Fickle Futures, Failed Fortunes
Revisiting the still-disappointing film, "Total Recall" (1990), and the still-inspired, "Blade Runner" (1982). I noted a Sharper Image store circa 2084 in the former and a neon-esque billboard for Pan Am circa 2019 in the latter. Of course, Pan Am collapsed in 1992 and Sharper Image recently liquidated. Instead of forging the desired continuity between two eras, anachronistic references to evaporated entities shatter the fourth wall and remind us how perilous it is to assume too much about the future. A lesson not lost on film directors whose futuristic depictions of New York include the Twin Towers.
Wall Street's crystal ball is no better than Hollywood's (and of course, there's an e-discovery moral to our story).
Going way back to 1896 and the original 12 companies making up the Dow Jones Industrial Average, nearly all were broken up or absorbed generations ago; and just General Electric remains a part of the DJIA. Don't you imagine pundits of the Roaring Twenties took it for granted that U.S. Leather would endure? Surely, industrious America would always need miles and miles of leather belts to transfer power to machinery.
Packard, Arthur Andersen, Enron, Lehman Brothers, Heller Ehman.... "Stuff," like Rummy said "happens," and there's more to come. If you think the markets and indicators have bottomed out, consider that we teeter on the Continental Shelf and yet face a cold, murky Mariana Trench.
The electronic discovery industry and, to a lesser extent, the legal services industry is a microcosm of the broader wounded economy. I think of Marc Dreier as our industry's Mini-Me to Bernard Madoff's Dr. Evil. Titans laid low overnight.
So, write this on your hand and don't wash it off:
Nothing is sacred. No one is safe. Anyone can disappear...fast.
No matter who you are using for EDD support services, now is the time to assess your exposure, mobility and disaster recovery strategy. Ponder these questions about your vendors:
- How long do we anticipate the necessity of vendor involvement?
- Do they have the only accessible copy of any evidence?
- Do we have a complete copy of the vendor's work product in a format we can use?
- How will we handle the inevitable delay occasioned by failure and the flight of key personnel?
- What becomes of our data they hold in the event of bankruptcy?
You'd be smart to plan for these eventualities and careless not to. Back when anyone who applied to law school was admitted, they'd assemble the newly matriculated class and say, "Look at the person to your left and right. Only one of you will graduate." I suspect the vendors and service providers entering the 'EDD Class of 2011' are in something of the same boat.
Like the fat-and-happy feeder brokers who steered tens of billions to Madoff, we lawyers have due diligence obligations. We must do better than those dozing brokers; not by eliminating risk, but by managing it: doing our homework, educating our clients and planning for the foreseeable. The potential for titanic failure must be on our radar--and stay there.
It may sound like an ad campaign for Murder, Inc., but make it your mantra for 2009:
Anyone can disappear...fast.
Comments