And The Winner Of The Oscar For Best Prediction Goes To...

2014 © Cary J. Calderone

"I would like to thank the academy and all those who have supported this blog...  [sniffle

sniffle]  Without you this moment would not be possible."   Okay, this blog post has nothing to do with the Academy Awards except that I thought I would take a moment to pat myself on the back, just like Hollywood does for more than 3 1/2 hours (that seems like 8) during the Academy Awards.   In December of 2012 in my year-end post, I boldly predicted that e-discovery tools like Guidance and Autonomy, could be redesigned and/or repackaged for Business Intelligence and Information Governance. (link to the original blog post Forecast-2013)
Recently there has been a new marketing push for many E-Discovery products for "Pro-Active Information Governance."  

ARMA Tri-Chapter Conference-RIM On A Shoestring

I had the pleasure of stopping by the ARMA Tri-Chapter Conference-RIM On A Shoestring, to see if there might be something blog-worthy.  Last year, I spoke on a panel.  In fair turnabout, I was in the audience for the talk given by R. Scott Murchison of Kaizen InfoSource LLC.  Scott has called on me to speak numerous times in the past, and after watching him present, I understand exactly why.  We both are hands-on experienced professionals who like to share practical tips we have learned from doing work for clients.  This is a direct contradiction to those on the other end of the spectrum, who call themselves, "thought leaders."  If you were looking for high lofty thoughts (think SNL Deep Thoughts), that may not apply at all to your real world Data Rules and Electronic Discovery challenges, then this talk was not for you.  If however, you appreciate real examples of issues and solutions, then you would have been paying attention and taking notes.  I thought it was definitely worthy of a blog post.

ARMA International Conference and Expo in San Francisco November 7-10

The ARMA (Association of Records Managers and Administrators) Show is coming to San Francisco November 7-10 and should be excellent.  Although I was not able to attend the show in Orlando last year, I attended the Las Vegas Show in 2008 and found the panel discussions and presentation to be very worthwhile.  The highlight for me is that the speakers are often practitioners with a gift for educational presentations, and not just sales gurus and product marketers. 

The guidelines for ARMA prohibit speakers from simply selling their services.  The end result is that they offer more "real-world" examples of tackling and succeeding with Records Management, Litigation Preparedness and e-Discovery projects.  I have participated in local ARMA chapter events in Silicon Valley, San Francisco and Contra Costa County but will just blog about this event.  The local and national organizations are a great resource for anyone interested in learning more about Records and Information Management, or DRED.  For more information you may go to their website www.arma.org.   See you at the show.

New E-Discovery Rules in California: What does this mean for you?

by Cary J. Calderone, Esquire

With no fanfare our Governor, Arnold Schwarzenegger, signed into law AB 5, the California Electronic Discovery Act ("CEDA") (Full Text). The only surprise to those of us who practice in this area was that it did not get signed into law last year. Most believe it was delayed solely due to California's pressing budget problems. California is the home of Silicon Valley and the High Tech industry so the laws in our state typically lead the way when it comes to considering their effect on technology and business. In California email correspondence has been legally enforceable as a "written instrument" since the mid 1990s. It made no sense that one state after another, except California, was adopting rules to mirror the e-discovery rules contained in the Federal Rules of Civil Procedure and thereby, acknowledging that business disputes were now dominated by Electronically Stored Information ("ESI") such as email, word-processed documents and databases etc. These states recognized the importance of having specific discovery rules around ESI and yet, California did not. Now that California has acted what does this mean for your company when it operates in, or is subject to legal proceedings in state courts in California?

First, all those stubborn attorneys who used to tell me that they did not need to worry about Legal Hold Notices, Email Procedures and Record Retention Schedules, because they never were involved in Federal disputes, no longer have that weak excuse. It was a weak excuse because under the old California discovery rules, litigants and their lawyers were affirmatively charged with the duty to protect potentially discoverable materials. In most cases, destroying "evidence" can be charged separately as a crime. There was never any exclusion for emails and ESI and in fact, emails and ESI have been critical pieces of evidence in many criminal and civil matters for at least a decade.

Second, not only is that lame excuse gone, the California rule requires that attorneys from all sides of a litigation matter will need to "meet and confer" 30 days prior to the Case Management Conference. This means they will need to discuss ESI and what/how it will be preserved and exchanged during the discovery process for state legal matters, just like they already must do for Federal matters. Do you know how much ESI you have on your network and in other places you control? Do you know where it is? Can you search it? You should be able to answer a resounding "YES" to these questions. Otherwise, it means you may end up litigating from a weakened position.

Some commentators believe the CEDA modifies the Federal Rule around "inaccessibility" of data as it may be used to defend from producing materials in a litigation matter. I believe the CEDA merely does a better job of explaining the real world arguments that occur in front of the judge. Namely, the judge will ultimately decide whether or not the information is "reasonably accessible" on a case by case basis. Judges have never been fans of an attorney conducting a cost escalating "fishing" expedition during discovery, but if there is a likelihood that important information is only available in one location, there are very few circumstances when a judge will not want that information to be retrieved and searched. The idea is that "Justice" is about finding the truth, not about being able to hide the truth from the judge.

Now it pains me to admit this, but in some ways, if your company has procrastinated and delayed having an Assessment Report and updating its ESI policies and procedures, you have benefited in that the software programs and procedures for accomplishing these tasks are better now and, in some cases, even cheaper. The bad news is that you have at least 2 more years of data to organize, review and remediate. So the longer you wait, the more likely the process will become more difficult and more costly. Will your company be like so many others out there that waited until they got tagged by losing a legal matter or got sanctioned for mishandling ESI? Or, those that had to settle a matter because they could not find their evidence to prove their case, or, they could find it but it would be cost-prohibitive to produce it in a defensible manner? Or, will your company need to feel the sting of a hefty discovery sanction to be motivated to organize their ESI? In a prior post, I mentioned performing a Google search for "million dollar discovery sanctions." There are even more now than there were the last time I mentioned it!

"Reasonable" is graded on a scale

by Cary J. Calderone, Esquire

The Silicon Valley chapter of ARMA International held an ITRIM (Trim your data) one-day conference recently and I was fortunate to attend the lunch panel discussion. The panel members, Grant Law, Esquire of Shook Hardy & Bacon, Nathan Walker, Senior Technical Marketing Engineer of NetApp Corporation, Lisa Ripley, CISSP, Electronic Discovery Manager of Sun Microsystems, Inc., and Greg Lipptez, Esquire of the Jones Day law firm, gave brief presentations covering many familiar data retention and electronic discovery ("DRED") themes: 1) You will get sued therefore having a Data Map that explains what you have and where you have it is critical.. 2) Legal needs to be able to listen to IT and vice versa.
3) There is a constant struggle between lawyers who prefer to keep very little data and IT personnel who keep as much as possible. 4) Too many organizations have too many employees who are “surprised” to learn they actually have a record retention policy (and this is especially bad when their legal team learns of this fact during sworn testimony). And finally, 5) the law requiring what you need to keep, is not static, it changes. While it is nice to know that concepts that I have previously covered in this blog are out there being discussed and adopted by more data managers and professionals, I would almost have declined to write about the discussion but for one really great quote from Nathan Walker. Answering a question on "how best to avoid getting into trouble" with the production of Electronic Discovery for Meet and Confer conferences and motions to compel hearings, Nathan said: “The more you appear to know what you have and where you have it, the more your threshold for “reasonable” goes down.” This comment was cheered by the audience and maybe the best simple explanation for why Records and Information Managers, IT, Compliance and Legal departments need to make retention schedules, train people to follow them, and continually monitor them. To paraphrase the famous Billy Crystal character Nando, on Saturday Night Live, when it comes to electronic discovery, it is more important to appear to “look absolutely marvelous” than actually "feel absolutely marvelous." Bottom line-it is always best to know what you have and where you have it.