International lawyer discusses e-discovery in US & other countries

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This week are we pleased to announce we have Joe Dehner, specialist in International Law, to discuss the legal side of e-discovery and all the things that go with it. For the first time on Restore it All, we have a lawyer discussing legal things! (Usually we just tell you we’re not lawyers!) My favorite part was listening to him tell stories from actual cases that make the various points we discuss. I also enjoyed when we talk about the e-discovery boogey man, adverse inference. If you have heard me talk about this before, it’s usually around the context of backup and archive – and how they are different! Hear it from the horse’s mouth, so to speak.


On this episode of restored all, we’ve actually got a lawyer to talk to us about why your company needs to have a solid plan for e-discovery requests. If you’d rather skip the banter, just go to three minutes and 30 seconds. Hope you enjoy the episode.

You could restore it.

[00:00:35] W. Curtis Preston: Hi, and welcome to Backup Central’s Restore it All podcast. I’m your host w Curtis Preston, aka Mr. Backup. And I have with me the guy that should be celebrating my recent auto repair victory Prasanna Malaiyandi

[00:00:51] Prasanna Malaiyandi: So it’s a success, Curtis the saga, the ongoing repair

[00:00:55] W. Curtis Preston: I am declaring, I am declaring at a success after all that work. Uh, you know, now there, there are gonna be some purists that are not gonna like the, the solution, um, because it’s not a long term solution, but we’ll see how long term it is. I, you know, long story short, I was having a misfire and it said it was either the EGR valve or it was gonna be a head gasket.

And I don’t wanna spend. A ridiculous amount of money, like $2,000 to replace head gasket on an engine that has 200,000 miles on it. So I did some research and selected the, um, oh, I, I replaced the EGR valve that didn’t fix it, and I, um, Uh, see, if you were a regular the podcast, you’d have heard all all this already.

Uh, and I decided to use something called Steel Seal, which was the best rated of the various, uh, of the liquid sealing products. Uh, any mechanics in the room are like, Oh, no, don’t, don’t use that

[00:01:56] Prasanna Malaiyandi: cringing. That’s exactly what I

[00:01:57] W. Curtis Preston: Yeah. Uh, but, um, you know, and, and it wasn’t exactly easy, you know, I had to. All of the coolant with, uh, with, um, distilled water and put it in there and, you know, but I gotta say, I, you know, I’ve driven it all over tarnation since repairing it.

No code, no nothing. Uh, it was an intermittent code, but it was definitely, you know, intermittent enough that it, I would’ve had it by now. So, So I’m declaring success.

[00:02:27] Prasanna Malaiyandi: that’s awesome. I know you were very worried. And you were trying all these other mechanisms before having to worry about the head gasket. So crossing my fingers. I hope it works out, but we’ll see.

[00:02:37] W. Curtis Preston: If I get another, you know, 20,000 miles out of it, I’ll be ecstatic If I get a hundred thousand miles, I don’t know what to say because basically the next step is I, you know, I’ve priced a, an engine for the car and that’s 4,500 bucks. Um, and cuz I’m not gonna spend $2,000 just to replace a head casket in the car.

[00:02:57] Prasanna Malaiyandi: Well, I’m glad it worked and I’m glad you persevered, Curtis, and you did not give up.

[00:03:01] W. Curtis Preston: I really am excited about our guest this week. He’s gonna bring a unique perspective than, than, you know, than we’ve ever had before. Uh, he has been an attorney for almost 50 years and counsel’s a wide range of companies on international matters. He founded Privacy Rules, a global Alliance of Technology and law firms, Dedicated to data privacy compliance, and is also the host of the Data Privacy Detective podcast. Welcome to the podcast, Joe Dahner.

[00:03:31] Joe Dehner: Well, thank you, uh, Curtis. Great to be with Mr. Backup and, uh, Prasanna you as well,

[00:03:38] W. Curtis Preston: You know, I, I, uh, I got, I had a chance to come on your podcast and we, we talked a little bit about privacy. My, my world of privacy, Right? Which is in, in our world. Backups are a part of the overall privacy story, Right?

Because our, our, our biggest worry is that, well, well, there’s two things. One is that someone would actually exfiltrate the backups and use them, uh, to, to infiltrate, uh, somebody’s privacy.

And then the other is the, and I think we talked about this on your podcast, a concern that many of us have that regulations like GDPR and CCPA. Where they say, Well, you have to delete this person’s information, and the technology really isn’t there to delete it from the backup. So it’s a, it’s a, it’s a real challenge.

Um, and have you, have you run into anything like that where, where somebody, you know, where they’ve done one of these deletion requests and they were unable to do it?

[00:04:40] Joe Dehner: Sure. It’s a chronic problem in legal proceedings. Absolutely. Because of basically the American approach to what we call discovery.

And, uh, so what we’re really talking about today is, is e-discovery. And, uh, it’s, it’s a very challenging, uh, process that I’m happy to get into with you.

[00:05:00] W. Curtis Preston: I throw out our usual disclaimer persona. And I worked for different companies. He works for Zoom, I work for Druva. Uh, this is not a podcast of either company and, uh, and at least two of us on this recording are not giving any sort of legal.

And Joe is not giving legal advice. He’s giving his opinion on legal matters. Uh, but anyway, uh, also, please, uh, rate us at, uh, rate this And if you think you’ve got something you know, interesting to say in our space, we’d love to hear from you at WC Preston on Twitter. Or Debbie Curtis presen at in gmail.

[00:05:33] Prasanna Malaiyandi: One of the things I wanted to touch on though, Curtis, is you were talking about you have to delete it, I think. There’s sort of this notion, and Joe, keep me honest here, right, That, Oh, just because someone asked for their data to be deleted, it’s gone, right? But there are cases where, because of regulations or because it’s needed for the business, like for instance, your credit card transactions, Right when you buy something, right, That’s sort of, you need to keep around.

So I think there’s still cases where data that a user, even though they’ve requested it to be deleted, can’t be deleted, and that’s completely acceptable for it to remain.

[00:06:10] Joe Dehner: Yeah. Well, let me let you in a little secret. I think, you know, we had a president who was a lawyer member trying to play what, what does the word is mean? You remember that? But it’s a little the same here. What does delete mean? What does delete really mean? Now, it’s one thing if, let’s say, uh, Uh, my client, uh, the company has gotten into an altercation with another company and, uh, the argument was, uh, that the one my client, let’s say, had, uh, had, had data shouldn’t have.

And so it ought to delete it, not use it, not compete unfairly, and, you know, a typical kind of non-compete. Case. Well, it’s one thing for that company to say, I have deleted it, but in a way, I, It’s almost unprovable. What if, what if a, an employee of that company had left the month before and happened to take some, uh, on their.

Personal computer, which happened, You know, you never can guarantee things. So judges understand that delete needs a definition. Very often, uh, settlements are made and, and courts, uh, will affirm them, or an order will be issued, ending a case, and, and it’ll say, and, uh, all, all, all information either should be deleted or you can assure me that all copies have been gotten rid of. Now it’s one thing if it’s pieces of paper, if it, it’s another things, if it’s ones and zeros, how do you, how do you ever really prove that? So, and furthermore, there’s some companies who have a belief I need to keep at least a backup copy.

Maybe I’ll give it to an escrow agent. I’ll say, I don’t have it anymore to prove what I deleted. Cuz how do you ever prove what you deleted when you delete it? So we’re into a bit of a, it never, never land. Uh, On this, I’ll, I’ll let you know. One secret about deletion and that is companies have document retention policies, right?

You know, for HR matters, how long do you keep ’em? It’s kind of state law. Five years, six years, seven years, whatever it is. There is no document retention policies at most major law firms, uh, in the United States because each, each set of data’s a little different. Cases can drag on sometimes up to 10 years.

And then what do you need to keep afterwards? Well, it depends what the case was. So we’re in an area where there’s no established best practice, even to document retention, which has to do of course with deletion.

[00:08:31] W. Curtis Preston: Yeah, that’s interesting. I, I, um, I have a, a high school friend who is, um, uh, an attorney and I just saw on Facebook. This morning that he has had his second mistrial in a, due due to the actions of the, the defense, uh, in a, in a case that has lasted 11 years. Uh, so he, so, so it’s going to continue, um, on past that.

Um, so yeah, that, that is, that is an interesting problem. Let me tell you what I’m often advising people about. The concern that I have is that many people keep their backups for far too long. Okay? Um, that, well, many people, many people keep a lot of data, but in this case, it’s backups.

There’s this, there’s this sort of, uh, sense that well, I, I need to keep this sort of, the, the same thing you talked about with an attorney. Like, I need to keep this for seven years. For 10 years. I, I’ve met customers that I can think of a large financial company in New York where, uh, they kept all backups forever, Okay. And they, that, and, and was a big company and it resulted in design changes that were necessary to happen to the backup company that they happened to have. It ha it happened to be, uh, Veritas NetBackup and there were design changes that were made to Veritas net backup so that this customer could keep their data the, that amount of time.

And so what I’m constantly telling people is if you don’t have a regulatory reason, To keep something for 10 years or whatever that whatever that regulation is, then keep it a much shorter period of time. And the reason that I’m talking about this is that backups are notoriously bad. What they’re great at is restore your laptop the way it looked yesterday, right?

Restore the server the way it looked yesterday. Find me these three emails. That I wrote five years ago. It’s not so good at that. In fact, it’s horrible at that. And the thing that, the thing that I’m worrying about, Is, and again, this is the term that you would be familiar with. Uh, I’m, I’m warning people that they will get an e-discovery request.

Their, their retrieval will be so bad that it will result in an adverse inference instruction from the, the judge.

[00:11:15] Prasanna Malaiyandi: So before you go on, can you sort of, can we talk about each and every single one of those terms you just threw out there? Curtis?

[00:11:22] Joe Dehner: When we say e-discovery, what are we talking about now? Now you’re entering the lawyer’s world. Very

sorry. Try to avoid it if you can, but e-discovery is really pretty simple if you think about it. It is the process of preserving, collecting and analyzing electronically kept data in response to a discovery request in a legal proceeding. That’s what e-discovery is.

[00:11:47] W. Curtis Preston: And, and what is a discovery request for those who don’t know that what that.

[00:11:50] Joe Dehner: Yeah. Okay. Uh, this could be in a criminal case, but almost always these are civil cases where somebody, a person or a company is suing another person or a company over something.

Could be a personal injury, it could be a, uh, unfair competition case, could be anything. Could be a privacy matter. Uh, okay. And so now we’re in a US court, and I’ll talk about other courts later if you want to get into international stuff. But, uh, if we’re in a US court, could be a state court, could be a federal court, and we have the broadest idea in the world.

About what happens when you’re in court and it is you better produce every bit of evidence the other side wants that has the slightest thing to do with the issues in the case. And so we’re called a litigious society for good reason, because that employs a lot of lawyers because, uh, what happens is the plaintiff or the defendant in a case, sometimes there are many parties.

will send a discovery request saying, Give me all the documents you have. Let’s pause. What’s a document? It’s no longer pieces of paper or photos, it’s anything anywhere on an iPhone or in a computer or messages or on a smartphone or that’s, that’s document you see and, uh, give me everything you have about everything that has the slightest thing to do with the case. And lawyers go to enormous lengths to get anything they can find, cuz maybe they’ll find an email that uses a, a terrible word or, you know, anything to disadvantage the other side is all part of the scoop. And the other thing that you all know very well is that most people don’t know.

Is that, uh, the real problem in e-discovery and frankly the rest of life, is there’s too much information in too many formats on too much media managed by too many applications. So, uh, you get a, let’s say it’s a sexual harassment case. Uh, somebody is suing because the company had a hostile work environment.

Okay, Give me all the documents about the work environment. Whoa. You want everybody’s personal emails, then. Do they say in their company or in their personal emails, bad things about, you know, another gender or another nationality or whatever it may be? What are you scooping up? You’re scooping up very personal information.

You see, and it all gets out there and sometimes you end up with credit cards that are part of an email at the bottom of the chain. And I mean, just all kinds of stuff. And that’s about, Boy, I’ve had cancer for three weeks, but don’t tell anybody. And now that’s in a document shared with one person. But this is the problem.

It, it’s just enormous. And so that the time and attention and cost of dealing with large cases, uh, is just enormous. Not to mention the lawyer time and everything else involved and the risk. We’re back to what you mentioned earlier, Why are we keeping this stuff forever? You know, in Europe the idea is data minimization.

Get rid of data. Unless you have a good reason to keep it, why, why would you hang onto it? You’re, you’re only subjecting yourself to the risk of being sued cuz you kept it too long. So we were talking, you know, I’ve talked too much. Please jump in here. But these are some of the problems you’re talking about here.

[00:15:07] Prasanna Malaiyandi: And so e-discovery is usually the mechanism to grab all this data. I know one of the things you mentioned was sort of analyzing the data, right? So imagine that you’re pulling all the company emails, right? That’s not a lawyer or a set of folks looking at those word by word, right? And reading each one.

Like they might have done back in the day when it was paper documents, right? This is a system, right, A software package that kind of helps them parse the data and all the data that’s out there and look for sort of keyword matches and other things like that. Is that right, Joe?

[00:15:39] Joe Dehner: That’s the collection part. Remember the three phases preserving. First thing you do, once you get sued or you know, you go, you have to preserve evidence, you try to throw it away, you’re in big trouble. You see, that’s a real problem. And we can talk about a sanctions case where somebody did that,

you know, they left the company and wipe their phone.

That becomes an issue. But that’s the collections and. Pr, uh, collecting is the second piece. Collecting all this. And you’ve gotta, Lawyers can’t do that. They have to hire people like you all and you know, tech people and know what they’re doing to collect it. And then the last then is analyzing, right?


[00:16:12] Prasanna Malaiyandi: and for the preserving piece, I think at least on the tech side, sometimes we’ve called it like legal hold, right? Other things like that. Terminology in order to preserve the data so it doesn’t get wiped out, be it a backup, doesn’t get expired due to its retention time expiring, or an email getting deleted from the system automatically.


[00:16:32] Joe Dehner: Well, I’ll give you one note. Let me give you a war story. This is a case from just last year, uh, where, uh, a person left a company and he had two phones. He took the company phone, shouldn’t have done that, and then wiped stuff clean cuz he didn’t want anybody to know what he’d been doing. And, but he, he also got a contraband phone.

And put company stuff on it, knowing that he’d only use WhatsApp for that. And knowing that WhatsApp deletes data after, what is it, three months or whatever their, uh, you know, their policy is. He was excused from wiping the phone from the company phone, even though he took it with him because five years had passed.

And, and he, the judge couldn’t find that he, he deliberately did that, but knowing that WhatsApp was gonna delete it in whatever, three months, I think it was 90 days, the judge threw sanctions at him. He had to pay money. See, could have real problem. That’s just one little example of what you’re talking about collecting and preserving, and even before you get to an analyzing it.


[00:17:35] W. Curtis Preston: I know that once you, once you’ve been notified that you’re a party, uh, in a lawsuit and potentially a potential party, right? That’s where that preservation begins. That’s where you’re saying if you then like the day after you’ve been told you’re gonna be sued about a hostile work environment and then you suddenly delete all emails older than a week.

[00:17:58] Joe Dehner: you’re in big trouble. You’re, you’re almost guaranteed to lose the case. The judge will throw the book at you. You can’t do that.

That’s Right.

[00:18:05] Prasanna Malaiyandi: But is it here? Here’s a question. Uh, keeping politics outside of this, right?

Is it worse to get the sanctions thrown at you versus what they might potentially dig up in those emails?

[00:18:18] Joe Dehner: Well, that’s a good question. Um, you know, but in general, uh, in, in any case, uh, any judge will start out being neutral. And then as the case unfolds, the judge will get an opinion about things. And mostly discovery rules are done by magistrate judges. They’re, they’re sort of the, uh, the second fiddle to the judge.

And they take care of a lot of these discovery, uh, uh, matters. And, and, and they’re there to make sure that people, uh, produce relevant documents. Uh, and, and that’s their job, but they, they’re not there. There’s an idea in, in the courts of proportionality, What does that mean? That means you get a request.

Give me, uh, every document you’ve ever created. Well, no judge would enforce it. It’s gotta be somewhat specific to the case. All right. And then the next thing is, well, how specific, I’ll give you another case from last year where, uh, one of the LA fitness shops, somebody slipped and fell on the tile floor in a bathroom out in California.

Okay. That was the case. So, uh, the, the plaintiff asked LA Fitness, give me every document you have about any incident in any bathroom. Well, they have 600 places around the ni the, the judge narrowed it down to, okay, those 600 other places only have to give incidents where a person slipped and fell on a tile. You see what happened there.

The judge ne, this is what we call proportionality, but that mean they had to reach out to 600 different stores and you see what goes on, and this is part

of the collection

[00:19:46] W. Curtis Preston: So let’s get to that term, and I’m gonna give you a story, Joe. Um, and this is from, uh, this, I don’t know, 20 years ago. I can’t remember. It was a large household name financial organization in, in New York. They had a famous case where they were asked for all the emails, you know, for the last three years or whatever, and they had been using their backup system as their archive system, which is something that we talk about on this, on this podcast a lot, which is a very bad thing to do. And they had also changed their backup system multiple times during the timeframe that the discovery was taking place or that, that the discovery covered. And long story short, the, the process of getting these emails out was taking forever. Um, it it, and it was taking forever because of everything I just said, that they had used their backup as their archive, that they had changed the stuff.

They had changed, backup formats, tape formats, they changed all these things. And then, Towards the end of the discovery of, of the process, the, the, um, there’s some kind of form I’m sure you’re familiar with. There’s some kind of moment where the person who’s supposed to be satisfying the discovery request, um, says, Okay, we’ve done the thing that you asked us to do.

They did that moment in time, and then they found another box of tapes.

[00:21:15] Joe Dehner: of course.

[00:21:16] W. Curtis Preston: Um, the judge then, and, and this is, this is where I wanna get back to this term. The judge issued an adverse inference instruction. Basically what the judge said was whatever the plaintiff said was on those tapes, it was probably on the tapes because no one could be this bad at reading their tapes, they’re doing this on purpose. Uh, and as a result, they lost, I think it was a, like a 2 billion, uh, uh, case, um, as a result of that instruction. So talk to us about adverse inference and you know, what that means and so on.

[00:21:54] Joe Dehner: Right. Well, you know, when you’re in a courtroom, the law, the rules of evidence apply. Now the federal rules, uh, are in federal courts, but most cases are in state court. Some. Rules of evidence are different from federal rules, but in general, we’re talking evidence. And in a civil case, which is, uh, what you’re talking about there, Curtis, uh, it’s who wins by 51, 50 0.1%.

Uh, you don’t have to prove anything beyond a reasonable doubt. It’s what’s more likely than not. That’s all. And the jury’s free to, if you have a jury, if you have a judge, same thing. Only has to be persuaded. So presumptions and adverse inferences matter a great deal. because that’s the judge telling a jury or the judge acting for him or herself saying, Hmm, I’ve gotta doubt about this one, but because they acted that way, I’m gonna find that the other side wins on that point.

That’s what an adverse inference is, uh, it really has to do with. And in a civil case that, that sounds like that was a 2 billion turning

[00:22:57] W. Curtis Preston: point


So it, it’s putting it in plain English. They’re inferring from your actions something that is adverse to your position.

[00:23:08] Joe Dehner: that’s right

[00:23:09] W. Curtis Preston: hence, the term adverse inference.

[00:23:11] Joe Dehner: It all gets very specific, Curtis. That’s exactly right. And the mere fact that you find something after you’ve said, We’ve already given you everything. This is actually more common than one might think and and judges understand that. Your instance was probably one where they really had probably. Through it two or three times and really said that’s it.

And then they find stuff and yeah, you can draw an inference from that. Yeah,

[00:23:35] W. Curtis Preston: Yeah. He’s like, No, nobody could be this bad

[00:23:39] Joe Dehner: Yeah.

[00:23:39] Prasanna Malaiyandi: It’s interesting though because you’re basically telling the it, the backup person, actually probably the backup operator, right? Who’s doing these restores, By the way, here’s this legal directive that came down. You have to now gather all this data and good luck, right? They may not even necessarily know like where is all that data and what are the pieces of data I need to collect from?

And I know I think Curtis, you had mentioned once in that story in the past that they sort of were trying to restore each email server one by one

[00:24:14] W. Curtis Preston: Well, yeah. If you have a proper email archive system and, and you get an e-discovery request, I need all the emails from Joe to Steve for the last three years.

That’s like five mouse clicks and you’re done. And here’s a PST file. Here you go. Feed that over to the, to the e-discovery. You know, the, the, the, uh, what’s it called? The, the culling process, right? Um, but if you’re using a backup system to get all the emails from Joe to Steve for the last three years, I have to restore the, the email server 52 times, times three years, Right?

And then pull out the emails for that week. And then, you know, and then go on and go on and go on and on. And there’s, and there’s no guarantee that you get all of the emails that were sent to receive, because if you send emails, uh, and then you delete them before the backup system gets them. Right. Um, so


So yeah.

that’s why I, I preach very often of like, please, please get a proper archive, you know, an archive system.

[00:25:19] Joe Dehner: It’s critical and you’re introducing the metadata problem here, really. Let’s talk about that a bit and when we talk about metadata, we’re talking about the actual appearance of, of a document, meaning when was it sent, by whom to whom in the format. And, and what happens when, and I don’t know enough about backup, you’ll have to clear it up, but anytime you take something that’s so called original, let’s take somebody’s iPhone that has stuff on it, messages and, and when you move that somewhere else, you can be changing the metadata unintentionally.

No purpose to it at all. And that is evidence that has then been, you could say, we have a great word in the law, spoilation, you have spoiled the evidence you see, And that is when judges do get upset because you’ve literally altered the evidence. You see what I mean?

[00:26:12] Prasanna Malaiyandi: Yeah.

[00:26:13] Joe Dehner: And in the old, you know, this was a problem in the old hard copy days, you know, just paper days and photograph days.

You want the. We don’t want a copy of the DNA sample you may have, uh, you know, No, no. We want what you collected. You see what I mean? And in data, it’s the same problem. This is a critical point you’re making,

[00:26:32] Prasanna Malaiyandi: Then here’s the one question I have. You wanna preserve the metadata, you wanna preserve the content. Is it okay to change the format? So it like if you’re, And it, I guess it also depends to what extent, like is it okay to move from say, object storage to say a normal file system file?

Is it okay to move from everything being as. Normal, like email, text, what you would see into like a machine readable language, like a JSON format or something else like that, Right? All these things, they’re transforming the original data. And just going back to what you were saying, Joe, they want it in that original way, like how original is original when it comes to electronic media.

[00:27:17] W. Curtis Preston: Uh, uh, Joe, let me, let me, let me try to answer that question cause I, I’ll get it and then I’ll tee it up to you. I, I, would think that changing the format is okay. The question is, can you prove a chain of custody? Can you prove immutability? There’s a, there’s a good word for you. It’s a tech word we use a lot, but I believe it, it’s a legal term as well.

Um, can you prove that the content right, the, the words in the email and all the associated metadata associated with that email and the document. If it’s a photograph, it has geolocation stuff in it, all of that metadata, is all of that preserved in the process?

Can you give to me, uh, you know, the thing that you stored, the thing that it was, can you give me a, you know, something that preserves all of that and can you prove, um, you know, to the best of your ability that the thing that was stored is the thing that you’re giving me. Uh, what you did in the process. I couldn’t care less dup it, put it on tape, put it on, you know, optical.

I don’t care. Just, you know, am I looking at the same damn email? Right. Um, and you know,

[00:28:28] Prasanna Malaiyandi: With the metadata pieces. Right.

[00:28:30] W. Curtis Preston: with the metadata. The me, well, the Joe tell me, it tell me I’m wrong. The metadata is often what kills you, right? Cause the me the metadata shows this is a fake email. Right. The metadata shows that this email was sent an hour after the thing happened.

This is a cover your ass email, right? Um, Am I, am I, am I right?

[00:28:54] Joe Dehner: metadata is essential. Otherwise it probably wouldn’t be admitted.

You know, the body of an email is just the body of something, but who sent it and when and all the rest. Absolutely. And you know, the, There is no original in the sense of true electronic information. See, and what I mean by that, if we’re having a conversation right now, it’s getting turned into zeros and ones, but the original is what’s happening, right?

We speak not as somebody listens to it later, but presumably you can trust it, you know? But, but with, with, uh, with evidence, the chain of custody as you put it, is, is really quite critical. But, You know, and we’re in the world where people, uh, spoof emails. So what is an authentic email? All these become valid questions in the, uh, in a court.

[00:29:45] W. Curtis Preston: Yeah. I, I do think in, in, in the olden days, uh, the difference between an original and a facsimile, it was a big, big deal, right? You can make changes in that process. Um, I, I think what. But did, did, Are you okay with what I said that, that what really matters is that that content of the email, the metadata of the email, um, you know, all of that stuff, what you do in the process, and it’s a lot of emails, right?

Isn’t that what we’re talking about? About 90% of the time is emails.

[00:30:17] Joe Dehner: We, we have, uh, just, we are, I’m in a firm of, uh, 550 lawyers, something like that, throughout the United States. We currently have, what was the number I checked today? 150 databases we’re keeping in active cases right now. Now, these are all significant cases. You know, where some have a million or more documents.

That’s what we’re talking about. You have to think of all three phases, how complicated that gets. Uh, analyzing the information being probably the hardest thing. That’s when the lawyers really get involved. But the preserving and the collecting is, is, is really uh, an lpo.

You know, this is legal process

outsourcing work. That’s what lpo is

And we have on staff and we, we have great, uh, outsourced, uh, service or you, you couldn’t handle a significant case today if you didn’t

[00:31:08] W. Curtis Preston: Yeah. The, the, the, the two things that I warn people about, a, again, this, this is, this is one of my hobby horses, Joe, is the whole thing of, of a backup system is one thing and an archive system is another, and that. That you should get an email archive system. Um, and you should not use your backup system as an archive system.

And that, that by not doing that, right, And by the way, most people don’t, most companies don’t. They have a backup system and they, they don’t listen to me. Um, the, the, they see, they see that archive system as an additional cost, which it is.

[00:31:44] Joe Dehner: It

[00:31:44] W. Curtis Preston: I just, I just try to tell them, if you think that that archive system is expensive, wait till you get an e-discovery request and you’re gonna have to do, what do you call ’em?

SPOs. You’re gonna have to file, you know, No l pos You said L pos, right?

[00:31:59] Joe Dehner: Well, that that’s just a company that that helps lawyers do their work,

[00:32:03] W. Curtis Preston: Yeah. Yeah. So you’re, you’re gonna be paying a crap ton of money to those companies to help you. By the way, I participated years ago, there was another company that used an email their, their backup system as their archive system, and they got a three year discovery request and we had a team of 15 people that worked around the clock.

Um, basically three teams of five, eight hours a piece. Uh, and each one of us was tasked with restoring a server to a particular point in time, extracting the emails from that server, then going on to the next server, right? And each person there were, at any given point in time, there were five different people restoring a server to a particular point in time.

It cost them, uh, as I recall, it cost them 2 million of my company’s time satisfy that single electronic discovery request. And that’s before, you know, your side of the world got involved. That was just, that was just the tech piece. Um,

so we’re not, we’re not making this stuff up, are we, Joe

[00:33:12] Joe Dehner: no, and and many of your listeners may, May, May, may, think of that, Well, those are the big case. That’ll never be me. Okay. But just in the normal, average, mid-size case that our firm handles, okay? You’re talking 10 to $15,000 a month as kind of the common. Not involving any lawyer time. see that, that, I mean, you, you just, and a case will go on year and a half to two years.

So I mean, you can picture the cost. Now you get over a million dollars, you’re talking probably $50,000 a month of, of outsourced service just to try to avoid sanctions, to try to make sure you’re doing what lawyers should do, which is produce the evidence correctly and properly, even if it’s not good for your.

[00:33:58] Prasanna Malaiyandi: Yeah.


[00:34:00] Joe Dehner: So these are very significant costs to, uh, achieve the way we do litigation in the United States.

[00:34:06] Prasanna Malaiyandi: I think the other thing is when you’re also doing these restores curves, like when that firm brought in your company, Right. I’m sure that also slowed down everything else they had planned going on, Right. That they wanted to focus on as a company, as they were like, Hey, we gotta deal with this discovery issue now.

[00:34:22] Joe Dehner: Prasanna, if I may, it’s even worse than that because, uh, you know, when on the collecting

[00:34:28] joe-dehner: phase.

[00:34:30] Joe Dehner: It’s what you see on tv. Give me your cell phone. You may get it back on Monday. Now usually it’s a 24 hour thing if you got people that know what they’re doing. But an entire server can be offline for a company.

And, you know, your average companies probably don’t have a, a fleet of servers the way cryptocurrency operators do. So they could literally be down for a day or two just to collect ca uh, information off that. That’s it’s captured until that time. These are real problems.

[00:35:01] W. Curtis Preston: Under what scenario would that, to me seems like an extreme, Like the forensic collection,

[00:35:07] Joe Dehner: correct.

[00:35:08] W. Curtis Preston: is that generally done? Only when like, it looks like the company’s doing something wrong like that, that a, that a normal discovery request wouldn’t satisfy, wouldn’t be satisfied.

[00:35:20] Joe Dehner: Well, I, you know, most cases in America are not big cases. You know, they’re divorces, they’re, you know, evictions of tenants. They’re all sort, you don’t have these problems in that. But any significant litigation between companies or people who are badly injured, uh, it’s gonna have an e-discovery request.

And, uh, if it’s critical to see what Jack c phones, that you’re gonna take Jack phone for a day or two and Jack’s not gonna have it. Okay? You, you don’t, you don’t, you know, put a little stick in there and walk away, you know, with a sim card, you know, , you know, no, this is, this can be very disruptive for a business for a short period of time, but that, that’s what can happen because of the way we do litigation.

[00:36:06] W. Curtis Preston: Uh, but I don’t, but I don’t think there’s anything they can do to avoid that, it

[00:36:11] Joe Dehner: No,

not, not in

the, Not in a case that requires


[00:36:15] W. Curtis Preston: happen, right?

[00:36:16] Joe Dehner: Yeah.

[00:36:16] Prasanna Malaiyandi: know you mentioned Joe, that a lot of this is US specific. Could you briefly talk a little bit about international and if there are differences or. I know there’s a lot of, probably different regulations and everything else depending on what country you get into, but just maybe the high, high level points.

[00:36:33] Joe Dehner: a lot of what my practice has been. I was the vice chair of the American Bar Association’s International Litigation Committee for some time, and I’ve only been to 80 countries so far in person. Well, that’s not even half in the world, but I can tell you most of the world does not have what we have. Uh, let’s take Germany for example. Uh, this is not an issue. You know why? Because basically witnesses to a case don’t become witnesses to trial. Everybody presumes they would lie to favor their side. And you have to have the documents to file a case. When you file a case. They don’t have the discovery system we have where uh, you asked the said, Give me your bad documents, would you please?

And the other side says, Okay, here they are. . You know, a lot of the world thinks that’s ridiculous. Now, I’m not taking sides between Germany and the us, but it’s just to say each the world is radically different, uh, when you get into legal stuff. Now, we’re not the only ones that do, uh, significant discovery.

You’ll find it in Canada and in the United Kingdom and a lot of the common law countries. Uh, this has partly to do with how cases get decided. Most countries are civil law cases where, uh, the value of an arm that’s been lost, well, that’s in the code. We’re not gonna argue about it for, you know, so, uh,

it’s just quite different around the world.

[00:37:51] W. Curtis Preston: Joe use that term, uh, common law country. You want to define that

[00:37:56] Joe Dehner: Well, common law, we inherited this from the British, although we fought to get away from them, but we inherited this and the, the common law system, which is precedent. Yeah. And you, you apply. Well, what, what do judges do? Last year and the year before and the year before that? And that’s what we, that will be decided in a civil law country.

Uh, judges become judges at age 20 or one or 22, and they read the civil code and they apply it. It says what it says. And in the next case, you, you read that and you apply it. Precedent is, I won’t say unimportant, but it is not a precedential type of thing. The common law system also means that judges have a certain right under, uh, A lot of law to make the law because a statute won’t ever cover everything.

And so you still need to make sense. Who wins? Who loses common law? You can do that. Civil code. Nope. It’s what the code says. At least what one judge thinks the code. Uh, I could give you funny war stories if you’re interested, but it’s just to say that, uh, four and foreign, uh, litigation’s very, very different from US Litigation.

[00:39:01] W. Curtis Preston: So to, to summarize what we’ve talked about here, um, it, it sounds like, and, and hopeful, I don’t know, maybe people knew this already, but please, if your company is the party of a lawsuit or you’ve be, you’ve essentially been notified you’re going to be a party in a lawsuit, that’s when that preservation phase begins if you suddenly start deleting stuff.

[00:39:24] Joe Dehner: Or when You should have known that it could result in a,

[00:39:28] W. Curtis Preston: Okay. So it is when you should have known. Okay.

All right. Um, and, and, and there is, I know there’s a discussion, so there’s this moment, sort of that moment. I, I guess there’s a question of, there is sort of normal. I don’t know if spoilation would be the bad term, but normal document retention and deletion.

Like if that, if that process were to happen and it suddenly it deletes some data that like today you’ve been notified, um, and then that deleted, There might be some grace there, maybe,

[00:40:02] Joe Dehner: There. Yeah, there’s a gray area. I mean, take, take, uh, you know, apps or providers tell you they’ll delete data after, at least they won’t keep data more than 90 days. Very common. Nothing wrong with that. Once you’re notified somehow, either you, you know, somebody got killed by the vehicle you designed or whatever it may be, you’re sort of on notice.

You see what I mean? But, uh, before that, if, if things have been deleted, they’ve been deleted, there’s, there’s

no, uh,

real issue with

[00:40:30] W. Curtis Preston: But once you’ve been given notice, you need to

[00:40:32] Joe Dehner: you need to take action to preserve.

[00:40:35] W. Curtis Preston: Right, right.

[00:40:36] Prasanna Malaiyandi: And now usually that’s sort of a legal team within the company that’s then sort of coordinating and notifying like the various IT folks. I would assume that yes, this data of this type needs to be put on or needs to make sure it’s not deleted.

[00:40:54] Joe Dehner: correct.

[00:40:56] W. Curtis Preston: Yeah, and hopefully that process is as simple as possible. If you don’t know what that process is in your company, it’s time to look into that. because especially if you live in the, in the confines of these United States, you’re gonna be sued for something. Uh, you know, cause cause that’s just the way we do things.

It sounds like you’re on board with my, again, I know you’re not a specialist in backup, but you would agree with the general recommendation to have a system that allows you to easily satisfy an electronic discovery request, not have one that’s massively painful, uh, because that could both cost you a ton of money and possibly cost you an adverse inference instruction, which could then cost you the case.

Does that,

[00:41:42] Joe Dehner: I’d agree with that. And I subject to your very good point that archive is different from just raw backup.

[00:41:50] W. Curtis Preston: right.

[00:41:50] Joe Dehner: It has to be done correctly and, and thoughtfully. I mean, again, I, because data minimization should be a important thing. I, one of my first assignments as a very young lawyer a long time ago, was to go into what was then nothing but hard copy, uh, backup our, our law firm’s more than a hundred years old, and I found.

Unbelievable things. I found true. Yellow Pads, if you remember that phrase. And you know, with a pencil on it and one scr of somebody’s note, I found a love letter from somebody. I mean, it was just unbelievable. It was a hundred years old. Why are we keeping this? And we were paying Iron Mountain a Fortune, just, you see what I mean?

Now that’s kind of a silly example, but it’s the same thing. Data is so cheap to keep, you see, compared to. Carry boxes held in somebody’s warehouse that people are tempted just, well, you know, what is it 50 bucks a month for a terabyte? I, you know, I don’t know, but give that some thought. Why are you keeping it?

If there’s a good reason you should.

[00:42:51] W. Curtis Preston: I think you’re, Yeah, if there’s a good reason to keep it like a regulation or something like that, that’s one thing. But I think your, your point is data may be cheap to keep, but it may also be expensive to keep

[00:43:03] Joe Dehner: Yes,

[00:43:04] Prasanna Malaiyandi: It’s, It’s about risk reduction, right? At

that point. And that’s the big thing. A lot of people don’t think about that, right? Like you said, they keep data forever because they’re like, Yeah, maybe sometime in the future I’ll use this for some purpose or another, but they don’t realize the risk. It opens up the company to, in case there is a discovery, right?

That comes in where they’re like, Hey, show me everything you have. Say seven years ago, now you have all this data and it’s like, Oh man, we, maybe we shouldn’t have kept that data.

[00:43:29] W. Curtis Preston: But

[00:43:29] Prasanna Malaiyandi: you say, Joe, it’s the data minimization. Right? That’s


[00:43:34] Joe Dehner: Yeah.

[00:43:35] W. Curtis Preston: But to put the last point with this point, if you suddenly, as a company decide Curtis is right, I should, you know, change my backup to my archive and I should delete. Old backups. Make sure you’re not about to be sued when

[00:43:53] Joe Dehner: Well,

[00:43:53] W. Curtis Preston: you suddenly start deleting all backups older than two years. Yeah. Make sure you’re not about to be sued when that happens. That would look really, really bad.

[00:44:01] Joe Dehner: that would look bad. And beyond that, I’m not saying delete all backups, I’m just saying do the same thing you would do with a piece of paper. Uh, do I need to keep this category of stuff?

If the answer is no, why keep it? That’s all. That’s all I’m really saying.

[00:44:16] W. Curtis Preston: And uh, so Joe, I wanna, I want to thank you a lot for coming on. I wish we had enough time to discuss all of the things behind you. I’m fascinated by all of that memorabilia you have

[00:44:28] Joe Dehner: Well I, that’s cuz I’m an old guy, you know, There we are. Had some great experiences. Talk to me about my time in North Korea sometime. That’s, that’d be quite, quite fun. Little different litigation system there,

[00:44:42] W. Curtis Preston: Yeah, I bet. All right.

[00:44:43] Joe Dehner: But real pleasure to be with you both.

[00:44:46] W. Curtis Preston: Absolutely. And Prasanna, I have to thank you both for being on this podcast and for advising me on my

[00:44:53] Prasanna Malaiyandi: I try Curtis. I try and thank you. Joe’s a pleasure chatting with you and learning more about the e-discovery side.

[00:45:01] Joe Dehner: Thank you

[00:45:01] W. Curtis Preston: And, and thanks to our listeners. We’d be nothing without you. Uh, and remember to subscribe so that you can restore it all.

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