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

 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 

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

What seems to be getting the Judges hot under the robe is the fact that the State budget proposal is 6 Billion dollars higher than last year and not one red cent of that 6 Billion is being slotted toward those who handle the legal mess the state generates.

Jeremy Peters of the NY Times wrote an interesting piece on this today and given the fact that NY State just thumbed it’s budgetary nose at $345 million in Federal Transit Aid by killing the congestion pricing legislation, nerves are pretty frazzled all the way around in the Empire state. 

I’m not sure if this will be a class action suit against the state but I’m always curious at lawsuits and the discovery that can arise. In the case of Judges, Legislators and Ex-Governors, this may be a pretty interesting story developing.  We’ll keep our eyes peeled for the complaint filing or other public ink.

On the Mark 

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.

I’ll tell you what strikes this writer is the noticeably sharp and pointedly harsh wording of this order issued on March 19th.

“The recalcitrance, gamesmanship, and bad faith of Healthprime, HCC, and Hanover have caused unnecessary expense for plaintiff and unnecessary work for this Court,” Carnes wrote.

Note to readers, in the times following the changes to the FRCP back in 2006 and then again in 2007, it should be glaringly obvious that the judiciary is no longer interested in entertaining needless and unnecessary adversarial tactics in discovery. It’s the whole point of the 26(f) meet and confer process that encourages parties to work it out and not bring this type of problem to the court.

The Judge further blisters the defendants in pointing out that while they’ve expended “little energy in responding to plaintiff’s discovery requests, they have mustered up enough initiative to file a Motion for Summary Judgment with the Court”

For the Defendants’ the next stop is Sanction-ville.

“Should defendants continue to be uncooperative, the Court will consider striking defendants’ answers and then entering a default against them.”

Ouch.

For a little more in-depth coverage, check out the Law.com article which ran yesterday.

On a sad note, On the Mark would like to illuminate the life and passing of Dith Pran. Dith was the NY Times photographer who’s life and strength were memorialized in movie The Killing Fields.

I suggest you take a moment and explore the NY Times Obituary for Dith Pran here

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

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

I’m a forever DOS and Windows guy since the beginning. Since before the Internet had GUI’s. Dos 3, Dos 5, I even ran Windows 3.1 on a 286 with 4 megs of RAM. Impossible, they said. I did it. Windows 95 was painful, 98 was a tad better. XP has been a mixed blessing and Vista…well, I’m not sure I’m going there.

Seriously. I have a tablet laptop which I won in a drawing a few years ago and its main duty has been to get my wife on the Internet and let her access email. She’s searching and shopping and stuff like that. But lately the laptop had grown to be sluggish and slow. Her brother has a Vista machine and boy those graphics are nice. But it’s too big a hog to go on this old tablet of mine.

I’m frustrated that Microsoft has made my hardware obsolescent with their newest operating system. So I was faced with a decision.

And what did I do?

Ubuntu.

God bless you.

I didn’t sneeze, I said “Ubuntu!”

Huh? Come again?

That’s right. I went completely off the reservation and wiped that laptop clean, right down to the bios.

I installed Ubuntu 7.10, the Linux based operating system that is FREE and stable.

That’s right. A Linux operating system.

Whoa, the Windows crowd gasps. Now THAT was uncalled for.

I have to get on the road this morning but I’m quite sure Ubuntu will work its way into this blog again very soon.

Anyone else here Ubuntu?

I awoke to the warm breezes of Orlando, Florida and a dull ache in my back from holding a 29-pound vibrating child waiting to meet the King. No, not Elvis. He’s dead. (ask me about my sister Laura’s Elvis story sometime).

I’m talking about the real King…Mickey Mouse.

This morning, not so beautiful.

I awoke to the frigid cold and a snowstorm pounding New York, and now have an aching back from shoveling and pushing my snow blower up and down the sidewalks of my house and my neighbors’. It hasn’t let up yet and I’ve two rounds of snow-blowing, two rounds of sprinkling rock salt, or whatever it is, AND one snowman under my belt.

Yikes, this storm may be a big one.

Anyway, apparently my back isn’t the only thing that cold has a bad effect on. All this time we’ve fancied ourselves as super-smart in using encryption to stop unwelcome eyes from seeing our important data. Without encryption, things could be very scary for so many e-scenarios, it’s mind-boggling.

In his New York Times article today, John Markoff writes about The Center for Information and Technology Policy, Princeton University’s recent work in demonstrating how cold temperatures affect data and encryption efforts. This is really great stuff.

Edward W. Felten, one of nine individuals who performed the study, discusses it on his Freedom to Tinker blog. Both sites are great reading for folks like us (geek wannabees) and a must read for the real thing.

Ed blogs, “The root of the problem lies in an unexpected property of today’s DRAM memories. DRAMs are the main memory chips used to store data while the system is running. Virtually everybody, including experts, will tell you that DRAM contents are lost when you turn off the power. But this isn’t so. Our research shows that data in DRAM actually fades out gradually over a period of seconds to minutes, enabling an attacker to read the full contents of memory by cutting power and then rebooting into a malicious operating system.”

I’m not going to get into the e-discovery preservation aspects of this; it seems way beyond “reasonable,” to say the least. But it’s interesting that the so-called experts are wrong, and have been wrong for some time. It may interest you, too.

So, how do we really secure the data now that we know of this issue? Do programmers write to wipe DRAM before a device powers down?

Here’s a scenario: User accesses encrypted data on a server from remote. A large part of that data will live for a short period of time in the DRAM of the laptop or desktop computer used from remote session. I see potential security issues popping up on this one.

Ed blogs further, “. . . if you cool the DRAM chips, for example by spraying inverted cans of “canned air” dusting spray on them, the chips will retain their contents for much longer. At these temperatures (around -50 °C) you can remove the chips from the computer and let them sit on the table for ten minutes or more, without appreciable loss of data. Cool the chips in liquid nitrogen (-196 °C) and they hold their state for hours at least, without any power. Just put the chips back into a machine and you can read out their contents.”

I’m going to close this entry now and reach out to one of our experts over at Seagate Recovery Services for his insight. We’ll pick this up on Monday.

Have a great weekend everybody  — and stay warm.

On the Mark