Good Summary Series on Legal Holds

Law.com just published an overview of a solid legal hold based on Seven Steps for Legal Holds of ESI and Other Documents by John Isaza and John Jablonski. Read it and save it.

Very Cool Tool on Findaw

Findlaw has designed a cool tool for electronic discovery rules. Select a rule, and then read either the Rule, a summary of the rule, a checklist, or articles which discuss that rule.

What Should Lawyers Know, and When Should They Know It?

Ralph Losey recently posted a wonderful essay on his e-Discovery Team blog comparing the state of attorney knowledge about ESI to the famous Plato's Cave allegory.

As usual with Ralph's pieces, you must read the whole thing.

Among the comments there, you'll find a couple of mine, sandwiching a response by Ralph, all of which I reprint here:

Jim: Great rant, as usual. I wish I were as optimistic about the current and future generations of attorneys. Many of the young lawyers I know see the computer as little more than a typewriter on which one can also play games and communicate socially. This is not necessarily their fault, for they have never been required to learn anything more. The same is true of undergraduate and even high school students–they are asked and expected to use the computer superficially (”Present your report using PowerPoint.”) without being given any training whatsover as to what they are creating, or how to create it effectively. Thus, I’m afraid merely modifying the mode of delivery of CLE is no more effective than painting the cave wall upon which the shadows are cast. What needs to change is the substance of education to require students to learn how electronic data is created, stored, and communicated. That needs to begin far earlier than post-professionally. The main reason it hasn’t, as you note, is that as limited as the knowledge of the youngsters is, the “elders” doing the teaching know far less, and have neither incentive nor inclination to learn more.

Ralph Losey: First thanks for the comments. I need to clarify two things I said.

I didn’t say all children, I said all children of protodigital parents. Big difference. I see it in law school classes and in my grown children’s friends. I will edit the blog to make that clearer because I don’t disagree with your comments, predicated as they are on the assumption that I meant postdigitals to be an age group. I do not. There are plenty of paper people and protodigitals of all ages, even teenagers. But until just recently there were no children of protodigitals. They are just starting to come out now so look out. They are, however, still pretty rare, just as the first protodigials were pretty rare. You will know them when you meet them. Of course, they still need training. But they learn very, very fast.

Second, regarding the objections to online education as the answer. Remember that the medium is the message. Of course, just because an education is online does not mean it is good. In my view, for online education to work, to turn people around in the Socratic sense, it needs to be interactive, hands on, creative, and include dialogues and community. That is why your comments are so appreciated. Please keep them coming. Perhaps you have other specific suggestions as to what an ideal education would include, online or otherwise?

Jim: Thanks for the kind reception you gave my comments. Your concluding question is huge in scope, so my response necessarily only scratches the surface.

I first take the liberty of rephrasing the question slightly: How should education change to prepare more fully attorneys to deal with modern technological issues? To be sure, attorneys like you, Craig, and others have been leaders in opening the profession’s collective eyes to the issues that technological change continues to bring. That effort has recently made great strides particularly at the law school curriculum level. But I sense that your article reflects a certain frustration that we are not only swimming upstream, but also that the current’s speed is increasing.

Thus the question remains. I focus on three aspects: a) what should lawyers (or potential lawyers) be taught? b) when should it be taught? and c) how should it be taught?

WHAT. I firmly believe that it is essential for attorneys (and yes, judges, too) to have a basic understanding of the science of technology as it pertains to ESI. ESI is already the predominant method of communication by both clients and attorneys, and becoming more prevalent every day. To be able to deal intelligently with the legal issues surrounding ESI, an attorney should know, at a minimum, the functioning of basic email/calendar (e.g., Outlook) and word processing software; their online equivalents (e.g., gmail, Google Docs), and the relationship between the electronic data used (and metadata created) by those programs and the pixels we see on a display or cause to be printed on a piece of paper.

WHEN. Perhaps the time has come to acknowledge that admission to law school should require this basic level of knowledge. I realize this will be sacrilege to some who extol the fact that the LSAT tests “reasoning ability” and not knowledge, and that an undergraduate’s choice of major does not matter. But the truth is that one cannot “reason” one’s way to understanding metadata and hash values. If admission to medical school requires a basic understanding of biology, why shouldn’t admission to law school require the same of ESI? The issues extend across most if not all fields of law–not just civil and criminal litigation.

As a corollary, I also contend that law school is too late to teach this knowledge. Rather, law school should be the place where students learn the procedures for putting that knowledge to use, such as the “meet and confer” conference. In that sense, this issue is analogous to legal writing. The purpose of legal writing class in law school is to teach legal writing mechanics–the memo, the brief, case exposition, analysis, etc. It does not, and cannot, or at least should not be expected to, teach rhetoric and grammar. That knowledge is (often unjustifiably) assumed, but it is at least tested for in the LSAT.

Of course, even if the LSAT could be instantly changed, we would still need to address the needs of practicing lawyers (and judges). To do that, I suggest that more is needed than attending a CLE seminar where all the recent ESI orders and opinions are solemnly discussed. That is simply not how ESI is learned. Attorneys who wish to practice in federal court should be required to demonstrate a minimum competency in ESI, just as they must do in evidence and procedure.

HOW. As I indicated in my initial response, I don’t think it’s terribly important whether this learning takes place using computers or paper. Regardless, and as I indicated above, I think that passively sitting listening to a panel of attorneys swap ESI war stories is NOT the way to go. As a slight aside, I do think it’s great that technology now allows for a much greater selection of online CLE courses, but it never ceases to amaze me how many of those courses make zero use of technology (other than recording them of course) to enhance learning–no graphics, no interaction, nothing.

Those are my thoughts–and as unlikely as their implementation may be, I firmly believe that the ever-accelerating pace of our technological revolution requires us to think about preparing people to be competent lawyers in very new ways.

New Sedona Conference Report Now Available for Download

The Sedona Conference has released The Sedona Conference® Commentary on Achieving Quality in the E-Discovery Process. It is well worth reading.

Ralph Losey Nails It!

Of course, you should be reading Ralph Losey's e-Discovery Team blog directly, but for those who inexplicably aren't, don't miss his latest broadside against the Elders of the American Trial Lawyers Association.

Good E-discovery List

The September 2008 issue of BullsEye Newsletter has an thorough, annotated collection of e-discovery resources.

E-Discovery and Special Masters

If you want to see the future of e-discovery, read Special Masters and E-Discovery: The Intersection of Two Recent Revisions to the Federal Rules of Civil Procedure, by the Honorable Shira A. Scheindlin & Jonathan M. Redgrave in 30 Cardozo L. R. 347 (2008).

Spoliation Sanctions: Gutman v. Klein

Gutman v. Klein, Case No. 03-Civ. 1570 (BMC), 2008 WL 5084182 (E.D.N.Y.) (Dec. 2, 2008) approving Report & Recommendation, 2008 WL 4682208 (Oct. 15, 2008) provides an excellent discussion of spoliation and consequent sanctions in the context of electronic discovery.

The defendant searched for and downloaded software to wipe his hard drive of evidence relevant to the case. Instead of using the data wiping software, the defendant manually deleted files. Then he reinstalled Windows XP, presumably to cover his tracks. Stroz Friedberg did a forensic examination of the laptop. Much of the spoliation evidence was identified through Stroz Friedberg’s analysis of file system meta data, file meta data, and system logs.

Based on this spoliation, the magistrate judge recommended a sanction of default judgment against the defendant and a sanction of attorneys fees related to the discovery.

An excellent resource.

Hat tip: Electronic Discovery

Florida Bar Journal Articles

This month's Florida Bar Journal contains two good basic articles on law and technology: What Every Attorney Needs to Know About Electronic Technology, by D. Patricia Wallace; and Metadata: The Ghosts Haunting e-Documents, by David Hricik and Chase Edward Scott.

Authenticating ESI

A few months ago, Judge Grimm of the Maryland U.S. District Court has authored a magnum opus on the issues associated with authentication and admissibility of ESI. Read it on the court's website here, or on Westlaw at Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

Colorado Joins Metadata Ethics Ruling Parade

The Colorado Bar Association has ruled that a lawyer may ethically review a document for metadata. Legal Blog Watch has a summary of how the Colorado opinion fits in with the other ethics opinions on the subject to date.

Another Good Article on Qualcom

This article by Leonard Deutchman in Pennsylvania Law Weekly is a good take on how the lawyers got to be in the Qualcom mess, and how to keep your firm out

Qualcomm Reverberations

The e-Discovery Team has a very nice summary and critique of a recent article on e-discovery by the Litigation Section of the American Bar Association.

Adverse inference granted where key employee of producer deletes e-mail when she should have anticipated its use in litigation

Larry Wescott of the Electronic Discovery Blog has a nice explanation of Connor v. Sun Trust Bank, 2008 U.S. Dist. LEXIS 16917 (N.D. Ga. Mar. 5, 2008) here.

Microsoft Photo Info enables easy editing of "metadata" for digital photographs from inside Windows Explorer

Microsoft Photo Info is a software add-in for Microsoft Windows that allows photographers to add, change and delete common "metadata" properties for digital photographs from inside Windows Explorer. It also provides enhanced "hover tips" and additional sort properties for digital photographs in Explorer (in Details view).

Thorough Review of Qualcomm Sanction Saga

Here is Alan Cohen's excellent Corporate Counsel magazine article, "Qualcomm's Hard-Learned Lessons."

Email to Attorney NOT Privileged

In Scott v. Beth Israel Medical Center Inc., No. 602736/06, 2007 N.Y. Misc. LEXIS 7114 (N.Y. Sup. Ct. N.Y. Cty Oct. 17, 2007), the court held that an employee's emails to his attorney, using the employer’s e-mail system, were not protected by attorney-client privilege or the work product doctrine under New York state law. The court concluded that the employer had an e-mail policy banning personal use, and that the employee had constructive notice that the employer had the right to monitor e-mails sent over its network.

Federal Civil Practice Bulletin: Senate Judiciary Committee Passes Evidence Rule 502

Federal Civil Practice Bulletin: Senate Judiciary Committee Passes Evidence Rule 502

E-Discovery: Who's on the Team?

Ralph Losey has an excellent post on When and Why You Should Start an E-Discovery Team.