Ride The Lightning

WHEN LOGIC AND PROPORTION HAVE FALLEN SLOPPY DEAD: JUDGE REFUSES TO QUALIFY CERTIFIED FORENSIC EXAMINER BECAUSE HE HAS A BIOCHEMISTRY DEGREE

If you go into enough courtrooms, you’ll see it all. You’ll watch an irate judge order a bailiff to bring him an attorney’s ringing cell phone and throw it out the courtroom window. You see a judge fall sound asleep while hapless attorneys try to carry on. You’ll see a dimwitted attorney who somehow got a gun through security cause a near riot when he pulls it out of his briefcase, in a misguided attempt to introduce it into evidence (just before the bailiffs wrestle him to the floor). You’ll see an attorney have the temerity and stupidity to tell a judge that she is a few French fries short of a happy meal.

The courtroom can be a crazy place. Alice really is six feet tall and things in Wonderland sometimes have very little rationality.

So with that as a backdrop . . . one of our forensic examiners went to testify as an expert in a routine case this week (somewhere here in Virginia, though prudence keeps me from naming the judge or the court). He is a certified forensic examiner, holding the CCE, and he has previously qualified as an expert. He has also spent several years doing nothing but computer forensics, and served as the Director of Computer Forensics at another company. The opposing counsel argued vigorously that, in spite of the examiner's background and previous qualifiations, he should not be admitted as an expert because he had an undergraduate degree in biochemistry. Remarkably enough, the judge sustained that objection.

You might think this is from the theater of the absurd, but alas, it is just another day in court, where the truly bizarre is standard fare. Ah, this explains it . . . there’s a hookah smoking caterpillar in the corner    . . .  feed your head . . . feed your head . . .

E-mail: snelson@senseient.com     Phone: 703-359-0700

AUTHOR! AUTHOR! RALPH LOSEY ON ED

I was pleased to see an announcement today that the American Bar Association has published e-Discovery: Current Trends and Cases by Ralph C. Losey. Many readers will know Ralph as the author of the e-Discovery Team blog. My copy of the book is on its way to me now, but I have no doubt this will be well worth reading. What makes this book different is that it was written so even non-lawyers (including the corporate executives that are so befuddled by ED) can understand electronic discovery from A-Z. Unsurprisingly, given the name of Ralph’s blog, he really focuses on an interdisciplinary approach to electronic discovery, one including lawyers, management and IT.

The book is $79.95 for ABA members and $99.95 for others. It can be ordered through the ABA web store at http://www.abanet.org/abastore/index.cfm

Probably not a page-turner like my beloved whodunnits, nor fodder for the Hollywood grist mill, but undoubtedly rewarding reading for anyone interested in electronic discovery. Congratulations Ralph.

E-mail: snelson@senseient.com Phone: 703-359-0700

THE STATE OF THE STATES: A FLURRY OF ELECTRONIC DISCOVERY RULES

As if the new federal rules themselves were not enough to get a handle on, there are now at least 37 United States District Courts which require compliance with special local rules, forms or guidelines addressing the discovery of electronically stored information.  In some districts where there are no local rules or court-mandated forms, individual judges have created their own forms or set out their own preferred protocols for e-discovery.  Thanks to K&L Gates for providing a handy guide to the current collection of United States District Court local rules, standards, guidelines and judge-mandated forms and protocols that specifically address e-discovery issues, with links to the relevant materials.

It eases the pain . . . marginally.

The January 24th posting from K&L Gates may be found at http://www.ediscoverylaw.com/2008/01/articles/resources/updated-list-local-rules-forms-and-guidelines-of-united-states-district-courts-addressing-ediscovery-issues/index.html

E-mail: snelson@senseient.com      Phone: 703-359-0700

GOOD NEWS, EH? SEDONA CANADA PRINCIPLES FOR ELECTRONIC DISCOVERY PUBLISHED

On January 21st, the Sedona Canada E-discovery Principles were posted in English on the Canadian E-discovery Portal, which is hosted by Lexum. The French version will reportedly be posted soon. You will also find Canadian e-discovery related precedents (common law, civil law) on the Portal.

Congratulations to everyone involved, particularly the “content managers” Peg Duncan, Dan Pinnington (sending a virtual hug to my “little brother” and beloved friend in the Bilingual Forest up North), Frédéric Pelletier and (Slawyer) Dominic Jaar.

The Sedona Canada Principles may be found at http://www.lexum.umontreal.ca/e-discovery/SedonaCanadaPrinciples01-08.pdf. The Portal, which contains many other terrific resources for electronic discovery in Canada, may be found at http://www.lexum.umontreal.ca/e-discovery/

E-mail: snelson@senseient.com Phone: 703-359-0700

ELECTRONIC DISCOVERY IN THE WINDY CITY: TIME TO SIGN UP FOR ABA'S TECHSHOW!

Don't forget that ABA TECHSHOW, the premier national legal technology conference, is coming up fast!

As a former TECHSHOW chair, I have a real soft spot in my heart for TECHSHOW, at which John and I have lectured since 2000. The CLE curriculum is fantastic, and for the electronic discovery mavens among you, there is a full day ED track. Other than moi, you will hear from some of ED’s most notable figures including Craig Ball, John Simek, Judge Herbert Dixon, Dave Ries, Browing Marean, Judge John Facciola, David Cohen, and Bruce Olson. And I’ll bet you’ve never played Electronic Evidence Jeopardy, which will be hosted by our inimitable emcee Craig Ball. Along the way, catch up with the true science of computer forensics, the ethical implications of ED, and a report from the battlefront of cases and trends since the new federal rules took effect.

This year's show takes place March 13-15 at the fabulous Hilton Chicago (a new location!), and the conference promises to be a great event.

The Early Bird deadline is February 1, so sign up now to save up to $300 on the cost of registration!  To learn more about the show, visit www.techshow.com.

John and I look forward to seeing friends old and new - and no offer to stand us a drink is ever refused!

E-mail: snelson@senseient.com     Phone: 703-359-0700

CROSS FIRE: ED VENDOR SUED BY CLIENT, SUES CLIENT IN RETURN

If you run an ED company, here is your “wake up in the middle of night sweating buckets” nightmare . . . .

It was bound to happen sooner or later - a major electronic discovery vendor sued by a major law firm. On December 28, 2007, Sullivan & Cromwell filed suit in the Southern District of New York against Electronic Evidence Discovery, Inc. (EED), asserting that EED was not entitled to payment of $710,000 in charges. The suit alleges, among other things, that EED consistently missed deadlines and prepared the wrong documents for production to opposing counsel. On January 8th, the law firm refiled the case in New York state court, saying that some of its partners were not U.S. citizens and thus the federal court did not have diversity jurisdiction. 

On the same day, EED filed suit against Sullivan & Cromwell in state court in Seattle, claiming that the law firm owes it nearly $720,000 plus interest. Most commentators have noted that this was, to their knowledge, the first battle among “whales” in the e-discovery world. Without question, it will not be the last.

Both parties announced a settlement on January 14th, without disclosing the details and both will dismiss their current suits.

Nonetheless, for anyone running an ED company, stories like this send chills down your spine. Though we do not know the facts of this case, anyone active in the electronic discovery world has already discovered, with chagrin, that “stuff happens.”  The very first time that one of your employees forgets to ensure that there is a good backup before doing a forensic image of a client server, you can be absolutely sure that this will be the precise moment that the server decides to belly up for inexplicable and forever unknowable reasons. For those who do computer forensics and electronic discovery and do not have professional liability insurance, this story should be a wake-up call.

E-mail: snelson@senseient.com      Phone: 703-359-0700

LION’S ROAR BECOMES A CAT’S MEOW: QUALCOMM ATTORNEYS GET OFF EASY

First, thanks to all who wrote and were worried about me because I took a brief hiatus from blogging. Nothing was wrong – far from it – I was cruising the Caribbean with John, whose maritime background means he is always happiest when at sea. And since his happiness is mine, it was a delightful sojourn. I wish the hardest decision of every day was whether to order a Rumrunner or a Bahama Mama. But we’re back at the salt mines now . . . so onward to a story which broke while I was cheerfully basking in tropical climes . . .

In spite of all the court’s previous tough talk about the misdeeds of the Qualcomm counsel in the Qualcomm v. Broadcom case, the court wimped out in the end. Qualcomm had already been assessed a $8.5 million sanction to cover Broadcom’s attorneys fees and this decision added no further penalty to Qualcomm. As for the Qualcomm attorneys, most of the 19 attorneys who originally had to show cause why sanctions should not be imposed had no penalties at all assessed. There were no financial penalties and no requirement (as had been requested) that their misconduct be disclosed to current clients and courts in which they were admitted or had cases pending. Six of them had to send a letter to the California State Bar for possible investigation (do you imagine ANYONE in the State Bar didn’t know about their conduct before receiving any letter?) and eleven had to participate in something novel called a Case Review and Enforcement of Discovery Obligations (CREDO) program. This sort of amounts to “homework” from the court in which the miscreants were to identify every juncture at which they “went wrong” and set forth in some sort of grandiose memo, for the future, appropriate processes to ensure that something similar couldn’t happen again. Yeah, right.

Somehow, this limp-wristed reaction, which even Judge Major seems to go to great lengths to try to explain away, just doesn’t cut the mustard. Many commentators, myself included, had hoped for the brass knuckles and a decision that clearly signaled that these kind of discovery shenanigans would not be tolerated by the courts. Sigh. Maybe next time.

I’ll have another Bahama Mama please.

E-mail: snelson@senseient.com     Phone: 703-359-0700