The C-Level Nightmare-Do You Know What You Do Not Know?

Copyright ©  Cary J. Calderone 2011

Is this your CEO, CTO, or, General Counsel?

This post goes out to all those C-Levels who have not approved pro-active information management and DRED work because, "they can just search and find what they need when they have to."  For almost any attorney or e-discovery professional with experience, this cavalier attitude causes a  LOL moment.   We also call this approach, "head in the sand," or sometimes, "ignorance is bliss...until it's not."   After the 9-11  attacks, when the Department of Homeland Security was created, I remember Secretary of Defense, Donald Rumsfeld, speaking about 3 things: 1)  What you know as fact,  2)  What you do not know but can research and discover and, 3)  What you do not know, you do not know.  C-Levels who think they will just find what they need, when they have not tested their approach under the threat of pending litigation, are in the last category.  They do not know, what they do not know.   Not convinced?  Then please consider these items:

Coming to a Law School Near You- eDiscovery Class 101

Professor Rick Marcus

Copyright © 2011 Cary J. Calderone

A few weeks ago, I had the pleasure of attending a Hastings College of the Law alum event where Diane Gibson, a prominent San Francisco litigator with Squire Sanders et al., and UC Hastings Professor Rick Marcus, presented, E-Discovery and Preservation.  There was some good DRED news.  For an alumnae event, this was very well attended.  There were over 100 people who showed up because they were interested in learning about E-Discovery.  The bad news was that when Professor Marcus, a principal drafter of the 2006 E-Discovery amendments to the Federal rules, polled the audience to find out who had heard of FRE 502 (critical for protecting privileged material from accidental disclosure) only myself and three others raised their hands.  Scary!  During the lecture and the Q&A afterword, we heard about many of the interesting E-Discovery and preservation issues, and what the Advisory Committee is considering for future amendments, but for me, the most important item was that Professor Marcus will, for the first time, be teaching Hasting's E-Discovery class in the spring of 2012.

IQPC eDiscovery Panel-Roles of In-House Counsel and Outside Counsel

Vincent Miraglia, Chief Counsel - Employment Litigation & Electronic Discovery International Paper
Vickie Lee Clewes, Senior Manager, Commercial Legal Affairs, Gilead Sciences, Inc.
Moderator, Wayne C. Matus, Partner Pillsbury Law Firm

Wayne Matus started the discussion rolling by asking the panel, "What keeps you up at night?"
There were two answers:

1. For things like government subpoenas and investigations, it is very hard to have processes already in place, so managing the discovery is very challenging. 
2. For inside counsel, it is very difficult to manage many legal holds and keep mindful of when they "anticipate" new litigation. 

The panel noted it was difficult to have a cohesive company-wide plan. They still had to address the individuality of each office/department while balancing the tie between discovery and risk.

Vinnie thought that "less is more" and that he does not want all of the data, just the relevant stuff.
He gave an example of PST files.  They had established a delete policy (60 or 90 days) and used legal hold and archiving tools to move and archive necessary email. 

They referred to the Zubulake case (6) and explained that since "terminating employees" could lead to litigation, a best practice would be to freeze all data for terminations for a set period of time.


Question from Wayne-What about the fact that they may get hit with a lawsuit in a new area?   The panel believes in meeting and discussing potential new stuff often with outside counsel.  They also found that, almost always, outside counsel is conservative about when legal holds are necessary. 


What keeps Wayne up is the eDiscovery process maps he creates with his clients do not say all decisions should be documented.  For example, "this is why I did or did not issue a legal hold."

Vicki thinks they do need to document more.  Since we are shooting for "reasonableness" better to show what you considered at the time.


Question from Wayne-How important is communication between inside and outside counsel?
Vinnie's response-Keep it like a working partnership so Vinnie may respond to some discovery requests and outside counsel may respond to others.  He thought that the legal bills go down with better communication.

Legal Tech 2010-A couple of neat new DRED products even smaller businesses can afford.

by Cary J. Calderone, Esquire

Let me start by hedging a bit. I am not recommending these products. I played with only demonstration versions. I do not test and review products unless I have been specifically hired by a client to help them decide what product they should purchase for their particular needs. However, at this past Legal Tech Show I was happy to demo two new products that smaller companies could afford to use. This is good news because in the DRED space, most of the initial products released targeted large clients and installations and had pretty large price tags. It is hard to imagine a smaller business working with a product that starts at 300k to solve a retention or eDiscovery problem. The two products I noticed: 1)Legal Hold Pro by Zapproved and 2) BitFlare by SunBlock Systems.

These are both products that may help many smaller businesses. Legal Hold Pro allows a customer to track Legal Holds, and more importantly, all the communications around the Legal Hold (LH). There are many challenges with issuing LHs. The obvious issues involve when the LH should be issued and what it should cover. However, it is also critical that the LH is adequately communicated to the correct custodians and that you can validate the communication for compliance with your LH policy. Legal Hold Pro is a SaaS product (in the Cloud) that helps users track not only the initial distribution of the LH but also, subsequent updates. I think the best feature may be that it helps users remove the LH when it is no longer necessary. This is an issue that has not been discussed as much. Even those who are proficient at the initial LH process will admit that they are much more disorganized when it comes to removing the LH. And, if you are holding data, whether you need to be or not, it now may be subject to a new discovery request and/or a new LH. So the product may help you legally "clean house" a little better.

Similarly, BitFlare gives smaller companies the ability to lock down computers for LH or data forensic purposes. There are other forensic tools, some of them more affordable than others, but the focus of BitFlare is that a non-techy can follow simple instructions and secure data on a computer, in a fashion that Bitflare claims (I do not know if it has been tested in court) will preserve the chain-of-custody and accordingly, preserve its use as evidence. BitFlare is not a Cloud or SaaS product, but rather is a software product that comes on a bootable CD disc and can be run on any laptop or desktop computer (not sure about Operating System limitations).

They have an interesting pricing schedule. You can download the software for free and use it (provided you know how to burn an ISO cd) but then if you want the spreadsheet that lists the content on the computer, it will cost you $250. My hunch is they use this approach so when you think you might need contents for a LH you can lock it down. Then, and only if and when you need to analyze the data, you can pay $250 to see what is actually on the computer.

Once again, I have not used either of these products other than the demo versions, so you will need to test and verify that they will work for you. Still, it is very nice to see a few products capable of helping smaller companies tackle issues around DRED law. Let's hope this is just the beginning and there will be more affordable products to help companies become and stay DRED ready.