Not Just Another "Auld Lang Syne"

Posted on December 31, 2008 by Patti Hutter

On New Year's Eve, we typically gather in a glitter-and-confetti whirl to toast the New Year with champagne…or maybe you're a stay-by-the-fire-and-watch-Times Square type. Whatever your preference to usher in the New Year, you may be interested to know that the singing of the Scottish folk song "Auld Lang Syne" at midnight is not as traditional as you believed - it did not come to yearly use until 1929, when Guy Lombardo's orchestra played it at midnight at the Hotel Roosevelt in New York City, then released a record of it and continued playing it every New Year's Eve afterward.

By the same token, a century from now law firms will no doubt wonder at our tizzy in getting used to electronic document discovery instead of our "traditional" means of producing documents via hard copy. But for now, clinging to the old ways and not making sure that document retention policies are not only up to date but adhered to is costing our clients a mint. As reported by Sheri Qualters in The National Law Journal on December 17, 2008, Kroll Ontrack analyzed 138 reported cases from January to October 2008 and reported that ONE QUARTER of the reported electronic discovery opinions in that period resulted in sanctions issues, while 13 percent addressed preservation and spoliation, 12 percent involved computer forensics protocols and experts, 11 percent, admissibility, and 7 percent, privilege considerations. In one case in the Northern District of California, defendants were sanctioned to the tune of more than a quarter million dollars. Keithley v. The Home Store.Com Inc., No. 3:03-cv-04447 (N.D. Calif., Aug. 12, 2008). That buys a LOT of champagne!

 

It's clear that doing things the way they were done in "old times past" - the literal translation of Auld Lang Syne - will get legal clients in trouble with the Court and could result in heavy financial sanctions. The Court has no "cup of kindness" when it comes to electronic discovery issues. So this New Year, no matter your celebratory preference, resolve to pay attention to your document retention and e-discovery policies, or if you do not have such policies, it's a New Year - a great time to implement a formal policy.

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Cloudy Days Ahead for E-Discovery

Posted on December 1, 2008 by Anthony P. Chan

When it comes to e-discovery, your IT department and forensic experts may be ill-equipped to search, organize, and produce electronic files and documents that are outside the realm of the firm's internal network infrastructure.

The proliferation of vendors that offer web-based computing solutions compounds this problem. Commonly referred to as "Software as a Service" (SaaS), they range from simple email accounts to office suites to whiteboarding and other types of collaborative tools.

This technological alphabet soup in turn facilitates cloud computing and/or utility computing. Basically, it translates into a user's ability to access services from the Internet without having control over the technology infrastructure that supports them. From the IT management perspective, it's like the Wild West of computing. Here's a brief discussion on cloud vs. utility computing.

Lawyers are increasingly mobile due to the shear number of devices, applications and services that connect people, ideas and places. Invariably in-house software may be viewed as inadequate due to various reasons-- system downtime, malfunctioning, subpar performance, and even personal preference. Much to the chagrin of IT staff, users quite often resort to applications that fall outside of the firm's offerings. After all, no firm can acquire and support a large number of applications without a significant drain on IT resources.

Without evolving laws dealing with this type of computing environment, significant barriers will present themselves in the context of e-discovery. First, SaaS providers typically do not have document retention schedules nor are they obliged to initiate litigation holds. Second, information stored on 3rd party systems (databases and server farms) may require subpoenas for retrieval.

In the foreseeable future, e-discovery will no longer involve solely the litigation parties and their respective technical gurus. A multitude of Internet services and ASPs could conceivably be targets of discovery and the cost could escalate with no relief in sight.

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