Sound Evidence: E-Discovery Simplified

Great summary by ediscoverylaw.com of a California case where ignoring backup tapes results in another opportunity for sanctions. By the way, discoveryresources.org is now streaming the ediscovery law feed.

One might reasonably believe that the New Rules (amendments to the FRCP), with the two tiered discovery (accessible and inaccessible) distinction and the safe harbor for inadvertent destruction would protect a company and its counsel if such facts were presented to a federal court in December 2006.

Not so much.

Free help to tame that Outlook mailbox full of special offers and important communications from your clients:

SNARF measures a sender's importance based on two key factors: the number and frequency of messages sent and received. The program then sorts unread e-mails into three fields: messages where the user is listed in the To or CC fields, group e-mails, and all messages received in the last week. SNARF lists messages by senders, rather than subject lines, and puts a user's most important correspondents on top.

Danyel Fisher, a researcher in Microsoft's Community Technologies Group and a member of the SNARF development team, believes SNARF's effectiveness lies in its simplicity. "We're just counting e-mails," Fisher says. "Some people might call it a brain-dead algorithm, but the messages you send someone is a pretty good proxy for how well you know people," he says. "It can be very detailed."

Via Julia's subscription to The Daily Deal (Dec.7, 2005):

Companies may now file Internet links to required documents, such as annual reports or annual audit reports, rather than filing hard copies with the agencies. Companies filing Hart-Scott-Rodino notifications will continue to be required to file duplicate merger notifications with both the Federal Trade Commission and its sister agency, the Department of Justice's Antitrust Division. Initial merger filings often run 200 pages or more.

Second requests are still handled via "normal" filings.

The average cost of complying with a second request has reached more than $5 million, according to FTC chair Deborah Majoras.

Gartner, the respected, fairly conservative IT advisory service, is very concerned about a blackberry blackout and demands the proposed workarounds.

Me too. The fire alarm here at the charming Riverside Hotel rang and rang this morning. I not only trundled down 11 flights of stairs with my trusty blackberry, I took my charger along with my cell, laptop and outfit for tomorrow's speaking engagement for American Document Management. Glad it wasn't a real fire. Interesting what turns out to be important...

Gartner advises enterprises "not to sign any agreements that could

Al Driver, former General Counsel of JC Penny, and founder of the Metropolitan Corporate Counsel newspaper, asked me to comment on the new Federal Rules of Civil Procedure. He specifically asked me about cost savings. Since I deal in the practical most of the time (as opposed to the legal theory), I've been paying attention to the Rules only out of the corner of my eye. From what I've been reading, organizations should see bountiful cost savings.

I found exactly the opposite--Most organizations will incur more costs, more often. I thought I was alone in this view, but Tom O'Connor concurs and indicated that the only other person he knows sharing our opinion (and Tom gets around on the speaker circuit) is Browning Marean.

When I first heard about this year's threatened shutdown of Blackberry service over IP issues, it reminded me of the first really big snow of the season growing up in Western New York. Kids love snow days, and in the Buffalo area, so do the working adults. I was smiling, thinking of a Blackberry free holiday for all of us who "carry".

Market analysts do not believe the network will be shutdown. Nor does the company, with talk of workarounds.

No Blackberries at Thanksgiving time? Families having extended holiday time conversation?!

Our own Dennis Kennedy rides into Blawgthink with a shiny trophy. Dennis is quoted throughout an article on metadata. The article details different metadata gaffes by the DNC, SCO, the UN, Bill Lockyer, AG of California, the MPAA and the Social Security Administration.

According to some technologists, including Dennis M. Kennedy, a lawyer and consultant based in St. Louis, (denniskennedy.com), metadata might include other bits of information like notes and questions rendered as "comments" within a document ("need to be more specific here," for example, or in the case of my editors, "eh??"), or the deletions and insertions logged by such features as "track changes" in Microsoft Word.

"If you take the time to educate yourself a little and know the issues," Mr. Kennedy said, "you can avoid problems pretty easily."

Did you ever think you'd see a Word doc turned inside out in the NYT?

Julia Wotipka, the creative vision behind discoveryresources.org and complianceresources.org will be joining friends Dennis Kennedy, Matt Homann, Evan Schaffer, Ernie Svenson, Carolyn Elefant and others at Blawgthink 2005.

Metadata is forensics, and therefore "inaccessible".

The first time I heard that argument, I admit, I thought the IP attorney making it had been staring too long into the patent database.

Now, the Sedona Principles for Electronic Document Production, breathe life into arguments that metadata is not necessary absent special circumstances.

Principle 12 "Unless it is material to resolving the resolution of a dispute, there is no obligation to preserve or produce metadata absent agreement of the parties or order of the court."

Be careful taking this argument too far, especially when producing native files. The judge in Kansas was not amused when the responding party scrubbed metadata from a native spreadsheet production. Williams, et al. v. Sprint/United Management Co., 2005 WL 2401626 (D.Kan. Sept. 29, 2005). Interesting discussion on producing native spreadsheets with a link to the opinion by the Preston Gates folks here.

Be careful in preservation and collection not to limit your options. Make sure you make metadata production part of your early agreements with the requesting party. Be aware of possible followon lawsuits where this can become problematic. There are readily available file transfer tools which can preserve metadata at the relatively low cost of training on a new way to use them.

The Sedona Conference's peer reviewed The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age addresses document management through the entire lifecycle. Of interest, it creates a safe harbor for companies with a legal hold policy and practice when an individual acts outside their authority or in contravention to the legal hold directive. Liberally seeded with citations, the Working Group once again produces the touchstone by which courts will create new precedent. Congratulations to the Working Group. Special congratulations to a fine couple of fellows soon to make a major announcement which will change the legal landscape for conducting discovery.