International lawyer discusses e-discovery in US & other countries
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.
Mentioned in this episode:
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On this episode of restored all, we've actually got a lawyer to talk to us
Speaker:about why your company needs to have a solid plan for e-discovery requests.
Speaker:If you'd rather skip the banter, just go to three minutes and 30 seconds.
Speaker:Hope you enjoy the episode.
Speaker:You could restore it.
W. Curtis Preston:Hi, and welcome to Backup Central's Restore it All podcast.
W. Curtis Preston:I'm your host w Curtis Preston, aka Mr.
W. Curtis Preston:Backup.
W. Curtis Preston:And I have with me the guy that should be celebrating my recent auto
W. Curtis Preston:repair victory Prasanna Malaiyandi
Prasanna Malaiyandi:So it's a success, Curtis the saga, the ongoing repair
W. Curtis Preston:I am declaring, I am declaring at
W. Curtis Preston:a success after all that work.
W. Curtis Preston:Uh, you know, now there, there are gonna be some purists that are not
W. Curtis Preston:gonna like the, the solution, um, because it's not a long term solution,
W. Curtis Preston:but we'll see how long term it is.
W. Curtis Preston:I, you know, long story short, I was having a misfire and it said
W. Curtis Preston:it was either the EGR valve or it was gonna be a head gasket.
W. Curtis Preston:And I don't wanna spend.
W. Curtis Preston:A ridiculous amount of money, like $2,000 to replace head gasket on an
W. Curtis Preston:engine that has 200,000 miles on it.
W. Curtis Preston:So I did some research and selected the, um, oh, I, I replaced the EGR
W. Curtis Preston:valve that didn't fix it, and I, um, Uh, see, if you were a regular the podcast,
W. Curtis Preston:you'd have heard all all this already.
W. Curtis Preston:Uh, and I decided to use something called Steel Seal, which was the
W. Curtis Preston:best rated of the various, uh, of the liquid sealing products.
W. Curtis Preston:Uh, any mechanics in the room are like, Oh, no, don't, don't use that
Prasanna Malaiyandi:cringing.
Prasanna Malaiyandi:That's exactly what I
W. Curtis Preston:Yeah.
W. Curtis Preston:Uh, but, um, you know, and, and it wasn't exactly easy, you know, I had to.
W. Curtis Preston:All of the coolant with, uh, with, um, distilled water and put it in
W. Curtis Preston:there and, you know, but I gotta say, I, you know, I've driven it all
W. Curtis Preston:over tarnation since repairing it.
W. Curtis Preston:No code, no nothing.
W. Curtis Preston:Uh, it was an intermittent code, but it was definitely, you know, intermittent
W. Curtis Preston:enough that it, I would've had it by now.
W. Curtis Preston:So, So I'm declaring success.
Prasanna Malaiyandi:that's awesome.
Prasanna Malaiyandi:I know you were very worried.
Prasanna Malaiyandi:And you were trying all these other mechanisms before having
Prasanna Malaiyandi:to worry about the head gasket.
Prasanna Malaiyandi:So crossing my fingers.
Prasanna Malaiyandi:I hope it works out, but we'll see.
W. Curtis Preston:If I get another, you know, 20,000 miles out of it,
W. Curtis Preston:I'll be ecstatic If I get a hundred thousand miles, I don't know what to
W. Curtis Preston:say because basically the next step is I, you know, I've priced a, an engine
W. Curtis Preston:for the car and that's 4,500 bucks.
W. Curtis Preston:Um, and cuz I'm not gonna spend $2,000 just to replace a head casket in the car.
Prasanna Malaiyandi:Well, I'm glad it worked and I'm glad you persevered,
Prasanna Malaiyandi:Curtis, and you did not give up.
W. Curtis Preston:I really am excited about our guest this week.
W. Curtis Preston:He's gonna bring a unique perspective than, than, you
W. Curtis Preston:know, than we've ever had before.
W. Curtis Preston:Uh, he has been an attorney for almost 50 years and counsel's a wide range
W. Curtis Preston:of companies on international matters.
W. Curtis Preston:He founded Privacy Rules, a global Alliance of Technology and law
W. Curtis Preston:firms, Dedicated to data privacy compliance, and is also the host of
W. Curtis Preston:the Data Privacy Detective podcast.
W. Curtis Preston:Welcome to the podcast, Joe Dahner.
Joe Dehner:Well, thank you, uh, Curtis.
Joe Dehner:Great to be with Mr.
Joe Dehner:Backup and, uh, Prasanna you as well,
W. Curtis Preston:You know, I, I, uh, I got, I had a chance to
W. Curtis Preston:come on your podcast and we, we talked a little bit about privacy.
W. Curtis Preston:My, my world of privacy, Right?
W. Curtis Preston:Which is in, in our world.
W. Curtis Preston:Backups are a part of the overall privacy story, Right?
W. Curtis Preston:Because our, our, our biggest worry is that, well, well, there's two things.
W. Curtis Preston:One is that someone would actually exfiltrate the backups and use them, uh,
W. Curtis Preston:to, to infiltrate, uh, somebody's privacy.
W. Curtis Preston:And then the other is the, and I think we talked about this on your
W. Curtis Preston:podcast, a concern that many of us have that regulations like GDPR and CCPA.
W. Curtis Preston:Where they say, Well, you have to delete this person's information,
W. Curtis Preston:and the technology really isn't there to delete it from the backup.
W. Curtis Preston:So it's a, it's a, it's a real challenge.
W. Curtis Preston:Um, and have you, have you run into anything like that where, where
W. Curtis Preston:somebody, you know, where they've done one of these deletion requests
W. Curtis Preston:and they were unable to do it?
Joe Dehner:Sure.
Joe Dehner:It's a chronic problem in legal proceedings.
Joe Dehner:Absolutely.
Joe Dehner:Because of basically the American approach to what we call discovery.
Joe Dehner:And, uh, so what we're really talking about today is, is e-discovery.
Joe Dehner:And, uh, it's, it's a very challenging, uh, process that
Joe Dehner:I'm happy to get into with you.
W. Curtis Preston:I throw out our usual disclaimer persona.
W. Curtis Preston:And I worked for different companies.
W. Curtis Preston:He works for Zoom, I work for Druva.
W. Curtis Preston:Uh, this is not a podcast of either company and, uh, and at
W. Curtis Preston:least two of us on this recording are not giving any sort of legal.
W. Curtis Preston:And Joe is not giving legal advice.
W. Curtis Preston:He's giving his opinion on legal matters.
W. Curtis Preston:Uh, but anyway, uh, also, please, uh, rate us at, uh, rate this podcast.com/restore.
W. Curtis Preston:And if you think you've got something you know, interesting to say in
W. Curtis Preston:our space, we'd love to hear from you at WC Preston on Twitter.
W. Curtis Preston:Or Debbie Curtis presen at in gmail.
Prasanna Malaiyandi:One of the things I wanted to touch on though,
Prasanna Malaiyandi:Curtis, is you were talking about you have to delete it, I think.
Prasanna Malaiyandi:There's sort of this notion, and Joe, keep me honest here, right, That, Oh,
Prasanna Malaiyandi:just because someone asked for their data to be deleted, it's gone, right?
Prasanna Malaiyandi:But there are cases where, because of regulations or because it's needed
Prasanna Malaiyandi:for the business, like for instance, your credit card transactions, Right
Prasanna Malaiyandi:when you buy something, right, That's sort of, you need to keep around.
Prasanna Malaiyandi:So I think there's still cases where data that a user, even though they've
Prasanna Malaiyandi:requested it to be deleted, can't be deleted, and that's completely
Prasanna Malaiyandi:acceptable for it to remain.
Joe Dehner:Yeah.
Joe Dehner:Well, let me let you in a little secret.
Joe Dehner:I think, you know, we had a president who was a lawyer member trying to
Joe Dehner:play what, what does the word is mean?
Joe Dehner:You remember that?
Joe Dehner:But it's a little the same here.
Joe Dehner:What does delete mean?
Joe Dehner:What does delete really mean?
Joe Dehner:Now, it's one thing if, let's say, uh, Uh, my client, uh, the company has
Joe Dehner:gotten into an altercation with another company and, uh, the argument was,
Joe Dehner:uh, that the one my client, let's say, had, uh, had, had data shouldn't have.
Joe Dehner:And so it ought to delete it, not use it, not compete unfairly, and, you
Joe Dehner:know, a typical kind of non-compete.
Joe Dehner:Case.
Joe Dehner:Well, it's one thing for that company to say, I have deleted it, but in
Joe Dehner:a way, I, It's almost unprovable.
Joe Dehner:What if, what if a, an employee of that company had left the month before and
Joe Dehner:happened to take some, uh, on their.
Joe Dehner:Personal computer, which happened, You know, you never can guarantee things.
Joe Dehner:So judges understand that delete needs a definition.
Joe Dehner:Very often, uh, settlements are made and, and courts, uh, will affirm them,
Joe Dehner:or an order will be issued, ending a case, and, and it'll say, and, uh,
Joe Dehner:all, all, all information either should be deleted or you can assure me that
Joe Dehner:all copies have been gotten rid of.
Joe Dehner:Now it's one thing if it's pieces of paper, if it, it's another things,
Joe Dehner:if it's ones and zeros, how do you, how do you ever really prove that?
Joe Dehner:So, and furthermore, there's some companies who have a belief I need
Joe Dehner:to keep at least a backup copy.
Joe Dehner:Maybe I'll give it to an escrow agent.
Joe Dehner:I'll say, I don't have it anymore to prove what I deleted.
Joe Dehner:Cuz how do you ever prove what you deleted when you delete it?
Joe Dehner:So we're into a bit of a, it never, never land.
Joe Dehner:Uh, On this, I'll, I'll let you know.
Joe Dehner:One secret about deletion and that is companies have document
Joe Dehner:retention policies, right?
Joe Dehner:You know, for HR matters, how long do you keep 'em?
Joe Dehner:It's kind of state law.
Joe Dehner:Five years, six years, seven years, whatever it is.
Joe Dehner:There is no document retention policies at most major law firms, uh, in the
Joe Dehner:United States because each, each set of data's a little different.
Joe Dehner:Cases can drag on sometimes up to 10 years.
Joe Dehner:And then what do you need to keep afterwards?
Joe Dehner:Well, it depends what the case was.
Joe Dehner:So we're in an area where there's no established best practice, even
Joe Dehner:to document retention, which has to do of course with deletion.
W. Curtis Preston:Yeah, that's interesting.
W. Curtis Preston:I, I, um, I have a, a high school friend who is, um, uh, an attorney
W. Curtis Preston:and I just saw on Facebook.
W. Curtis Preston:This morning that he has had his second mistrial in a, due due to the
W. Curtis Preston:actions of the, the defense, uh, in a, in a case that has lasted 11 years.
W. Curtis Preston:Uh, so he, so, so it's going to continue, um, on past that.
W. Curtis Preston:Um, so yeah, that, that is, that is an interesting problem.
W. Curtis Preston:Let me tell you what I'm often advising people about.
W. Curtis Preston:The concern that I have is that many people keep their
W. Curtis Preston:backups for far too long.
W. Curtis Preston:Okay?
W. Curtis Preston:Um, that, well, many people, many people keep a lot of data,
W. Curtis Preston:but in this case, it's backups.
W. Curtis Preston:There's this, there's this sort of, uh, sense that well, I, I need to
W. Curtis Preston:keep this sort of, the, the same thing you talked about with an attorney.
W. Curtis Preston:Like, I need to keep this for seven years.
W. Curtis Preston:For 10 years.
W. Curtis Preston:I, I've met customers that I can think of a large financial
W. Curtis Preston:company in New York where, uh, they kept all backups forever, Okay.
W. Curtis Preston:And they, that, and, and was a big company and it resulted in design changes that
W. Curtis Preston:were necessary to happen to the backup company that they happened to have.
W. Curtis Preston:It ha it happened to be, uh, Veritas NetBackup and there were design changes
W. Curtis Preston:that were made to Veritas net backup so that this customer could keep
W. Curtis Preston:their data the, that amount of time.
W. Curtis Preston:And so what I'm constantly telling people is if you don't have a regulatory reason,
W. Curtis Preston:To keep something for 10 years or whatever that whatever that regulation is, then
W. Curtis Preston:keep it a much shorter period of time.
W. Curtis Preston:And the reason that I'm talking about this is that backups are notoriously bad.
W. Curtis Preston:What they're great at is restore your laptop the way it looked yesterday, right?
W. Curtis Preston:Restore the server the way it looked yesterday.
W. Curtis Preston:Find me these three emails.
W. Curtis Preston:That I wrote five years ago.
W. Curtis Preston:It's not so good at that.
W. Curtis Preston:In fact, it's horrible at that.
W. Curtis Preston:And the thing that, the thing that I'm worrying about, Is, and again, this is
W. Curtis Preston:the term that you would be familiar with.
W. Curtis Preston:Uh, I'm, I'm warning people that they will get an e-discovery request.
W. Curtis Preston:Their, their retrieval will be so bad that it will result in an adverse
W. Curtis Preston:inference instruction from the, the judge.
Prasanna Malaiyandi:So before you go on, can you sort of, can we talk
Prasanna Malaiyandi:about each and every single one of those terms you just threw out there?
Prasanna Malaiyandi:Curtis?
Joe Dehner:When we say e-discovery, what are we talking about now?
Joe Dehner:Now you're entering the lawyer's world.
Joe Dehner:Very
Joe Dehner:sorry.
Joe Dehner:Try to avoid it if you can, but e-discovery is really pretty
Joe Dehner:simple if you think about it.
Joe Dehner:It is the process of preserving, collecting and analyzing electronically
Joe Dehner:kept data in response to a discovery request in a legal proceeding.
Joe Dehner:That's what e-discovery is.
W. Curtis Preston:And, and what is a discovery request for those
W. Curtis Preston:who don't know that what that.
Joe Dehner:Yeah.
Joe Dehner:Okay.
Joe Dehner:Uh, this could be in a criminal case, but almost always these
Joe Dehner:are civil cases where somebody, a person or a company is suing another
Joe Dehner:person or a company over something.
Joe Dehner:Could be a personal injury, it could be a, uh, unfair competition
Joe Dehner:case, could be anything.
Joe Dehner:Could be a privacy matter.
Joe Dehner:Uh, okay.
Joe Dehner:And so now we're in a US court, and I'll talk about other courts later if you
Joe Dehner:want to get into international stuff.
Joe Dehner:But, uh, if we're in a US court, could be a state court, could
Joe Dehner:be a federal court, and we have the broadest idea in the world.
Joe Dehner:About what happens when you're in court and it is you better produce
Joe Dehner:every bit of evidence the other side wants that has the slightest thing
Joe Dehner:to do with the issues in the case.
Joe Dehner:And so we're called a litigious society for good reason, because that employs a
Joe Dehner:lot of lawyers because, uh, what happens is the plaintiff or the defendant in a
Joe Dehner:case, sometimes there are many parties.
Joe Dehner:will send a discovery request saying, Give me all the documents you have.
Joe Dehner:Let's pause.
Joe Dehner:What's a document?
Joe Dehner:It's no longer pieces of paper or photos, it's anything anywhere on an iPhone
Joe Dehner:or in a computer or messages or on a smartphone or that's, that's document
Joe Dehner:you see and, uh, give me everything you have about everything that has the
Joe Dehner:slightest thing to do with the case.
Joe Dehner:And lawyers go to enormous lengths to get anything they can find, cuz maybe they'll
Joe Dehner:find an email that uses a, a terrible word or, you know, anything to disadvantage
Joe Dehner:the other side is all part of the scoop.
Joe Dehner:And the other thing that you all know very well is that most people don't know.
Joe Dehner:Is that, uh, the real problem in e-discovery and frankly the rest of
Joe Dehner:life, is there's too much information in too many formats on too much media
Joe Dehner:managed by too many applications.
Joe Dehner:So, uh, you get a, let's say it's a sexual harassment case.
Joe Dehner:Uh, somebody is suing because the company had a hostile work environment.
Joe Dehner:Okay, Give me all the documents about the work environment.
Joe Dehner:Whoa.
Joe Dehner:You want everybody's personal emails, then.
Joe Dehner:Do they say in their company or in their personal emails, bad things about,
Joe Dehner:you know, another gender or another nationality or whatever it may be?
Joe Dehner:What are you scooping up?
Joe Dehner:You're scooping up very personal information.
Joe Dehner:You see, and it all gets out there and sometimes you end up with
Joe Dehner:credit cards that are part of an email at the bottom of the chain.
Joe Dehner:And I mean, just all kinds of stuff.
Joe Dehner:And that's about, Boy, I've had cancer for three weeks, but don't tell anybody.
Joe Dehner:And now that's in a document shared with one person.
Joe Dehner:But this is the problem.
Joe Dehner:It, it's just enormous.
Joe Dehner:And so that the time and attention and cost of dealing with large
Joe Dehner:cases, uh, is just enormous.
Joe Dehner:Not to mention the lawyer time and everything else involved and the risk.
Joe Dehner:We're back to what you mentioned earlier, Why are we keeping this stuff forever?
Joe Dehner:You know, in Europe the idea is data minimization.
Joe Dehner:Get rid of data.
Joe Dehner:Unless you have a good reason to keep it, why, why would you hang onto it?
Joe Dehner:You're, you're only subjecting yourself to the risk of being
Joe Dehner:sued cuz you kept it too long.
Joe Dehner:So we were talking, you know, I've talked too much.
Joe Dehner:Please jump in here.
Joe Dehner:But these are some of the problems you're talking about here.
Prasanna Malaiyandi:And so e-discovery is usually the
Prasanna Malaiyandi:mechanism to grab all this data.
Prasanna Malaiyandi:I know one of the things you mentioned was sort of analyzing the data, right?
Prasanna Malaiyandi:So imagine that you're pulling all the company emails, right?
Prasanna Malaiyandi:That's not a lawyer or a set of folks looking at those word by word, right?
Prasanna Malaiyandi:And reading each one.
Prasanna Malaiyandi:Like they might have done back in the day when it was paper documents, right?
Prasanna Malaiyandi:This is a system, right, A software package that kind of helps them parse
Prasanna Malaiyandi:the data and all the data that's out there and look for sort of keyword
Prasanna Malaiyandi:matches and other things like that.
Prasanna Malaiyandi:Is that right, Joe?
Joe Dehner:That's the collection part.
Joe Dehner:Remember the three phases preserving.
Joe Dehner:First thing you do, once you get sued or you know, you go, you have
Joe Dehner:to preserve evidence, you try to throw it away, you're in big trouble.
Joe Dehner:You see, that's a real problem.
Joe Dehner:And we can talk about a sanctions case where somebody did that,
Joe Dehner:you know, they left the company and wipe their phone.
Joe Dehner:That becomes an issue.
Joe Dehner:But that's the collections and.
Joe Dehner:Pr, uh, collecting is the second piece.
Joe Dehner:Collecting all this.
Joe Dehner:And you've gotta, Lawyers can't do that.
Joe Dehner:They have to hire people like you all and you know, tech people and know
Joe Dehner:what they're doing to collect it.
Joe Dehner:And then the last then is analyzing, right?
Joe Dehner:Yeah.
Prasanna Malaiyandi:and for the preserving piece, I think at least
Prasanna Malaiyandi:on the tech side, sometimes we've called it like legal hold, right?
Prasanna Malaiyandi:Other things like that.
Prasanna Malaiyandi:Terminology in order to preserve the data so it doesn't get wiped
Prasanna Malaiyandi:out, be it a backup, doesn't get expired due to its retention time
Prasanna Malaiyandi:expiring, or an email getting deleted from the system automatically.
Prasanna Malaiyandi:Right?
Joe Dehner:Well, I'll give you one note.
Joe Dehner:Let me give you a war story.
Joe Dehner:This is a case from just last year, uh, where, uh, a person left
Joe Dehner:a company and he had two phones.
Joe Dehner:He took the company phone, shouldn't have done that, and then wiped stuff
Joe Dehner:clean cuz he didn't want anybody to know what he'd been doing.
Joe Dehner:And, but he, he also got a contraband phone.
Joe Dehner:And put company stuff on it, knowing that he'd only use WhatsApp for that.
Joe Dehner:And knowing that WhatsApp deletes data after, what is it,
Joe Dehner:three months or whatever their, uh, you know, their policy is.
Joe Dehner:He was excused from wiping the phone from the company phone, even though he took it
Joe Dehner:with him because five years had passed.
Joe Dehner:And, and he, the judge couldn't find that he, he deliberately did that, but knowing
Joe Dehner:that WhatsApp was gonna delete it in whatever, three months, I think it was 90
Joe Dehner:days, the judge threw sanctions at him.
Joe Dehner:He had to pay money.
Joe Dehner:See, could have real problem.
Joe Dehner:That's just one little example of what you're talking about
Joe Dehner:collecting and preserving, and even before you get to an analyzing it.
Joe Dehner:Yeah.
W. Curtis Preston:I know that once you, once you've been notified that
W. Curtis Preston:you're a party, uh, in a lawsuit and potentially a potential party, right?
W. Curtis Preston:That's where that preservation begins.
W. Curtis Preston:That's where you're saying if you then like the day after you've been told
W. Curtis Preston:you're gonna be sued about a hostile work environment and then you suddenly
W. Curtis Preston:delete all emails older than a week.
Joe Dehner:you're in big trouble.
Joe Dehner:You're, you're almost guaranteed to lose the case.
Joe Dehner:The judge will throw the book at you.
Joe Dehner:You can't do that.
Joe Dehner:That's Right.
Prasanna Malaiyandi:But is it here?
Prasanna Malaiyandi:Here's a question.
Prasanna Malaiyandi:Uh, keeping politics outside of this, right?
Prasanna Malaiyandi:Is it worse to get the sanctions thrown at you versus what they might
Prasanna Malaiyandi:potentially dig up in those emails?
Joe Dehner:Well, that's a good question.
Joe Dehner:Um, you know, but in general, uh, in, in any case, uh, any judge
Joe Dehner:will start out being neutral.
Joe Dehner:And then as the case unfolds, the judge will get an opinion about things.
Joe Dehner:And mostly discovery rules are done by magistrate judges.
Joe Dehner:They're, they're sort of the, uh, the second fiddle to the judge.
Joe Dehner:And they take care of a lot of these discovery, uh, uh, matters.
Joe Dehner:And, and, and they're there to make sure that people, uh,
Joe Dehner:produce relevant documents.
Joe Dehner:Uh, and, and that's their job, but they, they're not there.
Joe Dehner:There's an idea in, in the courts of proportionality, What does that mean?
Joe Dehner:That means you get a request.
Joe Dehner:Give me, uh, every document you've ever created.
Joe Dehner:Well, no judge would enforce it.
Joe Dehner:It's gotta be somewhat specific to the case.
Joe Dehner:All right.
Joe Dehner:And then the next thing is, well, how specific, I'll give you another
Joe Dehner:case from last year where, uh, one of the LA fitness shops, somebody
Joe Dehner:slipped and fell on the tile floor in a bathroom out in California.
Joe Dehner:Okay.
Joe Dehner:That was the case.
Joe Dehner:So, uh, the, the plaintiff asked LA Fitness, give me every document you
Joe Dehner:have about any incident in any bathroom.
Joe Dehner:Well, they have 600 places around the ni the, the judge narrowed it
Joe Dehner:down to, okay, those 600 other places only have to give incidents where a
Joe Dehner:person slipped and fell on a tile.
Joe Dehner:You see what happened there.
Joe Dehner:The judge ne, this is what we call proportionality, but that mean they had
Joe Dehner:to reach out to 600 different stores and you see what goes on, and this is part
Joe Dehner:of the collection
W. Curtis Preston:So let's get to that term, and I'm gonna give you a story, Joe.
W. Curtis Preston:Um, and this is from, uh, this, I don't know, 20 years ago.
W. Curtis Preston:I can't remember.
W. Curtis Preston:It was a large household name financial organization in, in New York.
W. Curtis Preston:They had a famous case where they were asked for all the emails, you
W. Curtis Preston:know, for the last three years or whatever, and they had been using
W. Curtis Preston:their backup system as their archive system, which is something that we
W. Curtis Preston:talk about on this, on this podcast a lot, which is a very bad thing to do.
W. Curtis Preston:And they had also changed their backup system multiple times during the timeframe
W. Curtis Preston:that the discovery was taking place or that, that the discovery covered.
W. Curtis Preston:And long story short, the, the process of getting these
W. Curtis Preston:emails out was taking forever.
W. Curtis Preston:Um, it it, and it was taking forever because of everything I just said, that
W. Curtis Preston:they had used their backup as their archive, that they had changed the stuff.
W. Curtis Preston:They had changed, backup formats, tape formats, they changed all these things.
W. Curtis Preston:And then, Towards the end of the discovery of, of the process, the,
W. Curtis Preston:the, um, there's some kind of form I'm sure you're familiar with.
W. Curtis Preston:There's some kind of moment where the person who's supposed to be satisfying the
W. Curtis Preston:discovery request, um, says, Okay, we've done the thing that you asked us to do.
W. Curtis Preston:They did that moment in time, and then they found another box of tapes.
Joe Dehner:of course.
W. Curtis Preston:Um, the judge then, and, and this is, this is
W. Curtis Preston:where I wanna get back to this term.
W. Curtis Preston:The judge issued an adverse inference instruction.
W. Curtis Preston:Basically what the judge said was whatever the plaintiff said was on those tapes,
W. Curtis Preston:it was probably on the tapes because no one could be this bad at reading their
W. Curtis Preston:tapes, they're doing this on purpose.
W. Curtis Preston:Uh, and as a result, they lost, I think it was a, like a 2 billion, uh, uh, case,
W. Curtis Preston:um, as a result of that instruction.
W. Curtis Preston:So talk to us about adverse inference and you know, what that means and so on.
Joe Dehner:Right.
Joe Dehner:Well, you know, when you're in a courtroom, the law,
Joe Dehner:the rules of evidence apply.
Joe Dehner:Now the federal rules, uh, are in federal courts, but most cases are in state court.
Joe Dehner:Some.
Joe Dehner:Rules of evidence are different from federal rules, but in
Joe Dehner:general, we're talking evidence.
Joe Dehner:And in a civil case, which is, uh, what you're talking about there, Curtis,
Joe Dehner:uh, it's who wins by 51, 50 0.1%.
Joe Dehner:Uh, you don't have to prove anything beyond a reasonable doubt.
Joe Dehner:It's what's more likely than not.
Joe Dehner:That's all.
Joe Dehner:And the jury's free to, if you have a jury, if you have a judge, same thing.
Joe Dehner:Only has to be persuaded.
Joe Dehner:So presumptions and adverse inferences matter a great deal.
Joe Dehner:because that's the judge telling a jury or the judge acting for him or
Joe Dehner:herself saying, Hmm, I've gotta doubt about this one, but because they
Joe Dehner:acted that way, I'm gonna find that the other side wins on that point.
Joe Dehner:That's what an adverse inference is, uh, it really has to do with.
Joe Dehner:And in a civil case that, that sounds like that was a 2 billion turning
W. Curtis Preston:point
W. Curtis Preston:Yeah.
W. Curtis Preston:So it, it's putting it in plain English.
W. Curtis Preston:They're inferring from your actions something that is
W. Curtis Preston:adverse to your position.
Joe Dehner:that's right
W. Curtis Preston:hence, the term adverse inference.
Joe Dehner:It all gets very specific, Curtis.
Joe Dehner:That's exactly right.
Joe Dehner:And the mere fact that you find something after you've said, We've
Joe Dehner:already given you everything.
Joe Dehner:This is actually more common than one might think and
Joe Dehner:and judges understand that.
Joe Dehner:Your instance was probably one where they really had probably.
Joe Dehner:Through it two or three times and really said that's it.
Joe Dehner:And then they find stuff and yeah, you can draw an inference from that.
Joe Dehner:Yeah,
W. Curtis Preston:Yeah.
W. Curtis Preston:He's like, No, nobody could be this bad
Joe Dehner:Yeah.
Prasanna Malaiyandi:It's interesting though because you're basically telling
Prasanna Malaiyandi:the it, the backup person, actually probably the backup operator, right?
Prasanna Malaiyandi:Who's doing these restores, By the way, here's this legal
Prasanna Malaiyandi:directive that came down.
Prasanna Malaiyandi:You have to now gather all this data and good luck, right?
Prasanna Malaiyandi:They may not even necessarily know like where is all that data and what are the
Prasanna Malaiyandi:pieces of data I need to collect from?
Prasanna Malaiyandi:And I know I think Curtis, you had mentioned once in that story in the
Prasanna Malaiyandi:past that they sort of were trying to restore each email server one by one
W. Curtis Preston:Well, yeah.
W. Curtis Preston:If you have a proper email archive system and, and you get an e-discovery
W. Curtis Preston:request, I need all the emails from Joe to Steve for the last three years.
W. Curtis Preston:That's like five mouse clicks and you're done.
W. Curtis Preston:And here's a PST file.
W. Curtis Preston:Here you go.
W. Curtis Preston:Feed that over to the, to the e-discovery.
W. Curtis Preston:You know, the, the, the, uh, what's it called?
W. Curtis Preston:The, the culling process, right?
W. Curtis Preston:Um, but if you're using a backup system to get all the emails from Joe
W. Curtis Preston:to Steve for the last three years, I have to restore the, the email server
W. Curtis Preston:52 times, times three years, Right?
W. Curtis Preston:And then pull out the emails for that week.
W. Curtis Preston:And then, you know, and then go on and go on and go on and on.
W. Curtis Preston:And there's, and there's no guarantee that you get all of the emails that
W. Curtis Preston:were sent to receive, because if you send emails, uh, and then you delete
W. Curtis Preston:them before the backup system gets them.
W. Curtis Preston:Right.
W. Curtis Preston:Um, so
W. Curtis Preston:yeah.
W. Curtis Preston:So yeah.
W. Curtis Preston:that's why I, I preach very often of like, please, please get a proper
W. Curtis Preston:archive, you know, an archive system.
Joe Dehner:It's critical and you're introducing the
Joe Dehner:metadata problem here, really.
Joe Dehner:Let's talk about that a bit and when we talk about metadata, we're talking
Joe Dehner:about the actual appearance of, of a document, meaning when was it
Joe Dehner:sent, by whom to whom in the format.
Joe Dehner:And, and what happens when, and I don't know enough about backup, you'll have
Joe Dehner:to clear it up, but anytime you take something that's so called original,
Joe Dehner:let's take somebody's iPhone that has stuff on it, messages and, and when you
Joe Dehner:move that somewhere else, you can be changing the metadata unintentionally.
Joe Dehner:No purpose to it at all.
Joe Dehner:And that is evidence that has then been, you could say, we have a great
Joe Dehner:word in the law, spoilation, you have spoiled the evidence you see, And that
Joe Dehner:is when judges do get upset because you've literally altered the evidence.
Joe Dehner:You see what I mean?
Prasanna Malaiyandi:Yeah.
Joe Dehner:And in the old, you know, this was a problem in the
Joe Dehner:old hard copy days, you know, just paper days and photograph days.
Joe Dehner:You want the.
Joe Dehner:We don't want a copy of the DNA sample you may have, uh, you know, No, no.
Joe Dehner:We want what you collected.
Joe Dehner:You see what I mean?
Joe Dehner:And in data, it's the same problem.
Joe Dehner:This is a critical point you're making,
Prasanna Malaiyandi:Then here's the one question I have.
Prasanna Malaiyandi:You wanna preserve the metadata, you wanna preserve the content.
Prasanna Malaiyandi:Is it okay to change the format?
Prasanna Malaiyandi:So it like if you're, And it, I guess it also depends to what extent, like
Prasanna Malaiyandi:is it okay to move from say, object storage to say a normal file system file?
Prasanna Malaiyandi:Is it okay to move from everything being as.
Prasanna Malaiyandi:Normal, like email, text, what you would see into like a machine
Prasanna Malaiyandi:readable language, like a JSON format or something else like that, Right?
Prasanna Malaiyandi:All these things, they're transforming the original data.
Prasanna Malaiyandi:And just going back to what you were saying, Joe, they want it in that original
Prasanna Malaiyandi:way, like how original is original when it comes to electronic media.
W. Curtis Preston:Uh, uh, Joe, let me, let me, let me try to answer
W. Curtis Preston:that question cause I, I'll get it and then I'll tee it up to you.
W. Curtis Preston:I, I, would think that changing the format is okay.
W. Curtis Preston:The question is, can you prove a chain of custody?
W. Curtis Preston:Can you prove immutability?
W. Curtis Preston:There's a, there's a good word for you.
W. Curtis Preston:It's a tech word we use a lot, but I believe it, it's a legal term as well.
W. Curtis Preston:Um, can you prove that the content right, the, the words in the email and
W. Curtis Preston:all the associated metadata associated with that email and the document.
W. Curtis Preston:If it's a photograph, it has geolocation stuff in it, all of that metadata, is
W. Curtis Preston:all of that preserved in the process?
W. Curtis Preston:Can you give to me, uh, you know, the thing that you stored, the thing that
W. Curtis Preston:it was, can you give me a, you know, something that preserves all of that and
W. Curtis Preston:can you prove, um, you know, to the best of your ability that the thing that was
W. Curtis Preston:stored is the thing that you're giving me.
W. Curtis Preston:Uh, what you did in the process.
W. Curtis Preston:I couldn't care less dup it, put it on tape, put it on, you know, optical.
W. Curtis Preston:I don't care.
W. Curtis Preston:Just, you know, am I looking at the same damn email?
W. Curtis Preston:Right.
W. Curtis Preston:Um, and you know,
Prasanna Malaiyandi:
Speaker:With the metadata pieces.
Prasanna Malaiyandi:
Speaker:Right.
W. Curtis Preston:with the metadata.
W. Curtis Preston:The me, well, the Joe tell me, it tell me I'm wrong.
W. Curtis Preston:The metadata is often what kills you, right?
W. Curtis Preston:Cause the me the metadata shows this is a fake email.
W. Curtis Preston:Right.
W. Curtis Preston:The metadata shows that this email was sent an hour after the thing happened.
W. Curtis Preston:This is a cover your ass email, right?
W. Curtis Preston:Um, Am I, am I, am I right?
Joe Dehner:metadata is essential.
Joe Dehner:Otherwise it probably wouldn't be admitted.
Joe Dehner:You know, the body of an email is just the body of something, but who
Joe Dehner:sent it and when and all the rest.
Joe Dehner:Absolutely.
Joe Dehner:And you know, the, There is no original in the sense of true electronic information.
Joe Dehner:See, and what I mean by that, if we're having a conversation right now, it's
Joe Dehner:getting turned into zeros and ones, but the original is what's happening, right?
Joe Dehner:We speak not as somebody listens to it later, but presumably
Joe Dehner:you can trust it, you know?
Joe Dehner:But, but with, with, uh, with evidence, the chain of custody as you put
Joe Dehner:it, is, is really quite critical.
Joe Dehner:But, You know, and we're in the world where people, uh, spoof emails.
Joe Dehner:So what is an authentic email?
Joe Dehner:All these become valid questions in the, uh, in a court.
W. Curtis Preston:Yeah.
W. Curtis Preston:I, I do think in, in, in the olden days, uh, the difference between
W. Curtis Preston:an original and a facsimile, it was a big, big deal, right?
W. Curtis Preston:You can make changes in that process.
W. Curtis Preston:Um, I, I think what.
W. Curtis Preston:But did, did, Are you okay with what I said that, that what really matters
W. Curtis Preston:is that that content of the email, the metadata of the email, um, you know,
W. Curtis Preston:all of that stuff, what you do in the process, and it's a lot of emails, right?
W. Curtis Preston:Isn't that what we're talking about?
W. Curtis Preston:About 90% of the time is emails.
Joe Dehner:We, we have, uh, just, we are, I'm in a firm of, uh,
Joe Dehner:550 lawyers, something like that, throughout the United States.
Joe Dehner:We currently have, what was the number I checked today?
Joe Dehner:150 databases we're keeping in active cases right now.
Joe Dehner:Now, these are all significant cases.
Joe Dehner:You know, where some have a million or more documents.
Joe Dehner:That's what we're talking about.
Joe Dehner:You have to think of all three phases, how complicated that gets.
Joe Dehner:Uh, analyzing the information being probably the hardest thing.
Joe Dehner:That's when the lawyers really get involved.
Joe Dehner:But the preserving and the collecting is, is, is really uh, an lpo.
Joe Dehner:You know, this is legal process
Joe Dehner:outsourcing work.
Joe Dehner:That's what lpo is
Joe Dehner:And we have on staff and we, we have great, uh, outsourced, uh,
Joe Dehner:service or you, you couldn't handle a significant case today if you didn't
W. Curtis Preston:Yeah.
W. Curtis Preston:The, the, the, the two things that I warn people about, a, again, this,
W. Curtis Preston:this is, this is one of my hobby horses, Joe, is the whole thing of,
W. Curtis Preston:of a backup system is one thing and an archive system is another, and that.
W. Curtis Preston:That you should get an email archive system.
W. Curtis Preston:Um, and you should not use your backup system as an archive system.
W. Curtis Preston:And that, that by not doing that, right, And by the way, most people
W. Curtis Preston:don't, most companies don't.
W. Curtis Preston:They have a backup system and they, they don't listen to me.
W. Curtis Preston:Um, the, the, they see, they see that archive system as an
W. Curtis Preston:additional cost, which it is.
Joe Dehner:It
W. Curtis Preston:I just, I just try to tell them, if you think that that
W. Curtis Preston:archive system is expensive, wait till you get an e-discovery request and you're
W. Curtis Preston:gonna have to do, what do you call 'em?
W. Curtis Preston:SPOs.
W. Curtis Preston:You're gonna have to file, you know, No l pos You said L pos, right?
Joe Dehner:Well, that that's just a company that that
Joe Dehner:helps lawyers do their work,
W. Curtis Preston:Yeah.
W. Curtis Preston:Yeah.
W. Curtis Preston:So you're, you're gonna be paying a crap ton of money to
W. Curtis Preston:those companies to help you.
W. Curtis Preston:By the way, I participated years ago, there was another company that used an
W. Curtis Preston:email their, their backup system as their archive system, and they got a three year
W. Curtis Preston:discovery request and we had a team of 15 people that worked around the clock.
W. Curtis Preston:Um, basically three teams of five, eight hours a piece.
W. Curtis Preston:Uh, and each one of us was tasked with restoring a server to a
W. Curtis Preston:particular point in time, extracting the emails from that server, then
W. Curtis Preston:going on to the next server, right?
W. Curtis Preston:And each person there were, at any given point in time, there were
W. Curtis Preston:five different people restoring a server to a particular point in time.
W. Curtis Preston:It cost them, uh, as I recall, it cost them 2 million of my
W. Curtis Preston:company's time satisfy that single electronic discovery request.
W. Curtis Preston:And that's before, you know, your side of the world got involved.
W. Curtis Preston:That was just, that was just the tech piece.
W. Curtis Preston:Um,
W. Curtis Preston:so we're not, we're not making this stuff up, are we, Joe
Joe Dehner:no, and and many of your listeners may, May, May, may, think
Joe Dehner:of that, Well, those are the big case.
Joe Dehner:That'll never be me.
Joe Dehner:Okay.
Joe Dehner:But just in the normal, average, mid-size case that our firm handles, okay?
Joe Dehner:You're talking 10 to $15,000 a month as kind of the common.
Joe Dehner:Not involving any lawyer time.
Joe Dehner:see that, that, I mean, you, you just, and a case will go on
Joe Dehner:year and a half to two years.
Joe Dehner:So I mean, you can picture the cost.
Joe Dehner:Now you get over a million dollars, you're talking probably $50,000 a month
Joe Dehner:of, of outsourced service just to try to avoid sanctions, to try to make sure
Joe Dehner:you're doing what lawyers should do, which is produce the evidence correctly and
Joe Dehner:properly, even if it's not good for your.
Prasanna Malaiyandi:Yeah.
Prasanna Malaiyandi:Yeah.
Joe Dehner:So these are very significant costs to, uh, achieve the way we
Joe Dehner:do litigation in the United States.
Prasanna Malaiyandi:I think the other thing is when you're also doing
Prasanna Malaiyandi:these restores curves, like when that firm brought in your company, Right.
Prasanna Malaiyandi:I'm sure that also slowed down everything else they had planned going on, Right.
Prasanna Malaiyandi:That they wanted to focus on as a company, as they were like, Hey, we
Prasanna Malaiyandi:gotta deal with this discovery issue now.
Joe Dehner:Prasanna, if I may, it's even worse than that because, uh,
Joe Dehner:you know, when on the collecting
joe-dehner:phase.
Joe Dehner:It's what you see on tv.
Joe Dehner:Give me your cell phone.
Joe Dehner:You may get it back on Monday.
Joe Dehner:Now usually it's a 24 hour thing if you got people that know what they're doing.
Joe Dehner:But an entire server can be offline for a company.
Joe Dehner:And, you know, your average companies probably don't have a, a fleet of servers
Joe Dehner:the way cryptocurrency operators do.
Joe Dehner:So they could literally be down for a day or two just to collect
Joe Dehner:ca uh, information off that.
Joe Dehner:That's it's captured until that time.
Joe Dehner:These are real problems.
W. Curtis Preston:Under what scenario would that, to me seems like an
W. Curtis Preston:extreme, Like the forensic collection,
Joe Dehner:correct.
W. Curtis Preston:is that generally done?
W. Curtis Preston:Only when like, it looks like the company's doing something wrong like that,
W. Curtis Preston:that a, that a normal discovery request wouldn't satisfy, wouldn't be satisfied.
Joe Dehner:Well, I, you know, most cases in America are not big cases.
Joe Dehner:You know, they're divorces, they're, you know, evictions of tenants.
Joe Dehner:They're all sort, you don't have these problems in that.
Joe Dehner:But any significant litigation between companies or people who
Joe Dehner:are badly injured, uh, it's gonna have an e-discovery request.
Joe Dehner:And, uh, if it's critical to see what Jack c phones, that you're
Joe Dehner:gonna take Jack phone for a day or two and Jack's not gonna have it.
Joe Dehner:Okay?
Joe Dehner:You, you don't, you don't, you know, put a little stick in there and walk
Joe Dehner:away, you know, with a sim card, you know, , you know, no, this is,
Joe Dehner:this can be very disruptive for a business for a short period of time,
Joe Dehner:but that, that's what can happen because of the way we do litigation.
W. Curtis Preston:Uh, but I don't, but I don't think there's anything
W. Curtis Preston:they can do to avoid that, it
Joe Dehner:No,
Joe Dehner:not, not in
Joe Dehner:the, Not in a case that requires
Joe Dehner:it.
W. Curtis Preston:happen, right?
Joe Dehner:Yeah.
Prasanna Malaiyandi:know you mentioned Joe, that a lot of this is US specific.
Prasanna Malaiyandi:Could you briefly talk a little bit about international and
Prasanna Malaiyandi:if there are differences or.
Prasanna Malaiyandi:I know there's a lot of, probably different regulations and everything
Prasanna Malaiyandi:else depending on what country you get into, but just maybe
Prasanna Malaiyandi:the high, high level points.
Joe Dehner:a lot of what my practice has been.
Joe Dehner:I was the vice chair of the American Bar Association's International Litigation
Joe Dehner:Committee for some time, and I've only been to 80 countries so far in person.
Joe Dehner:Well, that's not even half in the world, but I can tell you most of
Joe Dehner:the world does not have what we have.
Joe Dehner:Uh, let's take Germany for example.
Joe Dehner:Uh, this is not an issue.
Joe Dehner:You know why?
Joe Dehner:Because basically witnesses to a case don't become witnesses to trial.
Joe Dehner:Everybody presumes they would lie to favor their side.
Joe Dehner:And you have to have the documents to file a case.
Joe Dehner:When you file a case.
Joe Dehner:They don't have the discovery system we have where uh, you asked the said, Give
Joe Dehner:me your bad documents, would you please?
Joe Dehner:And the other side says, Okay, here they are.
Joe Dehner:. You know, a lot of the world thinks that's ridiculous.
Joe Dehner:Now, I'm not taking sides between Germany and the us, but it's just to say
Joe Dehner:each the world is radically different, uh, when you get into legal stuff.
Joe Dehner:Now, we're not the only ones that do, uh, significant discovery.
Joe Dehner:You'll find it in Canada and in the United Kingdom and a lot
Joe Dehner:of the common law countries.
Joe Dehner:Uh, this has partly to do with how cases get decided.
Joe Dehner:Most countries are civil law cases where, uh, the value of an arm that's
Joe Dehner:been lost, well, that's in the code.
Joe Dehner:We're not gonna argue about it for, you know, so, uh,
Joe Dehner:it's just quite different around the world.
W. Curtis Preston:Joe use that term, uh, common law country.
W. Curtis Preston:You want to define that
Joe Dehner:Well, common law, we inherited this from the British,
Joe Dehner:although we fought to get away from them, but we inherited this and the, the
Joe Dehner:common law system, which is precedent.
Joe Dehner:Yeah.
Joe Dehner:And you, you apply.
Joe Dehner:Well, what, what do judges do?
Joe Dehner:Last year and the year before and the year before that?
Joe Dehner:And that's what we, that will be decided in a civil law country.
Joe Dehner:Uh, judges become judges at age 20 or one or 22, and they read
Joe Dehner:the civil code and they apply it.
Joe Dehner:It says what it says.
Joe Dehner:And in the next case, you, you read that and you apply it.
Joe Dehner:Precedent is, I won't say unimportant, but it is not a precedential type of thing.
Joe Dehner:The common law system also means that judges have a certain right under, uh,
Joe Dehner:A lot of law to make the law because a statute won't ever cover everything.
Joe Dehner:And so you still need to make sense.
Joe Dehner:Who wins?
Joe Dehner:Who loses common law?
Joe Dehner:You can do that.
Joe Dehner:Civil code.
Joe Dehner:Nope.
Joe Dehner:It's what the code says.
Joe Dehner:At least what one judge thinks the code.
Joe Dehner:Uh, I could give you funny war stories if you're interested, but
Joe Dehner:it's just to say that, uh, four and foreign, uh, litigation's very,
Joe Dehner:very different from US Litigation.
W. Curtis Preston:So to, to summarize what we've talked about here, um, it, it
W. Curtis Preston:sounds like, and, and hopeful, I don't know, maybe people knew this already,
W. Curtis Preston:but please, if your company is the party of a lawsuit or you've be, you've
W. Curtis Preston:essentially been notified you're going to be a party in a lawsuit, that's
W. Curtis Preston:when that preservation phase begins if you suddenly start deleting stuff.
Joe Dehner:Or when You should have known that it could result in a,
W. Curtis Preston:Okay.
W. Curtis Preston:So it is when you should have known.
W. Curtis Preston:Okay.
W. Curtis Preston:All right.
W. Curtis Preston:Um, and, and, and there is, I know there's a discussion, so there's
W. Curtis Preston:this moment, sort of that moment.
W. Curtis Preston:I, I guess there's a question of, there is sort of normal.
W. Curtis Preston:I don't know if spoilation would be the bad term, but normal
W. Curtis Preston:document retention and deletion.
W. Curtis Preston:Like if that, if that process were to happen and it suddenly it deletes
W. Curtis Preston:some data that like today you've been notified, um, and then that deleted,
W. Curtis Preston:There might be some grace there, maybe,
Joe Dehner:There.
Joe Dehner:Yeah, there's a gray area.
Joe Dehner:I mean, take, take, uh, you know, apps or providers tell you they'll
Joe Dehner:delete data after, at least they won't keep data more than 90 days.
Joe Dehner:Very common.
Joe Dehner:Nothing wrong with that.
Joe Dehner:Once you're notified somehow, either you, you know, somebody got killed by
Joe Dehner:the vehicle you designed or whatever it may be, you're sort of on notice.
Joe Dehner:You see what I mean?
Joe Dehner:But, uh, before that, if, if things have been deleted, they've
Joe Dehner:been deleted, there's, there's
Joe Dehner:no, uh,
Joe Dehner:real issue with
W. Curtis Preston:But once you've been given notice, you need to
Joe Dehner:you need to take action to preserve.
W. Curtis Preston:Right, right.
Prasanna Malaiyandi:And now usually that's sort of a legal team within the
Prasanna Malaiyandi:company that's then sort of coordinating and notifying like the various IT folks.
Prasanna Malaiyandi:I would assume that yes, this data of this type needs to be put on or
Prasanna Malaiyandi:needs to make sure it's not deleted.
Joe Dehner:correct.
W. Curtis Preston:Yeah, and hopefully that process is as simple as possible.
W. Curtis Preston:If you don't know what that process is in your company, it's time to look into that.
W. Curtis Preston:because especially if you live in the, in the confines of these United States,
W. Curtis Preston:you're gonna be sued for something.
W. Curtis Preston:Uh, you know, cause cause that's just the way we do things.
W. Curtis Preston:It sounds like you're on board with my, again, I know you're not a specialist
W. Curtis Preston:in backup, but you would agree with the general recommendation to have a
W. Curtis Preston:system that allows you to easily satisfy an electronic discovery request, not
W. Curtis Preston:have one that's massively painful, uh, because that could both cost you
W. Curtis Preston:a ton of money and possibly cost you an adverse inference instruction,
W. Curtis Preston:which could then cost you the case.
W. Curtis Preston:Does that,
Joe Dehner:I'd agree with that.
Joe Dehner:And I subject to your very good point that archive is different from just raw backup.
W. Curtis Preston:right.
Joe Dehner:It has to be done correctly and, and thoughtfully.
Joe Dehner:I mean, again, I, because data minimization should be a important thing.
Joe Dehner:I, one of my first assignments as a very young lawyer a long time ago, was to
Joe Dehner:go into what was then nothing but hard copy, uh, backup our, our law firm's more
Joe Dehner:than a hundred years old, and I found.
Joe Dehner:Unbelievable things.
Joe Dehner:I found true.
Joe Dehner:Yellow Pads, if you remember that phrase.
Joe Dehner:And you know, with a pencil on it and one scr of somebody's note, I
Joe Dehner:found a love letter from somebody.
Joe Dehner:I mean, it was just unbelievable.
Joe Dehner:It was a hundred years old.
Joe Dehner:Why are we keeping this?
Joe Dehner:And we were paying Iron Mountain a Fortune, just, you see what I mean?
Joe Dehner:Now that's kind of a silly example, but it's the same thing.
Joe Dehner:Data is so cheap to keep, you see, compared to.
Joe Dehner:Carry boxes held in somebody's warehouse that people are tempted
Joe Dehner:just, well, you know, what is it 50 bucks a month for a terabyte?
Joe Dehner:I, you know, I don't know, but give that some thought.
Joe Dehner:Why are you keeping it?
Joe Dehner:If there's a good reason you should.
W. Curtis Preston:I think you're, Yeah, if there's a good reason
W. Curtis Preston:to keep it like a regulation or something like that, that's one thing.
W. Curtis Preston:But I think your, your point is data may be cheap to keep, but
W. Curtis Preston:it may also be expensive to keep
Joe Dehner:Yes,
Prasanna Malaiyandi:It's, It's about risk reduction, right?
Prasanna Malaiyandi:At
Prasanna Malaiyandi:that point.
Prasanna Malaiyandi:And that's the big thing.
Prasanna Malaiyandi:A lot of people don't think about that, right?
Prasanna Malaiyandi:Like you said, they keep data forever because they're like, Yeah, maybe
Prasanna Malaiyandi:sometime in the future I'll use this for some purpose or another,
Prasanna Malaiyandi:but they don't realize the risk.
Prasanna Malaiyandi:It opens up the company to, in case there is a discovery, right?
Prasanna Malaiyandi:That comes in where they're like, Hey, show me everything you have.
Prasanna Malaiyandi:Say seven years ago, now you have all this data and it's like, Oh man, we,
Prasanna Malaiyandi:maybe we shouldn't have kept that data.
W. Curtis Preston:But
Prasanna Malaiyandi:you say, Joe, it's the data minimization.
Prasanna Malaiyandi:Right?
Prasanna Malaiyandi:That's
Prasanna Malaiyandi:key.
Joe Dehner:Yeah.
W. Curtis Preston:But to put the last point with this point, if you suddenly,
W. Curtis Preston:as a company decide Curtis is right, I should, you know, change my backup
W. Curtis Preston:to my archive and I should delete.
W. Curtis Preston:Old backups.
W. Curtis Preston:Make sure you're not about to be sued when
Joe Dehner:Well,
W. Curtis Preston:you suddenly start deleting all backups older than two years.
W. Curtis Preston:Yeah.
W. Curtis Preston:Make sure you're not about to be sued when that happens.
W. Curtis Preston:That would look really, really bad.
Joe Dehner:that would look bad.
Joe Dehner:And beyond that, I'm not saying delete all backups, I'm just saying do the same
Joe Dehner:thing you would do with a piece of paper.
Joe Dehner:Uh, do I need to keep this category of stuff?
Joe Dehner:If the answer is no, why keep it?
Joe Dehner:That's all.
Joe Dehner:That's all I'm really saying.
W. Curtis Preston:And uh, so Joe, I wanna, I want to
W. Curtis Preston:thank you a lot for coming on.
W. Curtis Preston:I wish we had enough time to discuss all of the things behind you.
W. Curtis Preston:I'm fascinated by all of that memorabilia you have
Joe Dehner:Well I, that's cuz I'm an old guy, you know, There we are.
Joe Dehner:Had some great experiences.
Joe Dehner:Talk to me about my time in North Korea sometime.
Joe Dehner:That's, that'd be quite, quite fun.
Joe Dehner:Little different litigation system there,
W. Curtis Preston:Yeah, I bet.
W. Curtis Preston:All right.
Joe Dehner:But real pleasure to be with you both.
W. Curtis Preston:Absolutely.
W. Curtis Preston:And Prasanna, I have to thank you both for being on this
W. Curtis Preston:podcast and for advising me on my
Prasanna Malaiyandi:I try Curtis.
Prasanna Malaiyandi:I try and thank you.
Prasanna Malaiyandi:Joe's a pleasure chatting with you and learning more about the e-discovery side.
Joe Dehner:Thank you
W. Curtis Preston:And, and thanks to our listeners.
W. Curtis Preston:We'd be nothing without you.
W. Curtis Preston:Uh, and remember to subscribe so that you can restore it all.
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