Discussion 2 Log

<TF_TaliaM> We're about to begin!

<LarryJ> hello

<TF_TaliaM> Welcome Larry. Prof. Nesson has just begun.

<LarryJ> ok

<TF_TaliaM> Hello everyone. Larry, could you introduce yourself to the group?

*** jamesK has joined #DD02

<LarryJ> Yes, I am the Director of Electronic Discovery Services for Fios, Inc., in Portland, OR

<TF_TaliaM> James, welcome back. We are glad you made it.

<TF_TaliaM> Larry, welcome. James, could you introduce yourself?

<nesson> hello all, I'm pleased to see you.

<jamesK1> I'm James Kurz.  I practice in Northern Virginia with Reed Smith.

<TF_TaliaM> James, it's great to have you here. We have a very interesting group of people in this discussion group. I am looking forward to the discussions that wil emerge.

<TF_TaliaM> Harry, what do you think of Prof. Nesson's question?

<TF_TaliaM> (yes, this is the socratic method revisited)

<TF_TaliaM> While Harry is preparing his response, please think of how you would answer Prof. Nesson's question.

<TF_TaliaM> Paul, what do you think?

<SethR> There is a significant time lag between questions and answers that Socrates would not have appreciated.

<TF_TaliaM> Seth, why don't you jump in.

<SethR> I think the Professor's characterization of bad faith is misplaced.

<TF_TaliaM> Why is that?

<TF_TaliaM> Jim, could you tell us what your experience of this has been?

<HarryB> I think Prof. Nesson has summed it up exactly right.  Business systems are not built for litigation, they are built for business.  Litigation response commands specifity in response.  Unfortunately, for the most part, computer systems have not been built with the type of litigation-specific search-and-retrieval methodologies that might be required or implicated in the " paper world."

<SethR> The point is that paper is generally preserved for a good period in the normal course whereas digital data is deleted regularly in the normal course.

<TF_TaliaM> If these are the problems, what do we do about them? Seth, why do you think the prof. mischaracterizes?

<SethR> Hence, there is a need to go in and education Defendants and Defendants are shouldering a preservation burden and educational burden (to educate clients) they never had before.

<TF_TaliaM> Harry, what can we do about these problems?

<HarryB> Traditional paper systems tend to be indexed, not dispersed, and not duplicative.  Electronic systems are widely dispersed such that, in a given situation, the ability to locate, let alone preserve "all relevant information," however that may be defined, can be impossible.

<TF_TaliaM> Harry, what are the implications of that?

<SethR> While there is a greater opportunity for both Plaintiffs and Defendants to be disengenuous in their demands and excuses, there is also a greater possibility that both plaintiffs and defendants don't really know better.  It sorts of puts the characters of the lawyers, and the understanding of technology, on trial.

<TF_TaliaM> Seth, that is an interesting point on the character of lawyers on trial. To what effect?

<HarryB> We need to educate judges, we need to change the culture of litigation to one that is reasonable, manageable, and governed by specifity as opposed to the excessively broad discovery standards that American jurisprudence requires.

<nesson> Do you have any sense that judges appreciate the difficulties that preservation orders create for companies, or the tactical value of the preservation order to the plaintiff's lawyer?

<TF_TaliaM> As participants in the Harvard digital discovery project, you are helping us to understand and explore these issues with an eye towards educating judges. But how to change the culture of American jurisprudence?

<SethR> Well, lawyers characters have always to a certain extent been on trial in the context of discovery, but technology ads a new element and the Judge has to guess how much the lawyers really understand and are communicating to their clients.

<HarryB> We also need to accept the concept of "safe harbors" in the context of preservation.  Here, we ought not allow sanctions where a good-faith effort has been demonstrated to acquire responsive documents.

<TF_TaliaM> Prof Nesson makes an interesting point: he is about to continue, but please think about your experiences with judges on this issue. This has already been an explosive conversation. I look forward to continuing.

<HarryB> In response to Prof. Nesson's question, the answer is: It depends.  The judiciary, by and large, usually get it right -- provided that they are given sufficient information.  Here, it is incumbent upon judicial administrators to bring the bench up to speed with respect to technological issues and it is up to litigants to adequately inform judges in any given case.

<TF_TaliaM> Prof. Nesson is speaking about where to draw the line in terms of cost -- what should be presumptively paid for by the respondent? what by the requestor?

<JimM> We have been succesful in quantifying what is burdensome

<JimM> The judges have responded favorably to us when we can show what business impact and what are the costs of perfroming a burdensome request

<JimM> Best case in point is backup tapes

<TF_TaliaM> Jeff Lendino argued that with all the innovations in the tech end of discovery, the costs are becoming negligible. Is Lendino on to something: is the cost problem becoming anachronistic?

<TF_TaliaM> Jim, you have extensive experience in the tech end of things. What is your take?

<JimM1> Absolutely not!!!!!

<TF_TaliaM> Jim, tell us more.

<JimM1> Best case in point is backup tapes

<SethR> The cost of a given search my be decreasing, but perhaps the material suspectible to search is increasing.

<TF_TaliaM> Seth, what is the cumulative effect, then>

<JimM1> Backup tapes have no indexing capability thus no real means to extract data using the technology

<TF_TaliaM> And Harry, you have thought quite a bit about this. What is your take?

<TF_TaliaM> Jim, is this going to be a perennial problem, then, or is there a way to fix it?

<SethR> Jim, isn't it a simply matter to record a tape on a hard drive and search it there?

<HarryB> For those who think the cost of responding to electronic discovery requests is inexpensive, read the Danis case posted on this site.  It is an alarming example of how costs can increase exponentially.  It also illustrates how some courts are unwilling to take charge of the issue.

<JimM1> Seth, we recently had a DOJ request that because of lack of scope resulted in over 3,000 backup tapes being identified

<TF_TaliaM> And is there any way of indexing backup tapes in the future or will they always remain unindex-able and therefore more expensive to search?

<JimM1> Remember the cost involved centered around the identification, location, preservation, collection then restoration of backup tapes

<HarryB> One must also be aware that consultants in this area are quite interested in their own business models, which favor broad discovery orders.

<SethR> I think that was a point made in some of the materials that defendants should be made to pay for their lack of forsight in not indexing backups.

<TF_TaliaM> Harry, that is a very interesting point. In what way does the business interest maintain the status quo of discovery and cost?

<JimM1> Backup tapes are for the intent of DISASTER RECOVERY not discovery

<TF_TaliaM> Seth, that is definitely a viiew that judges have shared. Jim, what do you think>

<SethR> I am not sure I agree with that view, however, since as Jim M1 points out, backups are not created, and perhaps cannot be created, in a manner that lends itself to subject indexing.

<TF_TaliaM> Jim, is it possible that the demands of discovery will change the way that backups are made? what would the costs of such a shift be?

<JimM1> Just for knowledge purposes it costs $1200 per account for us to recover from backup

<SethR> Query, should large companies create new indexing protocols just in case they are required to produce electronic data in the context of litigation?

<JimM1> It costs $60 per account for me to make a snapshot of an active e-mail account

<TF_TaliaM> Jim, is that standard? And, for the sake of clarity, what does "per account" mean?

<JimM1> We have been succesful in getting the backup tape issue off the table if we shorten our backup tape retention per recrods managment gudilines

<TF_TaliaM> Prof. Nesson is about to begin again. If you have further comments, you can write them here or you can send them to us at the end in feedback.

<JimM1> And also offer "snapshots" meaning we copy a person full e-mail account

<SethR> Jim, please translate getting the issue off the table?

<JimM1> Judges responded favorably by us showing that we made a reasonable attempt to preserve electronic data levant records and then copied their accounts that night.

<TF_TaliaM> Prof. Nesson is reviewing and providing an analysis of the three central issues in the process of digital discovery.

<TF_TaliaM> Seth, what is your take on Prof. Nesson's question?

<TF_TaliaM> Harry, what can you add to his assessment?

<TF_TaliaM> Jim, be ready with your response...

<jimM> Okay

<SethR> Well, I lack the technological background and experience to provide much insight, but it seems to me programs to index, if they do not already exist, could be written.

<TF_TaliaM> Jim, what is your expert sense?

<jimM> I did not get the question but assume it has to do with indexing and backup tapes

<TF_TaliaM> Harry, why do you think companies have yet to demand indexes of the software people.

<TF_TaliaM> Jim, that's exactly right.

<HarryB1> I do not believe that such indexing protocols exist.  It's not that simple.

<jimM> Once again, let me point out the differences between active and non-active data

<TF_TaliaM> Jim or Harry, can you explain why? Jim, thank you for getting back to active data distinctions.

<SethR> I suppose investing in a good back-up tape indexing program could benefit the defendant by allow defendant to be more restrictive in its production responeses.

<jimM> We do have access to indexing and searching capabilities for active records

<jimM> I believe that backup tapes are simply part of the requester "desperatley seeking deleted documents"

<jimM> I don't think the focus should be on indexing programs for backup tapes

<TF_TaliaM> And as people are finishing up responses to active vs. inactive data, are there any thoughts about the discoverability of search terms?

<SethR> What, exactly, do you mean by discoverability of search terms?

<jimM> I think Judge Rosenbaum makes a good point with his article "In Defense of the Delelte Key"

<TF_TaliaM> Jim, on the issue of inactive data, you essentially are arguing that inactive data should not be paid for by the respondents, as that data was intended to be deleted and often does not contain anything useful, but is only expensive.

<jimM> Yes, that is partly my argument Talia

<TF_TaliaM> Jim, could you expand?

<jimM> We believe we need to show good faith effort

<TF_TaliaM> And Seth, the question is should requestors be able to know what search terms were used to look for data?

<jimM> Putting a stop on active records and preserving potential evidence seems reasonable

<TF_TaliaM> Jim, how would you define good faith?

<jimM> Maybe I will drop the good faith and just stay with reasonable

<TF_TaliaM> Jim, how do we define reasonable? Is it less than good faith?

<SethR> Without knowing what search terms respondent used, requestor would have no basis for determining whether respondent's efforts were reasonable.

<TF_TaliaM> Harry and Jim, what do you think of Seth's concern?

<jimM> Putting a stop on the rotation of backup tapes with very little scope defined is UNREASONABLE

<TF_TaliaM> We'll be back when Prof. Nesson completes his assessment of the issue of spoliation.

<jimM> I support in the negotitation up front that search terms be discussed

<TF_TaliaM> Jim, that is a really provocative idea. Do you think other companies would be in accord?

<jimM> This allows both parties to see where indexing can be of assistance

<TF_TaliaM> Jim, I agree that it can be very useful and is quite in line with the broad goals of open access to information throughout discovery. Have you found most people to agree or is there dissent?

<jimM> This could offset where a requester simply can state that electronic searching capabilities makes it easier for the respondent

<jimM> In other words. a company like DuPont with all our techincal advances should press a few buttons and presto there are the discoverable documents

<jimM> That is the image being presented

<TF_TaliaM> Jim, you highlight a number of advantages to this method. It is, in some ways, a movement away from the traditional adversarial atmosphere. Do you think there are other areas where this model can be used?

<jimM> Without a discussion of scope including where search terms can be used then this image will continue

<jimM> Yes, I believe there are times that a joint electronic depository can be used

<jimM> We have offered this in some cases but have found few takers

<TF_TaliaM> Jim, I think you are right on as to the need to be clear about the scope of burden on the respondent and the potential enormity of cost. It is interesting that some have argued that the costs will soon decrease.

<jimM> It is a major cultural change for most litigators

<TF_TaliaM> Jim, is there a way to change the culture?

<jimM> But sometimes it is a good way to represent yourself to the "Legal World"

<jimM> A way to change?   Educate, educate, expereince, educate

<TF_TaliaM> Jim, what do you mean by representation? And, as you know, we are in total agreement about the importance of education on all fronts.

<jimM> A "p.r" move.  In other words if you as a company are getting saddled or hit with discovery abuse chgarges it is a way to change your image

<jimM> This is not suggesting that we are that company

<jimM> But we are a target and sometimes you need to change how you are being presneted

<TF_TaliaM> It is interesting what a heightened role image has in this litigation process. An important reminder to those of us still in the academic tower...

<jimM> It is huge!!!   Once you get a label, positive or negative

<jimM> It is very easy for the requester usinfg the FRCP to exacerbate that image

<jimM> In the world of electroinic discovery

<jimM> Don't get me wrong, companies like DuPont have a repsonsibility

<TF_TaliaM> What about the other side -- the image of the needle-in-a-haystack hoping for a settlement plaintiff?

<SethR> Perhaps it should be defendants burden to establish that destruction was non-willful or the destroyed documents were not within the scope of discovery.

<jimM> To have a reasonable and credible records managment program

*** KevinC has joined #DD02

<TF_TaliaM> Welcome Kevin C. We are discussing the issues of spoliation.

<jimM> Defendants' burden???

<TF_TaliaM> Welcome Kevin C. We are discussing the issues of spoliation.

<jimM> It already is that way under the way the rules are interpreted

<jimM> How about the plaintiff being required to show that it is not a fishing expedition

<TF_TaliaM> Jim, should the digital environment change the presumptions? Seth, why do you think it should be/remain the respondents' burden?

<SethR> Certainly defendants are in a better position to rebut the inference than Plaintiff that show what might have been destroyed (I do more defense work than plainitffs)

<jimM> I believe this is where "quantifiable" data showing what is budensome or not comes into play

<TF_TaliaM> Kevin, can you introduce yourself?

<TF_TaliaM> All: Who is in the best position to show that destruction was not willful?

<jimM> Harry, can you offer the letter Tom Allman wrote to Judge Carroll?

<nesson> we will post the letter on our site. It's excellent

<jimM> Talia. please note that several cases show that the defendant gets "dinged" even if the destruction is not deemed willful

<TF_TaliaM> Jim, that is true. What do to about it?

<jimM> Goes back to the scope issue

<TF_TaliaM> As you will see in our replies to the spoliation questions, Linnen is a good example of just such a case.

<jimM> What is in, what is out

<jimM> Backup tapes are in then my chances of a spoliation claim are greater

<TF_TaliaM> We know that time is late... Before logging out, please go to the Role of Judges question on the left hand side of the screen and give us your assessment.

<jimM> If not then I have processes for ensuring preservation

<TF_TaliaM> Jim, have judges connected the question of scope with that of spoliation?

<TF_TaliaM> Harry, what is your assessment of the question of spoliation?

<TF_TaliaM> Kevin, what should be the standard necessary for showing spoliation?

<TF_TaliaM> All: does the digital environment make it easier to accidentally destroy information?

<SethR> Yes, of course

<SethR> I do it regularly trying to clear up my in email box

<TF_TaliaM> Seth, you are right: it is a latent and easy danger.

<TF_TaliaM> Jim, welcome back.

<TF_TaliaM> Is there any consensus about how to deal with the ease of accidental spoliation in the digital environment?

<jimM> I'm back, I filled out my Role of Judges response

<TF_TaliaM> Jim, thank you. We look very much forward to reading it.

<jimM> Just following your directions Talia

<SethR> Jim's trying to improve his company's image

<jimM> Seth, did I tell you I had a marketing minor in college?

<jimM> Just kidding

<TF_TaliaM> :) Harry and Seth, perhaps you could turn to the Role of Judges question now as well. We thank you all for your involvement. This has been an informative and intense discussion filled with very provocative and useful ideas.

<SethR> Thank you and the team.  I enjoyed meeting you all; give me a call if you get to Honolulu

<TF_TaliaM> We look forward to getting back to you with our own ideas and assessments.

<TF_TaliaM> Seth, that is quite an offer. We may well *all* take you up on it.

<jimM> Thanks Seth for the exchange

<SethR> It was meant that way

<TF_TaliaM> Thank you, again, to all of you for the exchanges. I have learned an enormous amount. I hope the discussion provided yuou with an opportunity to think through these issues again.

<jimM> Do I bid adieu now Talia?

<TF_TaliaM> Jim, whenever you are ready. I am here with you until you want to go. :)

<jimM> Well, thank you Talia and Charlie.

<TF_TaliaM> Kevin, I am sorry you joined us so late. I am certain you would have contributed greatly to the converation. Unfortunately, it is now over.

<TF_TaliaM> Jim, from me and Charlie both, thank you.

<jimM> You know how passionate about this issue

<KevinC> Sorry.  I got caught in traffic!

<TF_TaliaM> Kevin, that is too bad. We're sorry you missed it.

<KevinC> Next time.

<TF_TaliaM> The tech people here tell me that it is time to close down the discussion. Thank you again, and we look forward to getting back to you with our responses.