Time to get back to work. LegalTech 2007 in New York and the ABA Techshow 2007 in Chicago have succeeded in presenting the latest technologies for law firms and departments. Spring has sprung. The clocks have all been moved ahead one hour. If lucky enough to have had the opportunity, everyone has returned from their annual spring break exodus with family and friends and the Easter and Passover holidays are behind us.
Obviously, the most relevant of all these first quarter happenings were LegalTech and the ABA Techshow. What were the most dominant topics or messages present at the shows? In no particular order, they were:
Participating in both shows as an exhibitor, the conversations with attendees and other exhibitors were most enlightening. The opportunity to interact with industry professionals from all over the country, including partners, associates, litigation support specialists and paralegals, was invaluable for acquiring a hands-on market perspective.
Most obvious was the realization that December 1, 2006 was no Y2K . There may have been some tense moments on New Years Eve 2000 and New Years Day 2001, but by the time people arrived at work after the holiday, life had returned to normal. On the contrary, following the effective date of the amended FRCP rules we now face months, if not years, of adjustment. Ensuing articles in our newsletters will attempt to provide practical guidance to benefit your firm and your clients.
No people, I am not referring to listening to Yanni, sipping herbal tea, or learning about Yin and Yang. I am addressing litigation practices’ post December 1, 2006 new age. Relative to their clients, attorneys’ roles and law firms' responsibilities have vaulted far beyond what they were only a few months earlier. Additionally, attorneys’ risk of exposing themselves and their firm to sanctions and their clients to unfavorable judgments has also increased.
To mitigate this risk and add value to the client relationship requires that attorneys accept that litigation is now a team sport and their understanding of the impact of the amended rules relating to the litigation process is not optional. The timeframes and compliance obligations under the rules addressing the handling of Electronically Stored Information (ESI) add new guidelines for processes and accountability for you and your client. Understanding its importance and potential impact, and being prepared for the meet and confer session dictated by Rule 26(f) is mandatory.
Attorneys should be reading available related articles in trade and professional association materials and signing up for applicable continuing education workshops. Of equal import, is taking an active role with your litigation support team, including litigation support specialists, paralegals, Information Technology (IT) liaisons, and outside eDiscovery and forensic consultants. As jurists become more comfortable with the new rules, and case law begins to accumulate, accessing repositories of case law and related blogs should become part of your normal routine.
Your objective should be to become comfortable in understanding and explaining the new requirements and processes precipitated by the new rules to your clients and to include them in reducing the risk of spoliation and inappropriate actions, or inactions, resulting in sanctions and adverse judgments. The key component of your clients’ risk mitigation is a defensible records management policy detailing the lifecycle of all corporate records including electronic and paper documents, voicemails, emails, text messages and any other form of communication. Likewise, you should be assisting your clients with litigation hold and preservation policies. Finally, you should also be prepared to define respective roles, responsibilities, actions and timelines once a litigation event begins.
Do not be afraid to ask questions – the answer could save your client millions of dollars. Remove the word "assume" from your vocabulary. Accept the fact that jurists are currently very fluid in how they are interpreting the amended rules and agreeing to deliverables and/or conditions you do not understand could cost you a case, or a client. Welcome to the New Age!
As a gentleman and a scholar, I will refrain from specific analogies to common four-letter words. However, I would suggest that should a "spoliation" and/or "obstruction" claim precipitate relative to any matter for which you may be the attorney and firm of record, any other four-letter word would pale in comparison. Readers of this newsletter should be painfully aware of names like Zublake, Morgan Stanley, Arthur Andersen and Phillip Morris. If not, please "Google" them before reading further.
These aforementioned parties were instrumental in precipitating the drafting of the amended Federal Rules of Civil Procedure (FRCP) - focusing on the preservation and accessibility of documents relevant to a potential, pending, or active, legal or regulatory proceeding. Merriam-Webster's Dictionary of Law defines spoliation as "... the destruction, alteration, or mutilation of evidence esp. by a party for whom the evidence is damaging." The American Heritage Dictionary defines obstruction as " The act of causing a delay or an attempt to cause a delay in the conduct of business, especially in a legislative body."
First, allow me to stipulate that the remainder of this article is essential to your preparedness for the Rule 26(f) meeting. So, let us start at the beginning. Before one can preserve data, one must identify what data might be relevant, where the data resides, and in what form, before initiating your litigation hold policy and process, and before the data harvesting begins. This may sound like a simple task - trust me, it is not.
In spite of the fact that most business communication is via emails and attachments, isolating them can be a challenge insofar as they can exist on a central server or distributed servers, archived and/or backed- up on a variety of devices, be localized on laptops, personal computers or PDA/cell phone or end-up on a portable thumbdrive. For the most part, one could say "ditto" for "data-in-the-wild" or all other loose documents. Other Electronically Stored Information (ESI) like digital voicemail and monitored conversation recordings, videos and structured database files, including those from outdated "legacy" applications, can create even greater challenges. However, pleading ignorance of their existence, or presuming they would be judged an excessive burden to produce, would be waving a big red flag at the assigned jurist.
After you have identified the entire collection of content related to the matter at hand, you need to determine what percentage is potentially relevant, how much is readily accessible, what content would require extraordinary means to produce, and a realistic estimate of the investment required to produce said content. And, you are still not done.
Once you have compiled the preceding information, you now need to determine the appropriate production format for the content - it can differ by type of content. For example, it is usually more appropriate to produce Excel spreadsheets in native form rather than a TIFF image or HTML because the hidden formulae and comments may be relevant information. MS-Word documents may also contain relevant "hidden" data only discernable in its native format. Producing native documents and conducting native file reviews can be a major discussion points in the 26(f) meeting.
Finally, at least for this month's article, let's discuss metadata , forensic copies and chain-of-custody as they relate to spoliation. If for no other reason, these terms are reason enough to engage outside eDiscovery expert resources. Metadata is the hidden application and system data that is unique to each document. Every time you do anything with the document - even opening it to view, or copying it to a folder, it changes. Anytime you require a copy of a document, file or folder for analysis prior to production, do it with a forensic image copy of the original. This will not alter the metadata and keep the original pristine and defensibly preserved. That said, it would be this authors recommendation that you use a qualified outside expert in the collection/harvesting process who can testify in court to the validity of the data citing best practice processes involved and chain-of-custody confirmation. You do not want your own IT people, or those of your client, on the witness stand or deposed. As time goes on and case law accumulates and procedures and processes evolve relative to the amended rules, as well as the amended rules to follow, what will not change are the following relevant idioms that will preclude any claim of spoliation or obstruction: The Golden Rule; Good Faith Effort; Best Practices; Domain Knowledge; Enforced Policies; Documentation; and Reasonableness.
As time goes on and case law accumulates and procedures and processes evolve relative to the amended rules, as well as the amended rules to follow, what will not change are the following relevant idioms that will preclude any claim of spoliation or obstruction: The Golden Rule; Good Faith Effort; Best Practices; Domain Knowledge; Enforced Policies; Documentation; and Reasonableness.
