In June's Law Technology News, Craig Ball channels Mendelsohn's Elijah, singing "Be Not Afraid."
Ball expounds on the single greatest problem posed by electronically stored information -- and it's not data volume or complexity. It's the reluctance of lawyers to exert the time and effort required to understand ESI.
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.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!
Craig Ball's November column:
My home state of Texas was the first to enact a discovery rule dealing with electronically stored information. Years before the federal rules amendments, and in four simple sentences, Rule 196.4 addressed a litigant's right to discover ESI, the scope of e-discovery, forms of production and cost shifting. The rule was either so completely successful or so utterly ignored that it wasn't cited in a published decision for nearly a decade.
So, when the Texas Supreme Court — the state's highest tribunal — issued its first e-discovery opinion, I listened to oral arguments. In re: Weekley Homes, 52 Tex. Sup. Ct. J. 1231 (2009), concerned a litigant's right to directly access an opponent's storage media. The plaintiff wanted to run 21 search terms against the hard drives of four of defendant's employees in an effort to find deleted e-mails from 2004. I eagerly anticipated insightful arguments by advocates who grasped the important technical and legal issues afoot, but what I heard would make a hearse horse snicker. Judge for yourself by listening to the arguments at http://tinyurl.com/weekleyhomes.
By Craig Ball
It's fitting that my friend (and author/blogger) Ralph Losey, hails from Orlando — the House of the Mouse — because reading his posts on EDD Update (www.eddupdate.com) is like a ride on one of the really good Disney attractions once called "E-ticket" rides.
Losey's animated prose takes wonderful twists and turns,punctuated by delightfully silly visuals — and all steeped in solid American values. I always glean something good from Ralph's scholarship, even if only a different, well-argued point of view.
Losey and I have a playful wager respecting the viability of Judge Nuffer's opinion in Phillip M. Adams & Associates, L.L.C., v. Dell, Inc., et al., 2009 WL 910801 (D. Utah March 30, 2009). I think the judge's opinion will stand (though pushing the outer bounds of preservation), but Ralph anticipates an appellate slap down.
Losey recently posted about KCH Services, Inc. v. Vanaire, Inc., 2009 WL 2216601 (W.D.Ky. July 22, 2009), and kindly noted that where he disagreed with me on similar issues in Adams, we were of one mind on Vanaire. Hearing that I'd stumbled onto an acorn of rectitude moved me to actually read the opinion. And, indeed, Losey is right to side with the judge. (In fact, one can make a pretty good living siding with judges.)
Magistrate Judge Andrew Peck, who serves on the U.S. District Court for the
Southern District of New York, has been quite active in drafting e-discovery
rulings, such as March's William A. Gross
Construction Associates, Inc. v. American Manufacturers Mutual Insurance
Co. and Anti-Monopoly,
Inc. v. Hasbro, Inc. -- both establishing important guidance for the
creation keywords for searching electronically stored information. (See here, here, and here.)
But did you know that Peck also has written a reference book on all things Sherlock Holmes? Or that he drives to work (unusual for a Manhattanite). And you probably won't be surprised to see that he and I share the same favorite website. After all, he lives in New York City!
Check it out here in the October issue of Law Technology News.
The September Ball in Your Court column from Law Technology News:
By Craig Ball
A voice came from on high and said unto me, "Go forth and harvest the clouds." Well, not a voce in excelsis exactly, but a court order directing I gather up parties' webmail.
The task seemed simple enough: The litigants would surrender their login credentials, and I'd collect and process their messages for relevance while segregating for privilege review.
Their data lived "in the cloud," and considering its celestial situation, I might have taken a cue from Ecclesiastes 11:4: "Whoever looks at the clouds shall not reap." So it was, I nearly got smote — not by Yahweh but by Yahoo! Cloud computing refers to web-based tools and resources that supplant local applications and storage. It's called "the cloud" because of the cloud-shaped icon used to signify the internet in network schematics.
By Jeffrey Zinsmeister & R. Timothy Slattery
Litigation associates eventually find themselves tasked with a
large-scale document collection. Unglamorous, tedious, and extremely
time-consuming, such assignments offer little glory and much risk. The
partner wants to minimize his or her time on the collection, but will
take unpleasant notice when something goes wrong.
Additionally, most large collection projects are plagued by insufficient management resources. Organizing a large collection on short order within a budget requires logistical acumen, managerial competence, and discovery experience. Law schools do not grade on such knowledge and firms rarely look for this in new recruits.
By Anne Kershaw & Joseph Howie
If you send an e-mail to three people, your system keeps one copy, with all three people listed in the "To" field. If you need to see all your e-mails to just one of those people, you search for that name. It's still just one copy. Indeed, it would be silly to have multiple copies. The same holds true for document discovery repositories, yet a recent survey suggests that lawyers still don't "get it," and often insist on keeping multiple, unnecessary copies.
Lawyers who fail to check for duplicates across multiple custodians, instead removing only duplicates from within the records of individual custodians, end up reviewing at least 20% more records on average. Whether or not their document review bills are ever audited, these lawyers are not meeting their ethical obligations to both clients and the justice system.
By Craig Ball
I was once trial counsel for the water authority of a Mexican city seeking damages for delay in the mapping of a water system serving three million customers. I learned that most water entering the pipes never reached consumers because the patchwork system was riddled with leaks. The leaks were difficult to repair because the water authority didn't know where its pipes were buried!
Repair crews made Swiss cheese of streets, but the massive leakage limited water service to just a few hours a day. Those who could afford it erected tanks to hoard water. The rest suffered. Until Servicios de Agua y Drenaje learned where its pipes lay, staunched the leaks and addressed local hoarding, the system stayed broken. ¡Ay, caramba!
Read the rest here.
Craig Ball's latest column in Law Technology News debunks the myth that it takes lots and lots and lots of effort to clean hard drives.
In January's Law Technology News EDD showcase, authors Cecil
Lynn III and Alexandra Hicks -- both of Ryley Carlock & Applewhite
-- review key decisions in 2008, and their impact on electronic
discovery. Click here for full article.
Although the Federal Rules of Civil Procedure provided clarity with respect to ESI, complying with Rule 34 as interpreted by the courts has stumped many litigators.
Check out what Ropes & Gray's Shannon Kirk and Kathryn Hong have to say in this sidebar Rule 34 Confusion
With EDD exploding, many law schools are slow to adopt an EDD curriculum and failing to give their students a competitive advantage. Here's what LTN contributors William Hamilton & Ralph Losey have to say in "Break Out the Books," from our January EDD showcase:
"There is no doubt that our current legal system in severely stressed by electronic data discovery, and in need of repair. Until recently, most law schools ignored the problem; indeed, many seemed oblivious. At best, EDD drew only a passing mention in civil procedure textbooks."
Read more.
With privacy laws varying throughout the globe, companies must be careful not to accidentally disclose personal data like credit card pins.
Contrary to circulating rumors, George Socha and Tom Gelbmann reported in the January issue of Law Technology News that their annual Electronic Discovery Survey is alive and well. This year's survey will feature a web-based provider selection tools as well as more in-depth information to subscribers, including full use of the provider selection tool and fell access to most categories of data from or about providers.
I offer my 2009 predictions in the latest issue of Law Technology News, and while I hope the whole column is worth reading, I at least managed to amuse myself with this excerpt:
"The federal EDD rules are two years old. As every parent knows, the "terrible twos" are when toddlers, frustrated by their lack of language skills, turn to hitting, biting and tantrums.
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Pediatrician Vincent Iannelli, writing for About.com, advises parents coping with the terrible twos to:
Perhaps I see e-discovery in everything, but isn't that a list of EDD best practices?"
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