LTNY: T-Minus 12 h

       

I've just navigated the chaos that is the LegalTech vendor floor (see photos, click each for larger images) and, after more than a decade watching these shows take shape on both coasts, I still marvel at how this mess morphs into the polished event that will emerge in a few hours.  It's going to be a great show for the vendors.  I can't predict the traffic won't be off in sheer numbers of warm bodies, but those who come will have budgets to buy that were nowhere to be seen last year.  Everyone tightened belts, but those compelled to do more with less now face doing more with less...that's now a year or two past its prime.  The fear factor has dissipated (even obscene Wall St. bonuses are back and Ford's turned a profit), so the checkbooks are coming out.  

#LTNY Next Week!

We've all been in high gear getting the final touches done for LegalTech NY next week. I can't wait!

Among the highlights will be our LTN Awards party Monday night 2/1 at 6 p.m. Tix are still available: contact lsharpe@alm.com. They will also be available at the Sales Office on third floor of Hilton Monday.

We also will hold our traditional "Editors' Breakfast" and Bloggers Breakfast on Tuesday 2/2 at 8 am and 9 am. in the Petit Trianon room. Everyone's welcome! It's a great oppty for vendors and public relations folks to meet with ALM's editors.

CYA at the Hilton!

Webinar Examines Legal Hold Myths & More

To listen to a webinar recorded on January 26, 2010 at 2:00 p.m. EST, which examined common misconceptions about legal holds using recent case law, including an analysis of U.S. District Judge Scheindlin’s recent Pension Committee opinion, click here.

John Jablonski (author of this blog and Seven Steps for Legal Holds of ESI and Other Documents) and Brad Harris (author of 12 Myths About Legal Holds) will look at problems that are frequently encountered within organizations that are failing to implement reasonable and good faith efforts when it comes to executing legal holds for discovery and tackle Judge Scheindlin's recent opinion requiring implementation of a written legal hold whenever litigation is reasonably anticipated.

To download a detailed analysis of the Pension Committee decision, click here.

Judge Scheindlin Correction: Pension Committee Opinion

On January 11, 2010, Judge Scheindlin issued a landmark ruling on sanctions - The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al. Lexis was the first to pick up on it and published the Order on January 13th. See:  2010 U.S. Dist. LEXIS 1839. I  wrote a lengthy blog on the new case, which I published on January 17th. Then today, on the 18th, I was just advised that Judge Scheindlin issued an Amended Order on January 15th, which makes several revisions to the original Order.

Honoring Martin Luther King

Today,  we take a day to reflect on the dreams and accomplishments of Martin Luther King Jr.

Here are a few links to frame the day:

• MLK's Nobel Prize biography (and photo, right).
• Wikipedia biography.
• The King Center.
• "I Have a Dream" speech (YouTube).
• James Taylor's "Shed a Little Light" and the lyrics.

Have a restful and inspiring day, and let's all find the opportunity to do one unexpected act of kindness on today.

Fiat lux.

Doctors v. Lawyers re: e-Documents

The American Recovery and Reinvestment Act of 2009 allocated $19 billion to help doctors and other health care providers buy and install electronic health record systems, with the agenda of creating an integrated national Health Information Network to improve health care and reduce costs.

Robert Hudock and Jason Christ, both senior associates at Epstein Becker & Green, take a look at how the health care system compares to the legal industries adoption of e-discovery collection and production practices, in "Electronic Discovery: A Special Report," in The National Law Journal (registration required).

Craig Ball: EDD For Everybody (a.k.a. The EDna Challenge)

Most discussions about e-discovery focus on big firm, big budget litigation, but even small cases involve electronically stored information. What's a small firm attorney to do when she faces the courtroom with a relatively small matter?

Craig Ball comes to the rescue with the help of key players in our legal technology community. In "EDD for Everybody," Ball sets up a hypothetical case. In it, "Edna" who is handling a construction dispute, anticipates that the number of possible files will be somewhere between 50,000 to 100,000 items.

What advice would you give? See what your peers (you'll recognize a lot of folks from this blog!) suggest in the EDD Showcase in the January edition of Law Technology News.

John Jablonski: End Game

Terminating legal holds is easier said than done, says John Jablonski. But it's also "an essential part of a defensible legal hold business process."

In "End Game," Jablonski, a partner with Goldberg Segalla, and co-author of ARMA's new book,  7 Steps for Legal Holds of ESI and Other Documents, says that "timely release of legal holds can help corporations escape from the legal hold purgatory."

To find out more, check out the January e-discovery showcase in Law Technology News.

Cecil Lynn: Back to the Future

It's been three years now since the electronic data discovery rules were added to the Federal Rules of Civil Procedure, and the number of reported cases involving electronically stored information has skyrocketed. But some lawyers still "simply do not anticipate (or woefully underestimate) issues related to ESI," says Cecil Lynn, of counsel to Ryley Carlock and Applewhite.

In "Back to the Future" in the January issue of Law Technology News, Lynn chronicles key 2009 rulings, finding that most of them are reiterating established principles. Lynn looks at everything from the increasing clarion for "cooperation," and issues around form of production, to failure to preserve, sanctions, discovery abuse, and more. It's part of our EDD Showcase.

Want more? Check out our Law Technology Now podcast, where Cecil Lynn joins me as a guest to further explore the 2009 EDD rulings -- with a special bonus: a cameo appearance by ALM's Henry Dicker, who offers a sneak preview of LegalTech New York.

Ball in Your Court: "EDD Bill of Rights"

In January's Ball in Your Court column, Craig Ball argues that it's time for a "Bill of Rights" for requesting parties who seek electronically stored information from their opponents. Requesting parties, he insists, have rights -- and duties -- during litigation.

Among the rights, says Ball, an Austin, Texas-based attorney and forensics consultant, is that ESI be produced in the format in which it is kept in the usual course of business; and that the producer clearly and specifically identify any intentional alteration of ESI.

Among the duties: an obligation to anticipate the nature, form, and volume of the ESI under scrutiny, and tailor requests to minimize burden and cost of securing the data. Read more in the current issue of Law Technology News.

Craig and I will be speaking Thursday (Jan. 21) at the New York City chapter meeting of Women in E-Discovery. It will be held at noon, at Credit Suisse, 11 Madison Ave., floor 2B, in the Club room.

To RSVP please visit newyorkcity@womeinediscovery.com. We hope to see you there!

Zubulake Revisted

 Whatever the new media version of "EXTRA! EXTRA!" READ ALL ABOUT IT!" might be, imagine me doing it.  Federal Judge Shira Scheindlin, famously of the Zubulake decisions that were the crucible of modern e-discovery practice, has done it again.  In the course of an 87-page opinion and order, Her Honor invokes the only line anyone ever remembers from George Santayana and sanctions 13 plaintiffs for negligence and gross negligence in connection with their--ahem--'lackluster' preservation of and search for ESI. 

The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, LLC, et al., U.S. District Court, Southern District of New York, January 10, 2010)

Blurring the Line Between Archiving and EDD...

My review of Mimosa NearPoint ran on Law.com last month.

Mimosa didn't originally come to market as an e-discovery provider. Mimosa NearPoint was built and designed as a robust archiving system for e-mail and electronic files.

I continue to maintain that the future of e-discovery does not lie in more advanced document review and analysis capabilities. Instead, the focus must "shift to the left" of the EDRM if e-discovery is ever going to stabilize as an integrated workflow in corporate America.

Unfortunately for lawyers, that "shift to the left" involves concepts and acronyms that are completely foreign and terrifying. Lawyers didn't go to law school to learn about "enterprise content management" or "electronic records management."

The answer, however, is not to ignore technology or vainly posture around the problem. Instead, lawyers must find a comfort level in discussing these concepts. Lawyers don't need to become database administrators, but e-discovery now requires a higher level of accountability in understanding how society uses technology and how corporations manage data.

Mimosa NearPoint is a well-respected product in the IT world for archiving data - a completely non-legal task that has always been maintained by IT professionals. When you add Mimosa's eDiscovery Option to the NearPoint environment, it creates a powerful tool for indexing and organizing e-mail and file systems so that the data can be properly identified, collected, and preserved.

As the world of e-discovery continues to evolve, we will see more products like Mimosa NearPoint make a successful "bleed-over" from traditional IT administration to e-discovery.

"NearPoint Archives E-Mail for E-Discovery"

Court Finds $834,285 to Process ESI Extravagant, Issues Sanctions

In a must read decision for attorneys, consultants and ediscovery vendors, the Court in a well-written opinion chastised and awarded attorney fees and costs against the defendant whose IT representative "exaggerated" the cost of processing ESI.

Starbucks Corp. v. ADT Sec. Servs.,2009 U.S. Dist. LEXIS 120941 (W.D. Wash. Apr. 30, 2009).  In a breach of contract and fraud case, Starbuck's brought this action based on ADT's installation of  proprietary security systems in violation of the contact between the two parties.  After filing the action, Starbucks filed a motion to compel to obtain archived e-mails from the defendants. The Court discussed in detail ADT's archived e-mail systems involving the storage of e-mail from 2003 - 2006. ADT argued the system was was "so cumbersome, . . . that it is not 'reasonably accessible because of undue burden or cost.'"  ADT argued it was not accessible because of their selection of an archiving system that failed in its essential function of allowing ESI to be searched. . . . (read more).