Post Process

Everything to do with E-discovery & ESI

Archive for October, 2007

Terabyte Thumbdrives on the Horizon

Posted by rjbiii on October 29, 2007

Wired has an interesting article on research into the development of a low-cost, low-power storage technology by researchers at Arizona State University that “could put terabyte-sized thumbdrives in consumers’ pockets within a few years.” From the article:

Thanks to a new technique for manipulating charged copper particles at the molecular scale, researchers at Arizona State University say their memory is, bit-for-bit, one-tenth the cost of — and 1,000 times as energy-efficient as — flash memory, the predominant memory technology in iPhones and other mobile devices.

“A thumb drive using our memory could store a terabyte of information,” says Michael Kozicki, director of ASU’s Center for Applied Nanoionics, which developed the technology. “All the current limitations in portable electronic storage could go away. You could record video of every event in your life and store it.”

As Legal, business, and IT staff craft policies and procedures designed to manage everything occurring on data enterprises, and everything removed from them, technology continues to make the job more difficult by developing better (and more portable) storage devices, and more collaborative applications. A terabyte in your pocket…wow.

At the same time, flash technology continues to improve, although we may be near its physical limit, and solid state disks are being touted as a possible alternative.

Posted in Articles, Data Management, Storage Media Technology | Tagged: , , , , | Leave a Comment »

Between a rock and a hard place

Posted by rjbiii on October 25, 2007

Electronic discovery can be a complex matter. The discretion given to individual courts, the demeanor of opposing counsel, the difference in procedural rules between circuits, the manner in which the relevant data enterprise is structured, and other factors can make the entire process quite confusing. Throw in international rules that serve to prohibit production, and according to a recent article on law.com, counsel can find himself (or herself) damned if he does (produce) and damned if he doesn’t. The article focuses on the case of Columbia Pictures Industries v. Bunnell, in which not only did a district court judge conclude that data stored in “RAM” was discoverable, but that producing the data was necessary although that doing so was, at least for some of it, prohibited under the law of The Netherlands. From the article:

The defendants had objected to preserving and producing the Internet protocol addresses in part because that would violate the law of the Netherlands, where their servers were located — in particular, the Netherlands’ Personal Data Protection Act. But Chooljian ruled that the defendants still had to preserve and produce the data.

Their argument was undercut by the fact that, due to recent operational changes, the data for U.S. users were apparently on U.S. servers. However, even if the data were overseas, Chooljian concluded that “it was not clear that the Netherlands’ Personal Data Protection Act applies.”

Finally, Chooljian found that even if the Dutch law did prohibit disclosure of the information, it did not deprive the court of its power to order production and preservation of the data.

The article opines that the court’s decision to require the production of data held in RAM will not be followed, but is troubled with the idea that the court’s holding on the production of data despite legal prohibitions on doing so may be more in line with general judicial opinion. These conflicts will become more commonplace because of the international scope of business, developments in digital systems, and increased legislation over such matters as data protection. The article ends with some pointers, which are worth thinking about.

Posted in Articles, Attorney Liability, International Issues, Trends | Tagged: | Leave a Comment »

EDRM Releases its new Standard for Production

Posted by rjbiii on October 24, 2007

The Standards Group for EDRM released a new, xml-based standard designed to ease migration from one litigation platform to another:

“In the past, there hasn’t been a standard way to hand off [information] from one step of e-discovery to the other,” said Leafstrand. “With no validation tools to make sure you have done it right, it’s been a very hit-and-miss, labor-intensive operation.”

Very true. Perhaps the largest part of “manual” labor that goes into the average project centers on “massaging” the data into the a format acceptable to the recipient’s particular system. Although many of these formats have become de facto standards, there are still often nuances and requests that fall outside the norm. This makes a good data integrator nearly invaluable. If some of the more tedious tasks can be eliminated, I’m all for it. I doubt, however, that the standard will be a panacea for the industry. Keep your experienced data integrators happy; you still need them.

Posted in Articles, EDD Industry, EDD Processing, Electronic Discovery Reference Model, Tools, Trends | Leave a Comment »

Wading into the Quagmire of the Logs

Posted by rjbiii on October 24, 2007

SearchSecurity.com has posted a great article on Filtering Log Data:

Where there are logs, there is usually an overwhelming amount of log data. This makes it hard for an organization to spot security problems. How do you find the one packet among millions that indicates someone is sending proprietary information out of the enterprise?

Let’s illustrate how it is possible to drill down and find that single suspect packet through a series of screenshots. As an example interface, we’ll use NetIQ’s Security Manager v 6.0 to demonstrate the filtering process, but other vendors in this market offer similar interfaces and capabilities. Regardless of the product your organization uses, this tip will provide a blueprint for how to drill down and obtain the log information you need.

You might already have a glimmer as to why the subject is on-topic here, but in case you feel the need to question my judgment:

[Reporting capabilities of these applications] are useful when you know ahead of time what to look for, such as providing evidence for an electronic discovery request or other external reasons.

The article comes complete with screen shots and is very well written. I highly recommend it.

Posted in Articles, Data Management, Tools | Tagged: , | Leave a Comment »

You know e-discovery has hit the big time…

Posted by rjbiii on October 24, 2007

When lawtunes parodies it. From the press release:

Indie music label LawTunes (www.LawTunes.com) has released its latest humorous, lawyer-created, law-related album, “The Lawtunes: Live At Blackacre.” The CD contains ten original rock-and-roll tunes taking on the law, lawyers, and legal practice, including, “(She’s An) Electronic Discovery,” “Lawyers’ Blood Is Typo,” “Della Street,” “LawMan,” “Orderin’ In,” “Cadillac Cab,” “Little Bluebook,” “Livin’ Life In Six Minutes,” “Everywhere There Is A Client,” and “Santa’s G.C.” It provides desperately-needed relief to frustrated shoppers who have lawyers, law students, paralegals, and other law firm or corporate or governmental legal department personnel on their gift-giving lists.

The description of “(She’s An) Electronic Discovery:”

“(She’s An) Electronic Discovery”: There’s probably no “hotter” topic in the law today than the review and production in litigation of e-mail and other electronic documents. But that context and its developing terminology (including data accessibility, preservation, spoliation, retention policies, metadata, embedded images, the recent Federal Rules of Civil Procedure amendments, and the leading Zubulake line of cases) are appropriated with gusto to tell the tale of a lawyer falling in virtual love.

Reminds me of the musical skits from “Whose Line is it, Anyway?”

Posted in Humor, Trends | Leave a Comment »

Case Blurb: APC Filtration; Parties held culpable for violating court order before it was ever issued

Posted by rjbiii on October 23, 2007

Becker and SourceOne failed to comply with [the court’s] order to produce documents because Becker had earlier discarded the computer. Becker and SourceOne’s own answers to APC’s interrogatories indicate that Becker communicated by email with Zehua but that “[t]he dates and times of these e-mail exchanges are unknown” because “Becker no longer is in possession of the e-mails.” (Defs.’ Answer to Pl.’s Interrog. No. 5.) Becker and SourceOne provided a similar answer with respect to Becker’s communications with AmSan. (Defs.’ Answer to Pl.’s Interrog. No. 15.) It is now clear that there must have been some communications between Becker, Zehua, and AmSan during Becker’s period of employment with APC because, as the parties agreed at oral argument, Becker and SourceOne had established contractual relationships with both of these companies prior to his termination in January 2007. Furthermore, the parties now agree that AmSan has responded to a subpoena by producing over 300 pages of e-mail correspondence, containing approximately 60 messages. Whether these represent the entirety of Becker’s communications in furtherance of his plan to compete with APC or merely the tip of the iceberg is impossible to tell, since the computer no longer exists. This is precisely the situation that the rules governing discovery are intended to prevent.

The Court specifically finds, in light of what Becker did (traveling 20 miles to dispose of the computer in a construction site Dumpster) and when he did it (within days of receiving notice of APC’s lawsuit), that Becker acted in bad faith in order to prevent APC from discovering potentially damaging evidence. See Langley, 107 F.3d at 514 (Rule 37 sanctions may only be imposed where a party displays willfulness, bad faith, or fault). Although this conduct occurred prior to the Court’s order, it is enough that Becker’s culpable conduct “eventually culminated in the violation.” Id. (quoting Marrocco v. Gen, Motors Corp., 966 F.2d 220, 224 (7th Cir. 1992)). Therefore, because Becker acted in bad faith and violated a discovery order issued by this Court, Becker and SourceOne are subject to sanctions under Rule 37(b).

(emphasis added)

APC Filtration, Inc. v. Becker, 2007 U.S. Dist. LEXIS 76221 (N.D. Ill. Oct. 12, 2007)

Posted in 7th Circuit, Case Blurbs, Duty to Preserve, FRCP 37(b), Magistrate Judge Martin C. Ashman, N.D. Ill., Sanctions | Tagged: , | Leave a Comment »

Case Blurb: APC Filtration; Court explains why disposal of a computer containing discoverable information was improper

Posted by rjbiii on October 23, 2007

In order for [the] duty [to preserve the computer] to exist, the computer and its contents must have been discoverable under Rule 26 and [possessors of the computer] Becker and SourceOne must have had reasonable notice that the computer or its contents could be the subject of future discovery requests. In this case, both conditions are met.

Under the liberal standard of discovery relevance, material is discoverable if it is admissible or “reasonably calculated to lead to admissible evidence.” Fed. R. Civ. P. 26(b)(1). In this case, the allegations that support APC’s claims center on Becker’s conduct in communicating with various suppliers and customers within the vacuum filter and bag industry as well as his alleged misappropriation of proprietary information that was stored in computerized form. Becker stated in his affidavit that he used the computer for both business and personal reasons. Given the nature of the allegations and Becker’s use of the computer for business purposes, the contents of the computer were clearly discoverable.

Furthermore, Becker and SourceOne had reasonable notice that the computer could become the subject of discovery requests at the time that Becker threw the computer away. APC’s complaint was filed on March 15, 2007, and counsel for Defendants made his initial appearance on March 19, 2007. Becker admits to throwing the computer away sometime after March 21, 2007. As discussed above, notice of a complaint can put a litigant on notice that evidence is likely to be requested, triggering the duty to preserve. Cohn, 1995 WL 519968 at *5. In this case, Becker had notice based on the nature of APC’s allegations that the computer could become part of the discovery process. Because the computer’s contents were discoverable and Becker had reasonable notice that the computer could become the subject of a discovery request, Becker had a duty to preserve the computer as evidence prior to the date on which he discarded it. Therefore, this Court may impose sanctions pursuant to its inherent power.

APC Filtration, Inc. v. Becker, 2007 U.S. Dist. LEXIS 76221 (N.D. Ill. Oct. 12, 2007)

Posted in 7th Circuit, Case Blurbs, Data Management, Document Retention, Duty to Preserve, FRCP 26(b), Magistrate Judge Martin C. Ashman, N.D. Ill. | Tagged: , | Leave a Comment »

The Basics on Sanctions

Posted by rjbiii on October 22, 2007

This is the Fourth Installment of Effectively Managing E-Discovery.

Which actions or omissions may give rise to sanctions is partly dependent upon the circuit in which one practices. First, the attorney approaching a discovery project of any size should not have any misguided notion that judges are apt to forgive a lack of familiarity of his client’s system. The Conference of Chief judges stated in a report it issued 2005:

While the manner in which this encouragement should be given will, of necessity, depend on the procedures and practices of a particular jurisdiction, the court should establish the expectation early that counsel must be well informed about their clients’ electronic records. FN1

FN1: Conference of Chief Judges, Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information (Rev. Draft, Sept. 2005). See also, Leonard Dutchman, Preserving Data in the Wake of Amended Rule 37(f), http://www.law.com/jsp/legaltechnology/PublArticleFriendlyLT.jsp?id=1160643922347 (last visited October 30, 2006) (“It is ultimately counsel’s duty to preserve and gather discoverable ESI.”); Phoenix Four, Inc. v. Strategic Resources Corp., 2006 WL 1409413 (S.D.N.Y May 23, 2006), *5 (citing Zubulake V) (“Counsel has the duty to properly communicate with its client to ensure that ‘all sources of relevant information [are] discovered.’ “); Craig Ball, EDD Showcase: Worst Case Scenario, Law Technology News (Oct. 31, 2006) at http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1162215324083, (quoting J. William Speros, referring to attorney liability and explicitly mentioning Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir. 2002) and In re Worldcom, 2004 WL 768573 (S.D.N.Y. 2004)) (“We’ve seen courts hold parties responsible for failing to supervise their vendors.”)

As a matter of principle, sanctions should be used sparingly. Fed. R. Civ. P. R. 37(b)(2). The Federal Rules of Civil Procedure authorize a court to issue, as sanctions for disobeying discovery orders, the following orders (not an exclusive list):

  • An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
  • An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; and
  • An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.

Federal courts also possess an inherent authority to impose sanctions for the conduct of litigants in counsel regardless of whether the behavior at issue would be covered specifically under a rule or statute. O’Brien v. Ed Donnelly Ents., Inc., 2006 WL 2583327, at *2 (S.D. Ohio Sept. 5, 2006). The court is given a great deal of latitude in deciding what, if any, sanction should be imposed for bad conduct. Id. What kind of conduct may be penalized? The spectrum of attorney or disputant behavior subject to sanction is large, but for the purposes here, non-production or late production of relevant documents is behavior subject to sanctions, as is spoliation, and the destruction of evidence. Spoliation may be defined as “the failure to preserve evidence that is relevant to pending or potential litigation. See, e.g., Jimenez-Sanchez Restaurants, LLC, Civ. No. 05-1131 (JAG), 2007 WL 1098667, at *1 (D. Puerto Rico March 5, 2007).

The purpose of sanctions is to “deter parties from engaging in [prohibited conduct], place the risk of an erroneous judgment on the party who wrongfully created the risk, and restore the prejudiced party to the position it would have been in had the misconduct not occurred.” Consolidated Aluminum Corp. v. Alcoa, Inc., 2006 WL 2583308 (M.D.La. July 19, 2006). A court has “broad discretion to fashion appropriate sanctions on a case by case basis.” Phoenix Four, Inc., 2006 WL 1409413 at *3. The form in which sanctions can appear include:

  • Exclusion of “spoiled evidence.
  • Allowance of an Adverse Inference;
  • Allowance of further discovery by the party injured by the misconduct;
  • Monetary sanctions;
  • Dismissal of a case (for misconduct by the plaintiff or cross-plaintiff).
  • Default Judgment.

Although the flexibility accorded district courts is understandable, clarity is diminished because of it. Additionally, clarity suffers further from the fact that particular sanctions may be imposed for differing standards of conduct, depending upon the circuit in which the case is taking place.

Posted in Discovery, EDD Basics, Effectively Managing E-Discovery, FRCP 37(b), Inherent Power of Fed. Courts, Sanctions | Leave a Comment »

E-Discovery spurs business for law firms and vendors

Posted by rjbiii on October 22, 2007

According to PC World, the recently enacted amendments to the FRCP dealing with ESI has confounded corporate legal departments to the point that they are looking outside for help? To whom are they turning? Outside counsel, and EDD vendors, of course:

The fourth annual “Litigation Trends Survey Findings” conducted by Fulbright & Jaworski L.L.P, a global law firm based in Austin, Texas, found that corporate lawyers — over two-thirds based in the United States and the rest mainly in Britain — cited a big jump in use of outside vendors and outside law firms specializing in the e-discovery field. The industry sectors primarily represented are financial services, technology/communications, manufacturing, healthcare, energy and retail.

I’m not sure about the need to turn to outside counsel, frankly, unless you target a specific attorney based on particularized knowledge of the field. Otherwise, at least for the early stages of a dispute (and, for those companies with sufficient resources), in-house counsel should develop sufficient expertise to lead the e-discovery team initiate projects. Why? Well, the GC only has one “client,” and can afford to become intimately acquainted with its IT enterprise. An outside law firm will never have that opportunity (and even if it wanted to, imagine the billable hours…). Furthermore, outside counsel not only needs to be concerned with the Information Systems of its client, but must also “play offense” and investigate the systems of the adversary. Let the in-house department be the defensive coordinator, and they can take the initiative in the early stages, while overseeing a “smooth handoff” once the preservation (and possibly collection) phases have been completed.

Posted in Articles, EDD Industry, eDiscovery Counsel | Leave a Comment »