Nickname - Message <TF_MatthewD> (Mon, April 23, 2001 at 12:46) Hello, Sameer. Welcome. <sameerD> (Mon, April 23, 2001 at 12:47) hi tf. am from india. can't get the webcast though. don't know what's the problem. can any of you help ? <TF_MatthewD> (Mon, April 23, 2001 at 12:50) In the meanwhile, I should introduce myself. My name is Matt DelNero, and I am a Teaching Fellow in Prof. Nesson's CLE course. <PROFCharlesNesson> (Mon, April 23, 2001 at 12:50) 1Hello, all. <sameerD> (Mon, April 23, 2001 at 12:50) hello prof. nesson. <sameerD> (Mon, April 23, 2001 at 12:52) matt, let me introduce myself. i am a corporate counsel with tata infotech, one of india's leading technology company. <LarryJ> (Mon, April 23, 2001 at 12:53) indeed! hello! <YuUnO> (Mon, April 23, 2001 at 12:53) let me introduce myself. my name is yu un oppusunggu, currently i' studying in the leiden university for my ll.m. <MarkH> (Mon, April 23, 2001 at 12:54) Hi all! <TF_TomB> (Mon, April 23, 2001 at 12:55) Hello everyone, and welcome. We should have this discussion underway shortly. <TF_TomB> (Mon, April 23, 2001 at 12:55) Thanks for your patience. <LarryJ> (Mon, April 23, 2001 at 12:57) this appears to be working <jonS> (Mon, April 23, 2001 at 12:57) it is for me <sameerD> (Mon, April 23, 2001 at 12:57) i think that since this is a new endeavour, a little bit of hiccup is perfectly ok. what i want to know is how are the discourses going to be delivered by prof. nesson ? <ProfNesson1> (Mon, April 23, 2001 at 12:58) Let me go ahead with my notes. <ProfNesson1> (Mon, April 23, 2001 at 12:58) The issues we want to explore arise because of a quite remarkable shift that has taken place in corporate America, from a record-keeping environment of ink-on-paper to an electronic environment. Just as individuals are leaving data trails, so are corporations. Companies that have embraced digital communications for their business processes have done so with remarkably little concern for the consequences in litigation. Corporate legal cultures have generally not kept pace with their companys t <ProfNesson1> (Mon, April 23, 2001 at 13:00) Mary Linnen, a thirty year old woman looking forward to her wedding day and wanting to lose some weight in anticipation of it, tried phen/fen. <ProfNesson1> (Mon, April 23, 2001 at 13:00) After taking the drugs for a brief time, she contracted Primary Pulmonary Hypertension (PPH), a painful and deadly disease that deteriorates the capillaries in the lung and suffocates theperson. <TF_TomB> (Mon, April 23, 2001 at 13:13) For people who are still having trouble, please click on the word "preservation" in the nav bar. <TF_TomB> (Mon, April 23, 2001 at 13:14) People are writing their answers to the 'preservation' question now. Please click the 'presrvation' link on th eleft. <TF_TomB> (Mon, April 23, 2001 at 13:18) there are questions, and then a form where you can fill in the answers. <TF_TomB> (Mon, April 23, 2001 at 13:21) Sameer, that's fine. go ahead and read through it, submit your answers, and follow the instructions. <LarryJ> (Mon, April 23, 2001 at 13:22) submitted my answers on the preservation issues <TF_TomB> (Mon, April 23, 2001 at 13:22) THanks Larry. :-) <LarryJ> (Mon, April 23, 2001 at 13:23) ok...will stand by <JeffL> (Mon, April 23, 2001 at 13:25) where will our responses to the questions posed show up? <JoshuaS> (Mon, April 23, 2001 at 13:25) We have them here and will use them for discussion <TF_TomB> (Mon, April 23, 2001 at 13:25) Jeff, they won't, except that the TFs will choose some good responses for discussion later on. <JeffL> (Mon, April 23, 2001 at 13:26) thank you <JoshuaS> (Mon, April 23, 2001 at 13:26) We will also send you follow-up comments. <MarkH> (Mon, April 23, 2001 at 13:27) Seems to me there is a prior trap for the plaintiffs... <MarkH> (Mon, April 23, 2001 at 13:27) do you ask for an order to make clear what the defendants' obligations are... <AlexiM> (Mon, April 23, 2001 at 13:27) I wonder how an attorney might advise their client to actually put this order into effect? What would it entail? <sameerD> (Mon, April 23, 2001 at 13:27) prof. have completed the assignment. thanx for the guidance. <MarkH> (Mon, April 23, 2001 at 13:28) and risk having it denied, or do you simply rely on the scope of the rules? <JamesK> (Mon, April 23, 2001 at 13:28) Nightmare to get words out to company the size of AHP <JeffL> (Mon, April 23, 2001 at 13:28) educating the court as to the technical realities of the process is often helpful <jonS> (Mon, April 23, 2001 at 13:28) Alexi, address the question of intentional destruction first and foremost <jonS> (Mon, April 23, 2001 at 13:28) next negligent <nN> (Mon, April 23, 2001 at 13:29) What tech realities do you have in mind? <SethR1> (Mon, April 23, 2001 at 13:29) I think you always make the motion, so that defendant is on clear notice and can't content he did not know or appreciate the consequences of the clients technology systems; <sameerD> (Mon, April 23, 2001 at 13:29) how about convincing the court on the cost front ? <JeffL> (Mon, April 23, 2001 at 13:29) setting up segregated spot on the server within the corpo to move docs subject to that order may be appropriate <JamesK> (Mon, April 23, 2001 at 13:29) Not jsut cost. Problem is impossibility <ProfNesson1> (Mon, April 23, 2001 at 13:29) why should the cost be outlandish, given the need to preserve relevant docs <LarryJ> (Mon, April 23, 2001 at 13:30) since the duty not to despoil evidence exists independent from any preservation order, one might consider such an order redundant. <ProfNesson1> (Mon, April 23, 2001 at 13:30) can you tell a judge it's impossible to preserve relevant docs? <MarkH> (Mon, April 23, 2001 at 13:30) I am inclined to think the better course is to send a letter to defense counsel... <LarryJ> (Mon, April 23, 2001 at 13:30) Courts have been very tough on parties who have not done an adequate job instructing and policing employees about document destruction <JamesK> (Mon, April 23, 2001 at 13:30) Litigation then could halt company operations. <MarkH> (Mon, April 23, 2001 at 13:30) or inhouse counsel, raising specific concerns <sameerD> (Mon, April 23, 2001 at 13:30) if the docs are readable by programs which are long extinct from active use, the effort to read them is very expensive. <MarkH> (Mon, April 23, 2001 at 13:31) Prof - no, I wouldn't think so <jonS> (Mon, April 23, 2001 at 13:31) does not the duty to voluntarly turn over evi exist? Rule 26 a1 e <ProfNesson1> (Mon, April 23, 2001 at 13:31) How would company operations be halted?? <JeffL> (Mon, April 23, 2001 at 13:31) the effort to read docs created on so-called "legacy programs" is not as cost-prohibitive as it may at first appear <LarryJ> (Mon, April 23, 2001 at 13:31) Cases hold that if a company derives commercial benefit from the data, it's their tough luck if they have to hang on to it and produce it in a readable manner <JamesK> (Mon, April 23, 2001 at 13:31) evi ?? <jonS> (Mon, April 23, 2001 at 13:31) evidence <myronE> (Mon, April 23, 2001 at 13:31) There are many ways to preserve. It is costly, but should not shut down a company. Poor language can be very costly . <MatthewD> (Mon, April 23, 2001 at 13:32) One corporate counsel suggested that the order is likely to interfere significantly with the day-to-day activities of the company. That is, they won't be able to destroy *any* document in *any* part of their business. Thoughts? <ProfNesson1> (Mon, April 23, 2001 at 13:32) Some argue that total preservation means you can't even turn your machines off and on, but this seems like hyperbole, doesn't it? <jonS> (Mon, April 23, 2001 at 13:32) does not this raise the interoprobility duty in HIPAA, GLB? <jonS> (Mon, April 23, 2001 at 13:32) perhaps? <MarkH> (Mon, April 23, 2001 at 13:32) Matthew, that argument is as old as the discovery process... <TF_AlexiM> (Mon, April 23, 2001 at 13:32) MatthewD -- what degree of compliance do you think plaintiffs are seeking? <SethR1> (Mon, April 23, 2001 at 13:32) The court could always make the discovery order subjet to a later hearing regarding who should bear the costs of preservation <myronE> (Mon, April 23, 2001 at 13:32) I think that if you preserve on back-up then you can destroy a copy off your server, as you have preserved it elsewhere. <sameerD> (Mon, April 23, 2001 at 13:32) i don't agree with mathews. only emails, data on the subjects in questions cannot be deleted. <BrandonD1> (Mon, April 23, 2001 at 13:33) I agree with sameerD. The problem is inadvetently destroying info within the scope of the request because of day-to-day operations. <JeffL> (Mon, April 23, 2001 at 13:33) preservation via back-up is often the best way. that way at the later hearing re: scope counsel is in a better position to argue they have preserved and now can make the data vailable for searching <myronE> (Mon, April 23, 2001 at 13:33) We have seen where NOTHING was deleted. The company had to add new servers weekly. It was quite expensive. <AbidH2> (Mon, April 23, 2001 at 13:34) But the potential risk of deleting data far outways the benifit,if any. <TF_AlexiM> (Mon, April 23, 2001 at 13:34) How would a retention policy alleviate some of these problems? How would it reflect the comon law requirements to preserve all relevant info? <LarryJ> (Mon, April 23, 2001 at 13:34) Myron, we've seen that, too, and we've seen parties take advantage of the situation by delaying a proper resolution of what should and should not be preserved <MarkH> (Mon, April 23, 2001 at 13:34) to MyronE: I think the answer to that issue is for the defendant to propose a reasonable preservation plan <myronE> (Mon, April 23, 2001 at 13:35) I agree. They are in the best position to make an attempt at preseving what is reasonable. <JeffL> (Mon, April 23, 2001 at 13:35) identifying the proper individuals to be preserved, and within what time frames should be discussed at the outset with the court <LarryJ> (Mon, April 23, 2001 at 13:35) and judges need to be educated about the real issues and costs...the buck stops with them <TF_TomB> (Mon, April 23, 2001 at 13:36) Please feel free to continue with the discussion. Prof. Nesson is again giving a presentation. If you don't see it or hear it, you may ned to click 'play' again. <jonS> (Mon, April 23, 2001 at 13:36) should it not be discussed in a "best practices standard" that is set up PRIOR to problems? <JeffL> (Mon, April 23, 2001 at 13:36) limiting the scope via document types (e.g. Word and Excel but NOT PowerPoint, design files...) <jonS> (Mon, April 23, 2001 at 13:36) and then to follow that standard? <myronE> (Mon, April 23, 2001 at 13:36) Larry - The one thing we have sen is that judges are clearly all over the place on this. <JeffL> (Mon, April 23, 2001 at 13:36) which creates a perfect opportunity for us to advocate for our clients <LarryJ> (Mon, April 23, 2001 at 13:36) I agree, jonS...protocols need to be established and set as "safe harbor" guidelines <LarryJ> (Mon, April 23, 2001 at 13:36) we should not have to reinvent the wheel in each new case <JamesK> (Mon, April 23, 2001 at 13:37) Most judges know very little of tech issues -- no surpirse they're all over. <MarkH> (Mon, April 23, 2001 at 13:37) ProfCN: Shouldn't that burden be on the defendant from the beginning? Are you suggesting that the scope of the Rules is less when electronic data is at issue? <jonS> (Mon, April 23, 2001 at 13:37) why the ad hoc process for EVERY decision? <LarryJ> (Mon, April 23, 2001 at 13:37) indeed! <sameerD> (Mon, April 23, 2001 at 13:37) i don't think judges are going to be bound by document types. <LarryJ> (Mon, April 23, 2001 at 13:37) Judges would be more involved in the process if they clearly understood the technology and the creative opportunities available <jonS> (Mon, April 23, 2001 at 13:38) bingo larry <PaulT> (Mon, April 23, 2001 at 13:38) We are severely hurt by the fact that courts are unwilling to limit discovery and don't know enough about costs and burdens to measure thier relief. Judges bring their own biases to these proceedings, and if an order pushes a case toward settlement, that can be a risk. <sameerD> (Mon, April 23, 2001 at 13:38) prof. pls. tell us what the d should do in such a case. <JeffL> (Mon, April 23, 2001 at 13:38) Appointment of a Special master to assist with these issues is often appropriate and beneficial for all parties <JamesK> (Mon, April 23, 2001 at 13:39) Special masters not used in many jursidctions <jonS> (Mon, April 23, 2001 at 13:39) there are problems with that Jeff...but it may work. <jonS> (Mon, April 23, 2001 at 13:39) see prof's intro <JeffL> (Mon, April 23, 2001 at 13:39) I've also seen parties agree with a 3d party neutral expert well-versed in these issues to communicatge with the court <LarryJ> (Mon, April 23, 2001 at 13:39) well, especially if the Special Master was somebody over time who was intimate with the technology options <PaulT> (Mon, April 23, 2001 at 13:39) It is not a great equalizer at all. These types of orders are a formula for mischief in an area where existing rules allow adequate remedies for failure to meet discovery obligations. <jonS> (Mon, April 23, 2001 at 13:39) define neutral <JoshuaS> (Mon, April 23, 2001 at 13:39) How do we convince judges, who are reluctant to appoint masters of neutral experts generally, to do so JeffL> (Mon, April 23, 2001 at 13:40) Neutral expert used in the Filegate inquiry in Fed. Ct in DC to evaluate all technical options available to the court <LarryJ> (Mon, April 23, 2001 at 13:40) I agree with neutral third party...something like a court-appointed expert whose services are available to all litigants, and the costs are apportioned between them <LarryJ> (Mon, April 23, 2001 at 13:40) NW AIrlines case, Playboy v. Wells are two cases where this was used <sameerD> (Mon, April 23, 2001 at 13:41) is there a binding regulation or case law forcing judges to settle upon a neutral person ? <TF_TomB> (Mon, April 23, 2001 at 13:41) Please click on the link that says "cost" on the left side of the screen, underneath the word 'Questions'. FOr those of you with no sound or video, please return in 10 minutes. <LarryJ> (Mon, April 23, 2001 at 13:41) ok <jonS> (Mon, April 23, 2001 at 13:41) and were there not complaints with them larry. Which is not to say it should not be done <LarryJ> (Mon, April 23, 2001 at 13:41) going to the Cost issues, will be back.... <sameerD> (Mon, April 23, 2001 at 13:41) prof. as suggested, will join in 10 mins. <ProfNesson1> (Mon, April 23, 2001 at 13:43) The basic approach still assumes that the owner of the info pays for its discovery. <ProfNesson1> (Mon, April 23, 2001 at 13:43) But when should this rule give way? <TF_TomB> (Mon, April 23, 2001 at 13:50) Hi everyone - thanks for participating. We definitely hope to have hese kinks worked out by next week. <ProfNesson1> (Mon, April 23, 2001 at 13:50) For those who have not been getting video but have been kind enough to stay on, thanks, and would you please <AlexiM> (Mon, April 23, 2001 at 13:50) Thanks all. We will be in contact over the course of the week with emails, and responses to your posts. <TF_TomB> (Mon, April 23, 2001 at 13:50) There will be a link to today's discussion on the web site during the week. <TF_TomB> (Mon, April 23, 2001 at 13:50) So please check back if you missed the video and audio. <ProfNesson1> (Mon, April 23, 2001 at 13:50) go to the "feedback" link on the left of your screen, under questions, click on it, and give us your best <ProfNesson1> (Mon, April 23, 2001 at 13:51) For everyone who has struggled through with us, thank you. <MatthewD> (Mon, April 23, 2001 at 13:51) Goodbye. We'll see you next week again from the Berkman Center in Cambridge, MA. Thank you. <ProfNesson1> (Mon, April 23, 2001 at 13:51) \We will be in touch with you during the week. <YuUnO> (Mon, April 23, 2001 at 13:51) i'll do that. since i'e contact, when are we goin'to have the next discussion? <ProfNesson1> (Mon, April 23, 2001 at 13:52) next monday, at 12:30 est <YuUnO> (Mon, April 23, 2001 at 13:52) thank you prof. <ProfNesson1> (Mon, April 23, 2001 at 13:52) we will be in touch with you by email <TF_TomB> (Mon, April 23, 2001 at 13:56) please click 'feedback' on the left and leave us your opinions. <MarkH> (Mon, April 23, 2001 at 13:57) OK Be seeing you! <TF_TomB> (Mon, April 23, 2001 at 13:57) THanks Mark! <ProfNesson1> (Mon, April 23, 2001 at 14:00) I'll send you email during the week to fill the holes. <ProfNesson1> (Mon, April 23, 2001 at 14:01) you are welcome. <jonS> (Mon, April 23, 2001 at 14:02) see you next week. Don't get discourged, keep at it <jonS> (Mon, April 23, 2001 at 14:02) please <jonS> (Mon, April 23, 2001 at 14:03) these things happen...the reading material alone made it worthwhile <ProfNesson1> (Mon, April 23, 2001 at 14:03) Thanks. But so far, I'mk thinking this is a money-back experience. <sameerD> (Mon, April 23, 2001 at 14:04) prof. it might be a good idea if all the participants are instructed to be well versed with the material and then discuss their queries in a chapter wise manner. <ProfNesson1> (Mon, April 23, 2001 at 14:04) Thanks for the suggestion. <jonS> (Mon, April 23, 2001 at 14:04) good point sameer <jonS> (Mon, April 23, 2001 at 14:04) bye <sameerD> (Mon, April 23, 2001 at 14:04) bye all <YuUnO> (Mon, April 23, 2001 at 14:04) bye all <jonS> (Mon, April 23, 2001 at 14:04) take care <SethR> (Mon, April 23, 2001 at 14:07) bye <jonS> (Mon, April 23, 2001 at 14:07) take care seth <wintonW> (Mon, April 23, 2001 at 14:07) woods from arizona is here <jonS> (Mon, April 23, 2001 at 14:08) I'm not alone <wintonW> (Mon, April 23, 2001 at 14:08) but WE are!! <jonS> (Mon, April 23, 2001 at 14:14) stuff is great, isn't it? <WendyS> (Mon, April 23, 2001 at 14:23) Sounds good. Meantime, I'll see you here next week. <jonS> (Mon, April 23, 2001 at 14:23) bye <DurgaB> (Mon, April 23, 2001 at 15:09) bye