_____________
On the First Day of Christmas
My client sent to me
A payment for a fair fee.
__________
On the Second Day of Christmas
My client sent to me
Two Twitterers a Tweeting
And a payment for a fair fee.
__________
On the Third Day of Christmas
My client sent to me
Three tales of trouble,
Two Twitterers a Tweeting
And a payment for a fair fee.
__________
On the Fourth Day of Christmas
My client sent to me
Four thumb drives,
Three tales of trouble,
Two Twitterers a Tweeting
And a payment for a fair fee.
__________
On the Fifth Day of Christmas
My client sent to me
Five doorbell Rings,
Four thumb drives,
Three tales of trouble,
Two Twitterers a Tweeting
And a payment for a fair fee.
__________
On the Sixth Day of Christmas
My client sent to me
Six Gigs for production,
Five doorbell Rings,
Four thumb drives,
Three tales of trouble,
Two Twitterers a Tweeting
And a payment for a fair fee.
__________
On the Seventh Day of Christmas
My client sent to me
Seven omitted emails,
Six Gigs for production,
Five doorbell Rings,
Four thumb drives,
Three tales of trouble,
Two Twitterers a Tweeting
And a payment for a fair fee.
__________
On the Eighth Day of Christmas
My client sent to me
Eight i-Phones Pluses,
Seven omitted emails,
Six Gigs for production,
Five doorbell Rings,
Four thumb drives,
Three tales of trouble,
Two Twitterers a Tweeting
And a payment for a fair fee.
__________
On the Ninth Day of Christmas
My client sent to me
Nine portable hard-drives,
Eight i-Phones Pluses,
Seven omitted emails,
Six Gigs for production,
Five doorbell Rings,
Four thumb drives,
Three tales of trouble,
Two Twitterers a Tweeting
And a payment for a fair fee.
__________
On the Tenth Day of Christmas
My client sent to me
Ten back-up tapes,
Nine portable hard-drives,
Eight i-Phones Pluses,
Seven omitted emails,
Six Gigs for production,
Five doorbell Rings,
Four thumb drives,
Three tales of trouble,
Two Twitterers a Tweeting
And a payment for a fair fee.
__________
On the Eleventh Day of Christmas
My client sent to me
Eleven Custodians’ data,
Ten back-up tapes,
Nine portable hard-drives,
Eight i-Phones Pluses,
Seven omitted emails,
Six Gigs for production,
Five doorbell Rings,
Four thumb drives,
Three tales of trouble,
Two Twitterers a Tweeting
And a payment for a fair fee.
__________
On the Twelfth Day of Christmas
My client sent to me
Twelve Word Docs on a hard drive,
Eleven Custodians’ data,
Ten back-up tapes,
Nine portable hard-drives,
Eight i-Phones Pluses,
Seven omitted emails,
Six Gigs for production,
Five doorbell Rings,
Four thumb drives,
Three tales of trouble,
Two Twitterers a Tweeting
And a payment for a fair fee.
_______________________
WHAT TO DO WHEN A CLIENT SENDS TO YOU?
Sometimes a client’s e-discovery gifts to their lawyer create opportunities, but usually they present challenges; they present technical legal problems to be solved. The twelve gifts song parody serves as a way to discuss twelve e-discovery issues from the perspective of the practicing lawyer. I used the rhythm and metrics of the Twelve Gifts song to help me pick the twelve issues.
The end result is that the Twelve Gifts of Christmas parody in this blog includes a discussion of a few issues that we do not normally write about, such as the first “gift” of timely payment. Or as we put in Twelve Gifts of Christmas metrics, “A pay-ment for a fair fee” (think “A par-tridge in a pear tree”). Merry Christmas and may all of your fees be timely paid!
__________
What do you do
When a client sends to you
A Payment for a fair fee.
Say thank you! This is an opportunity. Assuming the matter is over or changing somehow, also ask for feedback from the client on the project. Talk about lessons learned. Ask how you could improve. Maybe even suggest changes the client should consider (be diplomatic). Perhaps you have some final metrics on the project to share with the client? Do not neglect to ask if there is anything else you can help with now?
Finally, do not forget to return their data or have it destroyed it at the end of the case. You have a duty to do this whenever you have to search for evidence in large stores of the client’s electronic records. It is the client’s data so be careful to document and follow their instructions on final disposition.
__________
What do you do
When a client sends to you
Two Twitterers a Tweeting a fond adieu?
When you find that a custodian Tweets, and he or she tells you during the interview that some of the Tweets “might” have pertained in some way to the “topic in dispute,” then you have to preserve them. You may also want to go ahead and have them reviewed or read them yourself. Ask the Twitterers to show you a few. Get hands-on ASAP. Most tweets are public.
It is also important that you stop the two twitterers a tweeting who are custodians-witnesses. Get them to stop tweeting, at least on anything that might be a “topic in dispute.” They need to tweet a fond adieu to any new tweeting that could end up in evidence.
Stop by my Twitter feed sometime – https://twitter.com/RalphLosey – and start to follow me for information on e-discovery, law and technology, politics and all kinds of odd things that interest me.
__________
What do you do
When a client sends to you
Three reports of spoliation that are very PU?
Stinky spoliation reports, by which we mean real serious and extensive reports of ESI destruction, are the worst presents of all. They can make an easy winning case into a big loser. Three reports of ESI being lost or destroyed in the normal course, but after the duty to preserve was triggered, is a lot of sanctions trouble. Spoliation problems of any kind can make the client look bad, usually far worse than they in fact are, because most of these situations are triggered by errors and omissions. But sometimes the ESI destruction was not accidental, it was intentional, bad faith and your client faces serious sanctions. See: The Jimi Hendrix Experience: Sanctions For Destruction (e-Discovery team, 12/02/18) (article on Experience Hendrix, LLC v. Pitsicalis, No. 17-cv-1927 (PAE) (S.D.N.Y., 11/27/18)).
Immediate investigation of the facts is required anytime there is a credible report of evidence spoliation. Situations like this require high legal skill levels and solid ethics to handle effectively.
__________
What do you do
When a client sends to you
Four thumb drives filled with electric evidence to review?
Here it is not the present itself that concerns us, but the way it was delivered. You, the attorneys, do not want to receive the thumb drives, you want your computer engineers to receive and safeguard the large data stores. You want the professionals to take custody and safeguard the ESI. If you are like me and have a vendor who does the set up and management of your document review databases, then you will want the electronic storage devices – here the four drives – to be sent directly from the client to the vendor.
Do not get in the chain of custody! Do not take-on the liability of holding large stores of your client confidential information. Law firms should do everything they can to try to safeguard against a data breach with loss of client’s ESI. Have the data handled by computer forensics experts.
__________
What do you do
When a client sends to you
Five Doorbell Ring videos to view?
Have you heard of the doorbell video systems that let you see who is at the door and respond with your cell phone no matter where you are? Even if you do not respond, even if the person at the door never rings the bell, motion sensors on The Ring will trigger a video. The video is then automatically saved to the cloud. The most popular video doorbell system like this is called The Ring. It has recently spawned a new kind of very local social media, a new type of neighborhood watch to stop crime – Ring TV. It has become very popular to try to stop package theft. Take a look at some of The Ring customers videos. Everyone likes to see thieves deterred, or in action, especially when they are going after the easy to steal Amazon packages. In 2018 we even had Door Cam Awards for the best dramatic performances on home security footage.
My favorite doorbell video happened recently. It captures a Good Samaritan in action trying to save a dummy Christmas decoration. Please hold on!
There are video cameras in most commercial areas, with more and more surveillance equipment added every day, including people’s residence and workplace. Videos could have evidence of facts that are in dispute in your case. You need to act fast to preserve them, as they usually are written over after the allotted storage space is filled.
To Be Continued ….
In the conclusion we will consider the last seven gifts from the beloved client and how to deal with the problems and opportunities these presents present.
In the meantime, here is the full lyrics. $50 Starbucks gift card to whoever submits the best recording of their singing this.
e-Discovery Team ® 
[…] client and how to deal with the problems and opportunities these presents present. Suggest you read Part One of this 2018 Christmas blog first. It has the full poem and discussion of the first five […]
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