Discussion 1 Log

<ZdzislawK> I am legal conselor in Poland. My knowlege of American law is small. I am more interstd in internet and its use for legal maters than the subject. I try to understood wha other have to say.

<AbidH> My name is Abid, I have have done my engineering from Univ.of California,Berkeley and also hold a degree in law.I look forward to the interaction today

<TF_MatthewD> Professor Nesson is about to begin, so please have your volume up so you can hear the audio feed.

<durgaB> I am durga Prasad Bhurtel, Advocate, Supreme Court of Nepal,Legal consultant of  Computer association of nepal. kathmandu , nepal

<durgaB> Hello prof. Nesson

<TF_MatthewD> My name is Matthew DelNero, and I am a law student at HLS, working with Professor Nesson on the Digital Discovery Project.  I am very excited to be moderating this chat area today, given the breadth of experience that you, as participants from all over the world, will bring to the discussion

<AbidH> I am having technical problems,the webcast has "died".Am I the only unfortunate one???

<AbidH> The webcast is back

<TF_MatthewD> great.

<TF_MatthewD> ok, everyone: Let's begin our discussion.  To recap, Professor Nesson would like us to think about what these preservation orders are all about - bad faith entrapment, or simply getting at the truth?

<TF_MatthewD> We'll be using the socratic method, so I hope none of you have bad memories of your law school days!.

<AbidH> Combination .It depends as to the scope

<TF_MatthewD> Durga, what do you think about this - do you think preservation orders are being abused by plaintiffs, or are they really just trying to get at information relevant to their case?

<durgaB> it is depod on the nature of case

<TF_MatthewD> I suppose a related question is how does one go about showing bad faith on plaintiff's part.  It's obviously a very fuzzy line.

<TF_MatthewD> Adib, can you be more specific?  Is there a general principle you could propose as to give judges guidance in juding plainitff's conduct?

<AbidH> It is difficult to globalise the reply.Preservation orders can be in good faith or otherwise

<ZdzislawK> In Poland preservatin orders aren't used for securing the information. They are used to secure execution of the verdict of the court or to prohibit second party form future actions before the verdict.

<AbidH> Mathew,I feel the common sense approach of proportionate benifit vs cost both in term of financial and resourses

<durgaB> because law is not very much clear on the preservation order therefore it depon on the judge an

<TF_MatthewD> So Zdzislaw, would you say then that in Poland there is not such leverage to be had from the preservatin order?

<ZdzislawK> As I understood it form materials Your sugest to read no.

<TF_MatthewD> I think one thing that Abid's response shows us is how important it is for each side to educate the judge about the relative complexities of compliance.

<TF_MatthewD> So how much of it just depends on the judge's relative bias?  Adib?

<TF_MatthewD> sorry - Abid (not Adib)

<AbidH> Most of the countries have to play catch up on"digital discovery".i was wondering can one not have an international convention on digital discovery laws that cutacross borders.If  e-commerce is to become a fact of life,which it is, the soner one starts the better.

<TF_MatthewD> Absolutely, Abid.  There is definitely a lag in digital discovery on the global stage.  That will have to change.  I think us talking about that issue today is part of the process.

<AbidH> Mathew, I fel more than bais is what I would call "chicken soup" approach.It does not hurt to issue preservation order.I fully agre with Professor Nesson.an education process needs to start

<durgaB> how can the preservation order can sustain in crossborder

<TF_MatthewD> Do you all see a strong interest in learning about these issues on the part of the judiciary in your countries?

<AbidH> Yes,I think so.May be UN or some International philonthropic org  as part of good governance can undertake this excercise

<ZdzislawK> Not so easy. Juges in Polnd have not enough time to run day by  day matters. So they learn as the case forcees themn to do this.

<durgaB> yes,

<ZdzislawK> sorry yest what?

<AbidH> Where can one read more about Texas rule that Prof Neson is talking about

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<TF_MatthewD> I agree Zdzislaw - the same is true here in US.  But i think the case-by-case pressure is building.

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<TF_MatthewD> Welcome, Mindee and Bruno.

<TF_MatthewD> Thank you for joining us today.  Please listen to Prof Nesson's webcast on the upper-left of your screen.

<AbidH> Recall many moons back when calulators were introduced , even the Prof at University did not want to learn or allow the use.Same goes for use of Computers.I think it is out of choice as pressure build the Hon judges would learn

<BrunoM> All right.

<ZdzislawK> So if the learnig is case dependent than the  attorneys of plantiffs and defentands have to teach juges?

<TF_MatthewD> Very true, Abid.  I've heard of judges who have never even seen an e-mail getting up to speed on some of these issues.  These are smart men and women, and hopefully they will see the need to learn as we do.

<ZdzislawK> Webcast is out. Only in my connection or it is broder?

<AbidH> My webcast is holding up

<ZdzislawK> Ok it is back.

<TF_MatthewD> Very true, Zszislaw as to plaintiffs and defendants having to teach judges.  We see the potential for advantage for those attoreys well-versed in this area.

<AbidH> Mathew, very interesting dimension--attorney education

<ZdzislawK> Are the juges want to learn i USA or they prefer to finish the case as soon as possible

<TF_MatthewD> Well, it varies from place to place, judge to judge.  I don't think any judge wants to think of themselves as technologically incompetent, so there is at least a desire to appear educated.  It really depends on their philosophical approach as well - which as you may know, is rather in flux here in the US.

<TF_MatthewD> Although there are many who suspect we will see a less pro-plaintiff federal judiciary in the next few years.

<TF_MatthewD> Mindee, what do you think about the cost issue that Prof. Nesson described?  Do you believe that costs of responding to preservation orders are decreasing substantially?

<MindeeW> Probably.

<durgaB> further technology devlopment can help the reduction of cost. however wemust be careful  abuot the other issues

<AbidH> If I may add With technological advances both the cost of data storage and speed of search is and will go down,

<TF_MatthewD> But will these advances actually make it cheaper to search inactive data?  I should tell you that my personal opinion is that costs can still be out of control, especially in a large envrionment.

<MindeeW> I also had another comment.  I believe that companies will probably have difficulty with retention policies and adherence for awhile

<TF_MatthewD> But I'm certainly open to alternative opinions.

<TF_MatthewD> Very true, Mindee.  My experience is that there exists in many companies an enormous gap between the IT people and the legal department.

<TF_MatthewD> The goals of the two sections are entirely different, and they barely speak the same language.

<ZdzislawK> I think that when technology  permit we will try to serch more and more so the costs of data clarificaton and segrgation will go higher.

<durgaB> How can we collect the all data from the world which are in the office of mnc

<MindeeW> The storage industry is making advances and when IT departments pick up their spending the cost and search capabilities that we are talking about will probably come to fruition

<TF_MatthewD> Durga raises a great point.  Even if searching inactive data becomes less expensive, there's still geographical concerns.

<TF_MatthewD> Mindee, do you think that IT departments are well versed in legal needs?  Are they yet designing their systems with the thought of future litigation in mind?

<BrunoM> I think there is a problem in costs issue. Maybe you can help me. Why is it the defendant the one who has to support with these costs if, at least in Brazil, the burden of proof rests with the party which says it is true. I mean, in some way the discovery may be used as source of proof.

<ZdzislawK> I know the company which in past store only seceted info. Now when cost of storage is low they store "everyting" so the cost of segregation is moved to future.

<AbidH> Mathew, Durga raises the issue and if I put a spin on it it takes us to my question/concern that I raised at the start of session.

<ZdzislawK> We never can collect "all" of the data.

<TF_MatthewD> Absolutely - let's look into that further, Abid.  How do we comply with preservation orders in the global sense? This bears on Bruno's point as well - different burdens of proof. (This is starting to look like an advanced Civil Procedure exam!)

<AbidH> What was the second issue that Prof Nesson wanted us to articulate about GAP

<MindeeW> I think there are many considerations that they think are more important than litigation, such as the proper functioning of all departments including operations, sales, and non-litigation legal department.  But I do think that they are aware of litigation concerns.  Businessmen, especially non-lawyers, probably get annoyed when their systems have to accomodate litigation as opposed to simply efficiently running the business

<TF_MatthewD> Professor Nesson is about to begin again.  Great discussion - there's a lot to talk about.

<AbidH> Mathew, take a anology of EXTRADITION TREATIES.may be data transfer treties?

<TF_MatthewD> Abid - great idea - how do we make it happen?

<ZdzislawK> I suspect that the goverments will prefer censorship or information not extradition of information.

<TF_MatthewD> Mindee - I 100% agree - that's the gap that companies face.  I fear that many will only learn to bridge it the hard way - with expensive litigation.

<TF_MatthewD> Very true, Zdzislaw.  We see in many cases that one cannot even take an oral deposition in a foreign country.  How will we get discovery of digital information?

<ZdzislawK> In my country the companies look for data only when the litigation is started or there is necesary to start it.

<AbidH> May be wont have answers by the time the session ends, but putting the "issue" on the table is a very strong start.

<TF_MatthewD> Absolutely, Abid - maybe we're making history here today.

<durgaB> we should work futher on cross boder issue JUST MOVEMENT we cannot predict

<AbidH> Mathew, yes I feel so and with you moderating the discussion.Trailblazing!

<TF_MatthewD> Thanks - this really is most exciting.  I appreciate everyone's enthusiastic participation.

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<TF_MatthewD> ok, so Bruno - what do you think about Professor Nesson's question?  How to produce the electronic data - native or paper?

<TF_MatthewD> And does each side, plaintiff and defendant, realize the potential advantage to having the other side's data in native format?

<ZdzislawK> I think that  this is problem of the secondary importance. For me most important is how to check if the e-mail is the dcocument and not some draft of a gay who has no right to make statement in the name or the compapany.

<ZdzislawK> O cource "guy" not "gay"

<TF_MatthewD> sorry!

<AbidH> Absolutely,"native" data can be a great  advantage to both plaintiff and defendant

<nesson> Abid, how to a defendant?

<ZdzislawK> Why draft after draft, informal interior discussion one after another. How this can help?

<MindeeW> Even though production may be more expensive, doesn't it save giving the plaintiff general access to computer files

<durgaB> native data is benificial to the plaintiff

<AbidH> But what about the authenticity of native data.Are digital signature accepted by the courts.On reflection I agree Prof Nesson, they could not be of advantage to defendants to a substantial degree

<BrunoM> I think that electronic native - data  benefits a lot plaintiffs, because they will be able to search easily any data they need.

<TF_MatthewD> Do we think plaintiffs are often aware of the benefit - that is, do they know how to unleash the power of metadata and the like?

<ZdzislawK> Matthew can they show You on the Webcam for a moment?

<AbidH> One would assume so.But as earlier articulated there is a need for "education" in even the legal fraternity

<BrunoM> They sure do.

<TF_MatthewD> ok, here goes!

<AbidH> Looking good

<TF_MatthewD> thanks (not sure I'm ready for this kind of attention!)

<TF_MatthewD> now we're panning around the whole room - but I'm the one in the tan shirt.

<MindeeW> Regarding the question of quaranteeing best evidence and tampering of documents, isn't it possible to mark when a document was last altered?  Although this is probably an invasion, technologically it is possible.

<TF_MatthewD> I think that is possible in a way, Mindee.  But what if you absolutely don't want to alter the data - don't want to write to it at all?

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<TF_MatthewD> Sameer, welcome.  We've missed you.

<sameerD> am i too late for the webcast ?

<TF_MatthewD> Please tune-in to the webcast at the upper left of your screen.  We've only got another 10-15 minutes, but it's worth tuning in.

<sameerD> how do i tune in ?

<BrunoM> I think you cant obligate the defendant to produce the doc in native - data format, because you impose a excessive burden on the him

<TF_MatthewD> Bruno, that's definitely the defendant's argument.  But in fact, isn't it easier for defendant to produce data in native format rather than conver it to tiff or print to hard copy?

<MindeeW> Also note that we've been discussing the production of data in the civil contest, there are added problems in the criminal context

<sameerD> I agree with Matt. providing data in native format tremendously increases pff's work.

<TF_MatthewD> And I just want to underline Abid's earlier statement - there is a big need for education throughout the legal profession.  It's possible that big defense firms will be advntaged on this front given all their resources.  On the other hand, institutional inertia might keep them behind, so creative plaintiffs firms can really benefit from self-education.

<sameerD> Matt - PLS. HELP. IHOW DO I TUNE IN ?

<BrunoM> The problem is if the data you need is no longer in eletronic format. So you would have reconvert it to eletronic format. That would be a really excessive burden.

<TF_MatthewD> True, Bruno - but I think that might be a narrow subset of information.  Let me know if you think otherwise.

<AbidH> Is the webcast of the first session available for viewing.If yes,please can you give the URL

<TF_MatthewD> Well, the first session had many more technical hiccups (to be euphemistic) than we've had today.  But you can see some of the chatroom dialog.  we'll be sending an e-mail about how to access all that info.

<TF_MatthewD> So what do we think about Prof. Nesson's question - is it enough that defendants claim they acted in good faith?  Or should there be a stricter standard of negligence?  Note that current case law is all over the place on this issue.  Durga?

<sameerD> there has to be some criteria that the defs need to fulfill before they can claim that they've acted in good faith.

<TF_MatthewD> absolutely, Sameer.  How strict should those criteria be?

<ZdzislawK> I think more important is to discuss which obligation to preserve information is reasonable.

<durgaB> it shuold be stricter standerof negligence

<AbidH> Prof.Neson ,it was a wonderful learning experience.

<ZdzislawK> Only when this is solved we can think seriously on juging the negligence.

<MindeeW> Until industry standards get more standardized reasonableness and good faith may very well be the best standards

<TF_MatthewD> true, Zdzislaw.  My feeling is that a reasonable data retention policy is one that has an adequate stop mechanism.

<TF_MatthewD> Reactions?

<durgaB> pof .nesson thank you. it is very much intresting

<ZdzislawK> Company data retention  policy or one forced by law?

<sameerD> Matt-i believe data collation within prescribed parameters too is important.

<TF_MatthewD> The Eighth Circuit in Lewy v. Remington Arms Co. concluded that "a corporation cannot blindly destroy documents and expect to be shielded by a seemingly innocuous document retention policy."

<ZdzislawK> Very general rule. Broad place for interpretation.

<TF_MatthewD> I'm referring to a company's own data retention policy - their day-to-day practice defining when, absent litigation, they destroy backup tapes and the like.

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<sameerD> a data retention policy with 6 yrs for financial data and about 2 yrs. for other kinds of data not already subject to another litigations seems fine.

<ZdzislawK> I want to thank all participants and in particular prof. Nesson and Matthew.

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<ZdzislawK> In Poland financial data has to be kept for  5 years.

<TF_MatthewD> Thanks you all very much - it's truly been a pleasure for me, and I've learned a lot here today.  Thank you for sharing your perspectives with us today.

<durgaB> the data retention system should be clear

<ZdzislawK> Who has to define rules, state, bars, associations?

<sameerD> Matt - will you provide an email giving the url of the site where Prof. Nesson's speech is recorded for people like me who could not access it ?

<TF_MatthewD> Zdzislwa - my feeling is that the rule is defined by the likely relevance of the data to pending or actual litigation.

<AbidH> Mathew,hope my earlier question would be addressed.Thank you very much for your input.It has been great learning experience.

<ZdzislawK> This is criteria ex post and we need some criteria for future.

<BrunoM> I would like to say that this iniciative of the CLE course  through Internet is a really great manner of making this so valuable information avilable to people all around the world.

<TF_MatthewD> There will be an e-mail this week as to that site - though I'm not sure exactly what content will be in there.  We'll be in touch.

<sameerD> should we log off ?

<TF_MatthewD> Your earlier question is important  - how do we deal with digital discovery cross-border.  given just how nebulous things are in the domestically, I think it will be a while before we see clear standards gloablly.  But we must move forward!

<TF_MatthewD> I think now would be a good time to log off.  Again, thank you all.  i have to run - have class with Professor Nesson in five minutes!

<ZdzislawK> Thank You I go out.

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<durgaB> in nepal if the party does not produce the data it is presumed that the evidence is against the parties

<sameerD> Bye all - hope to catch you all some time in cyber space soon & Matt - thanks a ton.

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<sameerD> Durga - so is the case in india.

<BrunoM> bye bye...see you

<durgaB> MAttewd and other buy

<durgaB> sameer i did my degree from delhi university

<sameerD> hi durga- have done my degree from bombay university

<durgaB> sameer we can meet

<sameerD> sure ! if you prefer, you can email me at pkdesai@vsnl.net

<durgaB> sameer also my email-- durgap@ntc.net.np

<sameerD> it is great to find another south asian in this discussion. bye for now durga, will email you tomorrow.