On the Mark

New Orleans, LA  - May 14th 2008

The Sedona Conference’s Working Group One (WG1) mid-year meeting starts this evening in “The Big Easy”.

A couple of years ago when the planning of future meetings was being discussed and the reality of Katrina was fresh in the minds of those in attendance, the group voted for a future meeting to be held in New Orleans.

The Sedona Conference has held its meetings in locations all over America. From San Diego, to Memphis, to Hilton Head, to Phoenix and even in Sedona, believe it or not!

And in every one of those cities, the attendees have spent money for hotels, restaurants, taxi cabs and everything else that goes along with “business meeting” tourism.

Tonight the meeting starts in New Orleans. And the attendees will be drafting e-discovery papers on a myriad of topics important to our community. And along with drafting of the papers, they’ll be eating Cajun and Creole. They’ll be eating Beignets from Cafe Du Monde and drinking their wonderful coffee with a hint of chicory.

It’s a great town with great people, great restaurants and a legal history that goes so far back, its amazing. What better place to have a meeting where minds come from all over the country to discuss the e-discovery issues of today and tomorrow.

So I wanted to applaud The Sedona Conference for making the right decision and making the good effort to bring something back to a beautiful city.

On the Mark

New York, NY -  May 5th, 2008 

 After recently reading an article by Jeff Beard in the February/April edition of Litigation Support Today I thought that it might make some sense to touch upon it here at On the Mark.

Jeff raises interesting points and shares his thoughts on ESI, Rule 26, Inaccessibility, Backup tapes and VMware among other things. Interesting stuff for sure. And the points he’s making I don’t disagree with. I think Jeff gets it right.

However, one thing I didn’t notice and it is something I don’t see very often at all, in almost all the articles that appear in the blog-o-sphere, and that is the absence of any reference to FRCP Rule 1.

That’s right, Rule Number 1.

Mark, where are you going with this? For all the talk about FRCP 26(f) and the “Meet and Confer” my friend Conor Crowley likes to remind people about the first rule.

Some believe that Rule 1 is actually the “Mission Statement” of the FRCP and I would agree.

(..the rules) “shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.”

INEXPENSIVE? You mean, like CHEAP?  How’d that one sneak by us? I never hear anyone talk about that.

There’s some very interesting text to read in the Committee notes and while Jeff highlights those obligations of the responding party, once they’ve thrown down the gauntlet of “Not Reasonably Accessible” (and successfully demonstrated WHY), it’s also important to note that many nowadays contend the burden can then be swung BACK to the requesting party to demonstrate WHY they need it, regardless of the burden to the responding party. FRCP 26(b)(2)(c)(iii)

Parties in “symmetrical” litigation and by that I mean both parties with relatively equal amounts of potentially responsive or relevant ESI
should know that this is a double edge sword. And that brings me back to Rule 1 and the word INEXPENSIVE!

Maybe now the old adage of “Be Careful of What You Ask For (you might just get it)” could also be amended to say “Be Careful of What You Ask for (you might just have to give it, too or be asked to show WHY you need it in the first place)”

Again, I want to make sure to compliment Jeff on a nice piece and take a moment to mention his blog, LawTech Guru and to congratulate Jeff on his new position with EED. Congrats Jeff.

For all those out there who find themselves in the quandary of having to go-to and restore back-up tapes, I’ll take a second to inform On the Mark readers of MetaLINCS’ brother company, SRS - Seagate Recovery Services is a leader in tape restoration and forensic tape and hard disk recovery. They’re quite an impressive group IMHO.

Have a good week.

On the Mark 

I’ve heard recently from a couple of ex-Zantaz employees. It seems there is a fair amount of unrest and turnover at Zantaz following the recent Autonomy mind-meld. Unhappy campers, to say the least.

Furthermore an anonymous source adds “Zantaz had a couple more layoffs this year across multiple departments such as QA, engineering and services. People also have been leaving voluntarily at all levels from Boston and Pleasanton office. More people will leave, especially from the Boston office as they have been overworked and some are “forced” to work over 80+ hrs a week without additional compensation. Annual performance review has been eliminated, some say to ensure that employees will not receive compensation adjustments.”

As noted by Ferris:

• The recent acquisition of Zantaz by Autonomy is proving painful for many people.
• There appears to be a culture conflict between Autonomy and Zantaz.
• Zantaz developed quite a strong channel. Autonomy appears to have little interest in this.

As with any acquisition, there’s bound to be overlap and areas of employee redundancy that need to be addressed. And that’s to be expected. However, layoffs in key departments in a market that is white hot, doesn’t make much sense.  I know a few people over there and they’re all legacy Zantaz folks.  Professionally strong, technically strong, people who built a good business. It’s a shame when this type of situation happens because no one likes to see an implosion in the making and no one like to see good folks in a not-so-good situation. 

On the Mark

I’m watching Perez Hilton on CNN being interviewed about the recent NY Times article in which they go into the rise of blogger deaths due to heart attacks and poor health. Perez, a pretty funny guy, starts by saying he is now on a campaign to loose weight due to all he’s gained since he started blogging. He’s even getting his meals brought in so he doesn’t have to push away from the keyboard! Hehehehe… at least I don’t have Avril L. yelling at me.

The NY Times article was interesting. You should take a couple of minutes and take a peak - You can see it here (click).

While it seems like a fluff piece on the surface, I can confess that like others mentioned, I’ve gained some pounds around the middle, just like the rest. Unlike the others, I’m not being pressed to crank out a blog entry several times a day. I’m not being paid by the piece and the blog is not one that generates income. Now the article was not written about our smaller “e-disco” blogospher rather it was about the more general world of blogging for politics and entertainment. However, after reading the article I started a very unscientific scan of my memory banks about some of the others in this legal blogosphere and without naming names, I’m not alone in the weight gain category! All you guys relax.

There is one glaringly obvious criteria where On the Mark differs from Perez Hilton’s blog. He has approximately 8 million visitors to his blog per day!

I don’t.

Not even close.

On Tuesday March 18th, 2008, Magistrate Judge John Facciola gave the White House a mere three days to respond to a proposed order directing them to show why they should not be made to copy all email found on computers in the Executive Branch. The Judge seeks to protect email from 2003 through 2005, as it was recently disclosed by the White House that they had previously recycled back-up tapes for the period before 2003.

We have discussed this case before here at On the Mark back in October last year and it appears that this will be coming to a head in the near future.

In a post today on Law.com, writer Pete Yost details this recent order and the White House response and their conduct which lead to this situation.

As an editorial comment, I find it mind boggling that the White House has been unable to do what Corporate America has been able to do and that is to establish a simple document management and email archiving system. Work started on this project in 2003 and as of 2006, work was not complete and actually stopped with nothing to show. On the 5th anniversary of “Shock and Awe” the Executive Branch has made a relatively straight-forward document management and email archiving project an impossibility. It is amazing to me that with all the billions of dollars spent, they were unable to get a handle on such an important matter.

On the Mark