Oct 13, 2009
Yes, Rule 26 is too late! Time to play chicken!
The Rule 26 is far too late. Or, rather, it’s far too early.
Thankfully, Blank has written about this very important point!
This is an amusing fiction. The truth, however, is that for nearly all clients, most of the potential savings were squandered long before the case started. If e-discovery savings and efficiency are the goals, ECA comes much too late.
Absolutely, ECA should be dealt with as reality far in advance of litigation.
The good news is, most litigation counsel can help out, even if they know little about electronic records. It just takes getting counsel involved with the client’s IT purchasing decisions. So, spread the message: Early is too late!
Not sure I agree with his conclusion, UNLESS the company and the law firm are involved in an Agile, collaborative relationship, because the last thing clients want is an uninformed lawyer poking his or her nose into company purchasing and data management decisions.
The tech team doesn’t even like MANAGEMENT telling them how to work, let alone a lawyer, billing out at…whatever lawyers are billing out at these days, walking in and messing about with established practices.
Far better, given the way most companies work, for lawyers to get up to speed before attempting to assess IT concerns by playing “chicken” with the company.
Here’s where you can learn about the term “chicken.” Far better to be a chicken, than a seagull.
Since “seagull” isn’t a well-known term, let’s look at the definition:
A Seagull can be identified by these characteristics:
- Comes into the project mid-sprint with no prior contributions
- Makes a lot of noise
- Craps on everyone & everything
- Leaves just as abruptly as he or she appeared
This can be a team morale killer, especially if it is a C-Level player. Also it will definitely have an adverse effect on your current velocity!
In other words, the seagull is the LEAST welcome team “addition” possible. I don’t think this concept is limited to tech teams. how to get around this, is to move “closer to the ground.” This is not a question of client’s, but of how much the lawyeris willing to do to get things right.
By playing “chicken,” in the Scrum world, a lawyer can learn about her client and participate in “Scrum” style meetings in a lightweight fashion. Lawyers who don’t know anything have no business advising a client, but the good news is that the remedy for that is simple: learn something!
This is a different approach from an uninformed lawyer marching into a client with a few judicial opinions under his belt and dictating IT policy. This means that when it comes time to ramp up for litigation, the client is confident that the firm understands what is already there.
Litigation is no time to start changing IT policy or second-guessing the motivation for whatever policy and practices exist. The time for lawyers to have an impact is early and often. But, in a lightweight, agile fashion that respects the wisdom of the client.
[...] in environments where they are the determinate point where information collects. In my objection to lawyers acting more like seagulls than chickens, the backstory is that lawyers cannot hold all the information. They cannot swoop in and dictate to [...]