eDiscovery Retreat-Laura Zubulake-Lessons from THE plaintiff

by Cary J. Calderone

One highlight at the Carmel eDiscovery Retreat, was hearing from THE plaintiff Laura Zubulake.  Zubulake v. UBS Warburg LLC., 217 F.R.D. 309(S.D.N.Y. 2003) is a seminal case and is the foundation for many other discovery decisions and even modifications to discovery procedure rules.  Rules were modified so they could be better applied to electronic media and computers.  Now I have to admit, I was like many attorneys who assumed that some very smart lawyers had recognized the value in searching defendant UBS's emails for evidence of wrongdoing.  But, that is not how it happened.  Laura was actually the one who insisted her attorneys demand production of emails because she KNEW the defendant had not done a reasonable job in producing the relevant materials in their possession or control.  The end result?  A $29.2 million dollar jury verdict in her favor.  As Laura noted, Electronically Stored Information (ESI) and email in particular, is "like DNA evidence for trials!"

Carmel Valley eDiscovery Retreat-Great debut!

Nearby Asilomar Beach

When Chris La Cour invited me to attend the inaugural Carmel Valley eDiscovery Retreat I was a little hesitant to accept.  I have attended many legal technology, legal education, and eDiscovery shows, both as a speaker and blogger, so I expected an inaugural event to be, well, not very good.  I was wrong.  This event ran as smoothly as any conference I have ever attended.  The panels of legal and judicial speakers were top notch, up to date, and the setting was spectacular.   There were no problems with audio, acoustics, or scheduling.  The event was well-attended but there was ample comfortable seating and spacious meeting areas to interact with other attendees.  I am not alone in my praise.  I heard quite a few other attendees lauding the venue and agenda.  Some of the speakers really shared some valuable eDiscovery lessons.  Here are just a few of the comments:

Facebook is now totally Ryppled! And, what that may mean for future eDiscovery

Copyright 2011 Cary J. Calderone

A few weeks after commenting on Facebook's latest big lawsuit and the email evidence involved, I mentioned how a product like Rypple, may effect a company's data retention practices (link to post).  Now that Facebook has announced they are using Rypple, I cannot help but wonder how future discovery requests in a lawsuit may have to differentiate between a "Like" designation and a "Thumbs Up" or, a Smiley Face?  You can just imagine a cross-examination in court:  "Isn't it true Mr. Boss, on this project you gave the former Disgruntled Employee, not one, but TWO Smiley Faces and a Thumbs Up!!!"   "Let's bring up the digital display so the jury can see the Smiley Faces."   Will the evidence of Smiley Faces be in native or some other format?  Do we care?  We should, and here's why.

The ROI of eDiscovery? Why not just calculate the ROI of a good night's sleep

I have seen so many articles that attempt to sell the purchase of large eDiscovery tools with a Return On Investment analysis. The resulting magic formula always shows just how much money a customer can save in an average legal matter. And yet the ROI cannot be very compelling. With the exception of one General Counsel of an international enterprise software provider (kudos Kim), I have never been hired by a company that had not already been “tagged” in a litigation matter for big bucks. And, by tagged, I mean that they were sanctioned for discovery failures or, they realized they could not collect their data to mount a defense and had to settle the case. So, my argument is, it may be more effective and productive to calculate the ROI of a good night's sleep. Let me explain.

Social Network Applications Coming To Your Business-Will there be a Rypple effect?

Here's a scoop. Companies like Rypple are making “Facebook-style” applications to be used in your business. The Wall Street Journal Digital Edition has an excellent article by Dr. Terri Griffith on this phenomenon. ( full article) With over 600 million users on Facebook and LinkedIn combined, people around the globe now understand the power of status updates, and sharing comments, pictures, and videos, instantly online. Social business applications use an underlying philosophy of open and easy information exchange and are applying it to personnel matters, project management, and collaborative learning and team innovation. I mentioned these new social-style tools recently in a DRED meeting with a CEO, a corporate counsel, and 3 department managers who were in charge of data compliance, and the response was unanimous...”UGH!” How could they possibly manage all this data? But it doesn't have to be so bad and in fact, if implemented properly, these social business tools may actually improve the way your company manages your electronically stored information.

Need More Justification to Update Your Data Retention Policies? Here are a few benefits, on the side...

An article on today's San Francisco Chronicle's website, SFGate.com, covers a computer mishap with the Division of Emergency Services. When their main computer system lost internet connectivity this past New Years, they discovered they could not switch over to a backup system because...(drum roll please)...no one had the password to get in. Only one person knew the password, and they were not on duty! Now why is this related to DREDLaw? Because in every company, as a part of the usual DREDLaw Assessment process, we have uncovered problems and potential problems related to Information Management and Governance.

Did You Keep or Delete Those Emails? Mark Zuckerberg of Facebook has to be wondering

Very interesting new allegations in a lawsuit against Mark Zuckerberg, the founder (or at least a founder) of Facebook. (article here) Allegedly, new emails introduced show that Paul Ceglia may have been promised 50% ownership of Facebook. The emails being introduced as new evidence are from 2003. Could you defend or prove a claim from that many years ago? Not sure? Well, then my suggestion would be to avoid taking the approach that email can just be deleted quickly. In fact, quit thinking of email as simply email. IF you have not already done so, it is time to realize that your email may be a contract, a modification, or some other written legal instrument.

What Arnold Palmer and Jack Nicklaus Can Teach Us About eDiscovery

Tweet

by Cary J. Calderone   

It's Masters week. As every golf fan knows, it is the first major tournament of the year and for even the casual golfer, a reason to watch some golf on television and daydream about hitting the links soon. As I watched Arnold Palmer and Jack Nicklaus hit the ceremonial "first tee shots" to start the tournament I recognized a golden opporunity to push for you and your organization to improve your company, and specifically, your eDiscovery response capabilities. The inspiration came to me when I realized that the pre-shot routines of these two golf legends were the same as when I watched them as a young child about forty years ago. Can thinking about this really help you promote better DRED in your organization? Absolutely! And here is why.

Who are you talking to? Who's your geek....

by Cary J. Calderone

For this post, we will once again look at differences between attorneys and IT people and describe those times when a technology consultant might be more help than your lawyer. As DredLaw readers have learned, on legal points, your lawyer is the final word. But, when it comes to organizing and managing your computer data, is your legal department or law firm the best source of advice? Although I have a unique background with both law and technology experience, most lawyers do not. As one frustrated attorney told me, "They do not teach computers in law school." At a recent Legal Roundtable a speaker started to rave about a "new" product, Index Engines, (covered here) that could really help pull relevant e-discovery from backup tapes, without having to restore the entire tape. Sounds great but, "new?" I mentioned it on this blog in the summer...of 2008, almost 3 years ago. It is not even "newish" technology. When I mentioned this to the speaker he claimed, "It is new technology to this crowd."

The Hype About Cloud Computing is Wrong! John Hagel Explains Waves of Disruption at Cloud Connect

Tweet

by Cary J. Calderone

This week was my first time visiting the Cloud Connect event in Silicon Valley. The event offered a great selection of tracks and speakers. Some speakers came from established companies that are trying to be leaders in the Cloud (Microsoft, Amazon), and others came from new Cloud companies.   Opinions and projections were delivered in a variety of formats. For example, unlike typical single-speaker Keynotes, Tuesday included 10 different speakers, most of whom gave quick 10-minute presentations.   The Wednesday Cloud Industry Summit presentation by John Hagel (another bio), one of the most respected technology thought leaders in the history of Silicon Valley, had no PowerPoint slides, and lasted only 20 minutes.   But that was plenty of time for Mr. Hagel to explain the disruptive nature of the Cloud and to make his most important point.  He believes the current "hype" about the Cloud is wrong.   "We have underestimated the impact!"

Location and Privacy. Say what you do and do what you say

Tweet
by Cary J. Calderone

I had the pleasure of attending an event sponsored by the Churchill Club on Location and Privacy, Where Are We Headed? The panel members (listed below) represented a diverse group of very knowledgeable people connected to privacy law. They ranged from attorneys and privacy officers working for location based social networking companies, to a representative from the FTC concerned with regulating the players. After listening to the very interesting discussion can I provide a quick summary of the law for you? Not really. This is because the law is in flux and not very settled. Here is a video of part of the discussion on finding a balance between usefulness and safety.
Even the FTC has requested comments on its Proposed Framework for Businesses and Policymakers because they realize they may need more information to determine how technology can help or hurt their efforts to inform and protect consumers. With constant innovations to location-based technology, it will be even more challenging, but there are things you can do to be better prepared.

Legal Tech 2011: An Overview

by Cary J. Calderone

I am tempted to summarize this show and call it, "the year of the canceled flight."  Having to return from an airport because your flight has been canceled due to snow is an inconvenience anyone who travels hates.   Having it happen twice during the same business trip?  Priceless!   I cannot blame my bad luck with snowstorms on Legal Tech, but I will add another big plus in the pros column for attending Virtual Legal Tech and those conferences that are closer to home, like Legal Tech West.  In spite of my bad luck with travel the show did not seem to suffer an attendance drop and had quite a few interesting items.  Here are a few:

Interesting panels

Proactive Information Governance to Reduce the Pain of eDiscovery

A Game Show:  Top Concerns of the General Counsel
Cloud, SharePoint and Social Media:  Discovery on the Next Data Frontier
Toys and Tools:  How the Latest Technology is Changing How Lawyers Lawyer
Plenary Session:  A View from the Bench


In future posts I will share details of some of the great lessons taught during these panels.

Product Shouts
Autonomy-After spending 30 minutes looking at updates to the product I walked away more impressed than ever and I believe I understand one of the main reasons they have been selling so well.  There is almost always a trade-off with software.  Either you get powerful and feature-rich or, you get easy to use.  This product is an end-to-end eDiscovery solution and yet it feels as though anybody with a basic understanding of what they want to do, and 5 minutes to learn some basic things, can use it and be productive.  The User Interface (UI) is incredibly straight-forward and easy to follow.  It puts a lot of information in front of a General Counsel, or legal assistant, and gives them a fantastic way to perform early case assessments or other parts of the EDRM.
The other product that impressed me was Bloomberg Vault.  They have data management and retention functionality built in to their cloud solution.  This kind of functionality was an afterthought with many cloud providers who just offered space and perhaps an email application.  It never made any sense to me that so many Cloud providers offered storage or applications without much, if any, additional data management capabilities or compliance tools.   It seems like a big plus to help justify moving your data to the clouds.  As a newcomer to this space, they are using their background in the highly regulated financial arena, and the extra attention to staying compliant by managing electronic information, and offer this same capability to non-financial customers.   I like what they say:

Bloomberg Vault features for e-discovery, records retention, and legal hold allow companies to manage retention with customized policies, as well as support e-discovery processes quickly and cost-effectively. They also ensure a traceable chain-of-custody, and help avoid inadvertent deletion of potentially responsive data."   

My Favorite Keynote
Michael Rogers-A Look at the Law: 2020: A Radical Perspective on how Technology will Shape the Legal Industry 10 years from Now. Will you be Ready?   Just like in 2010, where I went in wondering if futurist Malcolm Gladwell would make any critical observations on the law and technology, and was amazed, I was very happy I attended the Michael Rogers talk.  Hint, hint-look at how WebMD.com and other health web portals have changed medical diagnosis and understanding.   Social knowledge transfer will play a significant role in the legal profession.  

My last comment is that if you did not attend, you would not believe just how much "eDiscovery" dominated at Legal Tech.  A quick review of the exhibitors and panel sessions should leave no doubt that eDiscovery is what people think is important.  The market has spoken and the vendors have responded.  There were more eDiscovery service and product vendors than any other and by a wide margin.  This is good news for you and your DRED projects as the products have matured and there is a much better understanding of how to be prepared for litigation in this age of electronic data.   The downside is that I don't get to see as many new and interesting products.

More Legal Tech 2011 posts to follow...

Up In the Cloud and the Risk from the Other Guy's Mistakes

by Cary J. Calderone

Today I listened to Dr.Herbert Thompson speak about Security and Privacy Issues in the Cloud and one of his points really hit home. One of the factors to consider when weighing your move to the Cloud is the data security on your network versus the data security of your Cloud provider. Frequently, the Cloud provider's dedicated team and latest technology will be much better than anything your company could afford to employ. However, there is another real security threat to your Cloud computing.  What about the other guy?  If another Cloudy in your Cloud gets hacked, can it affect your service?  Yes, and here is why.


In prior posts, we discussed potential slowdowns that occur when your fellow Cloudys over-burden your Cloud.  I have witnessed Cloud slowdown first-hand simply because the Cloud provider was uploading the data for a new customer.  Now, what if that new customer gets hacked with something like a DOS (denial of service) attack?  In a DOS attack a virus causes the network server to keep cycling on the virus-chosen activities, like sending and receiving fake emails.   The virus replicates and grows and continues the process until the server slows down and/or crashes.   In the past, when another company got hacked, it probably did not affect your company network.   However, if the unfortunate hack victim is on your Cloud, it may very well affect you and your network.

This is great example of a not-so-obvious risk to consider when selecting a provider for your move to the Cloud.  Do they have provisioning controls?  Do they have bandwidth vulnerability?  In short, can they protect you from the other guy's mistakes? 

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.