Discussion 3 Log

<TF_TomB> David, that's very interesting. Do you think that there is sufficient difference that new formal tools will need to be developed?

<AndyB> my area of expertise is document managment services and software

<TF_TomB> Thanks Andy.

<TF_TomB> Prof. Nesson is now beginning his webcast.

<TF_TomB> Please let me know if you have trouble hearing or seeing.

<DavidS> My view is that the tools - the framework provided by the discovery rules - is sufficient.  I think the case law will simply need to flesh out how e-discovery fits within those rules.  I do think it may be helpful to have some standard protocols set up for production of e-data.

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<TF_TomB> Andy, do you have extensive experience with digital discovery?

<TF_TomB> Hi Kate, welcome back!

<TF_TomB> Kate, what sort of work do you do?

<myronE> I have trouble hearing.  I can see fine.

<KateM> Hello, I'm a tech writer for the ABA Journal.

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<TF_TomB> David, very interesting insight. So your view is that everything will work itself out, in the traditional manner of the law. Do others agree with this?

<TF_TomB> Hi Alex, welcome!

<TF_TomB> Thanks Kate.

<nesson> hello all, I'm pleased to see you.

<DavidS> Tom, I can hear it but my volume is turned up full and it's still difficult to hear.

<myronE> I see some are in DD04 others in DD03.  Where should we be?

<AndyB> I have experience in managing the digitization of a company's records or document that will then aid in the process of digital discovery

<TF_TomB> David, now or earlier? The music is intentionally soft right now.

<TF_TomB> Myron, we are in DD03..

<TF_TomB> You should be able to hear well now.

<TF_TomB> If not, please let me know

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<myronE> I know, there is a group in DD04

<DavidS> Tom, even when the professor was speaking it was very soft.  Now it's much better as he begins again.

<myronE> sound is cutting in and out

<TF_TomB> are others having trouble hearing?

<AndyB> it is very clear for me

<KateM> it's clear for me, too

<DavidS> I can hear well now.

<TF_TomB> Hi everyone, welcome back.

<TF_TomB> What do you think about Prof. Nesson's question?

<TF_TomB> Is this a field riddled by bad-faith? If so, is it worse in digital discovery than in traditional discovery?

<DavidS> It seems to me that Plaintiff's counsel has an obligation to send preservation letters where necessary.

<AndyB> When a preservation order has been issued, to what level does the company have to preserve all documents (ie. personal email, etc)

<TF_TomB> David, when is it necessary? Isn't the plaintiff always on notice?

<TF_TomB> Andy, would a preservation order be required to clarify these issues?

<TF_TomB> Kate, has the ABA journal addressed these issues?

<TF_TomB> Myron, did you hear enough to understand the question?

<KateM> Yes, actually I wrote a story on digital discovery in February. Seems to me the lack of technical understanding is a major problem.

<myronE> I think that the defendant knows or needs to know what data they have.  Ususally the presevation order makes the defendant question internally to find out what they really have.

<AndyB> I think that a perservation order would be used in nearly every case to specify for the company what is an is not acceptible during the course of the case

<DavidS> It's necessary for a Plaintiff's lawyer to send a preservation notice where he or she believes there is a likelihood that evidence may be lost.  In my former practice, it was my habit to send one whenever there was a potential that corporate information may be deleted in the regular course of business.

<myronE> They need to preserve a copy, not continual redundancy

<TF_TomB> So I'm getting the sense that pretty much everyone thinks that an explicit preservation order is best. Given that, what's your reaction to Prof. Nesson's suggestion

<AndyB> I agree with DavidS

<TF_TomB> that Rule 34 be amended?

<KateM> Myron, isn't that a difficult question to answer, without specialized technical assistance? I've

<DavidS> I agree that the preservation order needs to be specific.

<TF_TomB> The amendment would state that spoliation needs to be willful in order to be sanctioned.

<TF_TomB> Presumably a violation of a preservation order might be found "willful" more easily than similar spoliation absent an order.

<TF_TomB> Kate, how would you address lack of technical understanding?

<myronE> Probably, but it allows the company to continue operations if they can pull and preserv e a set of relevantfiles, and then move on in the ordinary course of business.

<TF_TomB> Andy, reactions to Myron's comment or Prof. Nesson's suggestions?

<KateM> Good question. Get to know your tech experts early and well.

<TF_TomB> Myron, is it a bad thing that the company is allowed to continue operations?

<TF_TomB> Kate, what about educating judges?

<myronE> I think willful spoiliation is the only kind to be sanctioned.  Remember, there is no legal obligation to keep copies of memos, files, spearsheets, etc, at the time they are written.  The only obligation is not to throw them out once they become the topic of or potentially the topic of litigation

<KateM> I'd say the same. The attorneys should know the tech well enough to convey to the judge how difficult it will be to comply with a preservation order, for instance.

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<myronE> I think it is imperative that a company be able to continue operations, unless there is real fraud, etc.

<TF_TomB> What about the idea that defense firms use this process to bury smaller plaintiff firms in discovery-related cost. Is this a greater issue in this arena?

<TF_TomB> Hi Geoff, welcome.

<TF_TomB> Geoff, did you view the webcast?

<AndyB> In order to assist judges, should a 3rd party tech expert be appointed to cases

<KateM> I've talked to a number of attorneys who say yes, Andy.

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<TF_TomB> Andy, that's an excellent idea. A neutral third-party would solve many of these issues.

<myronE> I think big firms bury with files..  I think this is less of an issue in electrnics, since plaintiffs can search throught the files

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<TF_TomB> Prof. Nesson will be recommencing his webcast in about 15 seconds..

<TF_TomB> Great discussion so far!

<KateM> I can't remember the case, but I mentioned one in my story where the judge found huge sanctions even where the spoliation wasn't willful...

<TF_TomB> arguably this is true for the Linnen case.

<myronE> Gates Rubber

<DavidS> Yes - Gates Rubber company.  It's in the materials.

<KateM> In re Prudential Insurance Co. Sales Practices Litigation, 169 frd 598 (dnj 1997)--$1 million in sanctions

<TF_TomB> wow!

<TF_TomB> I'd like to start with the second question, since we have Myron here in our group. :-)

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<TF_TomB> What do y ou think about the "gap" issue? Have you had experience in deposing those in charge of the document retention policies?

<myronE> I  think that Jeff's point is a little off.  I do not know of a way to more easily look at linear data than on line data.

<DavidS> I agree with Myron that it's almost always worth doing some preliminary discovery.  To look into the "gap" between the policy and the practice seems to have the potential to lay the groundwork for sanctions if spoliation occurs.

<GeoffS> I hesitate to jump in (having missed the beginning of the discussion), but by "linear", do you archived data?

<TF_TomB> Geoff: yes, I think that's the idea.

<AndyB> My firm often developes retention schedules for companies, but the retention schedules that we develop are automatically implemented in our electronic document management systems.  I think that every firm should have to use automatic electronic retention schedules that meet Federal, State and local guidelines

<GeoffS> I am not aware of any generally accepted electronic document retention deadlines.

<TF_TomB> Andy: when you say automatically implemented, how automatic is it? There must be IT people to put it into place, correct? To suspend it in case of litigation?

<myronE> Andy - I assume they get modified during litigation - retention orders etc.

<AndyB> Yes

<TF_TomB> Myron, back to Jeff's point: if there's sufficient storage space, why can't a discovery expert simply mount all the backups and search the backups as easily as the active data?

<myronE> Andy - I have been invloved int he deposition of IT people who think it is their job to protect the fools who delete files that they will need one day.  Is there a way in the process to really prevent them from archiving the data?

<DavidS> In addition to storage space, sufficient technology to assist in culling the tremendous amount of data on the backups makes this much less of a problem.

<KateM> Can anyone speak to Nesson's first question on changing price structures?

<GeoffS> what about encryption, especially of e-mail?

<TF_TomB> Hang on, before we get into encryption, I'd be interested in other responses, as Kate mentioned, about the changing costs?

<myronE> Tom - mounting the backup tapes is time consuming and therfore costly.  Tapes are at best 50% readable, depending on age, back-up software, versions, operation systems, etc.  I think it sounds easier than it is.

<AndyB> you can definitely completely delete archives is that is the objective, but this is rarely if ever put into practice

<nesson> what's your issue with encryption? whether you can get keys?

<DavidS> Kate, our price structure does not reflect a difference for active data versus archived.

<GeoffS> Certain e-mail programs embed encryption is ways that make recovery very costly and difficult.

<nesson> Is that true even if you have the keys?

<TF_TomB> David, how do you avoid the added expenses that Myron points to?

<TF_TomB> Geoff, that is definitely true, but, as Prof. Nesson asks, aren't the keys equally discoverable? Or is the point that the keys get deleted somehow?

<GeoffS> Not always.  Employees change their keys.  Ex-employees often have forgotten them.  Finally, some encryption schemes rely upon contemporaneous network configurations that have to be recreated.

<TF_TomB> Kate, has there been any writing about the cost structure changing?

<KateM> Not to my knowledge.

<DavidS> I think in general, it's a matter of having storage space within the company (not paying a third party to store the data).  Other things like technology to assist in restoring the backups is helpful.

<TF_TomB> Alex, I hear you have a comment?

<AlexM> Having at last realized how to enter the "conversation", a practical note.  In LINNEN, the events at issue took place circa 1993-1997.  i t was ASTONISHING how many employees and executives believe that the "delete button" destroyed their writing.  Of course it did not and many of the "hottest" documents were those e-mails.

<KateM> Among legal publications like the one I write for, the understanding of the tech involved seems to be too low to get into even the difference between "archived" and "active" data.

<TF_TomB> JimM in another group charges $1200/backup tape to recover. Is that consistent with your cost structures?

<DavidS> I agree with Kate.  Attorneys really need some fundamental education on this.

<TF_TomB> Kate, that's a good point. Do you think that judges will be educated first, or will the problem go away as technology progersses?

<TF_TomB> Myron, do you think we're at least headed to a point where it's equally cheap to search archived data?

<GeoffS> $1200 a tape is in the range of what I pay, but the real expense ordinarily is the de-duping, filtering, de-encrytpion, etc.

<KateM> I don't think the problem will go away until attorneys learn enough about it themselves to educate judges.

<TF_TomB> Alex, do you think that education is proceeding to the degree that people now know that delete doesn't mean delete?

<myronE> Tom - no. I think archive data, because of what Geoff has said, is still much higher.

<TF_TomB> Prof. Nesson is again recommencing his talk, though I'd love tos ee any outstanding answers you're in the middle of typing.

<AlexM> It is an issue in which the level of "understanding" of cyberspace technology by attorneys over age 35 is poor at best.  The decision makers at most companies are older than that.  Thus, the treasure trove of e-mails from executives of that vintage.

<myronE> JimM charges that internally.

<AndyB> The technology issues in litigation is becoming such a prevalent issue that possibly the governing body should have a department for document recovery

<DavidS> If your price structure does not include a fee for those techniques (de-duping, keyword searching, etc.) but just payment for what's finally produced, the cost structure shifts without question.

<TF_TomB> Alex, the generation gap question is quite salient. Thanks!

<myronE> JimM's cost is to search a tape for a given person I believe, and not for the collection of the whole ball of wax.

<TF_TomB> Myron, I believe that's accurate.

<TF_TomB> Thanks Myron :-)

<AndyB> I think that the reliability and efficiency of a search are directly related to the comprehensiveness of the records management systems that companies chose to implement on a daily basis, a potential solution would be to regulate the structure of electronic management systems

<TF_TomB> Geoff, how would you address the Bates-stamping problem for electronic discovery?

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<TF_TomB> Others, what is your position on electronic vs. paper production?

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<GeoffS> I don't have an answer that works, having tried many times.  This is a cat-and-mouse game, where plaintiffs generally try to create their own Bates system to defeat defense counsel's efforts to maintain their own document control and database systems.

<TF_TomB> Does this become more of a headache than it's worth?

<AlexM> I want both.  It remains my understanding that OCS Technology by which hard copies are converted to disks has a five to ten percent error rate.  Key data and marginalia can be lost if you do not ALSO have hard copies.

<AndyB> I would prefer to use electronic production, b/c most software list a time and date stamp when the doucment was last altered and saved

<TF_TomB> Alex, but OCS depends heavily on the quality of the paper. What if a law firm prints everything in some weird font that OCS can't recognize?

<TF_TomB> Andy, do you think that the date/time stamp is relevant? Many defense attorneys claimed that it is not.

<TF_TomB> What about prior drafts that are stored within the document? Are those discoverable?

<AndyB> Prior drafts are discoverable

<AndyB> OK, I see your point

<AlexM> In diet pill litigation -- over 300,000 claims -- 7,000,000 documents were produced in hard copy form.  The plaintiffs' discovery committee for the MDL reduced those to 2,500 that mattered most.  THOSE were the documents that were organized, cross referenced and scanned for use at trial.

<TF_TomB> What about exchanging search terms? Is this a collaberative effort, or are they the work product of the defense?

<GeoffS> Manyof the real problems in document control are remarkably boring and have little to do with the adversary process per se.  Because document review and control generally is the biggest part of a litigation budget, there is a need to be sure that documents are not lost, nor unnecessarily duplicated, and that any information about them (e.g., issue coding) is not lost.  Thus, most law firms have elaborate systems to keep track of documents.  For years, th

<TF_TomB> Andy: I didn't necessarily have a point, just a question :-)

<myronE> Evidence Exchange has a solution for bates Stamping electronic documents.  The production is made in PDF  format with a secure digital number branded into the file.  There is also an authetication tool built in.  The data is run through a hash algorithm and the DNA (digital notary algorithm ) is extracted from the file.  This value is also branded into the file, so that ne can determine if a file that was produced has been modified.

<AlexM> Absolutely agree that prior drafts are discoverable.  The in-house discusssions/meetings that led position to change from one draft to another are highly relevant.

<AndyB> Your point was implicit

<GeoffS> Which should be a good answer, except that, as a PDF file, is it no longer a text file and no longer text searchable?

<DavidS> That

<TF_TomB> Myron, thanks for the info - sounds like a good solution. PDF files do retain the textual data and are still searchable in my experience.

<AndyB> Should software have to be structured where all drafts of a document are easily accessible

<TF_TomB> Myron, does your solution depend on both sides adopting it as  standard?

<TF_TomB> Andy, an interesting question. As it is, prior drafts are only discoverable to the extent that the information is stored in the document itself.

<myronE> Geoff - the PDF is text searchable.  DTSearch actually has a built in new feature for PDF.  Conccordance too is now able to handle PDF.

<TF_TomB> But I don't think that the software needs to retain prior drafts if it doesn't already.

<GeoffS> Myron, thanks.  I like the sound of this.  What is the conversion cost, per page

<TF_TomB> (that's me in the webcast)

<AlexM> General question -- how "paperless" is corporate America at present?  Are not most documents still created in hard copy?  Are we not largely talking about the "storage" of those hard copies?

<DavidS> A recent study from Berkely says 93% of corporate data is generated electronically.

<TF_TomB> Alex, excellent point. If the documents aren't originally digital, should defendants need to scan them in?

<myronE> Tom - no.  Although it would make life easier.  If one produces in PDF the other side need not know about the authentication features.

<myronE> Geoff - .10 per page

<GeoffS> About the same as xeroxing, and cheaer than imaging..

<AlexM> Tom, the "need" is the "corporate benefit" realized in saved storage costs retention, etc.

<AndyB> Instead of worrying about what we can or cannot do with old formats and software, I think that the real issue is setting a standard for the future that solves the problems we are having with current discovery

<myronE> Geoff - we call it secure digital photocopier.

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<TF_TomB> Kate, how would you weigh in on this issue? Should willfulness be required to order a jury inference with respect to spoliation?

<AndyB> I think that it is unreasonable for a company to argue that it does not have control over the bodies within it

<KateM> I think so.

<AndyB> so I think that inference is OK

<TF_TomB> What level of "culpability" would you require? Is strict liability enough?

<DavidS> I agree with Andy.  Corporations need to be able to control their data where necessary for litigation.

<TF_TomB> Geoff, do you agree? It seems that in a large corporation, where data is so widespread, it's very difficult to control the data.

<AlexM> Let me try the first salvo -- the standard should be the SAME for defendants as plaintiffs.  The mere "negligent" loss or destruction of evidence has given rise to the Spoliation sanction.  See the 1981 Mass. Supreme Court  decsision in the "Volkswagon Case" (plaintiffs' lawyer was Barry Reed who wrote the Paul Newman film/novel "The Verdict").  Plaintiff's expert damaged a "lock" while testing as such NO TESTIMONY allowed from plaintiff's expert.  If that is

<DavidS> I don't think the standard should be willfulness / intent, or even gross negligence.

<TF_TomB> What about a large company where employees work at home? How do you control relevant data on home computers?

<KateM> I think it's a lot to ask for a company to produce millions of documents upon pain of huge sanctions.

<GeoffS> Sorry, I fell behind.  In practice, it is imppossible to control the information, especially when so much responsibility is de-centralized.

<TF_TomB> David, what should the standard be then?

<TF_TomB> Others?

<AlexM> But has technology truly changed that?  In the old days, inculpatory memos or handwritten notes were left behind in employees' files.  Technology simply makes retrieving them easier.

<DavidS> I think negligence would be the appropriate standard.

<AlexM> Does anyone disagree with DAvid and me?

<TF_TomB> Alex's point is a good one: how has technology changed this question?

<AndyB> I would assume that if a person works from home and they generate any document that would be important that it would have been passed through the company in some form

<TF_TomB> What if it was an email sent from one home email account to another, but about business issues?

<DavidS> There are certain techniques that could be used for home users and laptop users that don't dial in to the network.  Software which images the drive would at least provide a starting point.  You'd still have to handle new data created as litigation is pending, but it would be a start.

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<TF_TomB> David, my point was simplyu that it must be more difficult to discovery material on home computers. Should companies be liable for individuals who

<TF_TomB> fail to turn over the data on their home computer?

<TF_TomB> Can that data be said to be in the company's control?

<AlexM> I need to answer the "Role of the Judge" question.  I'll be back in a second.

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<AndyB> If an email is sent from a home account to another then I am sure that it may get around litigators, unless the opposing counsel can prove that they should get access to the email acoount

<KateM> Before everyone signs off, would any of you be interested in speaking with me for a story I'm writing on online CLE courses? If so, I'm at marquesk@staff.abanet.org. Thanks.

<DavidS> i understand and say, yes - those companies should be required to preserve that data as well.  Certianly it would be more challenging, but that's where new technologies will assist.

<TF_TomB> ok, thanks everyone!

<TF_TomB> If no one has anything else, it has been a pleasure to moderate this group. We've had some great discussions.

<TF_TomB> You can go ahead and answer question 6.

<DavidS> Kate - I'd be available to speak with you at some point.  My email  is dschultz@ontrack.com

<TF_TomB> It was a pleasure meeting everyone and I look forward to reading your responses, and continuing this discussion in future forums.

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<DavidS> Thanks Tom.  It was interesting and enjoyable.

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<AndyB> thanks everyone, signing off

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<TF_TomB> ok, I'm signing off as well. goodbye, and thanks again.

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<AlexM> I'm back.

<AlexM> In light of the "silence" from cyberspace, I am returning to the "feedback" screen.

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<myronE> Great session. Myron

<myronE> Charles - thanks for the plugs. Myron

<myronE> Myron signing off.