On the Mark

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

Writing an e-discovery blog while trying to do your real job can prove challenging. The need to post witty, irreverent and timely on-point content is great — and seemingly unending. In the blogosphere we’re seeing movement away from single-voice blogs and toward multi-voiced blogs where several authors post in order to satisfy the content beast. As a single-voice blog, I can totally respect Ralph Losey’s efforts. So today, I’m taking a moment to point out some great work by a genuinely nice guy who writes a well respected e-discovery blog.

Ralph Losey is a highly regarded industry veteran. He’s also a gentleman I met at a Sedona Conference meeting and whose work I’ve enjoyed a great deal ever since. The first of his two home runs ran a couple of weeks ago, and brought up very interesting points about keyword searching and a recent case that could send chills down the back of partners all across the country.

Here’s the link: Inadequate Keyword Searches by Untrained Lawyers May, in Some Circumstances, be Sanctionable

Here’s the case: Diabetes Centers of America, Inc. v. Healthpia America, Inc.

Ralph writes:

This recent decision in Texas suggests that inadequate keyword searches could lay a predicate for spoliation sanctions when the defective searches caused evidence to be lost.

The shortcomings of keyword searches are well known. When you add untrained attorneys into the mix and give them the task of properly searching and then making decisions with respect to production and preservation of data, well… you know more litigation is sure to follow.

If keywords are not coupled with technology that has analytic capabilities, the likelihood of missing relevant and responsive documents is increased greatly. Later this week I’ll be serving on the Search and Information Retrieval panel at The Sedona Institute’s Getting Ahead of the E-Discovery Curve CLE program in San Diego. We’ll go into considerable depth on the topic so that attendees won’t find themselves in the situation above.

The second of Ralph’s home runs is his most recent post on the recent Qualcomm Six case and the sanctions order that’s been vacated against the six attorneys, though not against the organization. I like that Ralph spends the necessary keyboard time on his blog to add all the special links and care his readers can use. I’m not a big fan of music twinkling in the background as I read, but his coverage is great and very informative. He also uses a neat mouse-over plug-in on his blog, and given the free nature of WordPress plug-ins, I’m sure On the Mark will be copy-catting him as soon as I can get my admin to make the change.

Item last. Schadenfreude

While watching the news last night regarding Elliot Spitzer, a couple of words came to mind. One German, schadenfreude, and the other English, epicaricacy.

I’m not going to define either for you. Double click on each word and the wiki will appear. I will tell you that a buddy of mine “on the street” relayed that as soon as the news of “Client Number 9″ and his Mayflower Hotel activities made it down to the trading floor, a spirited round of applause went up. Seems the street feels a little bit of Karma came home to Mr. Spitzer yesterday. The Wall Street Journal covered it. Huffington even blogged about it, too. IMHO Spitzer is done and the only question now is WHEN?

As one of Hillary’s super delegates, I wonder if he’s going to hang around long enough to cast his vote. Given the coverage, he may not make it through the day, much less the week.

On the Mark

And that “E” in E-Team already stood for excellence.

AlixPartners was very strong under the leadership of Matt Cohen, ex-Skadden litigator and industry eDiscovery expert, but now they’re even stronger.

Tom brings an amazing amount of experience from his time as a litigator for such firms as Rogers and Wells (now Clifford Chance), Wilson Sonsini and most recently as special counsel of eDiscovery at Sullivan & Cromwell, here in New York.  The department Tom built  at S&C is impressive.

I’ve had the pleasure of knowing Tom for many many years, and I believe that with his addition, AlixPartners now have perhaps the best pure eDiscovery advisory tandem in the game today.

Tom has a rich background in eDiscovery and has served as General Counsel for both EED and SPI in the litigation technology industry. He’s also a killer saxophone player (pro-level, Toots and The Maytalls)  You read that here first.

Both Matt and Tom are fellow Sedona-mates and Georgetown Law CLE colleagues. They are also two of the kindest and most ethical gentlemen in our field. I am proud to be associated with them by way of those two organizations.

Congratulations to Matt Cohen on a great addition to his team and congratulations to Tom Barnett for a job well done at Sullivan & Cromwell and a great ride ahead.

 On the Mark 

The Electronic Frontier Foundation, better known as the “EFF,” has uncovered evidence the FBI received a significant volume of email it was not authorized to receive.

Before you assume something sinister, it appears the email was received because of a technical glitch. Eric Lichtblau in his New York Times article takes the reader through a landscape of how technical tools are evolving — and how they don’t always work the way we hope or expect. 

The EFF for nearly 20 years has been the public’s champion with respect to digital rights and the electronic domain. It has been very effective, and has shaped the legal landscape on digital rights in many cases. 

On the Mark

We’ve made it through to another Friday and the prospect of a long holiday weekend.

I hope you, too, survived Valentine’s Day without any problems. If you followed my advice, you should be starting your day basking in the glow of a job well done. If not, you probably woke up with a sore back, courtesy of the pull-out sofa last night.

We’ll have a lighter blog schedule next week while I take my now almost-six-months pregnant wife and our two-year-old daughter to Orlando for a few days of rest and relaxation.  In reality, it will probably be four days of logistics, planes, rental cars, my Blackberry, wife’s Blackberry, driving, Disney, Cocoa Beach, more driving and hopefully a little fun and food. Wish me luck, patience and good weather. It’s my first Disney experience, ever.  

Upcoming Event

IQPC’s “EDiscovery for Financial Services Industry” seminar will take place  February 27-29 at the Millenium Broadway.

For those interested in “Complying with Information Retention Regulations and Improving Your Internal eDiscovery Process,” IQPC will serve up two full days of discussion panels on myriad topics, helping to bring sanity, and take-aways, attendees.

I’ll be speaking on two discussion panels that should be pretty interesting.  The first is “Building a Cross-Functional EDiscovery Team: Legal/Compliance, IS/IT, Business and Records Management.”  We’ll have some top-flight speakers:  Allison Brecher, Lauren Barnes, Eric Yeich (and myself moderating). I’m in good company with those three aces, who hail from major orgs like Marsh and McLennan, Lehman Bros. and Mercer.

The other panel, “Reducing Risk and Controlling Costs Through a Defensible In-House EDiscovery Processes,” is a topic near and dear to my heart. Besides me, the panel also includes John Rosenthal,  Patrick Burke, John M. Hodgens, Jr. and Dave Boyhan. 

We will supply more details on the event next week.

Have a good weekend.

On the Mark