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E-Discovery Workshop, Gartner conference, May 1, 2009

by Whit Andrews  |  May 1, 2009  |  Comments Off on E-Discovery Workshop, Gartner conference, May 1, 2009

We’re just getting started here, but the room is full of lawyers. So far, two lawyer jokes. That’s what you’re looking for, along with advice lawyers can actually follow, and also i would like a power outlet. Got the cord stretched across a gap. Anybody trips, it’ll be easy to find a lawyer. [rimshot]

John Bace: Describing how Gartner got started dealing with technology and the legal community.  So, Bace apparently suggested they hire a lawyer, and what do they do? Send the man to law school. Shall we call that patience? Seems cruel to me.

Debra Logan: I’m aiming to have less dull slides than usual. [Hey! That’s just plain mean. I have interesting slides. I use bullets.] What’s happening? Change in the market from service providers to software. Used to be you had an outside service provider and you got your stuff tiffed. NOW you’re hearing “what if you could just instantaneously index and search everything? As we used to say — yeah, and it’s a dessert topping and a floor wax.

Scott Carlson

Scott Carlson

Scott: I still argue motions and handle litigation. I do it across the country in state and federal courts. What I am seeing is an increase in sanctions. I think we are years from the peak of having this issue gain attention. It’s a strange phenomenon. Every ABA journal, every state bar journal — and nobody’s reading this stuff. [Makes me wonder — is anybody reading this?] I don’t think the collective IQ on e-discovery has really gone up. Even in Zubulake, Judge Shira A. Scheindlin was saying, surely, if I have written five decisions on this, this will have been handled. But that’s not the case.

Debra: There will be an accelerating warfare on this. That’s what they do — they want to win.

Scott: I always say, “Don’t fight in my area. You want to survive e-discovery. You don’t want to fight.” The system does require that two sides know. The people who understand this understand the cost-benefit analysis. They know this makes it easier for all of us to cooperate.

Debra: Taking email off the table is probably not happening…

Scott:…often. No, it isn’t.

Audience: What about proportionality?

Scott: That’s the idea that discovery is not perfect. It’s not a quest for absolute truth. It’s more an attempt for fast, efficient result. So, for examole, you shouldn’t spend $200,000 on a case worth $10,000. And it is a judge’s right to put limits on discovery. Sometimes, judges in the past would say things like, “I’m going to allow 10 depositions per side.” And we lived with it. Now we start talking about only these custodians, or only these emails, and people start yelling and screaming. And judges think that technology makes it cheaper and easier.

Scott: The federal rules don’t really talk about preservation. The rules mostly talk about the cost of production, but there is also a cost of preservation. We’re finding that naive judges don’t understand that making decisions about recycling backup tapes can lead to changes in costs in preservation.

Scott’s giving good advice now about how to deal with disaster recovery tapes and other things. Not gonna blog that here — that’s behind the paywall stuff. Sorry, folks.

[onstage myself — not blogging]

Now Jim Daley, from Daley & Crowley, and Carsten Casper, discussing “Cross-Border Issues in E-Discovery.”

Daley tells a story of being in Europe at a similar event and hearing Judge Scheindlin have difficulty understanding a system of jurisprudence in which privacy can be valued above the expediency of justice.

Jim Daley: In the U.S., we’ve put commerce and capitalism above above privacy. You want to move a data center from Frankfort to the U.S.? That’s processinging. I had a client who was going to move data centers from Frankfort to Dallas — which they did not realize would expose them to European privacy restrictions. In many cases, there are no mechanisms to get data out of the EU without “choosing the lightning or the fire.” Many countries don’t feel employees can consent, because of the unequal relationship of worker to employer.

Now getting into behind the paywall stuff here too. Back later with a fresh entry.


Whit Andrews
VP Distinguished Analyst
14 years at Gartner
18 years IT industry

Whit Andrews is a vice president and distinguished analyst in Gartner Research. Andrews covers enterprise search and enterprise video content management.Read Full Bio

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