On the Mark

I’ve just witnessed the greatest late season collapse by any team in the history of Major League Baseball. The NY Mets who were in first place this season for over 135 days, lost their final game of the season and with it their only remaining hope of going to a post season which they thought they were already in. 

Mo’ problems for Morgan Stanley and this scenario doesn’t appear it will end in the same manner the Sunbeam case did. I suggest reading Elena Malykhina’s article in Information Week which puts a bright light on the recent Financial Industry Regulatory Authority’s (FINRA) decision to fine Morgan $12.5 million for withholding emails requested in arbitration hearings following the 9/11 terrorist attacks.

 The emails in question were those in existance before 9/11 that Morgan claimed were destroyed in the attacks and thereby unavailable for production. It was found that Morgan in fact had restored the previously claimed destroyed emails.

What appears even more troubling is that pre 9/11 emails once restored were then allowed to be lost due to the overwriting of back up tapes that contained the emails in question.

Will the organization get their electronic preservation, hold/retention and production problems behind them? 

I had the distinct pleasure to Co-Chair this recent ALM event at The Harvard Club in New York last week (along with Sherry Harris, Hunton & Williams) and it was a very good seminar with top notch speakers from the Corporate, Legal and Consulting perspectives.

With a great Keynote Address by Monica Bay (her blog is required reading 101) the program kicked off with a bang and never looked back. Monica drew on her many years of industry experience to provide insight into the direction the industry is taking and what may lay in store for Paralegals and Lit Support professionals, in the future.

What Monica and others see as taking place is an unprecedented growth in terms of use of technology in litigation. The dollars being spent are growing exponentially year after year and what is not taking place is the growth in numbers of qualified individuals with the proper experience to match. Heirgo, Monica took the time to underscore to those in attendence that the future looks bright for them and to learn and grow with the industry.  There is a need for proper education and learning institutions to offer same.  I’d look for Georgetown and Sedona to lead the way on this.

Monica makes a great point. And this is very important and a lesson for all of us. While there is great opportunity to grow and advance, there is also great opportunity to become “roadkill” on the information super highway, too. Step out into traffic without looking both ways and see what happens. Think of traffic as your next 26(f) meet and confer. Think of looking both ways as doing your homework with respect to what you need to know in being prepared for your adversaries questions and in being prepared for the questions you should be asking them.

Monica also articulated the trend toward mergers and acquisitions among service companies like Lexis, Thompson and Wolters.  All attempting to fill in self perceived gaps toward an end-to-end solution in controlling the litigation service cycle.  I know this is a priority among many companies. Just look at the recent announcements.

Back to the program, Andrea Lazarow of ALM brought together a talented group, some of the brightest and best (Matt Cohen of Alix Partners) and Cindy Bateman were both exceptional in being informative and in holding the audiences attention with humorous and insightful points.

This program gave Paralegals and Litigation Support folks a good look into many of the things they support their attorneys with yet may not always get to see the full picture with respect to how their efforts fit into the mix.  Discussions on Legal Hold, Preservation and the 26(f) Meet and Confers were spot on. The panel discussion on regulatory and criminal investigations was also particularly insightful with Lee McCallister and a battalion of FTI folks sharing good and useful information.

This program gave what I consider to be the key component of success for any event and that is ”the take away” for the participants.  Corporations and law firms spend good money to send staff to events like this, often in response to a need identified by the participant themselves. Participants want to bring home the goods with respect to information sought.

If you didn’t notice the recent NY Law Journal article written by Joel Stashenko, Joel gives a great recap of the recent opinion in PSEG Power New York, Inc. v. Alberici Constructors, Inc., 1:05-cv-657 and he interviews some of the players in the case. This is a really good article and is worth taking a few minutes to read.

In the opinion Magistrate Judge Randolph F. Treece touches upon not only problems as they pertain to electronic evidence issues in this case but in what many may encounter in other cases in this computer age.

In a nutshell, PSEG and their EDD vendor managed to find a way to detach emails from their attachments during the processing of their data yet was unable to put Humpty Dumpty back together again when it came to their production to Alberici. PSEG then sought monetary relief (to the tune of $206K) from Alberici for the cost of having to re-do it properly. (I know which software they didn’t use).

Well then. Request denied. (We’ll see if we can get the technical details with respect to what went wrong and report back)

Alberici was not ordered to share the cost burden and the judge agreed that having the emails with their attachments was important enough to not go forward with depositions until Alberici had them in the proper form.

I’m happy to say the basic functionality built into Metalincs would never allow this type of “Fiasco” to happen. As the father of a two year old, I know the parent / child relationship is sacred. It should be viewed that way with respect to email processing and production, too.