Delaware eDiscovery Report

18 Morris James Attorneys Selected by their Peers for Inclusion in The Best Lawyers in America® 2011

Morris James Delaware — Wed, 04 Aug 2010 15:42:23 -0500

18 Morris James attorneys in 13 practice areas were recently selected by their peers for inclusion in The Best Lawyers in America® 2011. New to the list are Mark D. Olson and Bruce W. Tigani from the firm’s Tax, Estates and Business practice. The firm’s Real Estate Practice Group Chair, Richard Beck, has been named in this highly regarded publication since its inception in 1983.

The Best Lawyers in America® 2011 has become universally regarded as the definitive guide to legal excellence. Their rigorous research is based on an exhaustive peer-review survey in which more than 39,000 leading attorneys cast almost 3.1 million votes on the legal abilities of other lawyers in their practice areas. The Morris James attorneys listed in the 2011 edition and the areas of law in which they are recognized include:

COMMERCIAL LITIGATION
• P. Clarkson Collins, Jr. (2005)
• Lewis H. Lazarus (2006)
• Edward M. McNally (2005)
• James W. Semple (2009)

CORPORATE LAW
• P. Clarkson Collins, Jr. (2005)
• Lewis H. Lazarus (2006)
• Edward M. McNally (2005)

ELDER LAW
• Mary M. Culley (2008)

EDUCATION LAW
• David H. Williams (2007)

FAMILY LAW
• Gretchen S. Knight (2007)

INFORMATION TECHNOLOGY LAW
• Richard K. Herrmann (2003)

INSURANCE LAW
• Mary B. Matterer (2009)

LABOR AND EMPLOYMENT LAW
• David H. Williams (2007)

PERSONAL INJURY LITIGATION
• Keith E. Donovan (2009)
• Dennis D. Ferri (2007)
• Richard Galperin (2005)
• Francis J. Jones, Jr. (2008)

REAL ESTATE LAW
• Richard P. Beck (1983)
• John Bloxom IV (2010)

TAX LAW
• Daniel P. McCollom (2007)
• Mark D. Olson (2011) *
• Bruce W. Tigani (2011) *

TECHNOLOGY LAW
• Richard K. Herrmann (2003)

TRUSTS AND ESTATES
• Mary M. Culley (2008)

* Indicates First Year on List

Benchmark Litigation 2011 Names 5 Morris James Partners Among Top "Local Litigation Stars"

Morris James Delaware — Wed, 04 Aug 2010 09:46:11 -0500

Morris James LLP is pleased to announce that five of its partners have been recognized among the top Delaware litigation attorneys in Benchmark Litigation 2011 - The Guide to America's Leading Litigation Firms and Attorneys.

Morris James’ Litigation Stars

Rich Galperin
Clark Collins
Richard Herrmann
Lewis Lazarus
Edward McNally

Benchmark Litigation focuses exclusively on litigation lawyers and firms in the United States. Recommendations are based on extensive face-to-face and telephone interviews with the nation’s leading private practice lawyers and in-house counsel.

In Defense of Genger, Part I

Christopher Spizzirri — Tue, 29 Jun 2010 10:37:53 -0500

I rise now to defend the Court of Chancery's decision in TR Investors LLC v. Genger, C.A. 3994-VCS (December 9, 2009) against the allegations made by Leonard Deutchman, General Counsel at LDiscovery LLC, in a two-part post hosted by Law.com. I promised at the end of April that a defense would be forth coming but wanted to give everyone time to read the two posts to which I respond.

Mr. Deutchman asserts that the Court got the decision wrong because it (1) doesn't understand the technology involved (Part 1) and (2) doesn't understand the law of eDiscovery (Part 2). I have decided to respond in two parts to keep each of my posts digestible.

In Part 1, Mr. Deutchman aims to discredit the Court's technical competence, and his first criticism makes unsupported assertions about the Court's findings.

The court ruled that by wiping the unallocated space of the two drives, the defendant violated the standstill agreement and was thus in contempt of court. To reach its holding, the court had to make factual leaps and draw legal conclusions that are in my view questionable.

The court's first factual leap was that because temporary files could have resided intact in unallocated space, they were, in fact, intact prior to the wiping. More specifically, the longer leap is that because temporary files could have resided intact in unallocated space, temporary files important to plaintiffs were destroyed by the wiping.

In my reading, the Court did not assume or conclude that any particular files resided in unallocated space. Read as a whole, the opinion finds that files existed in unallocated space, some of which may have been relevant, but no one will ever know because Genger destroyed them. The Court fines Genger for willful destruction of data in direct and clear violation of a Court order.

Mr. Deutchman's second criticism was that "that the files [the Court] believed continued to reside in unallocated space if the defendant had not wiped them would have been important to the matter." Here Mr. Deutchman's merely reiterates Genger's "No harm, no foul" defense—or, as Ralph Losey refers to it, the "pig-in-a-poke" defense—to which the Court replied:

For a party to intentionally violate an order not to destroy or tamper with information and then to claim that he did little harm because no one can prove how much information he eradicated takes immense chutzpah. For a court to accept such a defense would render the court unable to govern situations like this in the future, as parties would know that they could argue extenuation using the very uncertainty their own misconduct had created.

Finally, Mr. Deutchman's concludes his first post by suggesting the Court is technically incompetent by claiming the Court thinks of unallocated space as a back up system.

It is important to note that nowhere in typical computer usage or professional information technology practice is the unallocated space on a hard drive regarded as "back up" in the way that the court does here.

No IT professional or typical user would consider unallocated space to be a "backup" space, akin to an external drive or backup tape used to affirmatively back up files, simply because forensic searching could possibly locate therein lost files in their deleted or temporary states.

While the Court of Chancery is likely not full of techno geeks, they seem to more than adequately understand the technology involved. In any case, the Court does not liken unallocated space to a backup system. On this point, the Court said "the information on the unallocated space of the TRI system therefore acted somewhat as a back-stop reservoir of documents that had been deleted from the active files of TRI users," and that the unallocated space was "a data source that would have acted as a back-stop in case relevant evidence had been deleted in the months when the motivation to delete would have been at a zenith." (Emphasis added.) Frankly, Mr. Deutchman's attempt to impugn the Court with this allegation is bizarre considering the plain and clear language quoted above.

I will address Mr. Deutchman's second assault on the Genger decision shortly.

UPDATE: Thanks to LexBlog CEO Kevin O'Keefe for recognizing this as a Best in Law Blogs post, the second time this blog has received that honor.

Self-Collection Prohibited in Delaware

Christopher Spizzirri — Tue, 22 Jun 2010 13:18:51 -0500

Recently, Vice Chancellor Laster gave some of us a jolt with a bench ruling on a discovery dispute in Roffe v. Eagle Rock Energy GP, et al., C.A. No. 5258-VCL (Del. Ch. Apr. 8, 2010). The ruling addresses the issue of client self-collection and a lawyer's oversight duties.

The Association of Corporate Counsel's (AAC) website carried a summary of the ruling authored by Morgan Lewis & Bockius LLP that stated:

Vice Chancellor Laster ruled from the bench that confirmatory discovery—like formal discovery—requires the defendant’s attorney to be physically present during the collection of electronically stored information from his/her client; self collection by the client is not permitted.

Well-known eDiscovery expert, Kevin Brady of Connolly Bove in Delaware, explained that the ruling:

[P]ointed out that lawyers have an affirmative duty to be actively engaged in the collection process to the point that a lawyer should meet in person with the client to physically review his or her electronic information repositories wherever they may be located (including, if necessary, personal computers if that is where relevant information is stored).

I think Kevin's summary is much closer to the mark, and I'll explain why in a minute. First, the language causing concern is on lines 12-19 on page 10 of the attached transcript and reads as follows:

[Y]ou do not rely on a defendant to search their own e-mail system... There needs to be a lawyer who goes and makes sure the collection is done properly... we don't rely on people who are defendants to decide what documents are responsive, at least not in this Court.

The AAC article suggests there are two things implicated by this, and other supportive, language in the ruling: (1) client self-collection is not allowed, and (2) an attorney must be present during data collection. I think that interpretation assumes the worst and goes too far.

On the issue of self-collection, when the Court says not to "rely on a defendant to search their own e-mail system" and "we don't rely on people who are defendants to decide what documents are responsive," I believe the Court refers specifically to the practice of a client acting as document reviewer and sole arbiter of responsiveness. That is well understood to be a bad practice, so there is nothing shocking about this pronouncement.

I do not think the Court, in this ruling, has said that client bulk self-collection is impermissible. I see nothing in this ruling that would prohibit a client from gathering a mass of potentially responsive documents, e.g. full email accounts for all custodians, with guidance from counsel and turning them over to counsel for review. Counsel must review all potentially responsive documents and make final responsiveness determinations.

On the issue of requiring counsel's physical presence during collection, I again think the AAC article's interpretation of the Court's ruling goes too far. The AAC article seems to rely on the word "goes" in the Court's statement that "[t]here needs to be a lawyer who goes and makes sure the collection is done properly" for the proposition that counsel must 'go' and be physically present for collection. I think we get the spirit of the Court's statement by removing the 'go' part: "[t]here needs to be a lawyer who... makes sure the collection is done properly." That is well understood to be a best, if not required, practice, so there is nothing shocking about this pronouncement either.

To be fair, there are other references in the ruling to lawyers 'getting on a plane' to get data, but these suggestions seem to be case specific. In this case, Plaintiff was supposed to be conducting confirmatory discovery on three board directors but only collected from two. The third was a Mr. Smith. So the Vice Chancellor suggests that someone get on a plane to go get Mr. Smith's documents ("And you certainly need to put somebody on a plane to go out and see Mr. Smith." page 10, line 20; "So the question for me would be, one, how fast can you do this right? And that means not only the e-mails from Mr. Smith. As I say, somebody should have been on a plane a long time ago to go through his e-mails. And if he chose to use his personal computer, well, that was his bad choice. All right? And if he has it mixed in other stuff that he gets, 150 e-mails a day, or whatever, that was his bad choice. That makes it all the more essential that a lawyer get on a plane, and go and sit down with Mr. Smith, and go through his e-mail and make sure that what is produced is -- what is responsive is appropriately produced." page 12, lines 1-13). This seems to be a specific issue with Mr. Smith in this particular case requiring the physical presence of counsel to ensure collection of, perhaps, an unwilling participant.

I think my reading of this transcript aligns with Kevin Brady's in that lawyers need to be engaged in the discovery process and may need to be physically present during data collection. If, however, my interpretation is wrong and a lawyer is required to be present during collection that may only be conducted by a vendor, the cost of discovery in Delaware may be on the rise.

Chambers USA Names 10 Morris James Partners In Their 2010 Guide to Leading Business Lawyers

Morris James Delaware — Wed, 16 Jun 2010 15:12:29 -0500

Morris James LLP is pleased to announce that ten of its partners have been ranked among the leading Delaware lawyers in the 2010 edition of Chambers USA: America’s Leading Lawyers for Business - an increase of two rankings from last year. In addition, four practice areas including Bankruptcy/Restructuring, Chancery, Intellectual Property and Employment Law were identified among the leading practices in Delaware. The Morris James partners selected for inclusion in the 2010 edition are:

Bankruptcy/Restructuring

Brett Fallon
Carl N. Kunz
Stephen M. Miller

Chancery

Edward M. McNally
Lewis H. Lazarus
P. Clarkson Collins, Jr.

Intellectual Property

Mary M. Matterer
Richard K. Herrmann

Labor and Employment

David H. Williams

Real Estate: Zoning/Land Use

A. Kimberly Hoffman

Chambers & Partners is a highly respected and influential London-based research and publishing company that provides rankings of leading business lawyers and law firms throughout the world. Rankings are based on technical legal ability, professional conduct, client service, commercial astuteness, diligence, commitment, and other qualities most valued by clients.

Peter B. Ladig Joins Morris James LLP as a Partner in the Corporate and Fiduciary Litigation Group

Morris James Delaware — Mon, 07 Jun 2010 14:46:45 -0500

Morris James LLP is pleased to announce Peter B. Ladig has joined the firm as of June 1, 2010. The majority of Mr. Ladig’s practice is in the Delaware Court of Chancery, although he has extensive experience in the other state and federal courts in Delaware and has been involved in over 50 published decisions.

David Williams, the firm’s managing partner stated “We are delighted Peter Ladig has joined the Firm as a partner in our Corporate/Commercial Litigation Group. Peter adds his considerable skill and experience to a talented Group. We continue to look for opportunities to grow our Firm by adding accomplished laterals, particularly in the IP practice.”

Mr. Ladig has represented both stockholders and directors in litigation in the Court of Chancery in cases involving, among other things, advancement of legal fees and expenses, contested elections of directors, requests to inspect books and records and claims for breaches of fiduciary duties. He has also represented corporations and other entities in commercial disputes involving breach of contract claims and claims arising under the General Corporation Law of the State of Delaware.

Mr. Ladig has authored several articles pertaining to corporate and commercial litigation in Delaware and he is a frequent speaker before groups of professionals regarding Delaware laws affecting LLCs and other business entities. Mr. Ladig graduated with distinction from Emory University School of Law and has been a member of the Delaware Bar since 1996.

Super Lawyers® Names 7 Morris James Partners As Top Legal Counsel in Delaware

Morris James Delaware — Fri, 28 May 2010 11:16:39 -0500

Super Lawyers® magazine has named 7 Morris James partners as top legal counsel in Delaware. The multiphase selection process is handled by Law & Politics who evaluates each candidate on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis and include only 5 percent of the licensed attorneys in a state.

Morris James’ 2010 nominations include:

David H. Williams - Employment & Labor, Government/Cities/Municipalities
P. Clarkson Collins, Jr. - Business Litigation, Business/Corporate, Mergers & Acquisitions
Richard Galperin - Personal Injury Defense: Medical Malpractice
Lewis H. Lazarus - Business Litigation
Edward M. McNally - Business Litigation, Business/Corporate
James W. Semple - Business Litigation, General Litigation, Insurance Coverage
Richard Herrmann – Intellectual Property Litigation

Delaware Superior Court Adopts eDiscovery Rules

Christopher Spizzirri — Mon, 03 May 2010 09:27:31 -0500

As explained by Ed McNally (one of the most renowned corporate litigators in the known universe), the Delaware Superior Court has created a commercial litigation division. This is exciting for many reasons, not the least of which is the new division has rules regarding eDiscovery. Morris James had the honor of providing input on the formation of those rules, and we are very pleased with the final results. A brief summary of the rules:

The new rules require parties to meet and confer to discuss:

any issues relating to preservation of ESI;
the form in which each type of ESI will be produced and any problems relating thereto;
the scope of production, including the custodians, time period, file types and search protocol to be used to identify which ESI will be produced;
the method for asserting or preserving claims of privilege or of protection of ESI as trial-preparation materials, including whether such claims may be asserted after production;
the method for asserting or preserving confidentiality and proprietary status of ESI relating to a party or a person not a party to the proceeding;
whether allocation among the parties of the expense of preservation and production is appropriate; and,
any other issue relating to the discovery of ESI.

From those discussions, the parties are required to develop an eDiscovery plan for submission to the Court for entry as a order. The rules then provide a safe harbor for destruction of documents outside the scope of the order. The rules also provide a process for handling not reasonably accessible data, and they explicitly preserve privilege for inadvertently produced documents.

Please take a look at the Administrative Directive establishing the new Complex Commercial Litigation Division (CCLD) for the full details.

In Defense of Genger: Background

Christopher Spizzirri — Thu, 29 Apr 2010 11:09:03 -0500

Ages ago by internet standards (late February), Law.com hosted a two-part post criticizing the Delaware Court of Chancery's decision in TR Investors v. Genger. Post author Leonard Deutchman, General Counsel at LDiscovery LLC, asserts that the Court got the decision wrong because it (1) doesn't understand the technology invloved and (2) doesn't understand the law of eDiscovery.

I have been chomping at the bit to post a reply but have been consumed with finishing the 70-page (not including appendices) internal Morris James eDiscovery Protocol that overlays the EDRM with project management principles, and the accompanying 6-hour training course, but I digress...

Before I post my defense of the Genger decision, it would be useful for all my loyal readers (primarily my mother and wife) to first read the Law.com articles criticizing the Genger decision.

Part I:

Does Discarding Unallocated Space Deserve Contempt?
Overwriting deleted files leads to sanctions for 'international man of mystery'

Part II:

Seeking Legal Ground in Unallocated Space
Absent an obligation to preserve data, can a party be faulted for destroying it?

I will give you all a few days to get through these posts before I post my defense. Cheers!

Hitler Explains Why RIM Matters

Christopher Spizzirri — Mon, 26 Apr 2010 23:34:31 -0500

UPDATE: Now I'm ticked! The video below, and all other Hitler "Downfall" parodies, have been pulled from YouTube. The removal comes per a takedown demand issued by the film's owner Constantin Films, claiming the videos infringed on the copyright. Boo! Hiss!

I am not an IP attorney, so this is not legal advice, but it seems to me that these videos are fair use of copyrighted material. What's more, Constantin Films clearly does not understand social media—I added Downfall to my Netflix queue because of these parodies. I otherwise never would have heard of the film. Constantin Films: THESE VIDEOS ARE HELPING YOU! DUH.

Then again, this takedown dustup is creating even more publicity...hmmm...

ORIGINAL POST: Yesterday, on the e-Disclosure Information Project blog, Chris Dale's post Hitler and Cloud Computing Security gives us a super discovery-related entry in the crowded and growing "Hitler and..." series of spoofs. I can't get enough of these videos and was giddy  to find a related gem on YouTube just days ago, in which Hitler laments the exclusion of records management from the discovery process. Brilliant.

[VIDEO] "I'm From Delaware" Song

Christopher Spizzirri — Sun, 25 Apr 2010 11:01:59 -0500

This video has nothing to do with eDiscovery, but it does have to do with Delaware so it's in.

I'm not turning this into a vblog. I have a few longer posts I'm working on and posting videos is an easy (and amusing) way to keep up activity while I finish writing. More on that in a day or two...

Disaggregation, Unbundling, and Document Review

Christopher Spizzirri — Tue, 06 Apr 2010 18:40:14 -0500

I believe I found this video by way of Ryley Carlock's Litigation Unbundling Ramp in Legal OnRamp. In it, Paul Ward briefly discusses the merits of "smart review"...

Knowledge Management Controls Your Destiny

Christopher Spizzirri — Thu, 04 Mar 2010 16:29:16 -0500

In case you missed it, KMWorld recently announced its 100 Companies That Matter in Knowledge Management. Many of those on the list are familiar names, with offerings familiar to the eDiscovery world, but many are unfamiliar names with unusual offerings. Among the 100 are at least a handful of true pioneers that will pierce new dimensions at the intersection of knowledge and technology (or plant the seeds to do so), transforming the way we coexist with our technologies. As the technological landscape transforms, data and information hunter-gatherers (we) should pay attention.

eDiscovery is fundamentally concerned with hunting down then gathering records and naturally overlaps with Records Management (RM). Knowledge Management (KM), on the other hand, is concerned with putting the information in an organization's records to their best possible use. An organization's KM efforts drive data structures and records management. If you want a glimpse at how eDiscovery will be conducted tomorrow, keep an eye focused on the bleeding edge of KM. Today's internal wikis, blogs, IM clients, enterprise search, and intranets will be replaced with new tools that use and store data in new, more complex ways.

We still haven't figured out how to simply and cost-effectively collect and review email and office documents. Yet we are a on the edge of bold new frontiers. Of tangled, organic data jungles, where algorithms are continuously applied to extract meaning from organizational information, data is mashed up and remixed in countless and novel ways to tease out meaning, and cloud storage structures make the whereabouts of specific data as easy to predict as the location of an electron. All that may not even approach the complexity created when we finally develop quantum computing.

Bring it on. w00t!

Footnote Nugget

Christopher Spizzirri — Mon, 15 Feb 2010 20:28:51 -0500

In a recent Court of Chancery letter opinion in Dawson v. Pittco Capital Partners, CA No. 3148-CC, at page 2 in footnote 3, Chancellor Chandler wrote:

Federal Court decisions are “of great persuasive weight in the construction of parallel Delaware rules” due to the analogous nature of the Court of Chancery Rules and the Federal Rules of Civil Procedure. Cede & Co. v. Technicolor, Inc., 542 A.2d 1182, 1191 n.11 (Del. 1988).

Interesting. Or, as Jimmy Stewart would say, "Well, that's very in'resting."

Seventh Sign of The Apocalypse: Movie About eDiscovery

Christopher Spizzirri — Fri, 05 Feb 2010 11:23:49 -0500

It may not mean the apocalypse, but it surely means Hollywood is OUT of ideas. Who would watch a movie about eDiscovery? I did, and so should you. Veritable eDiscovery celebrities Search King Jason Baron and Blog King Ralph Losey teamed up to create the short embedded video below titled "e-Discovery: Did You Know?" Maximize the video, turn down the lights, and turn up the speakers (music by Darude)—if you’re at the office, I’d suggest going to the headphones. I actually felt cool watching this, if only for a second. Enjoy!

Top 10 Trends in eDiscovery

Christopher Spizzirri — Sun, 20 Dec 2009 21:26:24 -0500

The e-discovery 2.0 blog recently posted its list of Top Ten Trends in Electronic Discovery. Read them all, but here are a few that I particularly agree with:

3. Staffing roles continue to evolve with a newfound focus on project management. The role of an in-house e-discovery coordinator will emerge as more of a project management and analyst versus pure legal or IT. This shift will become increasingly necessary as e-discovery evolves from an ad-hoc fire drill to a standard business process that is repeatable, measurable, and defensible.

4. Data analytics and statistical methodologies gain traction to augment the type of subjective decision making approaches that have historically formed the backbone of the e-discovery search and review processes. These objective methodologies have long been called on as best practices by the likes of the Sedona Working Group. In 2010, they now will start to move from theoretical to practical task as e-discovery tools increasingly move in-house and departments enhance defensibility and add elements such as sampling into the workflow

6. Associate-based review gradually goes extinct, as both clients and law firms tire of expensive, linear review processes. More review work becomes either insourced or is managed with specialized contract attorneys, who are both cheaper and better trained for this type of work.

Read the full list...

Also, a big thanks to The Posse List for including this blog in the Blogroll on their new site The Electronic Discovery Reading Room. They are aggregating a lot of great material on the new site. Take a look.

Vice Chancellor Strine Doles out the eDiscovery Pain

Christopher Spizzirri — Tue, 15 Dec 2009 18:27:52 -0500

Some are calling the Court of Chancery’s decision in TR Investors LLC v. Genger, C.A. 3994-VCS, “the most important recent decision on the Court's handling of discovery of emails and other e-documents.” <!—yes, that was a shameless plug --> The Court of Chancery lays clear its comprehension of some of the subtleties of electronic data and the hardware that maintains it. In this well-reasoned and nuanced decision, Vice Chancellor Strine joins fellow Vice Chancellors Parsons and Noble in continuing to define the rules of eDiscovery in this most important Delaware Court.

Plaintiffs filed motions for contempt and spoliation, seeking sanctions against defendant for causing computer-wiping software to be used to destroy information contained on defendant’s computer and a company server. The Court finds that defendant, Genger, ordered the wipe and knew what effect that would have on potentially relevant data, saying such conduct was reckless if not intentional. Because Genger's destructive conduct prevented plaintiffs’ access to the full array of information that should have been available, the Court (1) raises Genger’s burden of proof by one level, e.g. from preponderance to clear and convincing, (2) declares that, “because his secretive conduct has left… serious doubts about his credibility and because that conduct rendered the documentary record incomplete,” Genger’s uncorroborated testimony alone would not meet his burden of persuasion, (3) orders Genger to turn over documents he claimed as privileged, and (4) awards reasonable attorneys’ fees and expenses related to the motions for contempt and spoliation. On this last sanction, the Court suggests the parties agree to a figure of $750,000, otherwise

If the parties decide to haggle over that amount, the parties shall exchange information about their respective attorneys’ fees and costs in connection with the contempt and spoliation motions and attempt to reach accord in good faith. If no accord is reached, I shall appoint a special master who will address the fee dispute, with the costs of the master being charged in full against the party whose position as to the amount deviates the most from the final amount awarded by the court.

In considering the issues, the Court looks to Vice Chancellor Parsons’ decision in Triton v. Eastern Shore Electrical Services, Inc., 2009 WL 1387115 (Del. Ch. May 18, 2009) for the proposition that “no harm, no foul” is not a valid defense for spoliation in direct violation of a Court order. One of Genger’s defenses was that, without affirmative proof that relevant documents were destroyed, he should not be found to have despoiled evidence, to which the Court replied

For a party to intentionally violate an order not to destroy or tamper with information and then to claim that he did little harm because no one can prove how much information he eradicated takes immense chutzpah. For a court to accept such a defense would render the court unable to govern situations like this in the future, as parties would know that they could argue extenuation using the very uncertainty their own misconduct had created.

In Genger’s defense, it seems that his drive wiping was not just the act of a guilty man trying to destroy damaging evidence. Rather, it seems, as Vice Chancellor Strine put it, that Genger is something of an “international man of mystery.”[FN1] Genger apparently “has high level contacts within the Israeli government for whom he performed sensitive tasks relating to Israel’s national security… Genger used TRI’s computer system to create and receive documents implicating Israel’s national security.” Even more intriguing is that, although he did this sensitive work within the United States, there was nothing in the record showing that the United States government was aware of his activities, and he had no diplomatic or other official credentials.

[FN1]Is it just me, or does Vice Chancellor Strine’s comparison of Genger to Austin Powers hint at a secret inner-geek? It could be, especially considering his lucid explanation of the principle that merely deleting an electronic document doesn’t destroy it. That explanation and other discussions often refer to email chains, allocated versus unallocated drive space, file encryption, and remote servers. Good stuff.

The Court also looks to Vice Chancellor Parsons’ decision this past May in Beard Research v. Kates, 981 A.2d 1175 (Del. Ch. May 29, 2009) to determine when a duty to preserve attached and the appropriate use of dispositive sanctions when that duty has been violated. The Court considered the fact that Genger’s conduct was at least partially motivated by a desire to protect non-relevant, personal information and the fact that he apparently only wiped unallocated space and not active files. Those mitigating factors persuaded the Court that default judgment or adverse inference was not warranted here. Another case of a spoliator “getting off easy” with a large fine.

We also have elements in this case of eDiscovery ineptitude by lawyers and vendors. Apparently, no one on plaintiffs’ side bothered to ask how the TRI email system was configured. It seems there was an off-site email server that was not collected. The Court points out that Genger and his accomplice did not offer the information, as they should have, but what about those charged with doing the collection? Did the lawyers and vendors forget about email or did they just assume they were collecting it in the pile of data somehow?

Friedman Kaplan hired legal technology consultants Kraft & Kennedy, Inc. to do the data collection, but just because an outfit does “legal technology” doesn’t make it qualified to do eDiscovery. The Court observed that Kraft & Kennedy "did not have a deep understanding of how TRI maintained its computer records." Preserving and collecting data are far different endeavors than helping law firms deploy technology solutions internally.

This is not necessarily a swipe at either Friedman Kaplan or Kraft & Kennedy, rather is illustrative of the ongoing lack of comprehension of the issues raised when handling data in the context of litigation. That this comprehension deficit is still so large bewilders me considering the eDiscovery boogeyman seems to be widely feared. Perhaps, with respect to plaintiffs’ errors, this is a case of not knowing what you don’t know.

I can easily envision Friedman Kaplan calling up a legal technology vendor (Kraft & Kennedy) they are familiar with, not knowing the limits of their expertise. (It’s all computers, right?) Then Kraft & Kennedy, not understanding the legal implications of the technical work, agree to do something they certainly know how to do—collect and encrypt electronic data.

And there we have the proverbial gap between legal and IT. Those of us working to bridge this gap tend to make the faulty assumption that it is a singularity. It isn’t. It’s a multiplicity. These gaps exist in almost every law firm and every Court house. We can’t be working to build one large bridge to span the gap. We need to develop many, many bridges and deploy them to every corner of the field. I’ll start printing the signs: BRIDGES WANTED.

Hard Drive Wiping Costs $79 Large

Christopher Spizzirri — Tue, 01 Dec 2009 14:35:59 -0500

I previously discussed Beard v. Kates and have a brief update to report. First, a refresher:

Beard sued Kates for tortuous interference and asked the Court to impose sanctions on Kates for spoliation. Kates repeatedly reformatted his laptop’s hard drive, then replaced the drive (but kept it), then wiped the new drive on the eve of the hearing in which he was explicitly told he would be required to turn the laptop over. The Court awarded attorneys’ fees and imposed an adverse inference, and I opined "Kates should thank his lucky stars the Court decided to go easy on him."

Well, it wasn't that easy. In October, Vice Chancellor Parsons issued a letter decision setting the amount of attorneys' fees awarded to Plaintiffs: $76,906.80. Ouch! Then again, that only comes out to about $26,000 per wipe. Maybe Dr. Kates got a volume discount.

3rd Circuit Doesn't Dig 'Hiding the Ball' Game

Christopher Spizzirri — Fri, 06 Nov 2009 18:25:57 -0500

In a case squarely pitting cooperation against adversarial discovery practices, a unanimous three-judge panel of the 3rd Circuit was not amused by defense counsels' obstructionism. Two of the three judges on the panel are members of the Delaware Bar: Judges Thomas L. Ambro and Kent A. Jordan.

[T]he defense lawyers walk away unsanctioned, but their victory didn't come without a price. Having taken the appeal to remove any smudge on their reputations, they succeeded in their two key legal arguments, but were made to endure a lecture on ethics and civility from the 3rd Circuit panel in a reported decision.

In the opening paragraphs of her 50-page opinion, Judge Dolores K. Sloviter set a tone of disappointment and finger-wagging. And she directed her ire at both defense counsel and the plaintiffs attorneys.

"It would be reasonable to expect ... that experienced attorneys, especially those who have handled major litigation, would be able to proceed through the discovery and pretrial stages with a conciliatory attitude and a minimum of obstruction, and that, under the guiding hand of the district court, the path to ultimate disposition would be a relatively smooth one," Sloviter wrote.

But the Grider case, Sloviter said, "shows exactly the opposite."

Joined by Judges Thomas L. Ambro and Kent A. Jordan, Sloviter found that "the spirit of the discovery disputes was hostile. At the very least, it lacked the civility and professionalism one expects from such experienced attorneys." The parties, Sloviter said, "were unable to reach agreement on even minor matters and the discovery was noncompliant, delayed, or protracted" and the "bickering among the parties ensured that the deadlines would not be met."

Magicians and (some) lawyers say: "Have ball, will hide."

A Casual Conversation on Search and Collection

Vincent M. Catanzaro — Wed, 21 Oct 2009 18:06:05 -0500

I'd like to thank Chris and Morris James for the opportunity to participate on this blog and share my thoughts. Just the other day, Chris, as he is apt to do, sent me a provocative question: "Do you guys ever use keywords during collection?" As a practitioner here in Wilmington, I enjoy this type of open ended question, because normally I can answer it and then riff on the topic like a jazz musician. Here is the content of that improv we conducted via email:

VMC: I wouldn't recommend keywords for standard collection from Email or other ESI repositories, but I would use searches for database applications to extract relevant info. Also, there are some tools that, if you allow them the latitude, they can actually run searches in native stores such as server spaces.

CJS: On one hand it makes sense to cull at collection to save loading costs, but you'd still have to pay to have it done, so maybe it's a wash? It also seems easier to run searches on all the data at once after it's collected rather than multiple times on individual stores.

VMC: I think if you have a relatively small universe (custodians in the 100's or one small business) using search tools to LOCATE rather than CULL is an interesting idea. Provided all parties are cool with the terms, it would definitely cut down on review time and costs. In theory, everything you collect would be responsive by the fact that it was hit by a search term. Then your review can be very tactical in only looking for Privilege and concentrate on that.

CJS: This is a bit semantic, but, if you otherwise would have collected everything then run keywords, isn't locating prior to collecting the functional equivalent of culling? Also, while I agree it could cut down the review, wouldn't it still be difficult to implement? I assume not all the employees are custodians, so we'd ID the custodians then run the searches on just their data? Or would they be doing that? Or would we be running the terms on all the employee data? Are we assuming all the data is in a single store? Considering keywords aren't terribly accurate, would it be better to ask the custodians to collect their relevant docs?

VMC: And so the questions continue along that line! What I was suggesting is identification of data by using keyword searches by agreement. This hypothetical search would take place across all data stores without the need to identify key custodians. You are identifying records containing relevant terms. Now, the adequacy of using terms to find relevant information has been debated. So is there room for some sort of conceptual or analytical evaluation of the communication and not merely the terms used in the records? Culling occurs normally AFTER you have identified key custodians and key data locations. By utilizing word searching, we are culling down the set of potentially relevant records to those containing the terms identified. With the source search we are discussing, there would be no need for culling as you are doing that from the get-go.

We'd love to hear your thoughts on this. Extend this conversation in the comments section.