Latest Issue of the EDDE Journal is Out!

The EDDE Journal is the excellent quarterly publication of the E-Discovery and Digital Evidence Committee of the ABA Section of Science & Technology Law. The lastest issue features the following:

Friday Notes

  • Note number one is that I promise to resume posting regularly. I haven't been very good at keeping up here as my case load has grown. It was important for me to spend my time focusing on managing my growing eDiscovery client work. (Don't feel bad though, because you aren't the only ones I've been neglecting. I didn't go to the Georgetown Advanced eDiscovery Institute, LTNY, or either of the last two Sedona Conference® WG1 meetings.) Now that I'm sure everything is under control, I can return to the blogosphere. Yay!
  • Speaking of my return to the sunlight, I am honored to be a panelist at the upcoming annual ARMA Diamond State Chapter seminar, INFO XXX – RIM on the Edge. (Cool name! Jealous much?) I will be on a panel discussing Knowledge Management. I'm excited that two of my favorite people, Vince Catanzaro and Molly DiBianca, are also participating.
  • Delaware's eDiscovery rockstar, Kevin F. Brady, has finally, officially joined forces with nationally known corporate litigator and blogger Francis G.X. Pileggi in the Wilmington, Delaware office of Eckert Seamans Cherin & Mellott. Kevin has often guest posted on Francis' blog, and the two have collaborated on other projects. I wouldn't say they exchange long-protein strains a la Kang and Kodos, but they've been professionally linked together in the past. Read more at Delaware Law Weekly.

[UPDATE] In Defense of Genger, Part II

UPDATE:

I hate to say I told you so, but...wait, no I don't.

Yesterday, the Delaware Supreme Court issued its opinion in this matter affirming the Court of Chancery's spoliation finding. The Court held the spoliation finding proper, because Genger took affirmative steps to overwrite unallocated space, saying:

We do not read the Court of Chancery’s Spoliation Opinion to hold that as a matter of routine document-retention procedures, a computer hard drive’s unallocated free space must always be preserved. The trial court rested its spoliation and contempt findings on more specific and narrow factual grounds—that Genger, despite knowing he had a duty to preserve documents, intentionally took affirmative actions to destroy several relevant documents on his work computer. These actions prevented the Trump Group from recovering those deleted documents for use in the Section 225…

Compare with my statements below that

The [Court of Chancery] opinion in this case does not require preservation of all unallocated space in every case. Genger was sanctioned because he took affirmative steps to overwrite unallocated space, in violation of the Court's order... [T]here is nothing in this opinion that creates any requirement to preserve unallocated space. Rather, the opinion only says you shouldn't go out of your way to destroy it.

I feel quite vindicated in my defense, considering there were some persons and organizations of import in the eDiscovery community lined up on the other side. Obviously, reasonable minds can disagree, especially in interpreting court decisions. Ultimately, I am thankful that the Supreme Court's decision should allay any fears created by certain interpretations of the Court of Chancery's spoliation decision.

ORIGINAL POST (2011-03-11 13:20:45):

I had almost given up on writing this post considering how long it has been since I posted In Defense of Genger, Part I and (more importantly) how long it has been since the publication of the posts I am taking issue with.  However, the ongoing confusion about this case has prompted me to action. 

If you have read Part I, you are familiar with the Court of Chancery's decision in TR Investors LLC v. Genger, C.A. 3994-VCS (December 9, 2009) and with the allegations made by Leonard Deutchman, General Counsel at LDiscovery LLC, in a two-part post hosted by Law.com. <!--You also understand why there's a picture of Austin Powers.--> For those who are not familiar, Mr. Deutchman asserts that the Court got the decision wrong because it (1) does not understand the technology involved (Part 1) and (2) does not understand the law of eDiscovery (Part 2).

It's sufficient to say that I respectfully disagree with Mr. Deutchman on both charges. Rebutting his posts was a fun, interesting exercise for me, but it didn't seem terribly important. I saw it as an esoteric debate between eDiscovery geeks. That has changed, because, today, a prominent media outlet has published a post that elevates the confusion about this opinion and will cause unnecessary fear among corporate counsel.

The latest case of hand-wringing and confusion over this decision comes to us from none other than Forbes by way of Daniel Fisher's post "Delaware Ruling Would Require Massive Data Backups."  Mr. Fisher opens his post stating that:

A little-noticed decision by a Delaware court has the potential to impose huge costs on companies unless it is reversed, computer-security experts say...[e]xperts say retaining such data would be prohibitively expensive since the unallocated space is essentially a trash bin that is altered each time a key is tapped.

<!--Scary, huh?-->

Despite the fact that Mr. Fisher twice refers to "experts" (plural) as the source for these hyper-ventilations, his lone identified source for the post is Daniel Garrie, a lawyer and managing director at Focused Solution Recourse Delivery Group LLC , a computer consulting firm in Seattle. <!--Garrie and Deutchman are both lawyers with eDiscovery vendors. Is there anything to that?--> Mr. Fisher's post continues:

“It’s almost impossible for large companies with massive amounts of equipment to comply,” said Garrie... “I don’t even know if it’s possible,” said Garrie. “I mean, anything’s possible with enough money,” but companies would have to take bit-level images of their hard drives on a regular basis and store them somewhere, to be retrieved each time they are sued. That means all the time for most large companies. The costs would be “exponentially larger,” than current electronic discovery measures. “Several large global companies,” clients he declined to name, “have expressed concern.”

Let me clear up the confusion: The opinion in this case does not require preservation of all unallocated space in every case. Genger was sanctioned because he took affirmative steps to overwrite unallocated space, in violation of the Court's order and without first telling anyone. The routine, passive overwriting of unallocated space was NOT the cause for any sanctions here, so there is nothing in this opinion that creates any requirement to preserve unallocated space. Rather, the opinion only says you shouldn't go out of your way to destroy it. Big, BIG difference. <!--If there are doubts about the Court of Chancery's understanding of eDiscovery, please see their recently released "Guidelines for Preservation of Electronically Stored Information" that clearly embraces the principles of cooperation, reasonableness, and proportionality.-->

To Mr. Garrie's credit, he is consistent—he is co-author of an article in the Northwestern Journal of Technology and Intellectual Property that makes the same mistaken arguments, and he filed a brief with the Delaware Supreme Court arguing for reversal of the Genger opinion. I obviously disagree with Mr. Garrie's opinions on this matter, but I am here to help, so I say:

Mr. Garrie, for the “[s]everal large global companies [that] have expressed concern,” please send them a link to this post and tell them not to worry.

I don't actually expect Mr. Garrie will do that, but perhaps some of his clients will stumble upon this post, in which case here is my advice to them:

If you act cooperatively and transparently, you will be fine. If you find yourself in a similar position to Mr. Genger's, share your concerns with opposing counsel and the court before you do anything. Don't take matters into your own hands and violate a court order by wiping a hard drive in the middle of the night—it's bad form and will only get you in trouble.

Stayed tuned for the decision of the Delaware Supreme Court—I may have a lot of words to eat...

<!--Thanks to flickr user cliff1066™ for the Austin Powers pic.-->

In Defense of Genger, Part I

I rise now to defend the Court of Chancery's decision in TR Investors LLC v. Genger, C.A. 3994-VCS (December 9, 2009) against the allegations made by Leonard Deutchman, General Counsel at LDiscovery LLC, in a two-part post hosted by Law.com.  I promised at the end of April that a defense would be forth coming but wanted to give everyone time to read the two posts to which I respond. 

Mr. Deutchman asserts that the Court got the decision wrong because it (1) doesn't understand the technology involved (Part 1) and (2) doesn't understand the law of eDiscovery (Part 2).  I have decided to respond in two parts to keep each of my posts digestible.

In Part 1, Mr. Deutchman aims to discredit the Court's technical competence, and his first criticism makes unsupported assertions about the Court's findings.

The court ruled that by wiping the unallocated space of the two drives, the defendant violated the standstill agreement and was thus in contempt of court. To reach its holding, the court had to make factual leaps and draw legal conclusions that are in my view questionable.

The court's first factual leap was that because temporary files could have resided intact in unallocated space, they were, in fact, intact prior to the wiping. More specifically, the longer leap is that because temporary files could have resided intact in unallocated space, temporary files important to plaintiffs were destroyed by the wiping.

In my reading, the Court did not assume or conclude that any particular files resided in unallocated space.  Read as a whole, the opinion finds that files existed in unallocated space, some of which may have been relevant, but no one will ever know because Genger destroyed them. The Court fines Genger for willful destruction of data in direct and clear violation of a Court order.

Mr. Deutchman's second criticism was that "that the files [the Court] believed continued to reside in unallocated space if the defendant had not wiped them would have been important to the matter." Here Mr. Deutchman's merely reiterates Genger's "No harm, no foul" defense—or, as Ralph Losey refers to it, the "pig-in-a-poke" defense—to which the Court replied:

For a party to intentionally violate an order not to destroy or tamper with information and then to claim that he did little harm because no one can prove how much information he eradicated takes immense chutzpah. For a court to accept such a defense would render the court unable to govern situations like this in the future, as parties would know that they could argue extenuation using the very uncertainty their own misconduct had created.

Finally, Mr. Deutchman's concludes his first post by suggesting the Court is technically incompetent by claiming the Court thinks of unallocated space as a back up system.

It is important to note that nowhere in typical computer usage or professional information technology practice is the unallocated space on a hard drive regarded as "back up" in the way that the court does here.

No IT professional or typical user would consider unallocated space to be a "backup" space, akin to an external drive or backup tape used to affirmatively back up files, simply because forensic searching could possibly locate therein lost files in their deleted or temporary states.

While the Court of Chancery is likely not full of techno geeks, they seem to more than adequately understand the technology involved. In any case, the Court does not liken unallocated space to a backup system. On this point, the Court said "the information on the unallocated space of the TRI system therefore acted somewhat as a back-stop reservoir of documents that had been deleted from the active files of TRI users," and that the unallocated space was "a data source that would have acted as a back-stop in case relevant evidence had been deleted in the months when the motivation to delete would have been at a zenith." (Emphasis added.) Frankly, Mr. Deutchman's attempt to impugn the Court with this allegation is bizarre considering the plain and clear language quoted above.

I will address Mr. Deutchman's second assault on the Genger decision shortly.

UPDATE: Thanks to LexBlog CEO Kevin O'Keefe for recognizing this as a Best in Law Blogs post, the second time this blog has received that honor.

In Defense of Genger: Background

Ages ago by internet standards (late February), Law.com hosted a two-part post criticizing the Delaware Court of Chancery's decision in TR Investors v. Genger.  Post author Leonard Deutchman, General Counsel at LDiscovery LLC, asserts that the Court got the decision wrong because it (1) doesn't understand the technology invloved and (2) doesn't understand the law of eDiscovery.

I have been chomping at the bit to post a reply but have been consumed with finishing the 70-page (not including appendices) internal Morris James eDiscovery Protocol that overlays the EDRM with project management principles, and the accompanying 6-hour training course, but I digress...

Before I post my defense of the Genger decision, it would be useful for all my loyal readers (primarily my mother and wife) to first read the Law.com articles criticizing the Genger decision.

Part I:

Does Discarding Unallocated Space Deserve Contempt?
Overwriting deleted files leads to sanctions for 'international man of mystery'

Part II:

Seeking Legal Ground in Unallocated Space
Absent an obligation to preserve data, can a party be faulted for destroying it?

I will give you all a few days to get through these posts before I post my defense.  Cheers!

Top 10 Trends in eDiscovery

The e-discovery 2.0 blog recently posted its list of Top Ten Trends in Electronic Discovery.  Read them all, but here are a few that I particularly agree with:

3. Staffing roles continue to evolve with a newfound focus on project management. The role of an in-house e-discovery coordinator will emerge as more of a project management and analyst versus pure legal or IT. This shift will become increasingly necessary as e-discovery evolves from an ad-hoc fire drill to a standard business process that is repeatable, measurable, and defensible.Nostradamus

4. Data analytics and statistical methodologies gain traction to augment the type of subjective decision making approaches that have historically formed the backbone of the e-discovery search and review processes.  These objective methodologies have long been called on as best practices by the likes of the Sedona Working Group. In 2010, they now will start to move from theoretical to practical task as e-discovery tools increasingly move in-house and departments enhance defensibility and add elements such as sampling into the workflow

6. Associate-based review gradually goes extinct, as both clients and law firms tire of expensive, linear review processes.  More review work becomes either insourced or is managed with specialized contract attorneys, who are both cheaper and better trained for this type of work.

Read the full list...

Also, a big thanks to The Posse List for including this blog in the Blogroll on their new site The Electronic Discovery Reading Room.  They are aggregating a lot of great material on the new site.  Take a look.

What Every Businessperson Should Know About E-Discovery

This video has been on YouTube for a while and made the rounds before, but it's so straightforward I think it's worth sharing again here.

Old ZyLAB Promotional Video from 1994

This is apparently a 15-year-old ZyLAB promotional video recently posted on YouTube.  The video covers some eDiscovery related technologies, including OCR, fuzzy searching, and automatic bates numbering.  I figured all you eDiscovery geeks would enjoy this peek into the past.  The eDiscovery specific stuff starts at 3:41.

 

 

eDiscovery Gets Rocked to the Core

I've been über busy the last few weeks.  Hence the short posts.  Things should clear up enough that I can resume dazzling you with my eDiscovery acumen next week.  To avoid going totally postless this week, I offer the following:

eDiscovery is cool.  But be on notice, eDiscovery is about to be pwned by Morris James.

Happy Labor Day!