Thursday, January 15, 2009


My original plan for today was to write about my plans for the year, specifically my writing plans, however I just had a phone interview for a job I *REALLY* want and I think I seriously tanked it so I am going to write about that instead.

First let me say that I HATE HATE HATE phone interviews. I like to think of myself as a pretty good interviewer, however over the phone it is very difficult to get a read on the interviewer. In this specific case every time I would finish an answer there was, what seemed to me, a long pause before the guy asked his next question. If we were in the same room I would be able to tell if he actually expected more of an answer from me or was using the time to formulate his next question. In addition I cannot tell how I am playing to the crowd, as it were.

The long pauses after my responses to his questions were not the worst part. At one point he asked what I saw as the greatest risk involved in producing electronic documents, or ESI in the parlance of the courts, and my answer was perhaps the worst answer I could have given. Part of me just watched in horror as I totally went off the rails and gave three mostly contradictory answers. There were words coming out of my mouth and I just couldn't get them to stop. Fuck, I couldn't get them to stop. It was like I had never considered the question before but I have. The risks involved in producing ESI, actually minimizing those risks, is one of the central things I do in my current job. I was so horrified at my answer that I wanted to call him back, apologize for freezing under pressure and give him my real answer. Now it is all I can think about. GAH!

My real answer, for the curious, is that in my view the largest risk with producing electronic documents in native format is that you will end up producing metadata which will be harmful to your case but somehow slipped through the review process without being noticed. This metadata would most likely take the form of tracked changes in a document. When the reviewer reviewed the document the tracked changes were not marked as being on and therefore the reviewer just viewed the final version of the document. When the document arrives at opposing counsel they notice that the tracked changes are available to view and, wisely, take a look at them. There is actually a recent case, White v. Gaceland Coll. Ctr. for Prof'l Dev. & Lifelong Learning Inc., where this very instance could have taken place. The plaintiff claimed that she was terminated in violation of the Family Medical Leave Act and, if I recall properly as I do not have my notes on the case in front of me as I write this, that there was a change made in a job description, or something like that, and that the timing of this change was important to the case. In this case it is very easy for me to envision an instance where her allegations are true however the paralegal who is reviewing the job description documents, which are kept in Microsoft Word for sake of argument, is reviewing them in Summation. The paralegal can either opt to view the document via the Summation edoc viewer (which in my opinion is a pretty piss-poor tool for native review) or via the CTRL+L option which will launch the document in its native application, in this case Microsoft Word. In the case of Summation's edoc review tool, as far as I know, there is no indication that the document has tracked changes embedded in the document therefore should the paralegal review here, and I know plenty that do, the document would be marked as relevant and as it is most likely not subject to any sort of privilege, it would eventually be produced with the metadata intact and NEVER reviewed. When it comes to trial the plaintiff's counsel, if they have caught the tracked changes, can then take apart a witness on the stand or, if the tracked changes are that central to the case, perhaps force a settlement.

Oh well, now that I have said what I really think, I think I am going to go eat my salad and sack out. No real update from me tomorrow evening as I will be at a book signing, however on Saturday I think I will post my plans for 2009.

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