pm blog

With seven months having passed since the adoption of the Federal Rules Civil Procedure amendments concerning electronically stored information (ESI) discovery and production a number of new court rulings are coming down at a steadier pace.  Surprisingly, some of these recent rulings appear to be addressing some of the very issues that the new FRCP Rules were intended alleviate.  Such is the case with a recent discovery dispute that required the court to weigh in on a series of motions filed by the plaintiff that clearly demonstrate poor planning and ineffective communications and negotiations between opposing parties.

In Scotts Co. v. Liberty Mutual Ins. Co., 2007 WL 1723509 (S.D. Ohio June 12, 2007), the plaintiff submitted a request for the court to enter a discovery order to ensure the production of all electronically stored information in an acceptable format as required by law and the most recent amendments to the FRCP.  In addition, the plaintiff also was seeking to compel the re-production of ESI previously produced by defendant in hard copy form to now be delivered in electronic form along with all metadata.  Further, the plaintiff also sought to compel the production of deleted documents by the defendant.

The plaintiff cited the FRCP Rule 34 after the production of 6,400 hard copy documents, which encourages both parties to discuss the form(s) in which the producing party will provide responsive ESI in a meet-and-confer session.  The court was able to determine that the plaintiffs original discovery request was absent of any specification of a preferred form (i.e. electronic native format) but more importantly, neither party participated in a pretrial meet-and-confer session to go over the issues relating to production of relevant ESI in the first place.

The plaintiff also sought the production of certain deleted documents which the defendant objected to on the basis that the requested documents were either non-existent or not reasonably accessible to the defendant.  Again, in the absence of a convincing argument waged by the plaintiff, the court stated that the plaintiff had failed to establish that the deleted information being requested fell within the scope of discoverable information.  The court had to advise that if the defendant took the position that the information would not be retrievable without undue burden, plaintiff would then have the opportunity, and the burden, to establish by expert evidence that a forensic search of defendants systems was reasonably likely to result in the recovery of relevant, deleted information.  In the end, the court ordered the parties to meet-and-confer on this issue as well and denied the plaintiffs motion without prejudice.

Prior to the newly adopted FRCP Rules, opposing parties rarely took advantage of the meet-and-confer session to weigh through the numerous, complex issues of electronic discovery and production.  Rule 16 (b) and Rule 26 (f) now require both parties to sit down and discuss all of the issues that pertain to the production of ESI.  Otherwise, the court will pass its own rulings on these complex issues.

Had common sense prevailed insofar as the plaintiff is concerned in this case, one would assume that if the preferred form of production had to be native format in order to review all metadata, that the plaintiff would have stipulated same in the initial discovery requests.   If deleted information was critical in supporting the plaintiffs claim in the first place doesnt it seem logical that the plaintiff would have to develop a convincing argument to establish the importance and relevance in recovering certain deleted data?  In the absence of such an argument, is it any wonder why the court was left with no option but to deny this motion as well?

The new FRCP Rules are guidelines to follow in the pursuit of relevant ESI discovery and production.  They are not mandates that either party can use as a substitute for straightforward dialog about electronic discovery.  Even before the meet-and-confer session, lawyers must invest the necessary time to adequately assess the predictable hurdles to be overcome in order to develop a strategy that will work at achieving a successful outcome. 

CyberControls is uniquely qualified at providing effective advice when it comes to strategies and tactics pertaining to electronic discovery, computer forensics, and ESI preservation and production procedures.  

For a copy of the full Scott decision as well as the new FRCP Rules, please follow the hyperlinks at the bottom of this message.

We welcome the opportunity to discuss any specific issues that you may be facing as a respondent or requesting party in a commercial litigation matter at 847-756-4890 or visit our cyber site at www.cybercontrols.net. 

In the past few months I’ve talked to people about the website concept that I described here; you can see a prototype of the site here. It’s intended to be a sort of portal where users share documents, sound recordings, presentations, pictures, movies, etc. I got the idea after noticing that lawyers would rather let their pleadings, research, etc. rot than let someone else get use out of it. Yeah, that’s a model for success …

Now, obviously the Internet is already chock full of resource sharing sites like YouTube (videos), Scribd (documents), SlideShare and Thumbstacks (presentations); but they don’t emphasize community or take advantage of a shared knowledge-base. They just let you post stuff and see what other people have posted. Plus, none of them emphasizes member comments or ratings. My site would highlight community, shared knowledge, and shared ratings about everything — judges, court facilities, software, hardware, reference works, research services, etc.

Sadly, it seems nobody is interested in helping make that vision a reality. And it just so happened that this morning one of the people I had discussed this idea with suggested that I keep trying and not give up. I told him that I appreciated the thought, but it would be hard to stay optimistic.

The whole episode got me thinking about the difference between doing stuff and talking about stuff. As I told my colleague, I can hardly count how many times a business venture fell apart and knocked me on my ass. But that just makes my point. I’m still at it, because I prefer to go out and try rather than stand on the sidelines and take potshots.

Case in point — Avvo, the portal that attempts to do for our industry what Zillow and Expedia did for real estate and travel. I have a running dispute with bloggers like Robert Ambrogi [and to some extent Carolyn Elefant and Denise Howell] on this point. I have defended Avvo as one step in the right direction (though by no means the only one), while other bloggers just keep on whining about it. But the fact is that sites like Avvo represent the kind of disruptive technology we need to foster if we are to nudge the legal market in the direction of genuine competition and even (gasp) efficiency.

So why not Avvo? If the experiment fails then so be it. We pick up and move on, being better for the experience. But to push for the untimely demise of the idea or dance on its grave says more about these detractors than it does about the site itself.

Technorati tags: Avvo, lawyer, legal, technology, disruptive, document, sharing, Scribd, SlideShare, YouTube, Video, Recording, Sound, MP3, Entrepreneur, Business, Risk

Author’s Note: Reproduced for your edification from this original item on Read/Write Web

Tonight Microsoft is launching two more products into its suite of Windows Live branded consumer web apps - Windows Live Photo Gallery Beta and Windows Live Folders Beta. According to Microsoft, tonight also marks the beginning of the next stage of the Windows Live rollout. This “next generation” of Windows Live has the goal of being a more cohesive suite of products than in the first phase.

I spoke to Brian Hall, General Manager for Windows Live, this week to find out more about Microsoft’s plans for Windows Live and how it is evolving.

The two new products are fairly typical web 2.0 products - TechCrunch has a good write-up. But just quickly, Photo Gallery is a Flickr-like photo sharing app with all the usual 2.0 bells and whistles (tags, sync between camera and PC, etc). Windows Live Folders is an online storage app, with P2P and file sync features. It is also, I discovered, a re-branding of LiveDrive.

In this post we’ll explore the notion that the “next generation” of Windows Live has arrived. What does that mean exactly?

Windows Live Progress, Since November 05

The first stage of Windows Live, which began when Bill Gates announced the Windows Live strategy in November 2005, has been marked by a lot of beta web applications and ’software as a service’ apps (hybrid desktop/browser apps). Windows Live has not been a smooth rollout - in fact many of the products have been disjointed and confusingly branded. Some products (e.g. the start page live.com) have also been very raw and the strategy at times unclear.

Probably the most overriding impression of Windows Live over the past year or two has been the branding confusion. And in particular widespread confusion about how Windows Live overlaps with MSN. I asked Brian about the branding problems (see below), but first let’s look at what Windows Live is aiming to become.

What is Windows Live, circa June 2007?

During my talk with Brian, the following slide was presented:

Source: Microsoft

You can see that the desktop/browser hybrid model is to the fore (the words ’seamless’ and ‘integrated’ are used a lot nowadays).

In terms of the types of products represented under the umbrella Windows Live, they are: Communication, Sharing, Anywhere Access, Safety. The first two (Communication, Sharing) are very much typical web 2.0 consumer apps - email, social networking, photo sharing, etc. These are the same apps that Google, Yahoo and others have. The other two (Anywhere Access, Safety) are more the types of apps we traditionally expect from Microsoft - but under Windows Live they are delivered as ’software as a service’, to use their term, rather than traditional shrink-wrap products.

Brian told me that the next generation of Windows Live will be “more cohesive” and much more of a proper suite. As Nick at Techcrunch noted, this includes releasing all the pieces of the Live Suite as a single upgradeable download - instead of separate programs and services as they are now.

Here is the other slide that was presented to me, which shows some of Microsoft’s other goals with Windows Live:

Source: Microsoft

The above 3 points all play to Microsoft’s strengths - multi platforms, leveraging Windows, and using ’software + services’ to provide web 2.0 capabilities like sharing.

Brand Confusion Still Reigns

Returning now to the branding. I asked how far has Microsoft come in clarifying the confusion between the new Windows Live brand and the existing MSN brand. Brian said this will become more clear in the second generation of Windows Live; and that much of the confusion arose in the first place because some MSN services have been transitioned across to Windows Live - e.g. Hotmail was initially an MSN product, but now it is Windows Live Mail (although Hotmail is still being used as part of the brand).

The Hotmail example clearly shows there is still a lot of work to do in the branding. But Brian said that, broadly speaking, MSN = content and news, while Windows Live refers to the 4 categories mentioned above (communication, sharing, anywhere access, safety).

It also doesn’t help that the product names continue to chop and change, or there is more than one product doing similar things. e.g. LiveDrive has become Windows Live Folders. And then there is FolderShare, which Microsoft acquired in 2005. So, still a lot of work to do on branding!

Conclusion: Cohesion Some Way Off

Brian emphasized that this is just the beginning of Stage 2 of Windows Live, and their overall aim is to make Windows Live more cohesive - while continuing to bring products out of beta and refine the desktop/browser vision.

My impression is that Windows Live is still a fragmented vision, with a few too many products. But this has been a common ailment amongst the big Internet companies in this era of the Web. Yahoo famously brought out a Peanut Butter manifesto to try and focus its product range. And even Google, which has otherwise been the leader in bigco web apps, has had its problems - with too many products, lack of integrated suites (e.g. in Web Office) and an at-times awful branding (e.g. the original ‘Google Apps For Your Domain’).

But Microsoft has more of a challenge than Google or Yahoo, because it is traditionally a desktop software company - whereas the other two are ‘Web native’. Windows Live is coming along nicely, but there is a long way to go yet before it becomes truly cohesive - and compelling.

Attorney and legal blogger Carolyn Elefant wrote me to object to the way I portrayed her in this post, and to point out that she is as pro-Avvo as anyone! I had this to say

Dear Carolyn:

I applaud your open-minded position. Then again your message begins by characterizing me as a “supporter of Avvo,” meaning you have written me off as a partisan voice rather than a sound critic of the legal services market-place.  Does that make it easier to write off the points I make in my posts?

To set the record straight, I am glad to see Avvo make the scene, but would have been just as happy if Thomson, Lexis-Nexis, or ALM had done so first. But that wouldn’t fit in with their information oligopoly, would it? I mean, why promote efficiency when you profit from just the opposite? I’m sure that’s a lesson learned from the insurance, tobacco, and health care industries.

But maybe you can tell me why, despite the fact that you and others had a head-start of several years, a monopoly on readership, and now corporate sponsorship, not one of the major legal bloggers addressed the legal market-place mess? You never wondered why neither Thomson, Lexis-Nexis, nor ALM chose to do what Avvo has? It’s not as if they lacked the resources. But I guess asking the question means that I’m just the “pro-Avvo guy” as you indicate in your e-mail.

I am glad to see Avvo make the scene, but would have been just as happy if Thomson, Lexis-Nexis, or ALM had done so first. But that wouldn’t fit in with their information oligopoly … why promote efficiency when you profit from just the opposite? I’m sure that’s a lesson learned from the insurance, tobacco, and health care industries.

Let’s say that I can’t convince you that my position is an objective one, still there is this: the legal blogging elite has decided to be anti-Avvo and nothing will change that. All I’ve read is that Avvo must be bad because it is not 100% accurate — this despite the fact that the site uses information already in public sources and invites lawyers to add their own input. So much for keeping an open mind.

Finally, the real irony is that Avvo looks like the underdog while the legal bloggers are being bullies. I thought that as lawyers we were supposed to advocate and take on the challenging positions. What gives?

I look forward to whatever clarification you can offer, and I thank you for taking the time to write.

document automation :: process consulting :: e-discovery consulting

who knew Apple’s life-altering iPhone would come with a hat so you can let other people know you own one even when you’re not using it? read about this and a gaggle of other highly desirable features of the device (which comes out next week) in this piece from the Onion - ‘American’s Finest News Source’ (so say reports in The Onion).

Another day, and another chance for lawyer-bloggers Robert Ambrogi, Carolyn Elefant, or Craig Williams, to wail on legal startup Avvo in shifts; I guess the 24-hour anti-Avvo campaign is just too much for one person. Today was Bob’s turn and he didn’t even bother to look objective; he just dove in with these carefully chosen words: “Trust us, Avvo’s ratings are a crock.” Well said sir. But there was so much more. He went on to tell us that Avvo had declined a chance to participate in his podcast about its merit. Content to smirk in a self-satisfied manner up until that point, I felt compelled after reading the piece to leave the following comment

Avvo did not send people to your podcast panel? Maybe you called the wrong number and they didn’t know it was you? I mean, why would they not defend themselves on your show? Now, I’m no Robert Ambrogi but you’re saying that despite the fact that

 

• it made a huge bet on the need for a more efficient legal market
• its executives previously took on real estate and travel agents
• it could buy all the PR in the world to drown out your complaints

Avvo was too intimidated to send anyone to your podcast? Okay …

Coincidentally, today was also the day TechnoLawyer distributed a piece I wrote some time ago — well before I knew who Avvo was: talk about your coincidences, this turned out to be a great reminder that my position on this point is nothing new. Of course I knew that, but just in case I was being a reactionary I can look back on a history of defending the idea of a free market for legal services. With respect to the TechnoLawyer piece, it happened this way — In response to these comments written by me and published by TechnoLawyer originally

Let’s use technology to create a friction-free legal marketplace that will blow away the establishment that wants to keep law as its little secret instead of society’s tool for better living …

another member suggested that I had eaten some “bad pizza,” was having a “Jerry Maguire moment,” and that overall lawyers required conflict to have a job. In response I described a scenario that seems to recall what is happening now, and what I believe Avvo could become, namely the first step in the direction of a friction-free legal marketplace (or as close as we’ll come for some time). As I said at the time

 

Your response is typical of how people see Lawyers; as predators. I was talking about using technology to speed up the resolution of conflicts and accelerate communication between market participants (lawyers, clients, judges) and the fact is that an efficient market brings prosperity to everyone and shouldn’t be feared or shunned … a rising tide lifts all boats … ofcourse if some ride higher than others in the current market because they can get away with underserving and overcharging clients, they will most definitely reject efficiency, transparency, and speed, because it will cause them to lose their monopoly and the luxury of not having to measure up to the market … these lawyers need to be shown the virtual door — their gain is our pain. We’re better off without them, and eventually everyone wins in an efficient market because such conditions create more business, simpler access, and more money to go around.

Okay, so this particular rant reflects a fanciful, even optimistic, prediction of the future. And I’m not putting this responsibility on anyone, much less on one company. And of course Avvo won’t succeed in being all things to all lawyers. But to this lawyer the company may represent the bridge to a better way of practicing law. And with all due respect to Robert Ambrogi, wouldn’t that be a nice change of pace?

document automation :: process consulting :: e-discovery consulting