Judge Richard A. Kramer comments on the California Electronic Discovery Act, one year later

by Cary J. Calderone


This blog covered the California Electronic Discovery Act (CEDA) when it was signed into law, more than a year ago. Now that a fair amount of time has passed, we may wonder whether it has helped, hurt, or had any effect at all on discovery proceedings and litigation in California state courts? To find the answer, I went to the Honorable Richard A. Kramer to ask his opinion.  Judge Kramer's department handles Complex Litigation for the Superior Court and he is nationally known for his rulings on same-sex marriage. However, I selected him for this piece because I had the pleasure of listening to Judge Kramer speak about electronic discovery and in particular, his practice of requiring litigants in his courtroom to agree to a “bring your geek to court day.” He is one of the most knowledgeable judges on the current issues surrounding electronic discovery and this makes him one of the very best sources for follow-up comments on the CEDA. After 3 weeks of pleasant, yet persistent pestering, the Judge was able to speak with me on Friday December 17. Here is the interview:

Calderone: More than a year has passed since CEDA was enacted and signed into law. Have you noticed any changes? Can you say if attorneys and litigants are better or worst prepared to handle electronic discovery?
Judge Kramer: No difference. The attorneys who were familiar with the discovery of electronically stored information before, still are. And, those who did not understand it, still don't.
 
Calderone: Has the general understanding of what is necessary to comply improved?
Judge Kramer: The CEDA clarified a few concepts and some of the issues with electronic discovery. The law really did not change but those attorneys who were not very techno-savvy have now at least heard of the concepts and definitions. So perhaps there are fewer who look like a deer in the headlights when we discuss these matters in Court.

Calderone: Has anything with electronic discovery gone from bad to worse? Are there more disputes and accusations of inadequate production?
Judge Kramer: No difference under CEDA. The Court already had and has broad powers and discretion around discovery matters to protect the parties. If I could give one bit of advice to attorneys it would be, "if you don't know, fess up!" Do not make up unsubstantiated claims of cost or not being able to access the data.

Calderone: Can you comment on whether certain subject matters or types of litigation have had more or fewer issues with electronic discovery?
Judge Kramer: No difference.

Calderone: Where would you like to see continued improvement? Could the Act be clarified? Are lawyers still lacking in their understanding in some specific areas?
Judge Kramer: The CEDA is fine. It did not really change any law, just clarified some of the issues.

Calderone: Do you have any other particular hopes for the continued evolution of electronic discovery in litigation?
Judge Kramer: I would like to see attorneys subscribe to the Sedona Cooperation Proclamation, be more cooperative, and be more like a geek. A geek is the person who, when asked to fix your computer, he starts doing it. He is not always able to fix the problem completely, or, give you exactly what you ask, but the geek gets started and makes progress. Attorneys need to be more willing to indicate what they can do and can provide, instead of just claiming “it can't be done” or "it will cost a million dollars!" Eventually a smart geek on one side or the other will probably prove the attorney wrong.

In closing, let me express my great appreciation, respect, and gratitude to Judge Kramer for taking time from his busy schedule to speak with the DredLaw.com blog simply to help us better understand the CEDA and the state of electronic discovery in California today. In return, we hope that a few more of those attorneys and litigants who enter his, and other courtrooms in the state, will be a little better prepared for electronic discovery.

Breaking tradition-A review of my Asus Eee PC netbook, a great tool for the Cloud

by Cary J. Calderone

Over the past year and a half I have written about the move to the "Cloud" but covered primarily the Cloud providers and the move to hosted applications.  Now, as I sit typing away on my ASUS netbook, there is another reason to move my data skywards. This computer is so small, sometimes I have trouble finding it on my cluttered desk and I worry about leaving it behind at the coffee shop!  I would not feel safe carrying this around unless my data was stored someplace else, like the Cloud.  Let me disclose, I have no connection to ASUStek Computers, Inc. or ASUS.  I do not want to start reviewing hardware and software products or become the Walt Mossberg of the West. While many of you may not recognize the ASUS name, I know it to mean quality computer components. I used ASUS motherboards when configuring clone desktop computers in the 1990s but I have not been in that business since 1999.  Since an article I wrote in 1995 for Law Office Computing Magazine, I have not reviewed a hardware product.  So,why am I breaking with this tradition?  Because this netbook was inexpensive (under $400), surprisingly powerful, has an advertised 10.5 hours of battery life, and I love it!
 
Back when I reviewed the first “component laptop” with upgradeable features like RAM, micro-processor and hard drive, upgradeable meant it could serve you longer before becoming obsolete.  This could save you money. From today's perspective, 1995 was still the dark ages of laptop computing.  Think about a weapons dealer describing how effective his pointy stick would be back in 1995, and today describing the range of unmanned drones equipped with missiles. That is what the leap feels like between my review of a $2100.00, 386 20 Mhz Kiwi laptop then, (abstract of the article here) and this ASUS Eee 1005HA model equipped with an Intel Atom N280 1.66Ghz processor now. It also has a quiet 250G hdd, and the typical built-in networking and USB ports.
 
Pros

• It has worked reliably for a year. Yes that is correct. I purchased this unit in December of 2009. So this is not the typical review one week after somebody gets their new electronic toy and is in the honeymoon phase. I used this netbook almost every day for the past year.
• When I blog at a conference, the battery lasts me all day. I never have to worry about finding an outlet or resorting to paper and pen. I know I have used it on battery life for 8 hours before running low.
• Unlike an iPad, I can use it like any full-sized laptop. It can sit on my lap, on a table, or, on the counter at the coffee shop. I felt I had the superior work tool while I typed on my Eee netbook while sitting next to someone whose iPad was teetering precariously on the multifunction cover/stand and would fall over frequently while he was reading it. My netbook stayed put!
• Touch pad controls to scroll, zoom or shrink fonts and pages depending on your mood. (Think of shrinking or enlarging your view on an iPhone or iPad simply by moving two of your fingers closer or further apart) How do I know I like this feature? When I am on my full-sized laptop connected to my desk monitor, I find myself trying in vain to use this feature and it does not exist on my other computer. Fortunately it usually only takes a few seconds of trying before I realize this, and then I think fondly of my netbook.
• The keyboard is large enough to type on. Some netbooks really make your fingers feel cramped.
• Inexpensive and free offerings for cloud storage for your backup or data. Nice to have for those who have not yet tried other cloud options.

Cons-

• Better video resolution would be nice but if it shortened the battery life too much, I am not sure I would like the trade-off. 
• Tried video chatting and it worked, but was not even close to a typical desktop video chat experience. Will look to see how newer Eee models can improve this.
• When it is not plugged in and is working in battery mode, it is noticeably slower. Once again, this has to be balanced against increased battery life.  
• It took a while to get used to the touch pad features that I now love. When you have fairly large hands, you may have one or more pieces of your hand or thumbs accidentally touching the touch pad. So it is occasionally frustrating to be working and have an unexpected zoom or shrink of the page.

On balance, I had high hopes for this Eee PC, and they have been exceeded.  It proved to be a fantastic tool that helped me work more effectively and efficiently, in the Cloud.

What's that up in the Cloud? It's better infrastructure by EMC Atmos

by Cary J. Calderone

In a follow up to a few other posts on Cloud computing I am happy to report that EMC has been focusing on improving your Cloud experience. Their latest Atmos Cloud Delivery product line will enable Cloud providers to meter and provision Cloud usage. How does this help you in your DRED work?  As mentioned in my previous Cloud articles, Cloud providers, even the biggest names, have had a difficult time avoiding bottlenecks and slowdowns as Cloud usage grows. (What's that up in the Cloud?) They have not been able to adequately anticipate or control how and when some users will over-burden their equipment and cause a slowdown for all their Cloud users. If Atmos works as advertised, it will go a long way towards eliminating one of the biggest concerns companies face when considering a move to the Cloud; "will it work fast when we need it to work?"
Up until now, the Cloud providers have not been able to sufficiently monitor (and report) usage and data flow statistics. So they were faced with the very challenging task of trying to persuade a company to move to the Cloud while they could not actually show that availability and throughput would not be a recurring issue. Now with better monitoring and provisioning tools available, Cloud providers should be able to offer better availability and more reliability to their new and existing Cloud customers. Readers of this blog may ask, "who is EMC?"  Well, EMC is the largest providers of data storage technology and I would put in the category of a company like Cisco Systems. Even if you have not ever heard of them, if you use a phone or computer on the internet, then you use EMC products.  This is good news for the evolution of the Cloud.