Tag Archives: Ball In Your Court Blog

The Difference Between a Preservation Letter and Presentation Notice.

16 Sunday Oct 2016

Posted by in Discovery, E-Discovery, Preservation

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Crafting the “Perfect” Legal Hold Notice, by Craig Ball, Ball In Your Court

https://ballinyourcourt.wordpress.com/2016/10/09/crafting-the-perfect-legal-hold-notice/

When it comes to e-discovery, Craig Ball and his blog, Ball in Your Court, is one of my top resources. Some years ago, he posted “The Perfect Preservation Letter,” as a guide of what you would send to the opposing party to put them on notice of a litigation hold.

This document is similar and just as important – an internal notice or the kind of notice you would give to your client. The following is only a snippet of his post.

When it comes to deciding whether to send a preservation letter or notice, I would err on the side of caution. In the early stages of a case, you may not know whether the legal issue will become litigation. Not all disputes are litigated. But if you wait until it does, e-discovery may already be wiped or corrupted.

Some clients may balk at the scope and breadth of your preservation notice, which is why it Mr. Ball’s rules of thumb are so helpful. A reasonable precaution will be worth the effort. – CCE

[T[he inapparent distinction between a preservation letter and a preservation notice is that the latter is an internal communication better termed a legal hold directive.  You send a preservation letter to the other side.  The preservation notice is what a party furnishes to its own principals, employees, agents, contractors and anyone else aligned with the party giving the notice and obliged to preserve information in anticipation or initiation of litigation.  Clearly, we must find better terminology to distinguish the two than just “letter” and ‘notice.’

[I] drafted a list of ten elements I thought were essential components of whatever communication aspires to call itself the perfect preservation notice.

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No Perfection Standard In E-Discovery?

02 Saturday May 2015

Posted by in Discovery, E-Discovery, Federal Rules of Discovery, Requests for Production

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Is There a Right to Fail in E-Discovery?, by Craig Ball, Ball In Your Court Blog

https://ballinyourcourt.wordpress.com/2015/05/01/is-there-a-right-to-fail-in-e-discovery/

Disagreements about scope and process in e-discovery shouldn’t split between plaintiffs’ and defendants’ interests. After all, everyone is a requesting and producing party, whether north or south of the ‘v.’ Yet, the reality is that most defense counsel see themselves as producing parties, and most plaintiffs’ counsel identify with requesting parties. That unfortunate alignment poisons our ability to set aside allegiances and be officers of the Court mutually determined to find the most effective and efficient means to discover evidence illuminating the issues.

Cooperation in e-discovery is derided as naive in an adversarial system of justice, and ‘discovery about discovery’ is vilified as a diversionary tactic, a modern take on the maxim, ‘if you can’t try the case, then try your opponent.’ Counsel for responding parties are quick to note that no party is obliged to deliver a perfect production. They’re absolutely right. Perfection is not the standard. But, is a producing party entitled to fail before a requesting party may inquire into the scope and process of e-discovery? Must we wait until the autopsy to question the care plan? . . . .

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Slip-and-Fall Evidence Spoilation A Slippery Slope?

06 Monday Apr 2015

Posted by in Discovery, E-Discovery, Litigation, Personal Injury, Requests for Production, Slip and Fall

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Slippery Slope: Harrell v. Pathmark, by Craig Ball, Ball In Your Court Blog

https://ballinyourcourt.wordpress.com/2015/04/06/2318/

One e-discovery blog I never fail to read is Doug Austin’s eDiscoveryDaily. It’s hard to come up with a post every day; yet, Doug makes it look easy. Each post is a quick read with little editorializing; and, Doug faithfully includes a link to the opinion. That last may seem a small thing; but, some bloggers don’t do it (or only share the full text of the decision with paying customers). There’s no substitute for reading the case.

Today, Doug posted on Harrell v. Pathmark, (USDC EDPA, February 26, 2015), where the Court dismisses the plaintiff’s slip-and-fall injury claim on summary judgment. I don’t think the Court got it wrong on the merits; but, in weighing in, sua sponte, on the e-spoliation issue, I’m reminded of the maxim, ‘hard cases make bad law.’ . . .

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Why Aren’t All Lawyers And Law Students Trained In E-Discovery And Should They Be?

07 Saturday Mar 2015

Posted by in Continuing Legal Education, Diligence, Discovery, E-Discovery, Ethics Opinions, Federal Rules of Discovery, Legal Ethics, Technology

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The Conundrum of Competence in E-Discovery: Need Input, by Craig Ball, Ball In Your Court Blog

https://ballinyourcourt.wordpress.com/2015/03/07/the-conundrum-of-competence-in-e-discovery-need-input/

I frequently blast lawyers for their lack of competence when it comes to electronic evidence. I’m proud to be a lawyer and admire all who toil in the fields of justice; but I cannot hide my shame at how my brilliant colleagues have shirked and dodged their duty to master modern evidence.

So, you might assume I’d be tickled by the efforts of the American Bar Association and the State Bar of California to weave technical competency into the rules of professional conduct. And I am, a little. Requiring competence is just part of the solution to the competence crisis. The balance comes from supplying the education and training needed to become competent. You can’t just order someone who’s lost to ’get there;’ you must show them the way. In this, the bar associations and, to a lesser extent, the law schools have not just failed; they’ve not tried to succeed.

The legal profession is dominated by lawyers and judges. I state the obvious to expose the insidious: the profession polices itself. We set the standards for our own, and our standard setters tend to be our old guard. What standard setter defines himself out of competence? Hence, it’s extraordinary that the ABA commentary to Model Rule 1.1 and the proposed California ethics opinion have emerged at all.

These laudable efforts just say ‘get there.’ They do not show us the way. . . .

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Do-It-Yourself E-Discovery? Is There Such A Thing?

08 Sunday Feb 2015

Posted by in Concept Search Tools, Discovery, Document Review, E-Discovery, Emails, Federal Rules of Discovery, Legal Technology, Microsoft Office, Native Format, Outlook, Preservation, Requests for Production, Rule 34

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Do-It-Yourself Digital Discovery, Revisited, by Craig Ball, Ball In Your Court Blog

http://tinyurl.com/ol2urvf

In case you have not noticed, Craig Ball is re-posting older articles, as he explains below. Truly folks, when it comes to e-discovery, when Craig Ball speaks, I listen. Maybe you should too. 

I have posted many of his revisited posts. To find them all, visit his blog, Ball In Your Court at https://ballinyourcourt.wordpress.com/. -CCE

This is the thirteenth in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations.  As always, your comments are gratefully solicited.

Do-It-Yourself Digital Discovery [Originally published in Law Technology News, May 2006]

Recently, a West Texas firm received a dozen Microsoft Outlook PST files from a client. Like the dog that caught the car, they weren’t sure what to do next.  Even out on the prairie, they’d heard of online hosting and e-mail analytics, but worried about the cost. They wondered: Did they really need an e-discovery vendor? Couldn’t they just do it themselves?

As a computer forensic examiner, I blanch at the thought of lawyers harvesting data and processing e-mail in native formats. ‘Guard the chain of custody,’ I want to warn. ’Don’t mess up the metadata! Leave this stuff to the experts!’ But the trial lawyer in me wonders how a solo/small firm practitioner in a run-of-the-mill case is supposed to tell a client, ‘Sorry, the courts are closed to you because you can’t afford e-discovery experts.’

Most evidence today is electronic, so curtailing discovery of electronic evidence isn’t an option, and trying to stick with paper is a dead end. We’ve got to deal with electronic evidence in small cases, too. Sometimes, that means doing it yourself.

As a computer forensic examiner, I blanch at the thought of lawyers harvesting data and processing e-mail in native formats. ‘Guard the chain of custody,’ I want to warn. ‘Don’t mess up the metadata! Leave this stuff to the experts!’ But the trial lawyer in me wonders how a solo/small firm practitioner in a run-of-the-mill case is supposed to tell a client, ‘Sorry, the courts are closed to you because you can’t afford e-discovery experts.’

Most evidence today is electronic, so curtailing discovery of electronic evidence isn’t an option, and trying to stick with paper is a dead end. We’ve got to deal with electronic evidence in small cases, too. Sometimes, that means doing it yourself.

The West Texas lawyers sought a way to access and search the Outlook e-mail and attachments in the PSTs. It had to be quick and easy. It had to protect the integrity of the evidence. And it had to be cheap. They wanted what many lawyers will come to see they need: the tools and techniques to stay in touch with the evidence in smaller cases without working through vendors and experts.

What’s a PST?

Microsoft Outlook is the most popular business e-mail and calendaring client, but don’t confuse Outlook with Outlook Express, a simpler application bundled with Windows. Outlook Express stores messages in plain text, by folder name, in files with the extension .DBX. Outlook stores local message data, attachments, folder structure and other information in an encrypted, often-massive database file with the extension .PST. Because the PST file structure is complex, proprietary and poorly documented, some programs have trouble interpreting PSTs.

What About Outlook?

Couldn’t they just load the files in Outlook and search? Many do just that, but there are compelling reasons why Outlook is the wrong choice for an electronic discovery search and review tool, foremost among them being that it doesn’t protect the integrity of the evidence. Outlook changes PST files. Further, Outlook searches are slow, don’t include attachments (but see my concluding comments below) and can’t be run across multiple mail accounts. . . . .

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Craig Ball on E-Discovery’s Concept Search Tools.

10 Saturday Jan 2015

Posted by in Concept Search Tools, Discovery, E-Discovery

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Unclear on the Concept, Revisited, by Craig Ball, Ball In Your Court

https://ballinyourcourt.wordpress.com/2015/01/09/1953/

This is the second in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations. As always, your comments are gratefully solicited.

Unclear on the Concept

 [Originally published in Law Technology News, May 2005]

A colleague buttonholed me at the American Bar Association’s recent TechShow and asked if I’d visit with a company selling concept search software to electronic discovery vendors.  Concept searching allows electronic documents to be found based on the ideas they contain instead of particular words. A concept search for “exploding gas tank” should also flag documents that address fuel-fed fires, defective filler tubes and the Ford Pinto. An effective concept search engine “learns” from the data it analyzes and applies its own language intelligence, allowing it to, e.g., recognize misspelled words and explore synonymous keywords.

I said, “Sure,” and was delivered into the hands of an earnest salesperson who explained that she was having trouble persuading courts and litigators that the company’s concept search engine worked. How could they reach them and establish credibility? She extolled the virtues of their better mousetrap, including its ability to catch common errors, like typing “manger” when you mean “manager.”

But when we tested the product against its own 100,000 document demo dataset, it didn’t catch misspelled terms or search for synonyms. It couldn’t tell “manger” from “manager.” Phrases were hopeless. Worse, it didn’t reveal its befuddlement. The program neither solicited clarification of the query nor offered any feedback revealing that it was clueless on the concept. . . .

Using Location And Time To Exonerate Or Implicate.

26 Wednesday Nov 2014

Posted by in Android Phones, Blackberry Phones, Cell Phones, Criminal Law, Evidence, Experts, Forensic Expert Witness, iPad, iPhones, Legal Technology, Trial Tips and Techniques

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Location. Location. Location., by Craig Ball, Ball In Your Court Blog

http://tinyurl.com/mq2u5zv

Okay, you have to admit that it’s pretty cool when a judge calls to pick your brain! – CCE 

I’m peripatetic. My stuff lives in Austin; but, I’m in a different city every few days. Lately looking for a new place for my stuff to await my return, I’m reminded of the first three rules of real estate investing: 1. Location; 2. Location and 3. Location.

Location has long been crucial in trial, too: ‘So, you claim you were at home alone on the night of November 25, 2014 when this heinous crime was committed! Is that what you expect this jury to believe?’ If you can pinpoint people’s locations at particular times, you can solve crimes. If you have precise geolocation data, you can calculate speed, turn up trysts, prove impairment and even show who had the green light. Location and time are powerful tools to implicate and exonerate.

A judge called today to inquire about ways in which cell phones track and store geolocation data. He wanted to know what information is recoverable from a seized phone.  I answered that, depending upon the model and its usage, a great deal of geolocation data may emerge, most of it not tied to making phone calls. Tons of geolocation data persist both within and without phones.

Cell phones have always been trackable by virtue of their essential communication with cell tower sites. . . .

Craig Ball On An Essential Lawyer Skill – The Custodial Hold.

23 Saturday Aug 2014

Posted by in Discovery, E-Discovery, Litigation Hold, Preservation

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Custodial Hold: Trust But Verify, by Craig Ball, Ball In Your Court Blog

http://ballinyourcourt.wordpress.com/2012/08/09/custodial-hold-trust-but-verify/

Please click on the link to the Pension Committee opinion (you’ll see it in Craig Ball’s article). You’re getting two for one here. Besides, when it’s Craig Ball, you know it’s going to be good. -CCE

Long before the Pension Committee opinion, my dear friend and revered colleague, Browning Marean, presciently observed that the ability to frame and implement a legal hold would prove an essential lawyer skill.  Browning understood, as many lawyers are only now coming to appreciate, that ‘legal hold’ is more than just a communique.  It’s a multi-pronged, organic process that must be tailored to the needs of the case like a fine suit of clothes.  For all the sensible emphasis on use of a repeatable process, the most successful and cost-effective legal holds demonstrate a bespoke character from the practiced hand of an awake, aware and able attorney.

Unfortunately, that deliberate, evolving character is one of the two things that people hate most about legal holds (the other being the cost).  They want legal hold to be a checklist, a form letter, a tool–all of which have value, but none of which suffice, individually or collectively, to forestall the need for a capable person who understands the ESI environment and is accountable for getting the legal hold right.  It’s a balancing act; one maximizing the retention of relevant, material, non-duplicative information while minimizing the cost, complexity and business disruption attendant to meeting one’s legal responsibilities.  Achieving balance means you can’t choose one or the other, you need both. . . .

What Makes Attorney Fee’s “Unconscionable”?

19 Thursday Jun 2014

Posted by in Advertising, Law Office Management, Management, Marketing

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Unconscionable, by Craig Ball, Ball In Your Court Blog

http://ballinyourcourt.wordpress.com/2014/06/19/unconscionable/

 Before I limited my law practice to work for courts and counsel, I was a trial lawyer working for contingent fees.  For 20+ years, I never charged for an hour of my time.  I funded the cases, did the work and was paid only if I recovered damages for my clients.  I charged 40% plus expenses; so, for the most part my clients and I shared roughly equally in the outcome.  At the time, I thought my fees proper, and they were certainly ‘industry standard.’  Everyone charged about the same, not from collusion but from plagiarism: lawyers didn’t draft fee agreements; we copied them.

But as I look back, I see that I could have charged less—even much less—and still have made a good living.  The only limits on what I could charge were the marketplace, where I saw no competition on price, and ethical precepts dictating a lawyer may not charge an illegal or unconscionable fee. . . .

Craig Ball On Being A Digital Forensic Witness.

03 Monday Mar 2014

Posted by in Affidavits, Cross-Examination, Depositions, Direct Examination, Discovery, E-Discovery, Evidence, Exhibits, Expert Witness Report, Expert Witnesses, Experts, Forensic Expert Witness, Hearsay, Legal Technology, Legal Writing, Trial Tips and Techniques

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Becoming a Better Digital Forensics Witness, by Craig Ball, Ball In Your Court Blog

 http://tinyurl.com/kgm8epj

I love to testify—in court, at deposition, in declarations and affidavits—and I even like writing reports about my findings in forensic exams.

I love the challenge—the chance to mix it up with skilled interrogators, defend my opinions and help the decision makers hear what the electronic evidence tells us.  There is a compelling human drama being played out in those bits and bytes, and computer forensic examiners are the fortunate few who get to tell the story.  It’s our privilege to help the finders of fact understand the digital evidence.[1]

This post is written for computer forensic examiners and outlines ways to become a more effective witness and common pitfalls you can avoid.  But the advice offered applies as well to almost anyone who takes the stand. . . .

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Craig Ball Shows Why ESI Form Should Follow Function.

16 Thursday Jan 2014

Posted by in Discovery, E-Discovery, Emails, Legal Technology, Microsoft Office, Outlook

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Forms that Function, by Craig Ball, Ball In Your Court

http://tinyurl.com/kgokpmd

The criterion, “Will the form produced function in an e-mail client?” enables parties to explore a broad range of functional native and near-native forms, not just PSTs.  It an objective “acid test” to determine if e-mail will be produced in a reasonably usable form; that is, a form not too far degraded from the way the data is used by the parties and witnesses in the ordinary course.

When You Want Fast and Cheap, Adobe Acrobat Does the Trick in a Pinch.

24 Sunday Nov 2013

Posted by in Adobe Acrobat, Databases, Discovery, E-Discovery, Emails, Evidence, Legal Technology, Pre-Trial, Trial Tips and Techniques

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Acrobat to the Rescue: Searching Unsearchable Productions, by Craig Ball, Ball In Your Court Blog

http://tinyurl.com/paxgrfn