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| Alextronic Discovery An Electronic Discovery Blog covering News, Articles and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - alubarsky@enterusa.com - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM |
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Monday, September 14, 2009 Alextronic's State Bar Presentation mentioned in a Blawg Here is an exciting blawg entry from TotalAttorney that references Alextronic's presentation yesterday (at the 82nd Annual California State Bar Meeting in San Diego) entitled New Strategies for Winning the Document Production War. Enjoy blawgerheads: --------------------------------------------------------------------------------------------- Day 4 of the California State Bar Meeting The morning began with us pondering an interesting question. What would Lincoln do? As a lawyer first and then a President, Lincoln often faced ethical dilemmas which he worked his way through in a smooth and commendable manner. If you despise what you are doing you won’t do it well. In honor of the year of the 200th birthday of Mr. Lincoln, it was an interesting seminar to examine how we would in the modern era use the same principles he applied over a century ago. As you head back to work, if you are faced with ethical dilemmas, ask yourself… What would Lincoln do? E-Discovery has been a very hot topic throughout the conference. This morning’s session was full of useful information about both ethics and rules of discovery. Check out Electronic Discovery for Dummies it is a great reference that highlights e-discovery. There is so much that exists in the files beyond just the data they contain, in fact they can tell you when they were created if and when they were altered and who made these alterations. E discovery is a very expensive process and often the cost is shifted to the requesting party, however most cases look at several factors. Email is the world’s largest communication tool with trillions of messages transmitted each year. The most important lesson I learned today is don’t type anything you do not want discovered! If you are looking to discover almost any document you will likely be able to. If you are looking to hide it, you better have a protective order of some sort. There is Electronic discovery software which can discover how and when the document was altered and by what login name. There was a case where a slanderous document was at issue; the party saying they had never said those things! But the document was filled with slanderous words, and through this software they were able to see that the document had been altered from a different login computer and printed from a different login. For more information check out www.renewdata.com. It was a wonderful meeting and I look forward to the 83rd Annual State Bar of California Meeting. If you weren’t able to come to this one, check out the Hong Kong conference in early November! Labels: e-discovery, Electronic Discovery, protective order, state bar of california posted by Alexander | 9:12 AMTuesday, March 25, 2008 The FRCP Amendments Not Just for Federal Practitioenrs Anymore The FRCP Amendments Not Just for Federal Practitioners Anymore For quite some time now, attorneys whose practice was limited to the State court system (notably, PI attorneys, family practitioners and small business litigators) were convinced that they wore a cloak of invisibility as far as the ESI-centric amendments to the FRCP were concerned. "ESI is stuff for Federal practitioners to deal with", my law school buddy Glen, who does family law,used to tell me. "I'll worry about it when I take on a Federal matter". I did not want to admit it, but Glen had a point. He could walk into a discovery conference at the Superior Court in San Francisco, admit that his client, the defendant, had on-point email messages out there somewhere but he did not know how to retrieve them and the court would simply accept this and move on to other issues. Glen had few discovery worries. His counterparts practicing in the Federal jurisdiction did not sleep as well at night. Whereas the Federal practitioner - bankruptcy litigator, anti-trust attorney, tribal law specialist, IP counselor and a host of others shiver at the thought of a rule 37 sanction or wake up in a cold sweat from a nightmare in which the cutoff date to hold the rule 26(f) conference had passed, this is not the fate of the state practitioner. Meanwhile the state practitioner, such as the employment discrimination defendant's counsel, worries about mundane items such as the increase in filing fees and who would replace the retiring mean old judge Murphy. Well folks, the playing field has evened in California - or at leas the forces of equalization are now taking shape. Just this month, the California Judicial counsel proposed new electronic discovery rules to bind state practitioners. The state intends to tweak its case management rules of court and amened its Civil Discovery Act. To no one's surprise, the proposed rules are eerily similar to the FRCP amendments. I know what you're about to ask... Yep, these rules apply to the small claims court where litigants cannot be represented by counsel at trial. You got it, Mr. and Mrs. John Qpublic are now subject to rules concerning the identification, preservation, review and exchange of ESI. Who'd of thought? The proposed amendments are now open to public comment and Alextronic is chiming in. It seems a bit much to expect the cast of characters that appear to my amusement on Judge Judy to understand metadata, the benefits of hash values for deduplication and the pros and cons of native format production as opposed to a tiff based production. Alextronic advocates that the court designate a free facilitator well versed in ESI to help small claims litigants and all unrepresented litigants in the Superior Court deal with the new and perplexing intricacies of electronic document management for discovery purposes. If you talk about a safe harbor to most of today's average pro se litigants, they will point to the sailboat dock in the fictional town of Amity Island feaured in the movie Jaws circa 1975. Talk about inaccessible data... to the lay person, this could mean that the CD ROM was kicked under the refrigerator by the cat. You get the picture... On balance, of course, the fact that the more down to earth state court system is moving to adopt the discovery standards, practices and polices of its high-filutant cousin is a breath of fresh air. Just as email and MS Office documents often tell the whole story in a complicated SEC matter or patent dispute, the same ESI is more likely to bring the relevant facts to the forefront in a divorce or slip and fall case. I would bet dollars to donuts that the state court Justices will look back in five years and wonder how on earth the court ever got to the bottom of anything without the required and carefully thought out introduction of ESI to provide the fifty-thousand foot view of the facts. More importantly, many of you Blawgerheads reading or even subscribing to this Blawg know that we all work within a little known niche of e-discovery nerds and ESI pundits and litigation support jocks. Most of us attend the same conferences (with the same short list of keynote speakers who rotate from gig to gig) cough, Browing, cough, George, cough Michael, cough Mary Pat - and we read the same articles and blawgs and vendor web site to ingest the same information in our little, incestuous, closed-circuit ediscommunity. Now, with the California state court in the lead (and the remaining states bound to follow soon) our own off-color art will become the mainstream and the world will soon awake to appreciate the need and, yes, challenges to electronic information as it plays a part in our judicial system. This will change the way the straying spouse thinks of his AOL chat and GPS gadget. The impact will be felt far beyond LTNY and ILTA. It will certainly be interesting to track the soon to follow decisions from the California Appellate courts regarding admissibility of metadata, cost shifting, scope of protective orders, defensibility/admissibility of electronic evidence, best collection and preservation practices and the whole host of hot button issues that have dominated the Federal scene since Laura Zubulake felt disenchanted with her gig at UBS. Labels: california superior court, Electronic Discovery, ESI posted by Alexander | 2:31 PM |
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