October Compendium

Volume 31, Number 10 Member of California Alliance of Paralegal Associations (CAPA) October 2010 Member of National Association of Legal Assistants (NALA)

Inside this issue: President’s Message ........................................................ 1 OCPA Annual Educational Conference Committee Thank You ........................................................................ 2 OCPA October - December Calendar ............................... 3 OCPA Net Worth ............................................................... 4 Letter to Renew Membership ............................................ 5 Continuing Log .................................................................. 7 Article: The Death of Photographic Evidence ................... 8-9 OCPA Call for Nominations .............................................. 10 Article: Coming Soon: Certainty in Calculating California Hearing-Related Deadlines... ............................................ 11-12 OCPA Call for Board of Directors 2011... .......................... 13 OCPA 2011 Annual Passport ........................................... 14 OCPA General Meeting... ................................................. 15 Article: E-Discovery for Everybody - The Edna ................. 16-23 Article: Safeguarding Against Deposition Ommissions... .. 26-27 CAPA News... ................................................................... 28 NALA News ... ................................................................... 31 Sunshine Corner/Scholarship Annoucement .................... 32 OCPA Board of Directors, New Member Statistics .......... 34 OCPA Corporate Sponsors, Sustaining Members ............ 35

“Ethics” credit; October 21st- Estate Planning Section Meeting; and October 28th- Family Law Section Meeting. Information on each of the above referenced meet-ings can be found on OCPA website or inside this issue of OCPA’s newsletter. OCPA hosted its first Annual Student Conference and it was a huge success. Special thanks to West-ern State University College of Law for graciously allowing OCPA to use their facility. In addition, thanks to our distinguished panel of paralegals, Rose Mary Bordwell, and Sheri Webb, ACP. You all did an awesome job and the students left the conference inspired and full of confidence for the future. OCPA’s Annual Educational Conference was just as successful with nearly 165 attendees. Special thanks go out to Tonya Anderson; Diana Tierney; Hilary Martin, and their committee of volunteers. Everyone worked tirelessly to make this confer-ence the success that it was. Finally thanks to the vendors and presenters who sponsored the conference and gave of their time and professional expertise. Please think of using these vendors if you need their services. A com-plete list may be found on OCPA’s website. I hope you are regularly checking OCPA’s website (www.ocparalegal.org). The calendar is ever-changing, so log on frequently for updates.

Kai Williamson

PRESIDENT’S MESSAGE

October is my favorite month of the year! First, it’s the month I was born; October 15th is my birthday. Second, autumn is the most beautiful season of the year

and I love to see the trees change colors. Lastly, I absolutely love Halloween! This is the time of year that I get to put my karaoke skills to use. October promises some treats for OCPA-and maybe a few tricks: October 6th- OCPA Board Meeting and Nomina-tions for 2011 Directors close; October 11th- Technology Section Meeting; October 20th- General Meeting worth 1.0 hours of

Disclaimer: The articles contained in this publication have been prepared for and are intended to provide information useful to members of the Orange County Paralegal Association (OCPA) and the legal professional community, at-large. The information presented is not to be

taken as legal advice nor do the views represent a statement of OCPA policy.

Cover Art: Courtesy of www.FreeDigitalPhotos.net

OCPA Compendium October 2010


OCTOBER- DECEMBER 2010 CALENDAR

October 11

Technology Section Meeting

TBD

October 20

General Meeting

Topic: What you should know about Maritime Law.

Time: 6:00pm-8:00 pm Location: Radisson Hotel Newport Beach

October 28

Family Law Meeting

Topic: An Evening with the Dissomaster Time: 6:00pm Location: Hughes & Sullivan

November 9

Student Section Meeting

TBD

October 21

Probate/Estate Planning Trust Administration Basics

Time: TBD Location: Merrill Corporation

FULL

December 8

Holiday Party/Elections

Time: 6:00-8:00pm Location: Radison Hotel Newport Beach

November 11

Ethics Section Meeting

TBD


The Death of Photographic Evidence? Contributed by Mike Murray This year Adobe released their latest version of Photoshop, the tool photographers use to edit pho-tos including "touching-up" magazine covers, etc. This latest release is game changing. While it has been possible for years to tamper with photographs and utterly change their content, this new software release makes it easier than ever. What used to take a Photoshop expert hours, even days, to do, can now be done in a few clicks, literally! If you can scribble with the brush tool, you can actually "brush" things out of the photo. I have some exam-ples on our website, www.barkley.com/photoshop. Each of these pictures took only a few clicks to edit, which is great for touching up holiday photos. It is unsettling, however, to know that now anyone can be a Photoshop expert and change photos in seconds. There will always be forensic experts that can detect if a photo has been tampered with, but their services are expensive. What does this new feature mean for the legal field? One interesting tool that Adobe includes with their other product, Adobe Acrobat Professional™, is the Compare Document tool. This can be used to com-pare the text of documents to detect changes (helpful if opposing counsel is trying to pull one over on you), but most people don't realize that it can also be used on photographs. If you have the original photograph and the one you suspect has been tampered with, you can use Acrobat to indi-cate each area that has been changed. While the examples on our website are extreme, and do not take a computer to recognize what has changed, you may be faced with more subtle changes that are not readily apparent. The first step in comparing your photographs is to convert them to PDF. Then, choose the Compare Documents tool from the Document menu. (NOTE: This is only available in the Acrobat Pro version of the software, not the Standard package.) A pop-up will appear, prompting you to select the two docu-ments/images to compare. After selecting the two images, click OK. Acrobat will now analyze the im-ages at lightening speed and generate a report

showing all the areas that have been changed. I will include this PDF report and more examples on our website (www.barkley.com/photoshop). This report is easy to navigate and will highlight each area that has been modified. By hovering the mouse over the area, a pop-up will appear that will indicate what has changed. Clicking on that area will display side-by-side the original and modified areas. You can print the report us-ing the Summarize Comments button (located in the Print dialogue box). In addition to printing the report, you can save it as PDF. You may not always have a copy of the original image, but in those instances that you do, Com-pare Documents is one of the most powerful tools you can use to combat doctored photos. Keep in mind this Compare Documents tools is also effective with documents -- it can compare any two versions of a PDF. I am often asked to compare two versions of a contract or document which is suspected of being tampered with since it was originally created. As software continues to advance and make it even easier to fool people, technology also cre-ates tools to detect tampering and trickery. I en-courage you to learn more about these tools, and not turn away from them in fear and uncertainty. Mastering these tools will increase your value to the firm and ensure no one tries to "pull one over on you." For more information about Adobe Acrobat, please join one of our free webinars. To sign up, visit www.barkley.com/webinar.


Coming Soon: Certainty in Calculating California Hearing-Related Deadlines Contributed by Julia A. Goren Effective January 1, 2011, Section 12c will be added to the California Code of Civil Procedure. A result of State Bar-sponsored legislation (AB 2119 (Tran)), Section 12c finally eliminates an ambiguity which has long-plagued those charged with calculating the last day to serve hearing-related documents. All practitioners will need to calendar in accordance with the new section. In jurisdictions where hear-ing dates are available on short notice, however, practitioners must be particularly careful to avoid a rather dangerous pitfall which could lead to mal-practice. This article explains the ambiguity and the Section 12c solution, warns about the pitfall, and suggests ways to avoid its consequences. The Ambiguity Calculating the last day to serve notice of motion and supporting papers often requires counting a combination of calendar days and court days. For example, under Section 1005(b) (all references are to the Code of Civil Procedure), if served by hand, no-tice of motion and supporting papers must be served at least 16 court days before the hearing. That period is extended if service is by any other means -- another five calendar days for mail service within California, or two calendar days for fax ser-vice or overnight delivery. Thus, service by mail requires counting a combination of 16 court days and five calendar days. Section 437c, governing deadlines for motions for summary judgment and summary adjudication, requires 75 calendar days’ notice, adding two court days for fax service and overnight delivery. Quite often, the result of a deadline calculation will be affected by: (1) the direction in which the days are counted (forward from the service date versus backward from the hearing date), and/or (2) the order in which the two distinct sets of days are counted (first calendar days, then court days versus first court days, then calendar days). Generally, the calculations will differ when a weekend (consisting of non-court days) immediately precedes the hear-ing date or immediately follows the service date. Thus, calculations relating to hearings scheduled on Mondays, Tuesdays following Monday holidays, or

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Fridays will vary depending on the counting method. This is best explained by example. Assume you have a September 7, 2010, hearing date (a Tuesday following the Labor Day holiday) for a motion to compel discovery responses, which you intend to serve by mail. If you calculate the last day to serve notice by counting backward from the hearing date 16 court days plus five calendar days, you will land on August 6. If you switch the order, and instead count backward from the hearing date five calendar days plus 16 court days, you will land on August 11 -- a five-day difference. If you were to count forward from August 11, 16 court days, and then five calendar days, you would land right on the hearing date; if you counted forward from Au-gust 6, 16 court days, and then five calendar days, you would land on the Saturday preceding the hearing. Here lies the ambiguity -- which method of counting is correct, or put another way, what is the last day to serve the notice? The Section 12c Solution As of January 1, 2011, the correct method will be to count backward from the hearing date the number of days specified in the applicable code, e.g., 16 court days or 75 calendar days, and then to con-tinue counting backward to add the extra days. Section 12c provides: (a) Where any law requires an act to be performed no later than a specified number of days before a hearing date, the last day to perform that act shall be determined by counting backward from the hearing date, excluding the day of the hearing as provided by Section 12. (b) Any additional days added to the specified number of days because of a particular method of service shall be computed by counting backward from the day deter-mined in accordance with subdivision (a). Section 12c unquestionably brings much-needed certainty to this particular issue. Once a hearing date is set, and the moving papers are served by a particular method, it will be easy for the parties and the court to determine whether notice was timely. This method of counting makes sense -- once a hearing date is set, it is logical to count back-ward from the hearing date and to add the extra days at the end. But, what about selecting the hearing date in the first place?


The Lingering Pitfall In some courts, the litigant selects the hearing date (e.g., Los Angeles, San Mateo, Sacramento); in oth-ers, the court assigns the hearing date. In either case, the moving party will select, or request that the court assign, what they believe is the earliest possible hearing date. How does the moving party deter-mine that date? By counting forward from the service date. For example, assume it is Monday, January 10, 2011, and you have just put the finishing touches on your motion. The only tasks remaining are to select the earliest possible hearing date, add it to your moving papers, and mail them. So, you count forward from January 10, 2011, 16 court days and five calendar days, landing on February 7, 2011. If February 7 is available, you will select it as your hearing date, and mail your papers on January 10, 2011. Unfortunately, you will not have given sufficient notice. Under Section 12c, moving papers for a Monday, February 7, 2011, hearing would have had to be mailed on or before Friday, January 7, 2011 -- three days before the motion was even ready! The problem is that the factors necessitating Section 12c still linger. Selecting a hearing date by counting forward from a Monday or a Tuesday service date will always result in inadequate notice under the Section 12c counting methodology when service is by mail. Other methods of service on other days of the week can also be problematic. For example, if you count forward from Thursday, September 15, 2011, to determine the first available hearing date after service by overnight delivery (16 court days plus two calendar days), you would select an Octo-ber 11, 2011 hearing date. But, if you count back-ward from October 11, 16 court days plus two calen-dar days, you would find that service would have had to be made one day earlier, on Wednesday, Sep-tember 14. So, how can you avoid this pitfall? Here are a few options. 1. After you count forward to pick a hearing date, always count backward to make sure you

have time to serve by the method you selected. If there is insufficient time, move the hearing date out a day or two, and then count backward again to see if that works, adjust again as necessary, etc. Unfortunately, this may be rather time-consuming.

2. In applying the first option, as soon as you dis-cover that you are unable to serve by the method you selected, switch to a method which takes less time, e.g., instead of serving by mail, serve by fax or electronic service (if you have the requisite agreements) or by overnight delivery. But, you still must count backward again to make sure that the alternate service method works. 3. Always build in a safety cushion by moving your hearing date out by a given number of days. But how much is enough? How much is too much? Could an unnecessary delay in obtaining the requested relief adversely affect your client’s interests? 4. Avoid the issue entirely by serving motions only by hand. But, this would not only waste money, it would often be impractical or simply impossible. The best solution does not yet exist, but is hope-fully in the works -- an automated rules-based calendaring program with a “Select My Hearing Date” feature. Ideally, the end user would simply need to enter the proposed service date and the source of the deadline (e.g., Section 1005(b) or Section 437c), and the program would instantly generate an accurate list identifying the first avail-able hearing date for each service method. The user would then select the hearing date, and serve the papers by the method which ensures adequate notice. Now that’s certainty. Julie A. Goren, a Los Angeles attorney, is the author of Litigation By The Numbers®-Fourth Edition, and the co-author of California Civil Liti-gation and Discovery. She frequently lectures and writes about California state court calendar-ing. For more information about her publica-tions, visit www.litigationbythenumbers.com.


E-Discovery for Everybody: The Edna Contributed by Craig Ball E-discovery is just for big budget cases involving big companies, handled by big firms. Right, and suffrage is just for white, male land-owners. Some Neanderthal notions take longer than others to get shown the door, and it's time to dispel the mistaken belief that e-discovery is just for the country club set. Today, evidence means electronic evidence; so, like the courts themselves, access to evidence can't be just for the privileged. Everyone gets to play. If you think big firms succeed at e-discovery be-cause they know more than you do, think again. Marketing hype aside, big firm litigators don't know much more about e-discovery than solo practitioners. Corporate clients hire pricey vendors with loads of computing power to index, search, de-duplicate, convert and manage terabytes of data. Big law firms deploy sophisticated in-house or hosted review platforms that let armies of asso-ciates and contract lawyers plow through vast plains of data--viewing, tagging, searching, sorting and redacting with a few keystrokes. The big boys simply have better toys. A hurdle for everyone else is the unavailability and high cost of specialized software to process and review electronic evidence. A Mercedes and a Mazda both get you where you need to go, but the e-discovery industry has no Mazdas on the lot. This article explores affordable, off-the-shelf ways to get where you need to go in e-discovery. One Size Doesn't Fit All First, let's set sensible expectations: Vast, varied productions of ESI cannot be efficiently or afforda-bly managed and reviewed with software from Best Buy. If you're grappling with millions of files and messages, you'll need to turn to some pretty pricy power tools. The key consideration is work-flow. Tools designed for ESI review can save con-

siderable time over cobbled-together methods em-ploying off-the-shelf applications; and, when every action is extrapolated across millions of messages and documents, seconds saved add up to big productivity gains. But few cases involve millions of files. Most entail review of material collected from a handful of cus-todians in familiar productivity formats like Out-look e-mail, Word documents, Excel spreadsheets and PowerPoint presentations. Yes, volume is a challenge in these cases, too; but, a mix of low-cost tools and careful attention to process makes it pos-sible to do defensible ediscovery on the cheap. Paper Jam More from comfort than sense, ESI in smaller cases tends to be printed out. Paper filled the void for a time, but lately the cracks are starting to show. Lawyers are coming to appreciate that printing evidence isn't just more expensive and slower, it puts clients at an informational disadvantage. When you print an electronic documents, you lose three things: Money, time and metadata. Money and time are obvious, but the impact of lost meta-data is often missed. When you move ESI to paper or paper-like formats like TIFF images, you cede most of your ability to search and authenticate in-formation, along with the ability to quickly and reliably exclude irrelevant data. Losing metadata isn't about missing the chance to mine embedded information for smoking guns. That's secondary. Losing metadata is like losing all the colors, fold-ers, staples, dates and page numbers that help pa-per records make sense. The EDna Challenge I polled a group of leading e-discovery lawyers and forensic technologists to see what tools and techniques they thought suited to the following hypothetical: Your old school chum, Edna, runs a small firm and wants your advice. A client is about to send her two DVDs containing ESI collected in a construc-tion dispute. It will be Outlook PST files for six people and a mixed bag of Word documents, Excel spreadsheets, PowerPoint presentations, Adobe PDFs and scanned paper records sans OCR. There


could be a little video, some photographs and a smattering of voicemail in WAV formats. "Nothing too hinky," she promises. Edna's confident it will comprise less than 50,000 documents and e-mails, but it could grow to 100,000 items before the case concludes in a year or two. Edna's determined to conduct an in-house, paper-less privilege and responsiveness review, sharing the task with a tech-savvy associate and legal assis-tant. All have latemodel, big screen Windows desktop PCs with MS Office Professional 2007 and Adobe Acrobat 9.0 installed. The network file server has ample available storage space. Edna doesn't own Summation or Concordance, but she's willing to spend up to $1,000.00 for new software and hardware, but not a penny more. She's open to an online Software as a Service (SaaS) option, but the review has to be completed using just the hard-ware and software she currently owns, supple-mented only by the $1,000.00 in new purchases. Her team will supply as much brute force as neces-sary. She's too proud to accept a loan of systems or software, and you can't change her mind or budget. How should Edna proceed? Goals of the Challenge Ideally, the review method employed should: 1. Preserve relevant metadata; 2. Incorporate de-duplication, as feasible; 3. Support robust search of Outlook mail and pro-ductivity formats; 4. Allow for efficient workflow; 5. Enable rudimentary redaction; 6. Run well on most late-model personal com-puters; and 7. Require no more than $1,000.00 in new software or hardware, though it's fine to use fully-functional "free trial" software so long as you can access the data for the 2-3 year life of the case. I had some ideas (shared later in this article), but expected my colleagues might point me to better mousetraps. Instead, I was struck by the familiar-ity and consistency of their excellent suggestions as compared to options that have been around for years. Sadly, there's not that much new for those

on shoestring budgets; that is, developers remain steadfastly disinterested in 85% of the potential market for desktop discovery tools. One possible bright spot was the emergence of hosted options. No one was sure the job could be begun--let alone completed--using SaaS on so tight a budget; but, there was enough mention of Saas to make it seem like a possibility, now or someday soon. Advice to Edna While the range of proposals was thin, the thought behind them was first-rate. All responding recognized the peril of using the various Microsoft applications to review the ESI. Outlook's search capabilities are limited, especially with respect to attachments. If Edna expected to reliably search inside of every message, attachment and container file, she would need more than Outlook alone. Notable by their absence were any suggestions to use Google's free desktop indexing and search tool. Though a painful interface for e-discovery, Google Desktop installed on a dedicated, "clean" machine would be capable of reading and search-ing Outlook e-mail, Word documents, Excel spreadsheets, PowerPoint presentations, PDF files, Zip archives and even text within music, video and image files. It wouldn't be pretty--and Edna would have to scrupulously guard against cross-contamination of the evidence with other data--but Google Desktop might get much of the job done without spending a penny. Quin Gregor of Strategic Data Retention LLC in Georgia was first to respond with an endorsement of my two favorite affordable workhorses, the ubiquitous dtSearch indexing and search tool ($199.00 at www.dtsearch.com) and Aid4Mail ($69.95 at www.fookes.com), a robust utility for opening, filtering and converting common e-mail container files and message formats. Quin de-scribed a bankruptcy case where a microscopic budget necessitated finding a low-end option. He reports that dtSearch and Aid4Mail saved the day. Ron Chichester, an attorney and forensic examiner in Texas, pointed to the many open source Linux tools available without cost. These command line


interface tools are capable of indexing, Bayesian analysis and much of the heavy lifting of the tools used by e-discovery vendors; but. Ron acknowl-edged that Edna and her staff would need a lot of Linux expertise to integrate the open source offer-ings. Bottom line: The price is right, but the com-plexity unacceptable. Florida e-discovery author and blogger, Ralph Losey, a partner at AkermanSenterfitt, suggested using an online review tool like Catalyst and tried to dance around the budget barrier by pointing out that the cost could be passed on to the client. Ralph argued that hosting would save enough lawyer time to pay for itself. No doubt he's right; but, passing on the costs isn't permitted in the Edna Challenge and, even in a real world situation, unless the savings were considerable, Edna's likely to keep the work--and the revenue--in house. An-other Floridian, veteran forensic examiner, Dave Kleiman, suggested that Edna blow her budget on alcohol and amphetamines because she has a lot of toil ahead of her. Party on, Dave! Our northern neighbor, Dominic Jaar of Ledjit Consulting Inc. in Quebec, took a similar doleful tack. Dominic thought that SaaS might be a possi-bility but added that Edna should use her grand to take an e-discovery course because she needs to learn enough to "stay far from the case." Else, he offered, she could go forward and apply the funds to coffee and increased malpractice coverage. Ouch! John Simek of Sensei Enterprises in Virginia pru-dently suggested that Edna use part of her budget to buy an hour of a consultant's time to help her get started. John predicted that a SaaS approach would be priced out-of-reach, but was another who thought salvation lay with dtSearch. John rec-ognized that Adobe Acrobat could handle both the redaction and light-duty OCR required. As for the images, video and sounds, Edna's in the same boat, rich or poor. She's just going to have to view or listen to them, one-by-one. Jerry Hatchett with Evidence Technology in Hous-ton suggested LitScope, a SaaS offering from LitSoft. Jerry projected a cost of around $40/GB/month, which would burn through Edna's budget


the low cost tool-of-choice for keyword searching. dtSearch will allow Edna to run keywords across files, including emails and attachments, and it is a simple file copy option to copy them, with or without original path, into a folder. Messages emerge in the generic MSG mail format, and Edna can either produce them in that format (with em-bedded attachments) or use Aid4Mail to copy them into an Outlook PST file format. For further discussion of using dtSearch as a low-cost e-discovery tool, see, Craig Ball, Do-It-Yourself Digi-tal Discovery, (Law Technology News, May 2006). Tom O'Conner, Director of the Legal Electronic Document Institute in New Orleans, observed that he often gets requests like Edna's from his clients in Louisiana and Mississippi and weighed in with a mention of Adobe Acrobat, noting that it might be feasible to print everything to Acrobat and use Acrobat's annotation and redaction fea-tures. As mentioned, Acrobat also offers rudimen-tary OCR capabilities to help deal with the scanned paper documents in the collection and even has the ability to convert modest volumes of e-mail to PDFs directly from Outlook. For further discussion of using Adobe Acrobat to process Outlook e-mail, see, Craig Ball, Adobe Brings an Acrobat to Perform EDD (Law Technology News, June 2008). Tom concludes that, although work-ing with the tools you already own and know can be cumbersome, it's sometimes a better approach that trying to master new tools under pressure. Ohio-based e-discovery consultant, Brett Burney, had some very concrete ideas for Edna. He thought she could try to find some SaaS solution to host the data, suggesting Lexbe, NextPoint or Trial Solutions as candidates. Brett was most fa-miliar with Lexbe and knew of small law firms that had successfully and inexpensively used their services. Brett guessed Edna's budget might allow her to upload everything to Lexbe, review it quickly and then take everything down before the hosting costs ate up her budget. He reported that Lexbe will accept about any file format, by uploading it yourself or sending it to Lexbe to load. Brett put the cost at $99 per month for 2 users and 1GB of storage. Noting that Edna needs to host more than 1GB of data, he predicted her outlay should

in about 3 months...if she didn't buy any Starbucks. Following up, I discovered that LitScope can't in-gest the native file formats Edna needed to review unless accompanied by load files containing the text and metadata of the documents and messages. The cost to preprocess the data to load it would eat up Edna's budget before she looked a single page. That, and a standard $200 minimum on monthly billings coupled with a 6 month minimum commit-ment, made this SaaS option a non-starter. Attrac-tive pricing, to be sure, but not low enough for Edna's shallow pockets. The meager budget forced George Rudoy, Director of Global Practice Technology & Information Ser-vices at Shearman & Sterling, LLP in New York, to suggest using Outlook 2007 as the e-mail review tool, adding the caveat that metadata may change. Unlike earlier versions, Outlook 2007 claims to ex-tend its text search capabilities to attachments. Un-fortunately, it doesn't work very well in practice, meaning Edna and her staff will need to examine each attachment instead of ruling any out by search. George also urged Edna to buy licenses for Quick View Plus—a universal file viewer utility--and hire an Access guru to design a simple database to track the files and hyperlink to each one for review. From Down Under, Michelle Mahoney of Mallesons Stephen Jaques in Melbourne shared several prom-ising approaches. She suggested Karen's Power Tools (a $30 suite of applications at 1ww.karenware.com) as a means to inventory and hash the files and Microsoft Access as a means to de-duplicate by hash values. Michelle also favored hyperlinking from Access for review, working through the collection progressively, ordering them by file type and then filename. She envisions add-ing fields to the database for Relevant and Privi-leged designations and a checkbox for exceptional files that can't be opened and require further work. For the e-mail files, Michelle also turns to Outlook as a review tool, proposing that folders be created for dragging-and-dropping items into Relevant Non Privileged; Relevant Privileged andNon Rele-vant groups. She echoed warnings about metadata modification and gives her thumbs up to Aid4Mail. Finally, Michelle offers more kudos for dtSearch as


be close to $200/month. Brett added, "Edna and her crew can upload everything with the tools they have, get it reviewed pronto (i.e. less than a month), and then take every-thing down--paying only for what they use." For the Outlook e-mail, Brett thought Edna should turn to Adobe Acrobat and convert the PST con-tainer files to PDF Portfolios along the lines of my June 2008 column. Alternatively, Brett suggested Edna use the free Trident Lite tool from Wave Soft-ware (www.discoverthewave.com) to get a "snapshot" of the PSTs and then convert relevant messages to PDF or upload them to a hosting pro-vider. Lisa Habbeshaw of FTI in California pointed to In-tella by Vound Software (http:/www.voundsoftware.com) as an all-in-one answer to Edna's needs. Intella offers an efficient indexing engine, user-friendly interface and innovative vis-ual analysis capability sure to make quick work of Edna's review effort. Lisa was unsure if the pro-gram could be had for under $1,000, but noted that Vound Software offers a free, fully-functional demo that might fill the bill for Edna's immediate needs. Like Lisa, I'm unsure whether Intella will bust Edna's budget, but it's certainly a splendid new en-try to the do-it-yourself market. Other Great Tools If the dollar holds its own against the Euro, Edna could accomplish just about everything she needs to do using a terrific tool created in Germany called X-Ways Forensics from X-Ways Software Technol-ogy AG. X-Ways Forensics could make quick work of the listing, hashing, opening, viewing, indexing, searching, categorizing and reporting on all that client data; however, it's a complex, powerful foren-sics tool that would require more time and training to master than Edna can spare. Plus, it would eat up all of her $1,000 budget. If her budget was bigger, Edna would be very happy attacking the review with the easy-to-use, fast and versatile Nuix Desk-top (www.nuix.com). Nuix would allow Edna to begin her review in minutes, and it supports a host of search options. The embedded viewer, hash and classification features foster an efficient workflow and division of review among multiple reviewers. Like Intella, Nuix is an Australian import. What-

ever they're doing way down there in Kangaroo land, they're certainly doing something right! A Few More Ideas for Edna It's hard to add much to so many fine ideas. Collec-tively, dtSearch, Adobe Acrobat and Aid4Mail de-liver the essential capabilities to unbundle, index, search, OCR and redact the conventional file for-mats and modest data volumes Edna faces. Her challenge will be cobbling together tools not de-signed for e-discovery so as to achieve an accept-able workflow and defensible tracking methodol-ogy. It won't be easy. For example, while dtSearch is Best of Class in its price range, it doesn't afford Edna any reasonable way to tag or annotate documents as she reviews them. Accordingly, Edna will be obliged to move each document to a folder as she makes her assess-ments respecting privilege and responsiveness. That effort will get very old, very fast. On the plus side, dtSearch offers a fully functional thirty-day demo of its desktop version, so Edna can buy a copy for her long-term use, but rely on 30-day evaluation copies for her staff during the in-tense review effort--a $400 savings. While Adobe Acrobat supports conversion of e-mail into PDFs, the process is painfully slow and cumbersome. Moreover, the conversion capabilities break down above 10,000 messages. That sounds like a lot, but it's likely less than Edna will see emerge in the collections of six custodians. Further, Edna may encounter an opponent who smart enough to demand the more versatile electronic for-mats for e-mail (i.e., PST, MSG or EML). What's Edna going to do if she finds herself locked into a reviewed wedded to image formats? Whatever tools she employs, Edna will need to be meticulous in her shepherding of the individual messages and documents through the process. To that end, I'd offer this advice: 1. Your first step should be to make a working copy of the data to be processed and secure the source dataset against any usage or alteration. Processing of ESI poses risks of data loss or alteration. If errors occur, you must be able to return to uncorrupted


data from prior steps. For each major processing threshold, set aside a copy of the data for safekeep-ing and carefully document the time the data was set aside and what work had been done to that point (e.g., the status of deduplication, filtering and redaction). 2. From the working copy, hash the files and gener-ate an inventory of all files and their metadata. The processes you employ must account for the disposi-tion of every file in the source collection or ex-tracted from those files (i.e., message attachments and contents of compressed archives). Your ac-counting must extend from inception of processing to production. By hashing the constituents of the collection as it grows, you gain a means to uniquely identify files as well as a way to identify identical files across custodians and sources. A useful tool for hashing files is Karen's Hasher available at http://www.karenware.com. But the best "free" tool for the task is AccessData's FTK Imager, avail-able from ww.accessdata.com/downloads. FTK Imager not only hashes files, it also exports Excel-compatible comma delimited listings of filenames, file paths, file sizes and modified, accessed and cre-ated dates. Moreover, it supports loading the col-lected files into a container called a Custom Content Image that protects the data from metadata corrup-tion. 3. Devise a logical division scheme for the compo-nents of the collection; e.g., by machine, custodian, business unit or otherwise. Be careful not to aggre-gate files in a manner that files from one source may overwrite identically named files from other sources. 4. Expand files that hold messages and other files. Here, you should identify e-mail container files (like Outlook .PST files) and archives (e.g., .Zip files) that must be opened or decompressed to make their constituents amenable to search. For email, this can be done using an inexpensive utility like Aid4mail from Fookes Software or Trident Lite from Wave Software. Additionally, e-mail client applications, including Outlook, usually permit ex-port of individual messages and attachments. Though dtSearch includes a command line utility to convert Outlook PST container files to individual messages (.MSG) files for indexing, it doesn't work

well or easily compared to Aid4Mail. Finally, most indexing tools are capable of directly access-ing text within compressed formats. For example, DTSearch can extract text from Zip files and other archives. 5. A feature common to premium e-discovery tools but hard to match with off-theshelf software is deduplication. You can use hash values to iden-tify identical files, but the challenge is to keep track of all de-duplicated content and reliably ap-ply tagging for privilege and responsiveness to all deduplicated iterations. Most off-the-shelf utilities simply eliminate duplicates and so aren't suited to ediscovery. This is where it's a good investment to secure help from an expert in Microsoft Excel or Access because those applications can be pro-grammed to support deduplication tracking and tagging. When employing deduplication, keep in mind that files with matching hash values can have dif-ferent filenames and dates. The hash identicality of two files speaks to the contents of the files, not the names assigned to the files by the operating system or to information, like modified, accessed and created dates, stored outside the files. 6. Above all, don't process and review ESI in a vacuum. Be certain that you understand the other side's expectations in terms of the scope of the ef-fort, approach to search and--critically--the forms of production they seek. You may not agree on much, but you may be pleasantly surprised to learn that some of the perils of a low budget e-discovery effort (e.g., altered metadata, limited search capabilities, native production formats) don't concern the other side. Further, you may reach accord on limiting the scope of review in terms of time intervals, custodians and types of data under scrutiny. Why look at all the e-mail if the other side is content with your searching just communications between Don and Betty during the third week of January 2009? Finally, Edna may seek an answer to two com-mon questions from those taking the doit-yourself route in e-discovery:


What if I change metadata? Certain system metadata values--e.g., last access times and creation dates--are prone to alteration when processed using tools not designed for e-discovery. Such changes are rarely a problem if you adhere to three rules: 1. Preserve an unaltered copy of whatever you're about to process; 2. Understand what metadata were altered; and, 3. Disclose the changes to the requesting party. By keeping a copy of the data at each step, you can recover true metadata values if particular val-ues proves significant. Then, disclosing what metadata values were changed eliminates any suggestion that you pulled a fast one. Many re-questing parties have little regard for system metadata values; but, they don't want to be sur-prised by relying on inaccurate information. Can I Use My Own E-Mail Account for Review? You wouldn't commingle client funds with your own money, so why commingle e-mail that's evi-dence in a case with your own mail? That said, when ESI is evidence and the budget leaves no alternative, you may be forced to use your own e-mail tools for small scale review efforts. If so, re-member that you can create alternate user ac-counts within Windows to avoid commingling client data with your own. Better still, undertake the review using a machine with a clean install of the operating system. Very tech-savvy counsel can employ virtual environments (e.g., VMWare products) to the same end. If using an e-mail cli-ent for review, it may be sufficient to categorize messages and attachments by simply dragging them to folders representing review categories; for example: 1. Attorney-client privilege: entire item; 2. Work product privilege: entire item; 3. A-C Privilege: needs redaction; 4. W-P privilege: needs redaction Austin's Craig Ball is a trial lawyer and com-puter forensics/EDD special master. E-mail: [email protected].


Safeguarding Against Deposition Omis-sions Contributed by Brad Bradshaw, Bradshaw Litiga-tion Consulting If a witness has been adequately prepared for his deposition he knows that he is not going to be able tell his side of the story. Instead, it is a lot like play-ing a game of Twenty-Questions. One person asks questions and the other person answers questions. The person answering does not need to volunteer any information that is not a part of the question. He must answer honestly but it is the questioner’s job to ask the right questions. If she does not ask the right questions, then she loses the game. Depositions are the process by which you find out what a witness has to say, lock him into his an-swers, and determine how he will hold up at trial. Sounds simple enough. Still, more often than not, the deposition ends with stones left unturned. For any particular topic the questions should start off broad and then get more and more specific. There are a couple reasons. First, you want to en-sure you are not making any assumptions about what a witness has to say. Second, you will get more information from the witness by asking broad questions first and then narrowing your focus. For example, if you ask the witness, “What exactly did you tell the doctor?” the witness can probably an-swer, “I don’t remember.” However, if you cast a wider net to get the gist of the conversation first, and then start nailing the witness down to specifics, you will walk away from the deposition with much more information. Another common mistake is failing to exhaust the witness’s answers before moving on. Asking, “Who was there?” is only the first part of the question. Once the witness stops listing names your next question should be, “Was there anyone else?” Oth-erwise, you run the risk of leaving the deposition with incomplete information. If that missing infor-mation emerges at trial the witness will be able to claim that you did not let him finish (and the tran-script will appear to support the witness). Some-times witnesses simply forget a portion of the true. Other times the omission is more sinister. But re-gardless of whether the information was omitted

intentionally or unintentionally, by asking, “What else?” or “Do you remember anything else?” you will get a more complete picture of the witness’s po-sition and reduce the likelihood of surprises at trial. Only after completely boxing the witness into his answer should you move on to the next topic. The reason this is more difficult than it sounds is because new topics emerge during a deposition. That leaves you with a choice. Do you stick with the same line of questions and address the new topic after exhaust-ing the witness’s answers on the original issue or do you pursue the new topic right away? In the end, it really doesn’t matter. What matters is that you cover both areas. If you have all of your questions written out it will probably be easier to mark your spot on the list and pursue the new topic first. That way you can easily pick up where you left off. However, if you are not working from a list of questions it is probably easier to make a note of the new topic and then ask the witness about it after you have finished covering the original issue. Some experienced expert witnesses are very good at imbedding irrelevant information into their answers in hopes of getting the attorney off track. You will know this is happening when an expert witness gives a long, drawn out explanation using official sounding scientific terminology that does not seem to fit together very well. Unable to understand it (and perhaps too embarrassed to admit it) the wit-ness is hoping that you will decide to move on and try to make sense of it from the transcript. But in do-ing so you are giving the expert a great deal of room to change his opinion later. Therefore, to lock him into his opinions you should break his answer down into small parts and make sure you understand each part. Even if you do understand a very long statement by a witness, it is a good idea to get the short version as well. If nothing else, on paper the expert’s answer may cover several continuous pages in the tran-script. If you are forced to use the transcript at trial, the sheer length of the statement may diminish its effectiveness. By getting the summary you can make sure the jury will be able to follow the statement made during the deposition. You can usually do that by paraphrasing what the witness said and then ask a closed-ended question to determine if the witness


agrees with your summary. For example, “So would it be correct to say….” Finally, witnesses are sometimes instructed to finish their answers with, “at this time,” as in, “That is all I can remember at this time.” Doing so provides an avenue by which he can alter his testimony at trial. Therefore, anytime a witness uses this phrase you should ask the witness what, if anything, might change his memory for the event. If there are certain documents he may review at a later time, then that informa-tion should be on the record. Better yet, if possible, you should have the witness review those records be-fore concluding the deposition to determine if his testimony will change. The idea is to take away any wiggle room he has for changing his testimony. Bonus Tip Videotaping of depositions is becoming more and more common. Do not allow the camera to be zoomed in and out during a deposition. Doing so will draw undue attention to that portion of the testimony. Also make sure the witness will not be distracted by anything such as people in the hall, noise coming from outside, etc. Some attorneys will strategically select a room, or position of the witness’s chair, specifically because the witness will be distracted by things going on around him. If the deposition is being recorded on video, your witness’s credibility ratings will decrease because he looks distracted or confused. Anyone watching the video won’t know that people keep looking into the room through the window in the door. About the Author Brad Bradshaw, Ph.D. is a litigation consultant based in Nashville, Tennessee. Dr. Bradshaw helps attorneys prepare for arbitration and trial, anywhere in the country. For more information please visit www.bradshawlitigation.com or call (615) 739-6553.


CAPA News Contributed by Julie Thornton The California Alliance of Paralegal Associations (“CAPA”) had been an organization that I had heard about but had not known too much about prior to my involvement as OCPA’s CAPA Primary. To give you an opportunity to learn more about CAPA, I had an opportunity to interview CAPA’s President, Melisa Frick, ACP. Melisa kindly took time out of her busy schedule to respond to my inquiries. Q: What is your current position with CAPA? A: President for 2010. Q: In a nutshell, what does your position entail? A: The actual role of the President of any associa-

tion/organization is to be the diplomat, leader, cheerleader, activist, voice of reason, strong wo/man, watcher or whatever else is needed to make sure the organization is staying true to not only its mission but its members. That means that the President must know his/her organization’s bylaws, policies and members inside and out. What may work for one mem-ber may not work for another, so the President has to be able to think quickly, but act quicker. As CAPA President, I have the honor to work with associations from across Califor-nia, ranging from the size of twenty or so mem-bers all the way up to several hundred. I see my role as helping associations to get con-nected with each other. For instance, OCPA has tons of experience on putting on five-star educational events, but there are other associa-tions which are just starting out with their edu-cational seminars. If I can connect the two as-sociations so that they can ask and answer questions, then CAPA has served its purpose.

Q: That sounds like quite a time commitment on your part, thank you. Are all positions on the CAPA Board volunteer positions?

A: The CAPA Board is made up of such elected officers as: President, Vice President of Policy, Vice President of Administration, Treasurer, and Secretary, and several appointed/elected members who represent the twelve member associations from across California. I say ap-pointed/elected because the members are se-lected by the local associations they repre-

sent. CAPA doesn’t tell the member associa-tions how to select their representatives, so I am not sure what the process is for all of them.

As far as the officers are concerned, the Vice

Presidents, Secretary and Treasurer must also be selected by their local association as a Primary or Secondary representative to CAPA. The CAPA Board will select these officers from their fellow representatives. The elections take place once a year in November. The President is the only member of the Board that does not get ap-pointed to the CAPA Board from a local associa-tion.

Q: Our members donate $3 of their OCPA mem-bership fee to CAPA, and they would like to know how CAPA promotes the paralegal pro-fession as a whole?

A: First of all, $3 sounds like a lot of money, but the benefits are invaluable! As a member of CAPA, the members of OCPA receive (in no particular order): Access to the statewide resource direc-tory updated each year by the CAPA Board. The directory provides legal service pro-viders across the state who have been recom-mended by paralegals in the local associations and who have a proven record of service to the legal association. Representation at the Califor-nia State Bar level through Bar Liaisons. The liaisons provide CAPA, and its members, with a voice to attorneys. The individuals who serve as liaisons have provided training sessions to State Bar members in the utilization of parale-gals and with Bus. & Prof. Code § 6450. The liaisons are also tasked with working with local associations to do outreach and training so that the local associations may become more familiar and, hopefully, work closely with their local bar members on MCLE events and providing re-sources to the local attorneys about the use of paralegals.

CAPA also has a requirement for its member associations to agree to reciprocity among the associations. This means that as a member of OCPA, an individual may attend other local as-sociation events from across the state at the same cost as the local members. The catch is that they must be CAPA members. So, say that a member of OCPA is planning a trip to San Fran-


cisco for the week, that member of OCPA may attend a San Francisco Paralegal Association (SFPA) event at the same price as a SFPA mem-ber! This is can be a large savings, and it pro-vides a good way for paralegals across the state to become connected into a community! CAPA has a legislative committee that provides the as-sociations with the latest news from cases involv-ing paralegal issues. The committee is also tasked with responding to requests for support on various proposed bills that may impact the paralegal profession in California. This commit-tee would never be possible without CAPA, as it really takes a statewide presence to know what is going on in a state as big as California!In addi-tion, CAPA provides member discounts through its website at www.caparalegal.org. Things such as CEB discounts and tickets to events. Check it out.

As I mentioned earlier, one benefit of CAPA is for its member associations to reach out to other associations. For instance, did you know there are associations who have won awards for their pro bono support? How do other associations save money and cut costs for members when they are putting together events? Are there fun activities that other associations are doing that help increase their membership? CAPA pro-vides member associations with the chance and opportunities to ask each other these types of questions.

I personally believe the best benefit of CAPA is really the one that people often overlook. How many times have you been working on a case and realize that you need some advice from a local contact whether it is for a local legal ser-vices provider or concerning local rules of court? CAPA helps contact not only associa-tions, but people. I get tons of calls and emails asking for references for vendors or a local para-legal that may be able to answer questions. I al-ways use my CAPA contacts to help me reach out to the right sources. It is an amazing benefit!

Q: Why should our members become more in-volved with CAPA, and if they are interested, how can they volunteer their services?

A:The easiest way to become involved with CAPA is to contact your local Board. OCPA has represen-tatives who serve on the CAPA Board, and these representatives will be happy to tell you how

OCPA selects it representatives and what vol-unteer activities are available.

Q: What changes to the paralegal profession-have you seen in the past few years?

A:The biggest change was ten years ago with the passage of Bus. & Prof. Code § 6450. Because of the code passage, I believe the profession is getting looked at in a different light. We are no longer just pushing paper around a desk. Now attorneys see us as an asset that they can rely on to provide the best service to their clients. I am proud of being a paralegal, and I am proud that our profession has worked hard to make sure it is something that is honest and dependable. Because of CAPA, the main driving force behind getting Bus. & Prof. Code § 6450 passed, our profession is recognized as being more. I am very proud of the work that was done by past CAPA Board members, and I am honored to be a part of history of such a wonderful organization.

Q: Do you havesuggestions that you can provideour members on how they can pro-mote the profession?

A:I believe the new catch phrase lately is “pass it on.” I love what I do, and I love teaching people what I do. If you want to promote the profession, then pass along your experience and wisdom to fellow paralegals. Volunteer with the OCPA. Reach out to your local para-legal programs/schools to see what they need. Get out and give speeches about your career. Don’t be afraid! Pass on your wisdom to others. If you need help finding opportuni-ties or getting ideas about how to start, please contact your OCPA Board or me (you can con-tact your CAPA representative for my contact information).

Q: Do you have a mantra that gets you through your busy day?

A:LIVE THE ADVENTURE! Life is too short to focus on a big picture, but if you just live the adventure that is right in front of you at least you won’t wonder where your life went.


Hello from NALA! As many of you already know, beginning September 2010, the CLA exam will be administered via computer at Act centers. NALA has made available an exten-sive booklet to describe the changes and administration of the test. Access the booklet here: NALA Certificate Booklet

NALA has announced the fall 2010 Certified Paralegal Short Course for those preparing for the Certi-fied Paralegal Examination or those interested in brushing up on professional skills and knowledge. Offered by NALA for several years, the Certified Paralegal Exam Short Course has become one of the most popular educational events of NALA. Course description and information are available here. The 2010 National Utilization and Compensation survey of paralegals is underway! Your input is vital to the integrity of the survey. To access the survey and include your information visit http://www.nala.org/survey.htm The control number is 729843.


Sunshine Corner

Marcela Gutierrez passed the CLA Exam.


Contact information of board members and committee chairs published in the Compendium are subject to the policies of OCPA. Use of contact information of board members or committee chairs for purposes of solicitation for business, personal gain, or distribution of such information to

third parties for the same is strictly prohibited.

ORANGE COUNTY PARALEGAL ASSOCIATION 2010 Board of Directors

Executive Committee:

President Kai Williamson [email protected] VP Administration Hilary Martin [email protected] VP Policy Janine Fountain [email protected] Treasurer Kristen Martin [email protected] Secretary Tanya Chopra [email protected] NALA Liaison Julianna Hallsted, ACP [email protected]

Directors at Large: CAPA Primary Julie Thornton [email protected] Marie Conzelman, CP [email protected] Coreen Mueller [email protected] CAPA Secondary Michele T. Pfeiffer, CLA [email protected] Rafia Aleem [email protected] Michelle Manu [email protected] Diane Triscari [email protected] Lisa Enoka [email protected] Frances Prieto, CP [email protected]

Tonya Anderson [email protected]

Voting: 429 Student: 202

Associate: 61 Sustaining: 34

Total: 726 Members

Hannah Fisher Ellen Dever Jongmin Kim Karen M. Bury Gilda Granell Sabrina Jacobs Scott Lewis Michelle K. Johnson Diana Kristen Lee

Thomas Shelby Deborah Gogerty Mehdi Sinaki Christina McCollister Ryan Tierney Karla Arreola Danielle Joseph Kelly Gennaro Rwei-Jane- Ju

New Members (October 2010) Member Statistics (October 2010)


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Publisher: Orange County Paralegal Association

Editorial Team: Hilary Martin, Tracy Hermans, Elizabeth Root

ADVERTISING INQUIRIES ONLY For information about advertising, please

contact Valarie Pitts at: [email protected]

If you have any questions regarding publication requirements, please contact the Editor at [email protected]

COMPENDIUM - October 2010 Volume 31, Number 10

Committed to Excellence through Education,

Certification and Ethical Responsibility

The Compendium is the official publication of the Orange County Paralegal Association (OCPA) P.O. Box 8512, Newport Beach, CA 92658. Postage Paid at Newport Beach, CA.

A subscription to the Compendium is provided as a member benefit of OCPA. For further information about all the benefits OCPA has to offer, please visit our website at www.ocparalegal.org or contact Hilary Black-Streeter, Membership Coordina-

tor via e-mail at [email protected].

© 2010 Orange County Paralegal Association

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