Discussion 4 Log

<TF_AlexiM> Hi Everyone.  Welcome Back.  My name is Alexi.  I am a law student working with Prof. Nesson on Digital Discovery.  We’ll get started in a few minutes.  Why doesn’t everyone introduce yourself as you enter.

<TF_AlexiM> Prof. Nesson will have some introductory remarks in a minute

<jonS> jon stanley esq in Maine

<TF_AlexiM> And away we go...

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<TF_AlexiM> Hi Michael.  We're just getting started.  Prof. Nesson is doing some introductions

<TF_AlexiM> In general, This will be a space where we can all share ideas and interact.  Also, we will be learning through Socratic dialogue, so I may call on people to respond to a particular question.  If you would like to respond to a comment by a particular person, just add that person’s name to the beginning of your post, so we can keep it straight.  Also, if you want to say something to me personally, you can click on my name on the right, and a

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<MichaelP> Hello Alexi.  Glad to be with you.

<TF_AlexiM> Hi Michael.  Was the sound and audio ok this week?

<TF_AlexiM> Sound and video, I mean

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

<jonS> hell prof

<jonS> hello..oops

<TF_AlexiM> You're right about the spellcheck, Jon :-)

<jonS> a BILLON dollar idea

<TF_AlexiM> Let's do it -- I smell an IPO

<MichaelP> Hello Professor.  Everything seems to be working fine on this end.

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<TF_AlexiM> Jon -- do you agree that judges are generally defense oriented?  Do you think digital discovery has an equalizing effect?

<jonS> yes and no

<jonS> yes to first  no to second

<TF_AlexiM> Could you explain what you mean

<jonS> money manpower is the key in any discovery process

<jonS> def usually has more of both

<TF_AlexiM> But a broad preservation order might overwhelm even large manpower, no?

<TF_AlexiM> Michael -- what do you think of the statement that preservation orders are rife with bad faith?  Do you agree?

<TF_AlexiM> Anyone can respond to that one

<jonS> I don't think they are "rife with bad faith" but it often happens

<jonS> out of necessity

<MichaelP> No I don't.  I think that they are the logical first step in the data collection process.

<jonS> in other words is the overbreath willfull?  Or inevitble?

<TF_AlexiM> Michael -- even if they are a logical first step, is bad faith inevitable?  Do you agree with Jon?

<jonS> I don't mean bad faith is inevitalbe...overbreath is

<TF_AlexiM> Brandon -- Would you support an amendment to Rule 34 that “parties should not be required to suspend normal operation of reasonable document destruction without prior orders?”

<TF_AlexiM> Would anyone support an amendment that limits spoliation sanctions to willful violations of preservation orders

<jonS> in a trade off for the creation of a standard of care PRIOR to litigation maybe

<jonS> I might

<TF_AlexiM> Do you think this might affect the bad faith that infuses the process?

<jonS> not clear what you mean

<BrandonD> Provided that the Rule 34 amendment is limited to situations where suspending doc destruction would substantially impede the company's ability to function or pose significant technological burdens, then I would support such an amendment.

<BrandonD> Sorry, I type REALLY slow.

<TF_AlexiM> No problem Brandon.  Does anyone want to repond to what Brandon said?

<jonS> I would say it goes to what they did prior to the action starting

<BrandonD> In what sense?

<TF_AlexiM> Would you require that a company have a clear retention policy for the amendment to kick in?

<jonS> yes, I think so

<jonS> you can't start a process that will see more and more material go digital and

<TF_AlexiM> Most preservation orders of digital info might impede a company's ability to function.  Would you allow the amendment in all digital preservation orders?

<jonS> then say we have no policy in case this happens

<jonS> the duty is not imposed, like HIPAA does

<TF_AlexiM> Obviously, there is much more to be said on this, but we are going to go back to Prof. NEsson now.  Feel free to keep discussing while he talks.

<TF_AlexiM> How did you all come out on the issue of deleted email?  Do you think there should be a showing of necessity and relevance before a producing party should be required to spend the money on recovering deleted email?

<MichaelP> I do.

<BrandonD> I agree.

<jonS> yes

<jonS> unless it is inviolation of the a company policy

<jonS> exactly my point

<TF_AlexiM> What do you all think?  As our technology advances, will costs drop?  If so, does this make the line of active vs. inactive harder to defend?

<jonS> Not sure about the first.....agree with the premise of your second question

<TF_AlexiM> As companies create clearer retention policies, they will have better control over their data

<jonS> that is a duty....or should be.  Increasingly it is law

<TF_AlexiM> And as they recognize the need to search inactive data, they will likely keep it in a more searchable format, no?

<TF_AlexiM> Won't this reduce overall costs?

<BrandonD> Yes, I would think so.

<jonS> that depends on the interoprobility problems.

<jonS> the pace quickens....programs are hard to work with

<TF_AlexiM> Michael -- if the costs of searching inactive data go down, then would it make sense to require production of all active and inactive data?

<TF_AlexiM> All -- would you consider hiring a discovery consultant to help comply with such a preservation order?

<jonS> for def you should have one PRIOR to problems

<jonS> yes for Plaintiffs

<BrandonD> In one case I was involved with recently, the plaintiff requested info off of an old computer. The problem was finding someone who still had the technical know-how to access the data stored on an outdated machine. I would think that this problem will always exist to some degree.

<MichaelP> So much of the cost relates to the inefficiencies in the current process of taking electronic data to paper or TIFF and back to electronic again.  Clearly new technology is going to drive that down.  Moreover as companies move to ASP type support structures, expanding the percentage of data that is active may become part of the contract with the ASP.

<TF_AlexiM> What about the issue of deposing IT personnel?  What are the benefits of learning more about a company's retention policies?  I am looking for specifics here.

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<jonS> do it early in the action, in comb with interrogs and request for admissions leads to many things that help

<TF_AlexiM> How would knowing about a company's retention policy assist in preparation for a case?

<MichaelP> Most companies do not integrate IT with Legal from a policy or practice standpoint.  So the deposition provides real insight on how those two worlds are intersecting or colliding.

<jonS> that policy has to change...don't you think Michael?

<TF_AlexiM> Michael -- would you recommend generally that there needs to be more interaction between lawyers, IT personnel, and management?

<jonS> the tobacco people were masters at it

<MichaelP> Absolutely.  Otherwise companies are sitting on a potential time bomb.

<jonS> alexi are you familiar with netspionage of the ABA?

<TF_AlexiM> No -- please explain

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<jonS> it is a group of lawyers that is working towards this issue of bringing in house counsel and IT people together BEFORE trouble.  I will send you the site if you want

<jonS> I belong to it

<TF_AlexiM> Brandon --have you found that gaps do indeed exist between retention policies and reality?

<TF_AlexiM> Thanks jon -- I would like that info

<BrandonD> Yes. I've found that employees are often unaware of retention policies.

<TF_AlexiM> How would you close the gaps?

<BrandonD> Or rather unaweare of the sdpecifics of retention policies.

<jonS> Brandon, don't you think the change in laws has done that?

<jonS> GLB, Hipaa, esign have changed the nature of things. or will

<BrandonD> Has the change in laws closed the gap between reality and theory? I haven't really seen that.

<TF_AlexiM> OK all -- we are going back to Prof. Nesson now.  Feel free to keep talking

<jonS> now the legal 'hammer' is in place.  No case law yet, but it is coming soon

<TF_AlexiM> Jon - What are your views on exchanging search terms?  Would you ever be willing to disclose your search terms to a requesting party?

<jonS> yes, If I liked what I had found:) on my search

<jonS> I would try to fight it as work product as the Prof said

<TF_AlexiM> Brandon -- Would you ever seek plaintiff involvement in choosing search terms?

<BrandonD> Yes.

<TF_AlexiM> Alexander -- If you were a plaintiff attorney, would you ever be hesitant to get involved in choosing search terms?

<TF_AlexiM> Would that mean you would take on some responsibility for incomplete searches?

<TF_AlexiM> What do you all think?

<jonS> I think you would have to take some responsibility if you helped make up the search terms

<jonS> some, anyway

<MichaelP> This exchange of search terms frequently occurs in the M&A, when negotiating with the Government.  It certainly helps if documents come out from paper source materials that were not uncovered with the computer search.  But for bread & butter litigation I agree with Jon.

<AlexanderM> Agreed here, the search terms are not only revealing but create some responsability

<TF_AlexiM> Do you think defendants would be willing and interested in involving plaintiffs, in an effort to avoid costly disputes down the road?

<jonS> I've seen it happen....and I've seen it fought

<BrandonD> Fought based on what?

<jonS> worried about wavier of privilage

<jonS> to what might be found

<AlexanderM> I've also seen it fought on privacy grounds

<TF_AlexiM> Metadata is a particularly interesting part of digital discovery.

<jonS> oh you bet!

<TF_AlexiM> Do you think there ought to be a showing of need and relevance before requiring produciton in electronic form?

<jonS> what would be the standard to meet need and relevance is the question.

<jonS> perhaps

<TF_AlexiM> Michael -- Do you think plaintiffs would claim they have a right to metadata?  How would you respond?

<jonS> metadata goes to notice, don't you think, among other things?

<TF_AlexiM> Please explain, Jon

<jonS> meta data tells me, or can tell me, who saw what and when.  Who requested and edited the document.  Who "tracked changes" on the document?

<TF_AlexiM> If you were making a production request, would you include a request for production in a particular, searchable format?

<AlexanderM> and other things like authorship, timing etc

<jonS> this is exactly how the tobacco industry lost privilage in the MInn case.  the crime and fraud exception

<jonS> via metadata

<AlexanderM> there is certainly some money to be made on getting production to that format

<MichaelP> I think it's similar to deleted files.  Why do they need it.  Emerging technologies are rendering native files to PDF, but fingerprinting the original files with encryption technology so that if metadata is released, proof can be provided that the original native files have not been altered.

<TF_AlexiM> How would you deal with the inadvertant disclosure of privileged info?

<TF_AlexiM> Did Prof. Nesson's distinction of search vs. production use of computers make sense?

<MichaelP> yes, it was very clear

<AlexanderM> yes

<jonS> I was not clear on it....

<BrandonD> I wasn't either

<TF_AlexiM> I guess I am wondering if you would ever rely ONLY on electronic search and production, or would you always have humans check it?

<TF_AlexiM> Do you think a judge would be sympathetic to a claim of privilege if only computers had been used?

<jonS> yes, have relied on it and would do so in the future in some cases

<jonS> in some cases there is no other practical way

<nesson> Using electronic search is an aid to efficient search; but whether or not to produce in electronically searchable form is a different matter altogether.

<MichaelP> Without first dealing with inadvertently produced privileged or confidential trade secrets?

<AlexanderM> there are many things that you don't get from only electronic search imho

<AlexanderM> unless you include things like being able to take a look at some sample docs

<jonS> but if the volume of docs is so large there is no other way

<AlexanderM> and also knowing something about the breadth of the docs that do not come out as "hits"

<TF_AlexiM> do you think there are problems of receiving info in native format?  What if you don't have the hardware or software to deal with it?

<AlexanderM> true the volume of docs may require searching for the bulk of discovery

<AlexanderM> AlexiM's point is huge

<AlexanderM> There are no "discovery licenses" for much software

<jonS> agreed that is huge problem

<TF_AlexiM> How would you deal with it?

<jonS> especially when IT people may make it more difficult to search

<AlexanderM> luckily these document formats are a minority of what is important in most cases (imho)

<AlexanderM> I think you would want some agreed upon formats and then lists of documents in other formats

<jonS> and what if the digital key that unlocks the info is destroyed?

<jonS> real problem then

<TF_AlexiM> OK, we are going back to prof nesson now

<AlexanderM> not some different from the problem of documents in a log that have been lost

<jonS> not sure about that Alex

<AlexanderM> because you can re-find these docs?

<jonS> the mass and breath of information that is gone....forever.  Not random

<jonS> in one fell swoop

<AlexanderM> ok. I get your point.

<TF_AlexiM> Do you all find that the existing sanctions regime functions as an effective deterrent against spoliation?  Brandon, what do you think?

<MichaelP> Need to hop off.  Thank you.  Enjoyed the discussion.

<TF_AlexiM> Thanks michael.  good to talk with you

<jonS> good by Michael

<AlexanderM> ciao

<TF_AlexiM> Alexander - do you think compliance has gotten more difficult in the digital setting?

<AlexanderM> yes - of course

<AlexanderM> more complex if not more difficult

<AlexanderM> part of this is the techie -- lawyer disconnect

<TF_AlexiM> Do you think a plaintiff's lawyer has an argument that there is no substantial difficulty?

<jonS> never?

<TF_AlexiM> I think one problem might be in trying to show what harm resulted

<TF_AlexiM> What if five backup tapes were missing -- how would you show that you have suffered harm from their absence?

<jonS> but its an infrerence we are talking about, not an irrebutable presum

<jonS> right?

<TF_AlexiM> Do you think juries see the difference?

<AlexanderM> that was my impression

<jonS> maybe...maybe not.  seen it go both ways

<TF_AlexiM> I would think that if a jury is trying to figure out who the "bad guy" is, this would be pretty damning.

<AlexanderM> certainly

<jonS> It sure can be....but is that not the breaks?

<jonS> not being flippant about it.....

<jonS> the law is not perfect....as the judge says to me

<AlexanderM> the water will always be muddy

<TF_AlexiM> What do you all think on the "good faith" issue?  Should a showing of good faith be a defense to spoliation?

<AlexanderM> so this will only be another speck of dirt

<TF_AlexiM> Would you restrict spoliaiton sanctions to only willful spoliation?

<jonS> a "defense" yes, but not the end of aurgument

<TF_AlexiM> How would you continue the argument

<jonS> this gets us back to a retention policy in place prior to all this happening

<TF_AlexiM> Definitely!

<jonS> or me, anyway.

<AlexanderM> and the communication re: discovery once the law suit begins

<TF_AlexiM> yes

<jonS> insurance rate reductions for in place retention will effect this process

<AlexanderM> great point

<TF_AlexiM> (As a side note, don't forget to fill out the "Role of Judges" Form, and also the Feedback forms -- both on the nav bar to the left)

<jonS> alexi, where can I send that website I spoke of?

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<TF_AlexiM> you can email it to me at amaltas@law.harvard.edu

<TF_AlexiM> I will pass it on to Prof nesson

<jonS> I will send it this afternoon.  I think you will enjoy it

<TF_AlexiM> Thanks.

<jonS> great job you guys!

<TF_AlexiM> Thanks to all of you.  Great discusison!

<jonS> your welcome

<AlexanderM> really good job on the moderating

<TF_AlexiM> I hope we can do more CLE classes like this in the future

<AlexanderM> I like the small groups

<TF_AlexiM> Thanks Alexander

<jonS> signing off. will get to the forms and role of judges...take care.  Been fun

<TF_AlexiM> Ok bye -- Thanks again for all your input

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<AlexanderM> ditto here, will get to those two forms as well

<AlexanderM> thank you again.

<TF_AlexiM> Bye and thanks for the great discussion

<TF_AlexiM> I learned a lot