“When Preservation Requests Are Wielded as Weapons” by Craig Ball


My blog today comes directly from a post Craig Ball wrote this week for LawTechNews here. When Craig puts pen to paper it is definitely worth reading. Here is an excerpt that caught my attention:-

“The rallying cry is that plaintiffs have begun to “weaponize” preservation. That is, plaintiffs are demanding preservation of electronically stored information with such breadth that corporations are settling just to avoid the cost of finding and protecting their own discoverable data.”

Craig goes on to say… Corporate counsel vilify preservation: “The plaintiffs demand that we preserve everything, and we’re spending millions doing so.” If plaintiffs’ settlement demands don’t establish the value of their claims, why should plaintiffs’ preservation demands set the bar for preservation?

He underlines his point with…  “typically, plaintiffs’ actions mirror the same fear and lack of sophistication that spur defendants to over-preserve. Uncertain where relevant evidence resides, plaintiffs demand preservation of every place it might be. Equally uncertain and irrationally afraid of the outlier jurist, defendants say “okay” when they should say “no way.”

This irrational fear is craziness. It is time to stand up and be counted. It all comes down to preserving what is reasonable and having a defensible methodology to demonstrate reasonableness.

The problem is we are dealing with unknowns – we are not certain who is involved or where the evidence might be found, so we take the cautious route of over-preserving… at Catelas we are paving the way in providing attorneys the help they need to say NO WAY! We are using technology to help attorneys present a diligent, comprehensive way to better define the scope of preservation. Invariably this means a rational (and defendable) way of saying “NO, your preservation demands are waaaayyyyy to broad…. and this is why…”

Take a look here if you are interested in learning more about how we do it.

Are you concerned about Social Media litigation?


This article by Kate Hodgkiss about avoiding Social Media Lawsuits provides some common sense advice for companies navigating the potential pitfalls of what their employees say on Facebook, Twitter et al. Another one I read was by Stacy Gulik titled “Think Before You Tweet: Risks Health Care Professionals Face With Social Media”.  She talks about the risks that Doctors (and others) face when tweeting about medical information or their profession in general. Then there was this spoliation charge of $700,000 for the destruction of Facebook pages.

Virtually every business in the world should be concerned about what their employees are tweeting about or posting on Facebook as it relates to their business. And the litigation is certainly heating up.

I used to say to my employees “don’t write in an email what you don’t want your boss to read or what you would not want to be read back to you in court”. Well the same is becoming true of social media. Companies have to deal with social media whether they like it or not – with about a billion Facebook users, I think its a fair guess to say social media is here to stay and is rapidly infusing corporate life. From the Medical Doctor who blogs about “her day in the office” to the disgruntled employee who Facebook’s a picture of his company’s “crappy working conditions”.

This is not to say that we have to come up with brand new answers to these issues. Just like when office email first arrived, employees needed training and guidance – eg “never send an email when you are angry, or sleep on it”. What is different is that the current generation of employees has been brought up in a world of “one to everyone”, instant communications. When we hit the post or publish button, it’s gone instantly. There is no permanently delete button. And the message did not just go to internal employees, it went to the world. Someone has likely read it and saved a copy of what was said, before the individual has had a chance to erase the “mistake”.

Clearly for some companies this is a bigger concern than it is for others and every company will embrace social media slightly differently. Because the root of what we do at Catelas is about people and their relationships, how people are interacting on social media is of huge interest to us. Just as it is not possible to collect and review every document in a litigation case today, the proverbial haystack has just become exponentially larger with social media. It is never going to be practical to collect and review everything posted on the social media.  But if you can quickly isolate the people involved and limit the search to only those people that are relevant, then following their social media footprints, has just become a whole lot easier. Of course good corporate policies and employee education never hurts.

How is your company or your clients handling what its employees are saying on social media?

Early Case Assessment and The Cloud


A few weeks ago I wrote about the Early Case Assessment Trap and today as I was following the goings-on at the annual ACC get-together, it reminded me of our legal industry buzz-words and how vendors constantly re-invent themselves around the latest buzz. No doubt this week “cloud” will be hot  and “ECA” will still be generating a lot of noise.

The way I see ECA being applied is that the C stands for Cost not Case. Opposing Counsels get together and agree the scope of discovery based on the anticipated cost of the “document hit count” arising out of the agreed keyword terms.

Now granted, this is an over-simplification of a complex legal process and sure ECA means many things to many people. But, what we are not seeing is good, honest work being done in the early stages of a case to truly understand things like, who is involved, what is the company risk or exposure, is their sufficient evidence, what action should we be taking?

“Early Cost/Case Assessment” can quite easily become a template for “how much is this going to cost us” and “can we settle for less”.

At Catelas, because of the “buzz-word effect” which tends to make all vendors appear equal, we have shied away from calling ourselves an Early Case Assessment solution, for this very reason. We prefer to be thought of as Early Case Intelligence, where we endeavor to answer these key questions – who is involved, what was said and what action should the company take? We are trying to provide real, upfront intelligence to the client that helps them make smart decisions about the case, going forward. At then end of the day, Counsel does not want to be surprised with a “gotcha” six months into the case. Our mission is to ensure that Counsel gets “One Step Ahead” by providing key intelligence about the case within the first couple of days.

So this year at the ACC Annual Meeting, Early Case Intelligence may not [yet] be an industry buzz-word, but watch this space…

If you want to find out more check out this preso

Death by 1000 smiley faces


This week I had a number of conversations with lawyers so that I could at least try to understand what it was like to be in their shoes. We talked about interesting cases, amazing escapes and ultimately about life in the electronic world. But a resounding theme  was “I wish I could go back to practicing law like I did 15 years ago”. Don’t get me wrong, these folks still loved their jobs, but they felt that somehow they had become subservient to a process, a workflow, that is ESI. The sheer volume of electronic data has changed their world.

I tried to visualize this impact and drew this picture – death by 1000 smiley faces. The point is the following: in ‘the old days’ when building a case a lawyer would conduct interviews and come up with a list of people (or custodians) who he felt pretty sure we close to the matter in hand. Call it intuition or gut-feel, it was a bit like police work, they just knew who the bad guys were. This gut feel still holds true today, except that lawyers cannot trust their instincts given the morass of electronic data that abounds – email, SMS, sharepoint, hard drives, facebook. smart phones, etc. So, they are forced to throw a much wider safety net around the cast of actors (the custodian list). Now they are faced with possibly hundreds of custodians rather than the 5 or 10 that their instincts tell them are the real actors. Well, we all understand the problem with this picture – there is too much data… so we use keywords to negotiate down the scope and cost of discovery.

Over-preservation and over-collection is a big problem. But we are trying to fix it at the back end (with keywords) rather than at the front end (identify the custodians really involved). But if we could do this it would be a sense of deja vu or “Back to the Future”.

What if I told you Catelas can take you Back to the Future. Comprehensively and defensibly we can help you limit the scope of discovery so that you really are preserving and collecting only those custodians that are truly close to the matter. Don’t settle for the 1000 smiley faces approach.

Is there a gaping hole in the EDRM?


Firstly, with all due respect to Mr George Socha, I am not about to poke a stick at the validity of the much hallowed ERDM. The eDiscovery business continues to be well guided by it, but…. are we missing something?

Three years ago when I entered the world of eDiscovery, which by the way was at LegalTech 2009, a term Early Case Assessment (ECA) was all the rage. As someone who had come from the world of Information Security this made a lot of sense to me. I asked a lot of questions and while ECA meant many things to different people, for the most part it was a process for ‘getting one’s ducks in a row’   (getting organized) before the humdrum of following Mr Socha’s ERDM took place.

Very soon ECA was part of every vendor’s offering. In fact vendors re-invented themselves around ECA with many variations such as “we will pre-review your data using the assigned keywords and only charge you for the culled data”. But is something wrong here?

ECA seems to have become a cost assessment or financial calculator – ie “using these keywords we will cull down 300gig to 50gig in a linear fashion so that we achieve a manageable dataset to review”. It sounds terribly mathematical to me and somewhat contrived.

My observation is that the “intelligence” of ECA has been lost. A critical component of ECA should be to help attorney’s quickly assess the case, but I mean strategically assess it, not tactically. Understand if this is a case that could seriously expose the company. Get under the hood and understand whether you need a new engine or an oil change…. before you start negotiating how much it will cost to fix!

At Catelas we use the term “Early Case Intelligence” which does just that, we get under the hood. Maybe it will catch on, but we hope it fills a gap at the start of a case that answers the strategic questions (defend or settle) rather than simply the tactical one’s.

Let me know what you think.