Better Discovery

Time may never reveal the motivation for Biller v. Toyota. Or the 75 pages of Complaint the court has now refused to seal.

Unfortunately, Toyota’s press release does little to clarify the e-discovery issues, even as it seeks to ssway public opinion against the Plaintiff on personal grounds (always a little distasteful). Mr. Biller may be unstable, as they strongly imply, but that doesn’t mean he’s crazy,–or wrong about what he claims (he did??) on behalf of the company.

If he did those things, well, we’ve got several ethical issues to sort out…like his license to practice law. But, something strongly suggests that defense of this lawsuit is NOT seriously grounded in concerns about Mr Biller’s mental state.

What has been left out of other reports, but appears on the Justia site, is the fact that Mr. Biller owns 50% of an e-discovery firm that is also a named Plaintiff.

So, my gut tells me that this lawsuit is either a response to a business issue,–or publicity for someone (not sure who). Will there be or has there been a motion to force arbitration (Cf. Exhibit 2)? If so, then that will make this a very interesting ADR case as well!

Plaintiffs: Dimitrios P. Biller and Litigation Discovery & Trial Consulting, Inc.
Defendants: Toyota Motor Corporation, Toyota Motor Sales, U.S.A., Inc., Christopher Reynolds, Jane Howard Martin, Eric Taira, Dian Ogilvie and Alicia McAndrews

Case Number: 2:2009cv05429
Filed: July 24, 2009

Court: California Central District Court
Office: Western Division – Los Angeles Office [ Court Info ]
County: Los Angeles

I’m trying to find the Complaint, Answer and court Order’s but these may only be available on PACER. I’ll see if I can find that service to get around having to pay for information, which even the judge on the case said is “public.”

…

Got it! Thanks CBS: don’t know if y’all meant to hide it (maybe pending the judge’s ruling), but though the link is WRONG, the url errors were obvious! Next time, suggestion is to take it down. Any 12-year old could have found it last week.

Good url : “http://www.cbsnews.com/htdocs/pdf/BILLERvTOYOTACOMPLAINT.pdf”

Bad url : “http://www.cbsnews.com/htdocs/htdocs/pdf/BILLERvTOYOTACOMPLAINT.pdf”

Given the nature of the Complaint, I won’t put it up here until I can get Defendant’s Answer, but if you want it, ping me.

Looks like this is really an IP case. Allen & Wohrle seem to have filed the complaint representing the Plaintiff.

Mr. Biller’s E-Discovery Seminar Agenda

Here is the agenda offered by LDT. It is reprinted as published on his website, because it’s a pretty good outline and I suspect it will not last long. I’ve pasted it here as published, so please refer to the hyperlinked site for current and accurate information. I’m only posting it here for your information.

»Why E-Discovery is Important to Corporations, Lawyers & Judicial System: 9:00 a.m to 10:00 a.m.

* Corporations
* Lawyers
* Judicial System
* Differences between Electronically Stored Information & Paper Documents

Law on E-Discovery

* Zubulake vs. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y., May 3, 2003).
* Zubulake vs. Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. July 24, 2003).
* Zubulake IV
* Zubulake V

Amendments to Federal Rules of Civil Procedure:

* Rule 16
* Rule 26
* Rule 33(d). Interrogatories to Parties & Options to Produce Business Record
* Rule 34. Production of Documents
* Rule 34. Production of Documents
* Rule 37. Failure to Make Disclosure or Cooperate in Discovery; Sanctions.
* Rule 45. Subpoena
* Rule 26(c) – Motion for Protective Order

California Code of Civil Procedure: 10:15 a.m to 11:15 a.m

* Amendments to CCP Section 2016 and 2031
* Amendments to CCP Section 2016
* Amendments to CCP Section 2031
* Amendments to CCP Section 2031.050(a)-(c)
* Amendments to CCP Section 2031.060
* Amendments to CCP Section 2031.020
* Amendments to CCP Section 2031.080
* Section 2031.285 Has Been Added To the CCP & Discovery Act
* Amendments to CCP Section 2031.310
* Section 1985.6 Has Been Added To the CCP & Discovery Act
* CCP Section 2017.720
* California Code of Civil Procedure Section 2035.010 (Perpetuation of Testimony or Preservation of Evidence Before Filing Action)
* California’s Notice of Litigation Hold

»Guidelines for State Trial Courts Regarding Discovery of ESI Document Retention Policy (“DRP”): 11:30 a.m to 12:30 p.m.

* Addressing E-Discovery
* Processes & procedures regarding issuance of NLH
* Discussing processes and procedures regarding lifting of NLH

Notice for Litigation Hold

* When should a Notice for Litigation Hold be issues?
* What should a Notice for Litigation Hold State?
* Who should receive the Notice for Litigation Hold?
* How should the Notice for Litigation Hold be issued?
* Why is the Notice for Litigation Hold invaluable?
* Scope of Notice for Litigation Hold?

# Searches, Collections, Analysis, Review & Production of E-Discovery
# Defending against Attacks for Alleged E-Discovery Abuses
# Recommendation

References

• Justia Case page
• Automotive News article
• Toyota Press Release
• Information Overload
• SE Texas Record

I recently posted this response on the LinkedIn ” University of Michigan Law School Alumni” group, on the question of legal outsourcing:

Question :

What are people’s thoughts on legal outsourcing as a way to cut costs for certain routine legal/paralegal tasks such as deposition summaries, document review, broad legal research? Has anyone used such a service? What about using a company with offshore attorneys, e.g. India, Israel, etc.?

My Answer:

Depends on what you mean by “outsourcing.”

As I think about what Agile has to offer the legal profession, the importance of team collocation has become abundantly clear to me. That doesn’t mean that a team should never be ‘distributed,” but it does suggest that lawyers put their teams together with a more coherent strategy than simply buying low and selling high.

Each case needs to have an assessment, completed transparently with the client, on the question of how to create real value for money given the client’s priorities. The folly of doing this without having the team of doc reviewers in on the planning stage never ceases to amaze me.

Right now, my thought is that document review teams should be brought together for the first few days so that they can gel around the mission and standards required for quality. If they need to go away for a few weeks while the rest of the team executes upon their part of the task, that’s fine. But most firms continue to employ the philosophy that doc reviewers are fungible,– a huge disservice to the client.

Only after an internal rhythm is established should the team be disbanded to work remotely. Self-organization is nearly impossible if individuals are spread throughout the world and standards are impossible without some level of human contact.

Yes, cutting cost is important, but it should never be Job 1. Job 1 should always be giving high value for money, with value defined by the client. The gap between cost and perceived value cannot be fixed by simply moving the whole show down on the y-axis.

IBM has introduced new features in IBM InfoSphere eDiscovery Manager and IBM InfoSphere eDiscovery Analyzer. They include enhanced early case assessment functionality, extended support for additional types of electronically stored information (ESI) content, and open application programming interfaces (APIs) for partner solution integration.

The system is described on Knowledge Management World.

Here’s the IBM press release.

This site is a place to comment on what most people do, –and explain why it could stand a bit of improvement.

It’s just one perspective, and since everyone seems to be using it, it makes sense to have a discussion about it.

So, this is a blog with a perspective, but is not an “attack blog,” because the objective is not to agree OR disagree with the EDRM, but to see where it leads those who follow.

Yes, Dialexica is developing our own model, and certainly it will be open to criticism. That’s a good thing, and welook forward to the exchange.

The nice thing about the EDRM is that it gives us a lot of data and information, which is the hallmark of a model that truly aspires to provide a useful framework.

We hope that by lifting the hood and jiggling the cables, we can contribute to YOUR understanding of the EDRM i(f you choose to use it), at the same time as we increase the value and strength or our own model. For it is only by testing it against industry standards, common sense and our own evolving understanding of rapidly changing process, that we can get closer to what looks like a great discovery process.

This is the Socha – Gelbman or Electronic Discovery Reference Model (“EDRM”), which is the industry standard model for analysis of the discovery work flow.

It is an excellent model and the standard to which most e-discovery applications conform.

However,  it is an “attorney-centric” model.

We think that every good model deserves a tweak, and this blog, “Better Discovery” is designed to munch, crunch, applaud and bedevil the assumptions, presumptions and output generated by the EDRM.

It’s not thatthere’s anything wrong with the model. Rather, this blog is an exercise in model analysis and open debate,–something which might be uncomfortable within the confines of orthodox working groups.

In addition, mostpractitioners do not have the time, energy or will to dig into the model from a distance. This space gives us all the chance to do so, to question, find the materials that make sense and dissect the logic behind e-discovery technologies.

At the end, we may decide collectively that we have reached the pinnacle of discovery workflow analysis in the EDRM.

But, maybe not. There may be other models out there which can be reconciled with the Socha-Gelbman model, so why not look?!

So, with the goal of creating greater efficiencies in the litigation process, I embark upon this blog with more than a little trepidation. After all, it’s easy to look at the chariot and decide it needs a different kind of horse. It’s much harder to look at the chariot and therefrom derive a car.

Whether this site is confined to picking a better horse, or leading to the discovery of a new type of transport, it will be interesting, challenging and above all, fun!