January is always a time for reflecting back on the previous year, but picking the judicial top cases for electronic discovery is a complex and perhaps insurmountable task.
My key picks for 2008 are just a small sampling–the very tip of a giant legal-case iceberg. It would be great to hear your thoughts on the cases and on my views:
- Common Sense and respect for the courts and opposing counsel
Qualcomm Inc. v. Broadcomm , a case that lays out why counsel must apply common sense when responding to an e-discovery order and be mindful that a court does not consider digital incompetency a defense. Qualcomm dispute was around patent issues the discovery issues came about when Qualcomm had the audacity to both lie and hide 21 emails, as well as over 46,000 emails with attachments, totaling 20,000 plus pages of relevant evidence–legal term for relevant information. The key lesson here is simple: do not lie and hide stuff and if you do and get caught, get ready to be punished.While the elegance of the adversarial litigation system certainly does not require litigants to hold hands and sing songs around a camp fire, the other extreme of stealing a million dollars to test the security measures of bank is simply not a tenable position for a company.
- Hiding It Will Cost You Plenty & They Will Find It
The Qualcomm case provides tons of fodder for this critical piece of information. The electronic age leaves copies everywhere and anywhere, making 100% elimination of any traces of information being created, sent, or received a challenge. Investigators with the right tools can pick from a basket of sources, such as sender or recipients personal machine, external storage devices, company or third party servers, internal or external databases and etc.The best course of action is for a company’s legal and technology team to be transparent in their execution of preservation order and/or delivery of an enterprise records management solution. Judge Grimm in Mancia v. Mayflower Textile Services Co., Civ. No. 1:08-CV-00273-CCB (D. Md. October 15, 2008 ) lays out why playing ‘hide the information’ and not playing nice in the sandbox is bad for your client and more importantly the other side eventually found the information. Companies should collaborate with one another to define process and, more important, make sure that the document retention schedules and litigation holds that exist on paper are executed operationally.
- Finding It Requires A Bit More than Just Common Sense
Victor Stanley Inc. v. Creative Pipe, a copyright infringement case where the relevance to electronic discovery is that keywords can be a game changer. Judge Grimm in Victor Stanley provides some great ESI 101 concepts that litigators and attorneys as a whole should have some operational knowledge of in some form. In Victor, the defendants relinquished their attorney-client and work product privileges to 165 ESI files because they screwed electronic search and review in the production dance. Judge Grimm’s opinion certainly implies that lawyers utilizing keyword searches alone are in for a big shock. Lawyers, I suggest you reach out to your technologists and collaborate on search strategy.
In 2009, it is critical that lawyers and technologists realize that finding information in an enterprise requires more than just some well crafted key words and requires a comprehensive strategy.
The onslaught that is sure to come–companies large and small are going to be under legal siege in 2009. Whether it is white collar crime, bankruptcy or wrongful termination, we’ll see surges maybe even a Tsunami of new lawsuits. The current mentality “if you build it they will sue” is sure to provide fodder and, dare I say, job security for a great many of my legal and technology peers.
The concept of preparation, while foreign to many companies, is critical to initiate because of many possible benefits: saving money, reducing negative press, avoiding a drop in share price, meeting compliance requirements and better legal outcomes. This concept of preparation is analogous to the idea of not lending money to people who cannot pay it back. Just as failure to follow this seemingly simple construct has placed many people and companies in an untenable position, failure to prepare for electronic discovery will find many marquis companies in a high-risk, business –damaging position, or worse.