalitarian governments. They commented that I raised a good question, even though I added my tongue-in-cheek observation to advise General Counsel to pick the countries with the harshest jails, and follow their rules first. I expected they would laugh and then propose a valid work-around. They sort of agreed that it was virtually impossible to be totally compliant with the letter of the law in the EU and US in the area of email retention. One noted that recently a French lawyer was criminally charged for violating French Blocking statutes and faced jail time for working with US lawyers to produce materials in a way that violated French law. So apparently considering the jails and penalties is a valid approach to setting a Multi-National electronic document policy. Yikes!
Data Privacy Issues for Multinational Corporations. Or, what kind of food do they serve at your jail?
Data compliance in the USA and EU is an important and evolving area of document retention and electronic discovery law. One of my first research projects involving electronic data was for a company looking to pro-actively set and maintain good e-document retention policies and plans for their multi-national company which included a publicly traded US Corporation. On the one hand, we have Sarbanes-Oxley requirements for managing corporate computer data that contains content and processes of a company’s financial record keeping and technology systems. On the other hand, we have European Union privacy-protection rules prohibiting even the collection and review of emails which contain personal information.
So I raised my hand and asked a question. The very informed panel, which included Amor Esteban, Partner, Shook Hardy & Bacon LLP, Mark Smith, Senior Associate, Winston & Strawn LLP, Tom Hopkinson, Director, Forensic Technology, KPMG Europe LLP and Moderator, Omid Yazdi, Managing Director, Forensic, KPMG LLP explained part of the reason for this divergence was due to the history of European countries and their experiences with Totalitarian governments. They commented that I raised a good question, even though I added my tongue-in-cheek observation to advise General Counsel to pick the countries with the harshest jails, and follow their rules first. I expected they would laugh and then propose a valid work-around. They sort of agreed that it was virtually impossible to be totally compliant with the letter of the law in the EU and US in the area of email retention. One noted that recently a French lawyer was criminally charged for violating French Blocking statutes and faced jail time for working with US lawyers to produce materials in a way that violated French law. So apparently considering the jails and penalties is a valid approach to setting a Multi-National electronic document policy. Yikes!
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