Post Process

Everything to do with E-discovery & ESI

Archive for June 28th, 2008

Legal Challenge to Texas’ PI Law emerges: Standing up for the Computer Technician

Posted by rjbiii on June 28, 2008

The Institute for Justice, with a newly opened Austin chapter, has decided to challenge the new Texas statute that appears to mandate that some computer techs must obtain a private investigator’s license:

Under the new law enacted in 2007, Texas has put computer repair shops on notice that they had better watch their backs any time they work on a computer. If a computer repair technician without a government-issued private investigator’s license takes any actions that the government deems to be an “investigation,” they may be subject to criminal penalties of up to one year in jail and a $4,000 fine, as well as civil penalties of up to $10,000. The definition of “investigation” is very broad and encompasses many common computer repair tasks.

Interestingly, the article doesn’t mention anyone in this industry, which is also greatly threatened by the statute’s impact. Think I’ll talk to the attorneys involved, perhaps providing them with this information. If I get hold of them, I’ll let you know what they say.

Post Process will follow the progress of the lawsuit and blog what we hear. You’ll recall that we’ve discussed the Texas law (here) and the Michigan law (here).

Another approach is for the industry to take an active role in discussing these proposed laws as they begin to surface in the state legislature. I haven’t heard of any activity on that front, yet.

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Posted in Articles, Legislation, Texas, Trends | 5 Comments »

Blogging LegalTech West 2008: Building an e-discovery task force

Posted by rjbiii on June 28, 2008

As mentioned in the previous post, there were three main tracks of courses to choose from. My associates and I glanced over them to divide the subject matter up between us, and I ended up on the “Corporate Perspectives” track, which suited me.

What was less than satisfying was that the first event was a panel discussion centered on building an E-Discovery task force inside the company. Not a particularly interesting topic for me; not because it’s unimportant, but rather because I have already attended a number of similar presentations, read much of the literature on it, written about it in my own papers, and dealt with the subject extensively in my own work. So it’s “old hat” to me, as they say.

Nevertheless, a colleague of mine and I found good seats and settled in. The panel consisted of Kroll Ontrack’s Linda Sharp (who acted as moderator), Cynthia Nichols from Taco Bell Corp., Michael Kelleher of Folger Levin & Kahn LLP, and Joel Vogel o Paul, Hastings, Janofsky & Walker LLP.

Most of the information presented was standard, and no new ground was covered (at least for me), however, it was well-done and all panelists contributed significantly to the discussion. No new ground was covered, but in all likelihood, the needs of the target audience were met.

The meeting began with a discussion outlining the need for the proactive implementation of pre-litigation measures to deal with issues presented by in the era of “ESI.” With Ms. Sharp leading the way, it was noted that 50% of corporate America has no policiy with respect to managing ESI, and 75% feel they lose time due to inefficient or non-existent ESI policies.

The panel then turned to the question of what elements and constituencies should comprise an E-Discovery team? Depending upon the size and internal structure of the company, the panel listed the following possibilities:

  • Corporate Counsel
  • IT
  • Human Resources
  • Records Management
  • Corporate Security
  • Trial Counsel
  • Discovery Counsel
  • Outside Vendor(s)

Obviously, the nature of the matters that confront any particular corporation, and the relationship the company has with outside law firms and vendors are factors in building the right team.

The discussion then moved the task force’s need to educate themselves on their company’s data infrastructure. Questions the task force should address are: where does company data reside? How is it maintained? How is it accessed, and by whom? When (and how) is it destroyed? Here, some recommended that a systems information directory be generated and maintained by the team. Others argued maintaining the document was inefficient, and that this could best be addressed by updates as needed (i.e., as new legal matters arise). I tend to lean toward maintenance on a regular basis, although I can see some situations in which the contrary view would be a better fit.

The discussion then looked at Discovery Response Checklists, and what elements should constitute it. Some of these items included: the issuance of hold statements, discontinuing data destruction and back-up tape recycling policies; and handling e-mail archiving.

Overall, a fairly pedestrian, but useful presentation. The panelists were articulate and knowledgeable, and laid out the issues in an organized and effective manner. If you’re interested in the subject, and other ideas for proactive measures, one article that I liked on the issue is:., Renee T. Lawson, Taming the Beast—Implementation of Effective Best Practices for Electronic Data Discovery, 747 PLI/LIT 305, (Oct-Dec 2006).

Posted in Best Practices, Data Management, Discovery, Industry Events, Trends | Leave a Comment »