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Dont Crie for20Me Argnetina

It's too darn hot in the Texas hill country, so I'm wishing I was hiking the Appalachian Trail.  "What's that, dear?"  "Hiking the Appalachian Trail" is a euphemism for what."  Hmm, I guess Governor Sanford will do for the Appalachian Trail what Governor Spitzer did for the Mayflower Hotel and President Clinton did for cigars.  Marketers take note.

But there's an important e-discovery lesson in this sad, sordid saga, and its not the familiar one about never using e-mail for something you wouldn't want to repeat on the witness stand.  Clients are going to do it anyway.  How else to coo sweet nothings to one's Argentine querida?  No, the lesson is about what you must do to find the smoking gun in ESI when using keyword search.

One More Thing You'll Wish You'd Never Heard About Search

I don't think I've ever met Perlustro CTO Jim Baker; but, now-and-again he calls my mobile and talks for hours at a blistering pace belying his easy southern drawl.  He’s a smart fellow who’s been around the block, and he's so steeped in the world of electronic data and computer forensics, listening to him is like trying to drink from a fire hose.  It's all I can do to keep up.

Perlustro is the never-heard-of-'em company responsible for a world-famous product: ILook, billed as "the most widely distributed law enforcement, military, and intelligence agency multifunction computer forensic examination system in the world."  Indeed, until recently, only law enforcement and agency types could use the ILook tools; but now they are emerging as commercial products to compete head on with the likes of Encase, FTK, ProDiscover and X-Ways Forensics.

Amidst a million other tidbits, Jim shared a "I-can-hardly-believe-it's-true" flaw impacting indexing engines.  If you're doing e-discovery by keyword searching indices of client data--and who isn’t?--you need to have this issue on your radar.  Or, you may wish you kept your head in the sand with everybody else.

Can you name the e-discovery expert?

 

Hint, that is not his real hair, but it is his real face and real beard. And no, its not Conan Obrien. Can you recognize him? For the answer and full story of the battle of the late night e-discovery talk show hosts, you will just have to waste some time at my blog this week. You will also see a special version of one of my favorite Escher drawings and what Browning Marean would look like if he had Jay Leno's chin (and body). Yes, it's photoshop madness at the e-Discovery Team blog.

Quality Is Job 1

Note that GM filed for bankruptcy today, not Ford, whose focus since the 1980s has been on quality. I don't really know if Ford has made a better quality car then GM, or not, but I do know that quality is essential to any product or service, including e-discovery. That is why the recent release of The Sedona Conference® Commentary on Achieving Quality in the E-Discovery Process is so important and why I have dedicated my blog this week to the subject. See Sedona on Quality: a Must-Read Commentary. 

My blog, like the Sedona Commentary, features quotes from two gentleman you might otherwise never connect, the famous jurist, Oliver Wendell Holmes, Jr. (shown left), and the contemporary science fiction writer, William Gibson, who coined the term "cyber-space." What in the world do these two have in common, and what is the connection with Quality and e-Discovery?

Legal Ethics is Especially Important in Hard Times

My blog this week finishes my interview on ethics called There Can Be No Justice Unless Lawyers Maintain High Ethical Standards. Ethics is not just Boy Scout stuff; it is the foundation of the whole legal system. It is important and I hope everyone will take the time to hear this out and read the blog. We all know that not every lawyer and e-discovery vendor is ethical, but most are. Don't let hard times tempt you to the dark side or you may end up all withered and boxed in like Darth Vader. 

When times are tough economically the lure of money makes it all too easy to be tempted to the dark side. Don't do it. These tough times will pass, but your reputation is forever. Don't take shortcuts and bend the rules. Don't take advantage of people. Above all, resist the temptation to churn and drag things out just to make a profit. Don't feed the flames of a dispute to make more money for yourself. Instead, figure out how to cooperate. I call it strategic cooperation and it comes out of a position of strength, not weakness. For more, see my article: There Can Be No Justice Unless Lawyers Maintain High Ethical Standards.

There can be no Justice without Truth

Electronic discovery is important to the justice system in America. It is important because in today's world of litigation, there cannot be enough of the truth to do justice without electronic discovery. As I explain in my blog this week on ethics, e-discovery is critical because writings are, and always have been, key evidence of the truth and almost all writings today are electronic. For the full story please see: e-Discovery Competence is a Fundamental Ethical Challenge Now Faced by the Legal Profession. The blog ends with a poll where you can express your opinion in an anonymous vote.

Craig Ball Gave His First Keynote Speech This Week

Craig Ball just blogged below on the awards given at the “International Litigation Support Leaders Conference“ that took place in Washington D.C. this week. I had the honor of attending the same event and, of course, join in Craig's congratulations. But I also want to recognize the brilliant Key Note speech by Craig Ball that kicked off this event. His all-image PowerPoint represents the best standard possible for that software. His keynote demonstrated his creativity and mastery of all things e-discovery. It is hard to believe that this was his first keynote speech. It was very good as you would expect and I am sure there will be many more. 

I got to serve on three panels at this event, two with George Socha, one with Craig Ball and George, and the third with Mary Pat Poteet. To learn about the "Big Argument" that Craig and I got into on our panel on Information Management (which tended to spill over into the halls later as attendees can attest), you'll have to check out my blog this week, Part Two: Utah Court Mines Safe Harbor Rule 37(e) Into Oblivion.

Redwood Tree Chopper Chops Backup Tapes Too

Sanctions were denied for spoliation in a recent Qui Tam government fraud case against a company notorious for chopping down Redwood trees. U.S. v. Maxxam, Inc., 2009 WL 817264 (N.D.Cal. March 27, 2009). Turns out they also chopped up a whole room full of backup tapes, and deleted emails too, just before the law suit. The destruction of what later proved to be key evidence was, however, all in done in accord with their “general practice … to discard material that no longer had a business value.” Id. at *3. Since it was also done before a duty to preserve had triggered, the plaintiffs' motion for sanctions was denied. The plaintiffs then had to start a jury trial without the evidence and without the adverse inference jury instruction they had wanted. Interestingly, although the reasoning of Rule 37(e) FRCP was employed, there is no mention of the rule itself. 

TREC 2008 Stresses Human Element in EDD

The Text Retrieval Conference Legal Track -- a proving ground to test search technology as applied to electronic data discovery -- completed a third year of research on search technology in litigation. In 2008, it explored a different aspect of the EDD problem: the role of humans.

Wake-Up Call on Slipshod Search Terms

Many lawyers think that keywords viable for a Google search should also suffice for the production of electronically stored information. In a recent ruling, U.S. Magistrate Judge Peck has sounded the alarm that such haphazard searches will no longer pass muster in the 2nd Circuit.