Regarding Dan Botchman

As some of you may already know, attorney Dan Botchman was terminated from the Omagawd firm, with cause, for his role in a major client data breach. While that hiccup did land yours truly on the front page of a prestigious national publication — my Times interview last week, thank you very much, was our first major press hit since the World Telegram profile highlighting the firm’s pro bono work in the Second Red Scare — it also landed Marsha, Roger and I in some unexpected hot water with the client, the vendor Dan had chosen, and several trial judges in New York, northern New Jersey and District Court of Guam. All over a little bit of misplaced discovery. Who knew!

While we wish Mr. Botchman the best in all his future endeavors (we applaud him for his new gig as webmaster for Blockbuster.com) and mean to bring him no embarrassment (you can follow along with his disbarment proceeding here), we think it is important to highlight where he went wrong so that others do not repeat his mistakes. Here are three key takeaways from Dan’s ill-fated discovery production.

  1. When you’re sending a production, make sure you secure it!

While some new electronic discovery gizmos allow you to send digital productions through a secured download link, this requires you to have all the documents in electronic form in the first place. As my readers know, I prefer paper. When it comes to discovery, free the tree I say! So, what I recommend is, once you’ve branded all your documents with a Bates stamper (see my Bindertek signature series), put them in an organized fashion in a sealed courier folder, and then put that sealed folder in a second sealed folder. Then, and here’s where that extra layer of security comes in, put the sealed folders within a stand-up barrier pouch. That’s what I like to call the old Russian Doll technique!

2. Make sure that, when you review privilege and confidential documents, you review them all!

Sounds like a no-brainer, right? Well, you’d be surprised. In the times I’ve dabbled with the latest vendor software on the market to do a document review, some times I find that I’m only looking at a subset of the total document universe, when I assume I’m looking at the whole thing. This happens for a couple of reasons. First, a window on my screen has been minimized. This can occur if I accidentally hit the little green button on the right of my browser. At this point, everything gets really small and I have to “ex out” of my browser and start over. Secondly, and usually the case, there is a scroll tab somewhere on the screen. Where? I don’t know! But that damn thing is hiding the rest of my electronic documents. The lesson here: keep your windows enlarged and your scroll visible!

3. Get to know your “data about data” or “metadata.”

Metadata is all of the information about a document that you can’t immediately see when you look at it in paper form, but that is generated when you scan it to PDF. It is essential reading for any lawyer who wants to do discovery accurately and securely! It contains “the good stuff” if you will. Where Mr. Botchman went wrong is failing to understand that these hidden jewels resided deep within the recesses of the paper, and can be mined for insights into how records are created, shared, modified and so forth. Neglecting “data about data” can lead to turning over highly sensitive documents, as our firm found out the hard way.

I’ll post more “Botchman Learnings” later next week. In the meantime, please see my latest post on the best printers for your next discovery production.