ABA

Recently I spent some time with a Kroll forensic expert who is speaking for the Utah State Bar today. We talked about various trends in e-discovery and agreed we were both seeing three noteworthy trends. 1) Poor/Sloppy/Lazy e-discovery practices by lawyers are determining case outcomes. Traditionally discovery practices have always impacted case outcomes, but given the complexity of electronic information, the impacts of poor practices are becoming dramatic. A simple notice to preserve evidence can lead to catastrophic client consequences. 2) Most lawyers are focused on defending e-discovery requests right now. In an e-discovery seminar last week in Utah a presenter asked how many lawyers in attendance were there to learn about defending (vs. attacking) - every hand went up. This means instead of assertively representing clients via effective e-discovery, lawyers are playing catch-up and CYA on the issue. Lawyers appear to be afraid to assertively go after electronic evidence, because they know they can't defend the same requests. 3) The amount of available electronic information in discovery is so voluminous; humans can't possibly review it all. This means lawyers need to learn how technology can help them screen and review electronic information. What has happened in some recent circumstances is that lawyers release privileged information to opposing client under protective agreements, meant to preserve privilege. Although this may work in the short run and for a specific case, in the long run it may well waive privilege for other matters or in other circumstances. We concluded in our conversation that lawyers really need to get up to speed on e-discovery issues (with the help of their bar associations). Failure to understand this critical issue could mean harm to clients and ultimately their practices.

Last October, the Delaware Supreme Court ruled that, if any elected official claims he has been defamed by an anonymous blogger, he cannot use a lawsuit to discover the blogger?s identity unless he has substantial evidence to prove his claim. That standard, the court said, ?will more appropriately protect against the chilling effect on anonymous First Amendment Internet speech that can arise when plaintiffs bring trivial defamation lawsuits primarily to harass or unmask their critics.? At issue was a defamation lawsuit filed in 2004 by Patrick Cahill, a councilman in Smyrna, Delaware. Cahill said he needed the identity of a blogger who, in a September 2004 posting, praised the mayor but said Cahill was divisive and had ?an obvious mental deterioration.? In a second posting, the blogger wrote that Cahill ?is as paranoid as everyone in the town thinks he is.? Using a court order, Cahill learned from the publisher of the blog, Independent Newspapers, that the Web address of the blogger belonged to a customer of Comcast. When Cahill demanded the person's identity, Comcast notified the blogger, as required by law. The blogger filed for a protective order. A lower court judge denied the request, and the blogger appealed. In a 33-page opinion, the five justices reversed the lower court, saying the judge used a standard that was incorrect because it was not stringent enough. The court said, ?The Internet provides a means of communication where a person wronged by statements of an anonymous poster can respond instantly, can respond to the alleged defamatory statements on the same site or blog, and thus, can, almost contemporaneously, respond to the same audience that initially read the allegedly defamatory statements.? The court said its decision was the first time any state or federal Supreme Court had ruled on the rights of anonymous bloggers. The decision in the case may be found at http://courts.delaware.gov/opinions/(g54xyg45d4uboc55kbouth45)/download.aspx?ID=67130.

Whenever I need a tech tip, I go see what Sergey and Larry are doing out in the garage at Google. Now they're giving away and selling video clips at Google Video (http://video.google.com/). If you got a video Ipod for Christmas, Hanukah or as a kickback from Jack Abramoff, you'll find a bunch of free content. For those with a Sony PSP handheld entertainment platform, video will download in the PSP's video format, too. And, of course, you can watch it on any computer. Did I say Google is selling video? Yup, Google is letting everyone from the big dogs (e.g., CBS, NFL) to bored teens sell clips for $.99 to $4.99 a pop. It's still in beta, so not all comers can charge for content. Which reminds me that porn content is prohibited. Presumably, someone culls porn submissions in Mountain View. There's a job that'll suck the romance out of life ("How was your day, dear?"). As to current content, the descriptive is "funky." It ranged from home video of a fellow lighting a candle via flatulence to Charlie Rose (Yes, I could tell them apart). If you enjoy "Asian Girl Licking a Glass," they need to start showing your photo to the school crossing guards. But there's "CSI" and "I Love Lucy," too. The copyright issues will be a nightmare for Google, especially as it's taking a share of the proceeds. Even if the video is homemade, the soundtracks tend to be commercial recordings. Case in point: a creative pairing of video game warriors and the ditty, "The Internet is for Porn" from the wonderful Broadway show, "Avenue Q." Can you say "deep pocket defendant?" I think you can. Google morphing into the eBay of short video troubled me less that its other latest development, the "Google Pack" (http://pack.google.com/), a selection of free, "essential" software. The basic Google Pack includes Google Desktop, Google Toolbar for Internet Explorer, Adobe Reader and Lavasoft's Ad-Aware SE. Great! But it also includes Google Pack Screensaver, Picasa and Google Earth. Still pretty great, but hardly essential. Then it gets troubling. The pack tacks on the Mozilla Firefox web browser (Why was it I downloaded the toolbar for Internet Explorer?) and Norton Antivirus, soon to nag you to subscribe to its services. Worse, if you're not careful, a stray click adds RealPlayer, GalleryPlayer, Trillian and GoogleTalk. If you've ever had RealPlayer insinuate itself as the default viewer for every format on your machine and then kvetch that you haven't purchased the premium edition, you know why that stray click is a problem. I love Google. More importantly, I trust Google. But the bloatware called Google Pack gives me pause. Probably best just to get what you need from http://www.google.com/downloads/ and leave the Pack behind.

A Technolawyer exchange late last year prompted this writing. The exchange started out with a post regarding case management software. It morphed into a diatribe regarding the complexity of CMS and various other kinds of software. Ultimately, one attorney pronounced that in his opinion well written and designed software should be usable without need of any training. Yeah, right. He went on to say he would not buy or keep software which did not meet this benchmark. I sure hope he enjoys using that quill pen. In 1986 a law firm asked me to figure out why it?s staggering investment in a state-of-the-art word processing system had not resulted in increased productivity or reduced staffing levels. It took me very little time to determine that lack of training was the problem. Staff were using the equipment and software like electronic typewriters. And in many cases, the lack of training actually caused people to produce work slower than they would have on an actual typewriter. The investment was more a liability than asset. In fact, I theorized that the firm?s staggering 67% employee turnover rate was in some part directly attributable to the technology implementation. The managing partner and executive committee were not convinced. From their perspective, people were busily producing work on the equipment provided. Moreover, they felt that having state-of-the-art technology would draw and keep people at the firm. Nonetheless, I was given a free hand, albeit non-existent budget, to devise and implement a training program. The training program included specific task-related software training. By that I mean that the people being trained were asked to provide input on what tasks they needed to perform with the software on a regular basis, and the training was specifically designed to address those tasks. Regular feedback and additional discussion with staff revealed a whole host of related areas?procedures and other equipment?which required codification and more training. The training program expanded over time to include not just the word processing system, but copiers, fax machines, telephone and vmail, cost control equipment, time & billing and accounting procedures, file opening and closing procedures, and so forth. Current employees began to participate in the training and orientation of new employees. And in doing so, they both improved their skills further, and made additional suggestions on how to improve the program. New employees were surveyed at the end of their 90 day introductory period to determine how effective the training and orientation program was, and how it might be improved. Continual tweaking fine tuned the process. The impact of the training and orientation program became quickly apparent. Turnover dropped dramatically. In one year it fell from 67% to around 35%. In another year turnover was further reduced to 17%. By the end of the third year turnover was under 5%, which was lower than the average for the geographic region. As turnover reduced, morale improved for both staff and attorneys. Unexpectedly, the attorney turnover rate started to drop as well. Profitability improved significantly. During the same time, productivity increased dramatically, and staffing ratios began to morph. The firm was able to migrate from an attorney/secretary ratio of 1:1 to a 1.5:1 ratio by the end of the second year. After almost four years the ratio was mostly 2:1. This further enhanced profitability. There is no doubt that training and productivity are strongly related concepts. They go hand in hand. But it goes much further than that. Effective training performs a dual function: it educates people and it motivates them to work harder and better. There is a reward that organizations reap when they pay attention to people and show them the organization is concerned about them. In simpler terms, we know that people spend such a large portion of their daily lives at work that they need to have a sense of belonging, of being a vital part of a team. When they do, they produce better. It?s simple motivation: pus