LAWTECH GURU BLOG by Jeff Beard

Don't Blink! This Week's eDiscovery Developments

To catch you up for the week --

New FRE Rule 502 signed by President

New Evidence Rule 502 protects against the inadvertent waiver of the attorney-client privilege or the work product protection. It will apply in all proceedings commenced after the date of enactment and, insofar as is just and practicable, in all proceedings pending on such date of enactment.

Discovery Disaster Threatens to Derail Case Against Former McAfee GC

Contract attorney reviewers, like Rodney Dangerfield, just get no respect. Despite being under subpoena for two years, several key e-mails were not produced by a law firm until the eve of trial, allegedly because their contract review attorneys tagged them as "not relevant", and the senior lawyers missed them as well.

My take: Supervising attorneys, regardless of whether they're supervising the work of internal legal assistants, outsourced contract attorneys or other service providers still bear the ultimate responsibility for their collective work. The timing of the firm's "discovery" is sure to be good fodder for cocktail and blogger discussions for weeks to come. The judge initially reacted by saying "heads will have to roll", but then relented upon hearing the explanation.

E-Discovery Response Must Include Context?

Sometimes the electronic equivalent of papering your opponent to death can backfire: The producing party responded with 400,000 pages worth of ESI, significantly more than the requesting party was seeking. The problem: They delivered the documents in 220 unlabeled computer folders -- the way the company said they were kept in "the ordinary course of business." Per the article:

"A party who in response to a discovery demand has chosen to produce documents as they are ordinarily maintained must do just that - produce the documents organized as they are maintained in the ordinary course of producing party's business, with at least some modicum of information regarding how they are ordinarily kept in order to allow the requesting party to make meaningful use of the documents," the magistrate judge wrote in Pass & Seymour v. Hubbell Incorporated, 5:07-cv-00945. (emphasis added)

To make information meaningful, parties have to provide their adversaries with some context to help them navigate their way through it, according to the magistrate judge.

"At a minimum, that means that the disclosing party should provide information about each document which ideally would include, in some fashion, the identity of the custodian or person from whom the documents were obtained, an indication of whether they are retained in hard copy or digital format, assurance that the documents have been produced in the order in which they are maintained, and a general description of the filing system from which they were recovered," wrote Peebles, who sits in Syracuse, N.Y.

GCs See Major Changes in Company Risk Management in Wake of Wall Street Meltdown

"Corporate general counsel expect increased company risk management and more regulatory enforcement in the wake of collapsing financial institutions, such as Fannie Mae, Lehman Bros Holdings Inc. and American International Group.

State government regulatory oversight will rise with more attorney general probes, and federal oversight will expand in step with the next presidential administration, said some general counsel attending the Argyle Executive Forum in Chicago this week."

Not an eDiscovery development per se, but a sign GCs are already seeing they'll need to intensify their risk management and compliance initiatives or suffer the consequences, which in my opinion will include eDiscovery ramifications and costs.

Nifty Add-ons For Dual-Booting Vista and XP, and One to Avoid

I've been meaning to post this one for a while, since I'm sure there are others who'd like having their PC dual-boot between Windows Vista and XP, at least until we get a better glimpse of what Windows 7 has to offer.

While there are a number of self-help guides online for installing XP on a Vista PC and vice versa (the steps are different depending on which OS is installed first), I thought I'd share my experience and recommendations for two free dual-booting software apps: NeoSmart's EasyBCD and PROnetworks' VistaBootPro.

You see, Windows' boot file structure changed between XP and Vista. With Vista, Microsoft introduced BCD (Boot Configuration Data) as the new method for handling multiple boot entries. As I mentioned, several programs try to help make this easier. They allow easy control over your boot menu options, such as which OS will boot by default, setting the delay period to allow you to choose manually in the boot menu, etc.

When I installed XP Pro on my Vista Ultimate laptop, I downloaded and installed VistaBootPro first as it seemed a little easier to use. I repartitioned my laptop's hard drive using the "Shrink Volume" feature in Vista's drive tools, and installed XP Pro on the new partition. XP naturally overwrote the boot files so that the laptop booted into XP, and therefore couldn't "see" the Vista boot loader at bootup (this is normal).

But beware: After installing VistaBootPro, it trashed the XP boot loader, resulting in it not finding the boot files and making the laptop unbootable in either XP or Vista. I restored my hard drive image from backup (always do a full drive image backup before attempting anything like this), repartitioned, and re-installed XP. My laptop booted into XP as it should. Again, all was great until I reinstalled VistaBootPro, and the same problem occurred on the third attempt as well, so I strongly recommend staying away from this one unless you enjoy raising your personal frustration level by a factor of 10 and wasting several hours.

Next, after starting over, I installed EasyBCD instead of VistaBootPro. XP booted just fine, and I launched EasyBCD to configure the dual boot options between Vista and XP Pro. It was almost as easy to use as VistaBootPro with the key exception that EasyBCD actually worked for me.

Here's another handy tip: Download and install iReboot, a tiny companion program from NeoSmart that runs in your system tray in each Windows OS. iReboot allows you to right-click on it to reboot directly into the other OS, bypassing the boot menu altogether for a faster reboot. I installed it after a few times of accidentally rebooting into Vista because I missed my 15-second window in the boot menu to select XP Pro. iReboot has saved me a lot of potentially lost time. It's also available from within the EasyBCD program, just click on its "Useful Utilities" button. Just remember you need to install it in both XP and Vista. It only takes up a very tiny 400K of memory so it doesn't detract from system performance.

Why default to Vista? Some may be surprised to hear I actually prefer Vista's Aero interface, search, Windows Update, and several other enhancements over XP and use it for my regular personal computing. Out of the box, Vista Ultimate has been incredibly stable and reliable on my laptop, a bit more so than even XP Pro -- go figure. I also wanted to learn its intricacies and foibles. However, I prefer to do my web development and photo editing on XP Pro simply because XP is leaner, applications run faster on it, and it doesn't have the overly restrictive security hangups of Vista, which tends to get in the way of development work.

By the way, even though Microsoft stopped distributing Windows XP to retailers at the end of June, you can still purchase Windows XP from stores and online retailers such as Amazon and Newegg as long as they have remaining stock. (I just checked online and they do.)

Tip: Make sure if you're planning to install XP on a newer PC that you can get your hands on the appropriate Windows XP drivers for all its devices and components from your PC manufacturer. Only some may provide them now, as I've heard a number have stopped supporting XP altogether on newer hardware. While XP may run on newer hardware using its bundled generic drivers, it probably won't be optimal, and you may have one or more unrecognized hardware devices in XP's Device Manager as a result.

Ralph Losey: Trial Lawyers Turn a Blind Eye to the True Cause of the E-Discovery Morass

Ralph Losey has a very thought-provoking analysis of the new Interim Report & 2008 Litigation Survey of the Fellows of the American College of Trial Lawyers. I recommend Ralph's post as it provides some welcome perspective.

Ralph covers a number of points in the interim report and survey, some of which he agrees with, but also points out what they missed. As Ralph summarized, the report is quick to place the blame on poorly drafted rules (which underwent a significant commenting, revision, and review process), e-discovery vendors, and even the judiciary. As he commented, no fingers point back to the trial lawyers themselves:

"I agree with the eminent trial lawyers and academics that conducted this study that our rules and law need reform, and our judges need to do a better job. But, in my opinion, the fundamental cause of the e-discovery problem is the failure of the legal profession, especially the trial bar, to keep up with the rapid changes in technology. That is why new rules and legislation alone will never fix the problem. Such reforms must be coupled with an aggressive attorney education program that starts in law school. Some law firms today are starting to awaken to this problem and set up internal training programs. So too are a few law schools. But the vast majority of our profession still refuses to own-up to the competency issue. They either ignore the problem of e-discovery all-together, like most academics, or they acknowledge the problem, like this report does, then blame anyone other than themselves." (sic)

Ralph raises a very important issue: Lawyer competence, education, and experience with technological and e-discovery matters. Ralph illustrated how a number of these distinguished trial lawyers hardly seem in touch with these issues:

"'Nearly 60% of Fellows reported having cases that raise electronic discovery issues.' (My Comment: this means that 40% of these distinguished Fellows have never had a case with electronic discovery issues! And yet, this same group, 87%, agree that electronic discovery is too costly.)"

Please note the comment above is Ralph's, not mine. I tend to be careful in not relying on bare statistics too much, but it is scary to contemplate that 40% of the responding Fellows have never had a case involving e-discovery, yet they are opining in a report on e-discovery.

Another tidbit from the survey:

"71% of Fellows say that the costs of outside vendors have increased the cost of ediscovery without commensurate value to the client"

All I'll say to that, in the immortal words of Red Adair: "If you think hiring an expert is expensive, try hiring an amateur." It's widely accepted and frequently quoted that the largest cost of e-discovery is the legal review. Which is usually performed by . . . (wait for it) . . . the legal team! Yes, fellow readers, there is an elephant in the room. Consider that most legal review is billed by the hour, a process which does not usually encourage efficiencies. So it's not the preservation, collection, or processing that's the most expensive component of e-discovery in most cases, but the lawyer review.

I also read the August 22nd Wall Street Journal article, "Tech Firms Pitch Tools For Sifting Legal Records," (subscription required) the day it came out. A main theme of the article was contained in the second page's heading, "Record-Sifting Software Meets Lawyers' Resistance." Again, trial lawyers being portrayed as avoiding technological solutions in e-discovery?

I was very tempted to blog about the WSJ article, as I took issue with the comment by Autonomy's chief executive regarding e-discovery work: "It is work that requires little brain-power or legal training." I'm inclined to infer from that quote that he hasn't gotten his hands dirty in too many (if any) e-discovery cases if he thinks that and was quoted properly. By the way, a number of other notable e-discovery and legal bloggers felt similarly about the article, including Ralph Losey, Carolyn Elefant, Ron Friedmann and Brett Burney. (Update: Read the comments at the end of Ralph Losey's post, where Mr. Lynch states he was indeed misquoted. Regardless, the gist of the WSJ article sparked a tremendous amount of negative feedback from the eDiscovery community.)

Regarding the use of new automated systems to aid in e-discovery, the WSJ reporter stated:

"But big law firms, facing the loss of lucrative client fees, are crying foul. They question how much of the e-discovery process can be automated and how much money the tools will really save."

Let's also examine where the vast collections of ESI come from, and about which the trial lawyers are complaining: From the litigants themselves, at least for the most part. Ralph describes them more colorfully as "disorganized pack-rats". Thus a key part of the "e-discovery morass" stems from the over-retention of the litigants' own data. An effective litigation and e-discovery readiness program includes the active (not passive) approach to appropriate electronic records and information management. If you want to save on the most expensive part of the e-discovery process -- the legal review -- then it makes sense to reduce the mountains of data to review. That's where the experts, consultants, and vendors add commensurate value. We know legal review is expensive, and part of the "eDiscovery 2.0" paradigm is to take a more savvy approach to how companies manage their data and especially in more efficient culling techniques. So until the companies themselves address their internal information management issues, relaxing the federal rules or their interpretation could end up as a band-aid used to cover the gaping wound.

As with many complex problems, there are multiple perspectives, approaches, and solutions. I respect that, but also tend to agree with Ralph's statement: "The College of Trial Lawyers is correct to see e-discovery as a real problem, even if they do not yet understand the full dynamics of the problem." He suggests adding two items to their plan:

1. Lawyers stepping out of their long shadow and recognizing that they are part of the problem, and that most are deficient in understanding the new technologies that drive today's world. (I'll add that you can't address a problem properly until you recognize that one actually exists.)
2. We need to address the problem with strong educational efforts in both the Bar and academic institutions.

Thus I really liked the last paragraph of his conclusion, and frankly I can't think of a better way to put it:

"Electronic discovery can be done in a cost effective manner, if you know how. The way out of this morass is learning, and the knowledge and wisdom that eventually comes with it. Study is required by everyone: lawyers, judges, paralegals, technicians, professors and law students alike. We all need to master technology, especially technologies related to electronic discovery. This in turns requires learning to work with Information Technology experts. The alternative is to turn back the clock to a paper world, turn off all of the damn computers and stop sending emails. I know many lawyers out there who might like that. But, since that is not likely to happen (your kids won't allow it), we need to start understanding all of these high-tech toys, at least well enough to find the evidence they generate and hold, and not break the bank in the process. It can and will be done, as soon as we accept responsibility for this problem ourselves, stop blaming it all on the rules and judges, roll up our sleeves and start learning how it all works."

Webtop Wars & Security Patches for Google Chrome Browser

Several days after its beta release, and it looks like Google's new Chrome browser suffers from security flaws much the same as its competitors. CNET News' Security blog posted about a number of security patches already released by Google. Also, yesterday Google established a Google Chrome Releases blog to let users know about releases, fixes, security updates, and other changes.

Just remember, Chrome is a beta release so it's a work in progress. Microsoft's IE8 beta has also been well underway, with the first beta released back in March and the second beta released two weeks ago. IE8's beta sports a number of interesting new features, which are detailed at Wikipedia's IE8 page -- just remember it's an unofficial source.

And of course, Firefox 3 beat them both with an official release earlier this summer. I haven't seen this much excitement and competition over new browsers since the dot.com era.

Opera was made free some time ago, but it doesn't look like it's helped their market share in any noticeable fashion. I've typically shunned using their browser due to various incompatibilities reported by users, and I've augmented both IE and Firefox with various add-ons and plugins to get most of Opera's benefits. I actually find their Opera Mini browser to be more compelling, as it offers a different browser toolset on my BlackBerry than its bundled browser.

And let's not forget Safari, both on Apple PCs and the iPhone/iPod Touch devices. Granted, that's a different platform than Windows.

This time, Google has a vested interest in having some control over your webtop, particularly in light of their expanding applications list (think Google Apps). As defined at Wikipedia:

"A web desktop or webtop is a desktop environment embedded in a web browser or similar client application. A webtop integrates web applications, web services, client-server applications, application servers, and applications on the local client into a desktop environment using the desktop metaphor. Web desktops provide an environment similar to that of Windows, Mac, or a graphical user interface on Unix and Linux systems. It is a virtual desktop running in a web browser. In a webtop the applications, data, files, configuration, settings, and access privileges reside remotely over the network. Much of the computing takes place remotely. The browser is primarily used for display and input purposes."

That's a fair definition. However, Google is going to have to work hard to compete in light of IE's and Firefox's established presences. ZDNet's Hardware 2.0 blog posts the question, "Is Google’s Chrome sliding into obscurity?" In tracking Chrome's usage hourly, after initial increases in market share, it has started to slide back over the past few days.

So while I'm glad to see another major player, especially one generally committed to adhering to web standards, I'm also beginning to think that after the initial media hype free pass is over, Google will need to deliver a fast, safe, stable, feature-rich, and innovative browsing experience to win over, and more importantly, keep the minds and hearts of its users. And that includes being very, very transparent on the data privacy aspects, both when using its normal mode and private browsing mode. I'm not so sure that a search engine company will be able to do that since it's an inherent conflict with their business model. But as I said in my prior post, I'm glad to see the competition intensify as we'll benefit by seeing more rapid and innovative developments on our webtop.

I don't see Chrome ending up as most people's primary browser -- IE and Firefox will continue to dominate there -- but as a secondary or tertiary browser, it may be used for more niche purposes. But I also think people are willing to cut Google some slack for now, considering this is their very first release. After all, the other browsers have been out for years, so Google has to catch up quickly. They did pretty well with Gmail, but again, I don't use it for any sensitive information because it's "read" by their automated services. Truth be told, I still prefer Yahoo's classic e-mail interface, having tried their new one and went back to the old one. It just works the way I like.

So far, I've pretty much filed Chrome under the category of "Google needed a web browser for their webtop offerings". We'll just have to see if they convince us otherwise.

What You Need to Know About Chrome, Google's Shiny New Browser

Google just released a beta of Chrome, throwing their hat into the browser wars. A couple of thoughts on what this means, and what you need to know about it if you want to try it:

First, the Google Chrome browser sports an interesting minimalist design and some unique features (particularly how it approaches the tab metaphor and stability). Google has thoughtfully outlined them in video, and check out Walt Mossberg's practical perspective, including a good description of its pros and cons. It is, after all, a beta or test release.

Chrome sports two browsing modes: Default and Incognito. Those who are concerned over their browser breadcrumb trails will likely welcome Incognito, which is meant to allow you to surf without Chrome saving the information after you close the window. Of course, there are other ways to track your web activities, particularly in corporate environments, so don't get too comfortable with this. Even some personal firewalls keep logs on web sites visited.

That brings me to the next point -- privacy. Why would the leading search engine company, skilled at tracking data across the web, release a web browser? How much of your personal web surfing information is being tracked and recorded by Chrome, either stored locally on your PC or sent back to Google? The conspiracy theorists are having a field day with this. After all, Google tracks more of your web activities while you're logged into your Google account than as an anonymous user. So why wouldn't they do the same with a browser they developed?

Well, the jury is still out on this one, particularly on its increased reliance upon a user's browsing history. Fortunately for us, Chrome is an open source software project -- which means that others can look at the code and see what it is doing. This is one of the great reasons why I frequently look to use open source software. Second, here's a post by Google's Matt Cutts which attempts to explain what does and doesn't get sent between your PC and Google when you use Chrome. I for one appreciated the transparency, and am hoping that it's a fairly complete accounting of which types of data are being transferred, and under which use cases. Although it should be noted that Matt isn't on the Chrome development team, as he's the head of Google's webspam team. So while well-intended and useful, consider that it's somewhat secondhand information.

Just as importantly, Google is more than ever jumping into mainstream software development (I'd be hard-pressed to get more fundamental than how we access the web and its rich content). Along with Google Apps, this pits them directly against the market share-dominant Microsoft on yet another level. However, it would also be naive to ignore the information and relationships gained from Chrome users to further enhance and develop their search services, where Microsoft has never quite "gotten it" in my opinion. Chrome also gives Google a browser by which it can serve up its other web apps without fear that Microsoft will alter IE in some proprietary or anticompetitive manner. This isn't to say that Chrome is superior to all other browsers, as it still has some issues and is missing several key features. But it gives Google a platform over which it didn't have control previously.

Despite the privacy concerns, which should be more formally addressed to users' comfort level, I'm always glad to see another major player in the browser market. If you think about it, web browsing really hasn't changed all that much from the mid-90's. Sure, there have been a number of new enhancements such as tabbed browsing and inline searching, but the underlying mechanics have remained the same for well over 10 years.

Also, how many of us are genuinely irked when we have one browser tab crash and it crashes your entire browsing session, whether it be IE, Firefox, or whatever -- especially when you have a dozen or more open tabs at the moment? Sure, they'll offer to reopen your last set of open pages, but then you've lost all the forward/back browsing capability for each one, so you can't easily track around to re-find that site you found in the middle of your surfing. Your browsing history might have it, but you'll have to hunt for it.

Using this as an example, I'm glad to see that each Chrome tab runs separately in memory from the other tabs, so that when one tab crashes, it doesn't crash the others. With Google's savvy, ease of use, and advanced technologies in simple wrappings, it's going to up the ante among web browser developers and keep them on their toes. That nudge has been a long time in coming, as evidenced in Walt Mossberg's observations:

"Meanwhile, Microsoft hasn’t been sitting still. The second beta version of IE8 is the best edition of Internet Explorer in years. It is packed with new features of its own, some of which are similar to those in Chrome, and some of which, in my view, top Chrome’s features."

Whether you're in the Google or Microsoft camp, or just want a better browser, that's good news for all of us.