February 22, 2008
Breaking through the ESI Inaccessibility Wall - Feature Guide
My latest article, "Breaking through the Inaccessibility Wall -- A New Angle", is published in the current February/April 2008 issue of Litigation Support Today magazine. You can download the PDF reprint here.
Corporate counsel struggling with records retention should be among the first to read this, as their regular business information can be used against them in unforeseen ways. Indeed, my alternate title for this practical guide is "Call the Help Desk, Your Accessibility is Showing". From discussions with various corporate and outside counsel, a common misconception under the new rules is that backup tapes are an inaccessible “safe harbor” media as long as one asserts they are only used for disaster recovery. Depending on the specific facts, this could prove to be a costly assumption as newer decisions consider the totality of the burden and cost under Rule 26(b).
As a result, I suggest a novel but very practical approach to challenge or confirm an opposing party's assertions using business intelligence methods and their own data. In accessibility matters, courts are increasingly demanding objective data on which to base their discovery rulings rather than relying upon subjective arguments and affidavits claiming excessive time and expense are required. It’s also contemplated in the Committee Notes regarding sampling and other techniques.
As an example, corporate help desk logs can be used to quantify the frequency and purposes for which backup media are being accessed. However, other seemingly mundane systems and data may be useful and relevant. This further illustrates why companies continue to need savvy e-discovery professionals to bridge the legal/IT gap and identify opportunities and weaknesses others have missed. I also provided an update on how the backup technology landscape is changing and what you should know about it when dealing with ESI accessibility issues.
February 15, 2008
2008 Corporate Legal Technology Trends @ InsideCounsel
From insourcing the e-discovery process to automated document review, the world of legal technology is rapidly changing. If you missed LegalTech New York or just want to keep up on the current trends, my latest InsideTech column at InsideCounsel will bring you up to speed.
Among other hot topics, LegalTech was brimming with discussion on the Qualcomm fallout, records retention, proactive approaches, and automated review. In addition, I covered key issues such as cost reduction, the effects of globalization, data privacy, and outsourcing/insourcing. With recessionary concerns on the rise, corporate law departments are being asked to do more with less, and these issues will continue to compound through 2008 and into 2009.
February 09, 2008
Word 2007 -- A Tale of Two Experts @ LegalTech NY
It was the best of times: While making my way through the vendor hall jungle at LegalTech NY, I had the pleasure of catching up with Donna Payne (Payne Group) and Sherry Kappel (Microsystems). I always find time to seek out these document technology savants, and this week's discussions were as helpful as ever.
My personal opinion is that Office 2007 is the clear winner from Microsoft this past year (definitively overshadowing Vista), and the massive improvements are well worth the office suite upgrade and third-party integration efforts. Sherry insightfully observed that with Word 2007's linked styles right out of the box, firms are likely going to need to pay even more attention, not less, on training and reinforcing solid style usage with their user base. As Sherry mentioned in a recent ILTA publication, if you're not automating your document practice, then how are you going to maintain your margins when your corporate clients demand a substantial rate cut? Also, she noted that the new XML format, while adding some needed document file stability, also adds a bit more complexity due to the XML intricacies.
Donna Payne and I had some techno.fun comparing and contrasting Word's built-in Document Inspector capabilities to a dedicated metadata scrubber such as Payne's Metadata Assistant. On one hand, it would seem that Word's built-in Document Inspector gets the job done. Both Donna and I have used it and found it to be effective, especially in a pinch where you're working on a simple document and just need a quick scrub before sending it off to someone. When you want to remove just about everything, it pretty much does the trick. But in comparing notes, we quickly agreed it has several fundamental weaknesses:
1) No Workflow: In other words, when using Word's Document Inspector, you have to remember to manually scrub and save the Word document before you start the e-mail process. Third-party scrubbers add the necessary workflow which allows you to scrub the file as part of the e-mail attachment process.
2) No Selective Scrubbing Within Each Category: For each of Word 2007's five scrubbing categories, it only offers you an "all or nothing" approach for the items in that particular category. There is no middle ground. So if you want to scrub only some of the document property fields, but keep a few like "Author" and "Title", you'll need to first remove all of that category's metadata, and then manually retype in the few you want to retain. And that's a bad thing, because you can lose useful or necessary metadata in the process if you're not careful.
So while we've seen very substantial improvements in Word 2007, firms and companies will still need to assess their overall practice workflow and specific scrubbing needs, and it will likely take third-party add-ins to more fully address them.