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