The Common Scold

The Common Scold is named after a cause of action that originated in Pilgrim days, when meddlesome, argumentative, opinionated women who displeased the Puritan elders were punished by a brisk dunk in the local pond. Believe it or not, the tort lasted until 1972, when State v. Palendrano, 120 N.J. Super. 336, 293 A.2d 747 (N.J.Super.L., Jul 13, 1972) pretty much put it to rest. But the thought of those feisty women, not afraid of a little cold water, has always cheered me up and inspired me. I first used the moniker as the name of my humor column at the University of San Francisco School of Law many moons ago, and revive it now for this blawg!



Email2 I turn the microphone over to atty/EDD consultant (and LTN's EDD columnist) Craig Ball, who was quoted in The American Lawyer's Aug. 9 article about LexisNexis Applied Discovery's EDD snafu in the Enron ligitation. Ball's letter was sent to Marc Osborn, of LexisNexis' PR staff:

Dear Mr. Osborn:

I just received a copy of a letter from Miranda Glass of your company. In that letter, which apparently is being widely distributed to lawyers all over the U.S. and submitted for publication in Law.com.

Ms. Glass expresses a desire to correct factual errors and set the record straight; however, I'm concerned that letter will have the opposite effect.  It seems to propagate errors of its own which might be perceived by some as disingenuous or falsely self-serving.  Surely, that's not the end you seek.

Ms. Glass states that, "The bug causes Outlook 2000 emails to appear blank on computers without a patch that Microsoft issued as part of its Office 2003 Service Pack 2 in September 2005." 

In fact, the Microsoft Outlook Hotfix to resolve this issue was (per Microsoft's website) released on January 7, 2004 and the issue involving blank Outlook e-mails was also addressed by a patch in the July 27, 2004 MS Office 2003 Service Pack 1.  You can and should confirm this here: 

It's no doubt technically accurate to say that the fix was also carried forward into Service Pack 2 in 2005, but don't you want to be forthcoming about the two prior patches that would have solved the problem, perhaps as much as eighteen months earlier?

Thanks for your attention.

Craig Ball

August 12, 2006 | Permalink


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I still don't get how this is an issue with Applied Discovery. Since when are eDiscovery service providers supposed to identify and fix issues caused by faulty data provided by clients?

Posted by: J Meyers | Aug 14, 2006 6:44:47 PM

It seems like Mr. Ball is openly hostile toward Applied Discovery. The technical issue lies with Microsoft's technology, for which thier is a known fix.

Posted by: Anon | Aug 15, 2006 1:26:01 PM

Dear Anonymous:

I'm genuinely sorry if what I wrote seemed hostile toward Applied Discovery. That's poor writing on my part since hostility doesn't reflect my sentiments at all. Not by way of justification, but by way of explanation, let me say that I'd been contacted by someone from Applied earlier the same day and I'd shared with them the information about the timing of the 2004 patch and 2004 service pack that addressed the problem that seems to lie at the heart of the reported snafu. So, I was pretty surprised by the corporate spin.

Let me ask your view, Anon. If the Microsoft website is correct and a "known fix" for this particular problem was released on January 7, 2004, and re-released in a major service pack on July 27, 2004, when should the fix have been applied by a leading vendor of professional services to whom lawyers all over the country look for e-discovery--and especially e-mail processing--expertise? How late is late?

As a journalist, an instructor or just as a guy who reads his e-mail, is it hostile to ask why the corporate response leaves the impression the patch wasn't released until 18 months later than it was? Is it hostile to challenge a statement that, on its face, seems to leave a whopping misimpression and do it quickly enough, and (I hope) emphatically enough, that any misimpression might be immediately corrected? Or are you just saying I should have done it in a more understanding and sympathetic way? If it's the latter, you're probably right and I'll strive for a gentler pen.

Take your company, e-Mag (and, dear Anon, the lesson here is in a wired world Anonymous doesn't always mean anonymous). Has what I've or others said prompted e-Mag to assess whether it experienced the problem and determine when and if it's been fixed? Isn't that a positive thing? Shouldn't we all be asking our vendors about this issue and aren’t we entitled to the unvarnished truth, including knowing when the problem arose, when it was a “known” issue and when and how it was fixed? Trust everyone…but cut the cards.

The test of a person or a company isn't that they never drop the ball. It's how they respond to the error. Do they come forward on their own and acknowledge the issue to those adversely affected? Do they own up, without "spin" or finger-pointing? Do they bite the bullet and fix the problem, even when hard or costly to do so? Do they put the customer first and prove there's no reason to withdraw the trust previously reposed?

Applied isn't in this boat alone, and I didn't select them for the spotlight. The Lexis-Nexis brand is an icon, so perhaps it's not asking too much that it set the example. Whatever my poorly turned phrases may convey, I’m hopeful, not hostile. I want to see Applied come through this the better for it. I want to see them set a high-but-attainable standard for this burgeoning young industry by demonstrating that, though there'll be setbacks, there's also a genuine industry commitment to service, integrity and quality assurance. The litigation practice is about to be joined at the hip with the e-discovery industry. Lawyers are betting their reputations and livelihoods on EDD vendors, and we need the EDD industry to meet the same high standards for candor and responsibility that bind and guide us.

Craig Ball

P.S. to J. Myers: This isn't about faulty client data. It's about faulty tools used to process the client data and how long it should take a carpenter to discover that his yardstick is 35 inches long.

Posted by: Craig Ball | Aug 15, 2006 4:57:17 PM

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