ALM Event: Trial Tactics & Technology

Hey, the name alone, T3, makes me want to attend this ALM event. An then there's that ediscovery mock trial:

"The American Lawyer, Corporate Counsel and Law Technology News, together with ALM Events, present T3: Trial Tactics & Technology.

"T3 will be held in Chicago on May 31, 2007. Due to high demand, it will also be presented in London and New York City in November 2007."


"EDD Rules: Fact or Scary Fiction?"

What do you think about all the EDD news? Too much hype? Or information you really need?

"Wherever you turn these days, there seems to be a new CLE seminar being offered or white paper being written on the 'sweeping changes' to the Federal Rules of Civil Procedure as they relate to the discovery of electronically stored information.

"And most of them are tied together by a common thread: an alarmist air of hype.

[snip]

"Many e-discovery vendors would have people believe that the landscape surrounding electronic discovery has completely changed. From this author's perspective, that's a gross exaggeration of the truth designed to stir up angst (and business) in the legal marketplace. That said, the amended rules do offer important guidelines about the relevance, discoverability, production and costs associated with electronic discovery. The trick, as in much of the legal game, is to know how to separate fact from fiction."

Author Sean M. Byrne is a business development manager with UHY Advisors FLVS Inc. Since 1998, Byrne has worked as a practicing litigator and litigation consultant.


"E-Lawyering Requires Rethinking Technology and Law"

Great article about the new federal discovery rules, describing these changes in an understandable, even humorous way:

"This changes everything."

"Those three words, wafting on the familiar, buoyant tones of the actor saying them, have staying power. No survivor of the dot-com boom of the 1990s could forget William Shatner's ubiquitous ads on behalf of a certain online travel company.

"Indeed, online booking did change the travel industry. When was the last time anyone had a paper ticket, or called a human travel agent just to check flight times? Buyers and sellers of books, music and news all have seen the same cataclysm in their business models -- a subtle but certain shift from dialing a phone number or visiting a store to signing in, logging on and clicking a mouse.

"And, in fact, e-commerce lawyers are included in this migration to technology. Just as e-commerce has disrupted the travel, music, book and news retailing industries, the influence of technology on business and the law has also wrought havoc on our legal system. [Emphasis added.] Certainly, the law has always had to adapt specific rules for new technology.

"Today, the pervasive role that technology has assumed in business and legal practice, as more and more of our daily lives are lived online, provides a more fundamental challenge to how attorneys practice business law. In an age when 'paper file' has become an anachronism and an oxymoron, business law and the way it is practiced have required more than just tinkering with particular rules."

Author Stanley P. Jaskiewicz, a business lawyer, helps clients solve e-commerce, corporate, contract and technology-law problems, and is a member of the Board of Editors of Internet Law & Strategy \'s sibling newsletter, E-Commerce Law & Strategy.


"How a County Attorney's Office Is Streamlining E-Discovery"

Hmm, sure sounds like this vendor might be worth investigating:

"While the revised Federal Rules of Civil Procedure pertaining to electronic discovery that hit the books in December may have caused headaches for many in the legal profession, some discovered unexpected benefits. Case in point: the Nassau County Attorney's Office in New York, which implemented new technology to meet the updated requirements and found that it made e-discovery more efficient than expected.

"Nassau County deployed Clearwell's Intelligence Platform -- a program applied to e-mail and electronic documents that automates the analysis, culling and review process -- in February, to comply with the amendments to the FRCP rules 16, 26, 34 and 37. Those rules now require anyone who can be involved in litigation in federal court to retain electronic records -- such as e-mails, instant messages and text documents -- and be able to retrieve them. The rules also require all parties to present a description of all electronically stored information within 99 days of the beginning of a legal case.

[snip]

"'The whole idea about searching to data is a complete transformation from the way we used to do things,' [said Peter Reinharz, chief managing attorney for the Nassau County Attorney's Office]. In the past, e-mail retrieval was turned over to the county's IT department, which would assign someone to isolate items from backup media and conduct manual searches. 'It was very labor-intensive for our IT department, so it was both cumbersome and costly,' he said.

"'Now, he said, any attorney can easily conduct Boolean searches and sift through PST files with a much greater degree of focus. And the IT department is thrilled.'"


"Six Hard-Learned Lessons About EDD"

New court opinion reminds both law firms & clients "to focus on e-discovery early in litigation":

"With the long-anticipated revisions to the Federal Rules of Civil Procedure having only recently come into effect, the sense of uncertainty that has historically surrounded electronic discovery promises to linger. While the bar will watch with keen interest as the courts begin the slow process of interpreting and applying these new rules, a recent opinion, In re NTL, Inc. Securities Litigation [PDF file; Nos. 02-Civ.-3013, -7377, 2007 WL 241344 (S.D.N.Y. Jan. 30 2007)]. serves as a pointed reminder that basic issues of electronic discovery practice continue to trip up even large and sophisticated litigants.

"The case also supplies some useful lessons for those who remain befuddled by discovery in the digital age. Although the problems presented by the need to retain, collect, review and produce electronically stored information can draw attorneys into unfamiliar technological territory, In re NTL teaches that the fundamentals of discovery practice that apply in all contexts -- such as planning ahead, searching broadly, being forthright with the court and adversaries and closely monitoring subordinates and clients -- have not been displaced but, on the contrary, have only assumed increasing importance in the era of electronic discovery." [Emphasis added.]


"Trials & Tribulations of New Rules on EDD"

Could not understanding EDD issues -- both evidence rules & technology -- amount to malpractice? Oh, yeah, I think so, especially if the client didn't 'know' not to monkey with hard drives:

"During discovery in a securities case in the Northern District of Florida, Miami attorney Michael Kreitzer's client wanted to see e-mails between two of the defendants. The defendants claimed that the hard drives on which the e-mails were stored had failed, and that all the data were lost.

"Kreitzer, the chair of the litigation group at Bilzin Sumberg Baena Price & Axelrod in Miami, persuaded the judge to order the defendants to produce the hard drives, and had them forensically examined.

"That examination found that the defendants had attempted to overwrite the hard drive five times to wipe out the data. Kreitzer asked the judge to instruct the jurors that they could presume that the information formerly stored on the hard drive was adverse to the defendants. The judge granted his request. The case ended in a confidential settlement."

BTW, this article describes how to destroy data on your own hard disk by overwriting it.


"E-Discovery May Target Unexpected Sources"

Yes, even more information is now subject to discovery, but really, iPods too??

"On Friday [12/1/2006], the long-discussed and much-awaited amendments to the Federal Rules of Civil Procedure (FRCP) went into effect. Among the elements of these amendments are changes to how electronic evidence is treated in discovery.

"This issue and the changes to the rules affect most particularly counsel advising clients in e-discovery matters, but e-discovery and the treatment of information and communications -- before discovery is developed or considered, or before lawsuits are filed -- are issues critical to e-commerce, and that will become more important as this segment of the economy grows, for businesses and for law firms.

"This article describes how nontraditional sources of electronic data may provide important evidence in investigations. These data sources, including instant messaging (IM), voicemail, Web-based e-mail and sales-management systems, present distinct challenges in terms of procuring and analyzing raw data.

[snip]

"According to the FRCP amendments, electronically stored information (ESI) has been added to the official list of items subject to production. Typical ESI sources include forensic copies of personal computers, company file servers, e-mail servers and backup tapes. In our experience, alternative sources of ESI (whether from external data sources or from a more detailed review of forensic hard-drive images) can take many forms and can produce additional evidence. Examples of nontypical ESI, which we will examine in further detail, include: Web-based e-mail, IM, voicemail, internal database systems, iPods and other portable storage devices."