Mock Rule 26(f) Conference of Parties Posted Online

Posted on August 7, 2011 by Michael D. Berman

A mock Rule 26(f) conference of parties has been posted online through the Technology Committee of the Litigation Section of the Maryland State Bar Association. Although much has been written about Rule 26(f) conferences, see, e.g., Chapter 19 in M. Berman, C. Barton, and The Hon. P. Grimm, eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA Jul. 2011), there is little demonstrative guidance.

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Posted in Commercial Litigation, ESI

American Bar Assoc., Publishes Berman, et al., Managing E-Discovery and ESI

Posted on July 30, 2011 by Michael D. Berman

The American Bar Association has  published M. Berman, C. Barton, and P. Grimm, eds., Managing E-Discovery and ESI: From Pre-Litigation Through Trial.  The 761-page work features chapters by The Hon. Paul W. Grimm (D.Md.), The Hon. John M. Facciola (D.D.C.),  The Hon. James C. Francis IV (S.D.N.Y.), and The Hon. Joseph F. Murphy, Jr. (Court of Appeals of Maryland), as well as practitioners and service providers.  As its title suggests, the book addresses pre-litigation planning, such as computer usage policies, and “knowledge management.”  It discusses triggering the litigation hold, implementing it, as well as limiting its scope using proportionality analysis.  Unique issues relating to privilege, such as how to prepare a privilege log for email chains, the law governing Fed.R.Evid. 502, and privilege issues related to implementation communications, are covered.  And, the book addresses areas such as how to use ESI in depositions, the potential impact of the secondary evidence rule on the sanctions calculus, and when a litigation hold ends.  There is a comprehensive study of ADR in the ESI context, in-depth discussion of law of search methodology,  and a discussion of technical issues for non-technical readers.  The book is designed for attorneys, legal assistants, information technology professionals, and business executives.

POSTSCRIPT

Sharon Nelson’s review in “Ride the Lightning,” describes the book as an “excellent resource.”

Posted in ESI

What Does “The Making of a Surgeon” Have to Do With ESI and “Software Glitches?”

Posted on July 15, 2011 by Michael D. Berman

“The Making of a Surgeon”

In 1968, Dr. William A. Nolen wrote “The Making of a Surgeon” (Mid-List Press 1968, 1990):

How do you make a surgeon? Not by the preliminaries, the four years of college and four years of medical school that have to be gone through to earn an M.D. degree, but by the five, six or seven years that a man [or woman] spends after medical school learning the surgical trade.

Id. He suggested that “[t]he transformation is a slow process. . . . Not by big jumps, just small steps forward.”  Dr. Nolen wrote:

It’s sad that all through a book on surgery, mistakes and error should play such a prominent role.  Patients like to believe doctors are infallible. . . .  Unfortunately, that’s not the case. Not some, not most, but all doctors, at one time or another, make errors.  This is the nature of medicine. It’s isn’t an exact science. .  . . [W]e made errors. We operated when we shouldn’t have, didn’t operate when we should have; sometimes we performed the wrong operation; occasionally, we chose the right operation but did it poorly.  We made all these errors. But, to keep the proper perspective, not often.  We did our damnedest to avoid mistakes – we took every precaution we could to eliminate errors and struggled to keep them down to the absolute minimum.  And for every patient we hurt by one of our mistakes, we did, I hope, help hundreds.

Id. at 57, 65.  The author described “[t]he patient, or better, victim,” of his first major surgery, an appendectomy.  Id. at 18.  When handed the scalpel, all of his confidence disappeared and he could not determine where to make the incision.  Then, his effort to tie off the base of the appendix failed, contaminating the surgical area. Although the recovery was more complicated, the patient survived.  Dr. Nolen concludes: “If he had died, I think I would have given up surgery for good.”

What does that have to do with ESI and software glitches?  “Especially in the highly complex world of e-discovery, even with good faith efforts, it is very easy to fail to preserve or lose relevant information by inadvertence.”  P. Grimm, M. Berman, et al., “Discovery About Discovery: Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information?,” 37 U.Balt.L.Rev. 413,  454 (2008).

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Posted in Commercial Litigation, ESI

Proportionality in Government e-Discovery – June 2011 IQPC Presentation

Posted on June 30, 2011 by Michael D. Berman

Government litigants have an enormous impact on civil litigation. Because the United States is the most frequent and successful litigant in the federal courts, the federal government as a litigant plays “a central role in the development of law and policy in the United States courts.” G. Sisk, Litigation with the Federal Government” (Foundation Press 2000), 1. Continue reading →

Posted in Commercial Litigation, ESI

Self-Identification and Self-Preservation: A Fool for a Client?

Posted on May 26, 2011 by Michael D. Berman

“Self-preservation” is the ESI equivalent of “do-it-yourself” home repair.  If successful, it can save money.  If not, it can lead to bigger problems.  Recent decisions arising out of self-preservation disasters have posed the question of whether it is ever a viable technique to preserve and review ESI. A well-known commentator and The Sedona Conference suggest a nuanced approach to self-preservation based on proportionality principles.

The recent decision in Green v. Blitz U.S.A., Inc., 2011 WL 806011 (E.D. Tex. Mar. 1, 2011), has energized the debate over self-preservation.  There, a litigant placed its own, interested employee in charge of preservation efforts, with disastrous results. This led one commentator to note that while “[m]y conclusion up until now has been that this collection methodology (where employees manually select and potentially harvest their own data) could be defensible if properly executed. . . the pendulum has swung far enough to proclaim that this approach is far too dangerous for most enterprises, except those perhaps that are extremely risk tolerant,” D. Gonsowski, “Self Collections in E-Discovery – Just too Risky for Prime Time,” (Apr. 20, 2011). Continue reading →

Posted in Commercial Litigation, ESI