ALI-ABA Course of Study Current Developments in Employment Law: The Obama Years July 22-24, 2010 Santa Fe, New Mexico

Transcription

1 247 ALI-ABA Course of Study Current Developments in Employment Law: The Obama Years July 22-24, 2010 Santa Fe, New Mexico E-Discovery: Right... from the Start By Craig D. Ball Law Offices of Craig D. Ball, P.C. Austin, Texas

2 248 2

3 249

4 250 E-Discovery: Right from the Start Employment Law Conference Collection 2010 Craig Ball About this Collection... 2 E-Discovery for Everybody: The EDna Challenge... 5 E-Discovery: A Special Master's Perspective First Responder's Guide to Employee Data Theft Right from the Start: 8 Ways to Hit the Ground Running Surefire Steps to Splendid Search Geek Speak: Lawyer s Guide to the Language of Data Storage and Networking.. 52 Technology Primer: Backups in E-Discovery Meeting the Challenge of in Civil Discovery Preservation of ESI after Layoffs Selected BIYC Columns on Electronic Discovery for Employment Lawyers About the Author About this Collection I'm not an employment law specialist, but the majority of cases in which I serve as an expert are disputes between employers and employees, particularly departed employees who, through guile or error, left with proprietary data. Through computer forensics, I've exposed many a data thief, but I'm equally proud of the cases where my work proved that proprietary data either didn't run off or wasn't exploited. In The Common Law, Justice Oliver Wendell Holmes, Jr. wrote, "even a dog distinguishes between being stumbled over and being kicked." That distinction so often lies at the heart of what we seek to divine from the electronic evidence. Was the act complained of mean or careless? Did the employee spirit their to a thumb drive to abscond with client lists or pricing, or did he or she mean only to retrieve personal messages? Are there genuine issues of, e.g., harassment, sexism, racism, ageism or religious discrimination? If so, are they confined to an aberrant corporate cul-de-sac or entrenched in the company culture? 2

5 251 When a data theft case involves a veteran employee or senior executive, the central question isn't whether they hold proprietary data--if they worked from home or on the road, company information likely resides on their home machines, thumb drives and personal accounts. Instead, the issues are what do they have, where is it and where did it come from, when did they acquire it, who are they sharing it with and how are they using it. Whether damages should flow, whether injunctive relief should issue and what steps are needed to rectify abuse all hinge on whether the dog was kicked or stumbled over. On the face of things, one looks like the other. Often, it's the electronic evidence--perhaps only the digital trail visible to a skilled analyst--that allows us to tell the difference. America's halcyon days of hammer and harness are behind us. We are knowledge workers now; yet, even those who drive trucks or empty bedpans are tasked by pixels and tracked by bytes. The evidence of what we do and say, of when and where and how we go, of what we own and earn and spend is digital. More than 99% of it will never exist as anything but electronically stored information, and most takes forms that require special tools or expertise to see and interpret. This irritates and intimidates old school lawyers. At great cost to unwitting clients, the old school cling to what they know and disregard the rest. They print documents or convert them to paper-like formats like TIFF. They unleash armies of reviewers against hordes of irrelevant documents. They thunder that e-discovery is "out-of-control," extolling the merits of raw meat rather than learning to make fire. Sure it's scary to face the fact that something you can't see and don't understand can hurt you; but, we've been down that road before. Take germs. It's barely 150 years since John Snow challenged the miasma theory of disease and stemmed a cholera epidemic by proving a contaminated well was the common source of infection. He posited that invisible beasties in the water were responsible. What a nutcase! Then, Dr. Oliver Wendell Holmes, Sr., the famous jurist's father, made himself a pariah in the medical community by advocating antiseptic techniques. "More invisible bogeybugs," the eminent doctors scoffed, "and now he wants us to wash our hands, gowns and instruments!" They also thought it too costly, complicated and "out of control." Just as we demand clean hands from surgeons, clients and courts expect "clean hands" from lawyers in the sense of meeting a task ethically and in good faith. A lawyer without the skills needed to properly preserve, collect, analyze and present electronic evidence is all-butincompetent to manage litigation today, and visiting the cost to compensate for those shortcomings upon the client is its own ethical minefield. That's why you must make it your mission to master electronic discovery. 3

6 252 Now, let me tell you why you'll be glad you did. Occasionally you'll win a case on charm, a good or bad judge, an appealing client, a hateful opponent or just dumb luck. But, without any of these things, you'll win most of the time if you have the evidence proving your case. Much of that evidence is digital. It's there. It's waiting for you--eager to tells its compelling story, ready to show your client was right and the other side should pay big or go hence without day. The employment lawyer who can get to the digital evidence--find it, understand it and use it--enjoys an enormous competitive advantage. It's bad to want to win at any cost. It's worse to accept defeat without a whimper. The selected articles and columns that follow were chosen with the interests of employment lawyers in mind, but they are but a sampling of the articles I've written about electronic discovery and computer forensics and make available at I hope you find them, along with my blog posts, webcasts and other resources, to be an valuable, accessible introduction to the technology and best practices of electronic discovery. Craig Ball, June