Don’t Seek Direct Access to Opponents’ Devices

In a case where I’d identified evidence of a departing employee’s data theft, plaintiff’s counsel sought an affidavit in support of a motion to gain direct access to the new employer’s data storage to see how the stolen data was distributed and used.  I replied that I could supply the testimony but offered that the wiser strategy was not to move for direct access but instead seek an agreement or order that the other side’s forensic expert hew to an agreed-upon examination protocol.  That would afford opposing counsel a proper opportunity to withhold and log content deemed privileged or otherwise outside the scope of discovery.

I’ve worked both sides–and the middle–of countless so-called “bad leaver” cases, where employees are accused of taking data from one employer to another to secure a better job or a competitive advantage.  When I’m in the middle, I’m a court-appointed neutral examiner and, in that trusted role, it’s appropriate that I see the whole picture by looking at all implicated devices and accounts: the sources from which data was taken, the transfer media and the target devices and accounts where stolen data and its progeny reside. As a neutral examiner and attorney, I’m well-situated to balance the need to know what happened against the need to guard against improper or abusive discovery.

But when I’m acting for the party suing a competitor alleging data theft, viz., as a partisan expert, the party suspected of benefitting from the theft must be protected from unduly intrusive access to their devices.  Both sides have trade secrets requiring protection and both engage in privileged communications with counsel.  As well, material encountered on examination often has no relevance yet hurts and shames just by being divulged.

As a partisan working for one side or the other, I’d like to be able to say, “trust me, I’ll be bulwark against revealing your privileged communications and irrelevant stuff,” but that’s not a role I covet absent considerable trust and an express agreement.  Trying to be partisan and neutral fosters divided loyalties, and as an attorney, I’m obliged to avoid conflict of interest or anything that looks like it.  Lay examiners should, too.

Trust is devoutly to be wished in these situations…but it’s hard to trust those you believe to be thieves. Justified or not, that mistrust frequently extends to those protecting the thieves, i.e., their counsel.  So, in the absence of trust in people, the law trusts in sound and transparent processes.  In these matters, a well-crafted forensic examination protocol ensures that the right evidence is scrutinized in the right ways, and material legitimately withheld is protected. 

By setting out what devices and sources need to be examined, what artifacts must be assessed and reported upon and how much oversight and transparency is allowed, the opposing expert serves as proxy for my hands and eyes.  Keyword searches and hash matching alone don’t cut it; a good examination protocol encompasses the singular signs of data theft and makes it difficult to suppress indicia of bad behavior.  A good protocol makes production of evidence and artifacts the rule unless there’s legal justification to withhold relevant and responsive evidence—and then there must be disclosure via a privilege log or other means.  I discuss drafting forensic examination protocols further in this article.  The points made in the article are just a start: proper protocols are tailored to the issues and evidence in the case, and constructed to promote integrity of process.

Can all this be abused?  Sure.  But, effective e-discovery is a marathon, not a sprint.  Certainly, this is true of efforts to seek sanctions.  If the process just described can be proven to have been gamed or corrupted, judges respond aggressively to protect the integrity of their courts, among those responses the turnover of an opponent’s devices, that is, the dread direct examination.

So, the takeaway: though sometimes direct access can be secured by agreement, don’t jump straight to a motion to compel access to an opponent’s computers and data storage when the other side says “no.”  Instead, pursue alternatives that fairly balance legitimate needs for disclosure against legitimate needs to protect trade secrets, privacy and privilege.  Do this using a well-crafted forensic examination protocol that obliges the other side to engage competent people, deploy them competently and afford reasonable transparency. The other side remains responsible for discovery until it’s clear they can’t be trusted.  Then, follow up by asking the Court to appoint a properly trained and -certified neutral examiner.  Seeking to compel access to an opponent’s digital media is a last resort and should be treated as an extraordinary remedy—a punishment for discovery abuse more than a tool of discovery.

Labels: Not Just for People Anymore!

I’m a tool guy.  I pride myself on having the right tool for the task at hand. Digital forensics demands a broad range of specialized software, adapters, cabling, screwdrivers and spudgers.  Yes, “spudger” is a real word.  The forensic examiners I know enjoy swapping tool recommendations because often having the right tool to collect or parse electronic evidence means the difference between a quick victory or an agonizing series of defeats.

Delving deeper into the Alex Jones Discovery Debacle in a article bylined by Emily Cousins, I saw mention of Jones’ counsel passing around a “white hard drive” bearing no label or markings, nothing whatsoever advising the drive held privileged attorney-client records and court-protected documents.

After twenty-odd years as a certified digital forensic examiner and ESI Special Master, I’m custodian for countless hard drives and storage media holding sensitive data—media in all colors, shapes and sizes.  One common thread across all is the adhesive paper label affixed to each.  Arguably, the most valuable tool in my forensics lab is an 18-year-old Brother QL-500 label printer purchased secondhand from a clearance bin at Office Depot.  The 1-1/7″ x 3-1/2″ labels it spits out aren’t as slick as the Mylar bar codes used in other shops, but they’re a quick, cheap and nearly idiot proof alternative.  Leastwise, this idiot would be lost without them.

You’d be amazed how much information fits on a little paper label; but, even if it’s no more than a matter name and “PRIVILEGED AND CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER,” that might have proved sufficient to forestall the ugly spectacle of Jones’ Connecticut counsel invoking the Fifth Amendment at a disciplinary hearing.

In a similar vein, a five-cent paper label affixed to the back of a laptop or phone is an effective, low-tech way to remind custodians and IT personnel that the device is subject to legal hold before it gets wiped, discarded, sold or traded in.  Is it ALL you need to do for a defensible hold?  Clearly not, but shouldn’t labeling physical media be as much a part of your routine, prudent processes when handling sensitive media as it is part of mine?

I don’t do paper; but my paperless practice demands I keep track of and protect physical media.  Encryption of contents plays a key role, as does a sound chain-of-custody; yet it’s the old-school paper labels that still save the day. 

Brother no longer makes the QL-550, but sells suitable alternatives.  Dymo markets a LabelWriter 550 that looks like my Brother’s twin brother.

Clarify Requests for Native ESI

Poring over Requests for Production this morning, I was gratified to see the client sought native forms of electronically-stored information; but the request said only, “All documents shall be Bates stamped and provided in native format.”  Is that sufficient? To me, specifying forms of production is best done via an agreed ESI production protocol, but failing that, requesting parties should supply more detail than simply asking for “native format.”  I believe requests need to lay out the forms sought for particularized types of ESI and specify the essential ancillary metadata to be produced in load files. 

Requesting native forms in discovery demands a few adaptations versus the way hard copy documents were sought in years past.  Take that request, “All documents shall be Bates stamped and provided in native format.”  If a document is supplied natively and not printed out or “flattened” to a static TIFF, where do you “stamp” the Bates number?  The solution is simple (in the file name and load file), but not obvious to lawyers unschooled in e-discovery.

Specifying more than “native format” in the request is sensible because much ESI doesn’t lend itself to production in its “true” native forms.  The “true” native form of email is typically a database of multiple user accounts holding messages, calendars, contacts, to-do lists, etc.  An opponent need not (and won’t) produce such a massive, undifferentiated blob of data.  So the better practice is to specify preferred near-native forms be produced; that is, forms that preserve the integrity and utility of the evidence and support the granularity needed for discovery of only relevant, non-privileged material.  As well, providing a load file specification ensures you obtain metadata values that only the producing party can supply (like Bates numbers, originating hash values, source paths and custodians). Too, you want that metadata in a structure suited to your needs and tools.

Native productions are more utile and cost-effective, but only to requesting parties prepared to reap their superior utility and savings.  One reason why producing parties have gotten away with producing inefficient and unsearchable static image formats (TIFFs) for so long is because TIFF images can be viewed in a browser; hence, recipients of TIFF productions can read documents page-by-page without review software.  Yet, that easy access comes at a perilous cost.  TIFF productions are many times larger in byte volume than native production of the same material, making it significantly more costly for requesting parties to ingest and host the evidence.  Moreover, TIFF images tend not to work well for common formats like spreadsheets and PowerPoint presentations, and don’t work at all for, e.g., video and sound files.  Finally, evidence produced as TIFF images gets shorn of metadata and searchable electronic content, requiring that the stripped metadata and searchable content be produced separately and reconstructed using software to comprise, at best, a degraded “TIFF Plus” facsimile of the evidence. 

For these reasons and more, requests for production must either succeed the entry of an agreed- or court-ordered production protocol or requesting parties must include useful and practical instructions about the forms of production right in the body of the Request.

To simplify my client’s task, I drafted an Appendix to be grafted onto the Requests for Production and suggested my client take out “All documents shall be Bates stamped and provided in native format” and substitute the phrase: “All production should be produced in accordance with the instructions contained in Appendix A to this Request.” It’s not perfect, but it should get the job done.

The Appendix I supplied reads as follows, and I don’t offer it as a paragon of legal draftsmanship.  Each time I create something like this, it’s a struggle deciding what details to omit versus supplying all features of a full-fledged production protocol.  I’ve kept it to about 1,000 words, and a tad verbose at that.  It’s for you to decide if it adds substantial value over simply asking for “native format.”  Tell me what do you think in the comments. If you’d like a Microsoft Word version of Appendix A to play with, you can download it from this link:

Appendix A: Forms of Production

I. Definitions

“Electronically Stored Information” or “ESI” includes communications, presentations, writings, drawings, graphs, charts, photographs, posts, video and sound recordings, images, and other data or data compilations existing in electronic form on any medium including, but not limited to: (i) e-mail, texting, social media or other means of electronic communications; (ii) word processing files (e.g., Microsoft Word); (iii) computer presentations (e.g., Microsoft PowerPoint); (iv) spreadsheets (e.g., Microsoft Excel); (v) database content and (vi) media files (e.g., jpg, wav).

“Metadata” means and refers to (i) structured (fielded) information embedded in a native file which describes the characteristics, origins, usage, and/or validity of the electronic file; (ii) information generated automatically by operation of a computer or other information technology system when a native file is created, modified, transmitted, deleted, or otherwise manipulated by a user of such system; (iii) information, such as Bates numbers, created during the course of processing documents or ESI for production; and (iv) information collected during the course of collecting documents or ESI, such as the name of the media device, or the custodian or non-custodial data source from which it was collected.

“Native Format” means and refers to the format of ESI in which it was generated and/or as used by the producing party in the usual course of its business and in its regularly conducted activities. For example, the native format of an Excel workbook is a .xls or .xslx file and the native format of a Microsoft Word document is a .doc or .docx file.

“Near-Native Format’ means and refers to a form of ESI production that preserves the functionality, searchability and integrity of a Native Format item when it is infeasible or unduly burdensome to produce the item in Native Format.  For example, an MBOX is a suitable near-native format for production of Gmail, an Excel spreadsheet is a suitable near-native format for production of Google Sheets, and EML and MSG files are suitable near-native formats for production of e-mail messages.  Static images are not near-native formats for production of any form except Hard Copy Documents.

II. Production

1. Responsive electronically stored information (ESI) shall be produced in its Native Format with Metadata.

2. If it is infeasible to produce an item of responsive ESI in its Native Format, it may be produced in a Near-Native Format with options for same set out in the table below:

Source ESINative or Near-Native Form or Forms Sought
Microsoft Word documents.DOC, .DOCX
Microsoft Excel Spreadsheets.XLS, .XLSX
Microsoft PowerPoint Presentations.PPT, .PPTX
Microsoft Access Databases.MDB, .ACCDB
WordPerfect documents.WPD
Adobe Acrobat Documents.PDF
Photographs.JPG, .PDF
E-mailMessages should be produced in a form or forms that readily support import into standard e-mail client programs; that is, the form of production should adhere to the conventions set out in RFC 5322 (the internet e-mail standard).   For Microsoft Exchange or Outlook messaging, .PST format will suffice.  Single message production formats like .MSG or .EML may be furnished, if source foldering data is preserved and produced.  If your workflow requires that attachments be extracted and produced separately from transmitting messages, attachments should be produced in their native forms with parent/child relationships to the message and container(s) preserved and produced in a delimited text file.
Social MediaSocial media content should be collected using industry standard practices incorporating reasonable methods of authentication, including but not limited to MD5 hash values.  Social media and webpages should be produced as HTML faithful to the content and appearance of the native source, or as JPG images with a searchable, document-level files containing textual content and delimited metadata (including “likes” and comments)

3. Paper (Hard-Copy) documents or items requiring redaction shall be produced in static image formats scanned at 300 dpi e.g., single-page Group IV.TIFF or multipage PDF images. If an item uses color to convey information and not merely for aesthetic reasons, the producing party shall not produce the item in a form that does not display color. The full content of each document will be extracted directly from the native source where feasible or, where infeasible, by optical character recognition (OCR) or other suitable method to a searchable text file produced with the corresponding page image(s) or embedded within the image file.  Redactions shall be logged along with other information items withheld on claims of privilege.

4. Each item produced shall be identified by naming the item to correspond to a Bates number according to the following protocol:

i. The first three (3) characters of the filename will reflect a unique alphanumeric designation identifying the party making production.

ii. The next eight (8) characters will be a unique, consecutive numeric value assigned to the item by the producing party. This value shall be padded with leading zeroes as needed to preserve its length.

iii. The final six (6) characters are reserved to a sequence consistently beginning with a dash (-) or underscore (_) followed by a five-digit number reflecting pagination of the item when printed to paper or converted to an image format for use in proceedings or when attached as exhibits to pleadings.

iv. This format of the Bates identifier must remain consistent across all productions. The number of digits in the numeric portion and characters in the alphanumeric portion of the identifier should not change in subsequent productions, nor should spaces, hyphens, or other separators be added or deleted except as set out above.

5. If a response to discovery requires production of discoverable electronic information contained in a database, you may produce standard reports; that is, reports that can be generated in the ordinary course of business and without specialized programming.  All such reports shall be produced in a delimited electronic format preserving field and record structures and names.  If the request cannot be fully answered by production of standard reports, Producing Party should advise the Requesting Party of same so the parties may meet and confer regarding further programmatic database productions.

III. Load Files

Producing party shall furnish a delimited load file in industry-standard Opticon and Concordance formats supplying the metadata field values listed below for each item produced (to the extent the values exist and as applicable):

CUSTODIANName of person or source from which data was collected.  **Where redundant names occur, individuals should be distinguished by an initial which is kept constant throughout productions (e.g., Smith, John A. and Smith, John B.)
ALL_CUSTODIANS If deduplication employed, name(s) of any person(s) from whom the identical item was collected and deduplicated.
BEGBATESBeginning Bates Number (production number)
ENDBATESEnd Bates Number (production number)
BEGATTACHFirst Bates number of first attachment in family range
ENDATTACHLast Bates number of last attachment in family range (i.e. Bates number of the last page of the last attachment).
ATTACHCOUNTNumber of attachments to an e-mail.
ATTACHNAMESName of each individual attachment, separated by semi-colons.
PARENTBATESBEGBATES number for the parent email of a family (will not be populated for documents that are not part of a family)
ATTACHBATESBates number from the first page of each attachment
PGCOUNTNumber of pages in the document
FILENAMEOriginal filename at the point of collection, without extension of native file
FILEEXTENSIONFile extension of native file
FILEPATHFile source path for all electronically collected documents and emails, which includes location, folder name, file name, and file source extension.
NATIVEFILELINKFor documents provided in native format only
TEXTPATHFile path for OCR or Extracted Text files
CCAdditional Recipients
BCCBlind Additional Recipients
SUBJECTSubject line of e-mail. 
DATESENT (mm/dd/yyyy hh:mm:ss AM)Date Sent
EMAILDATSORT (mm/dd/yyyy hh:mm:ss AM)Sent Date of the parent email (physically top email in a chain, i.e. immediate/direct parent email)
MSGIDEmail system identifier assigned by the host email system. 
IRTIDE-mail In-Reply-To ID assigned by the host e-mail system.
CONVERSATIONIDE-mail thread identifier.
HASHVALUEMD5 Hash Value of production item
TITLETitle provided by user within the document
AUTHORCreator of a document
DATECRTD (mm/dd/yyyy hh:mm:ss AM)Creation date
LASTMODD (mm/dd/yyyy hh:mm:ss AM)Last Modified Date

The chart above describes the metadata fields to be produced in generic, commonly used terms.   You should adapt these to the specific types of electronic files you are producing to the extent such metadata fields are exist in the original ESI and can be extracted as part of the electronic data discovery process. Any ambiguity about a metadata field should be discussed with the Requesting Party prior to processing and production.

More Questions re: Alex Jones Defamation Case

Yesterday, I posted on the inadvertent production of privileged texts and other matter in the Alex Jones defamation trial.  In the day that’s passed, the Austin, Texas jury returned a compensatory damages verdict of $4.1 million dollars, and minutes ago, assessed punitive damages of $45.2 million.  More has come to light overnight respecting the lawyers’ errors, confirming what I’d only been able to speculate about yesterday.  Now, I want to add a point about features of Texas law that very well could determine if there will be a mistrial or a new trial on appeal.

In yesterday’s post, I explored the Texas rules of procedure and evidence permitting a party who unwittingly produces privileged data to “snap back” that evidence by belatedly asserting its privileged character and demanding return (Tex. R. Civ. P. Rule 193.3 and Tex. R. Evid. Rule 511).  I also touched on counsel’s ethical duty to notify an opponent who has mistakenly supplied material relating to a lawyer’s representation of a client (ABA Model Rule of Professional Conduct 4.4b).

Concluding yesterday’s post, I posed questions:

  • Was a new link to a collection scrubbed of privileged content ever supplied?
  • Why didn’t defense counsel promptly object at trial and protect the record?  
  • Will we next need to discuss the crime/fraud exception to attorney-client privilege?

One of these now has an answer: Based on remarks of counsel at a hearing on Defendants’ Emergency Motion for Enforcement of Protective Order dated December 2, 2021 (filed August 4, 2022), the updated link promised was never supplied.  Further, no subsequent assertions of privilege or other action pursuant to Tex. R. Civ. P. Rule 193.3 were made by Defendants.  It appears the ball was dropped, prompting one to wonder whether defense counsel hoped he would wake up and find it was a bad dream (like–DATED REFERENCE WARNING–Pam seeing Bobby Ewing in the shower).  In the run up to a high-profile trial, it’s more likely it just slipped through the cracks.

Since defense counsel Andino Reynal clearly didn’t expect the text messages to emerge at trial, it remains a conundrum why defense counsel failed to object when they came up and were shown to the jury.  Take it from someone who spent decades trying cases in Texas courts and another decade teaching electronic evidence at Texas’ premier law school (whaddya mean “which one?“), when improper evidence that hurts your client is mentioned to a jury panel, let alone proffered for them to see, counsel must leap to his feet and assert a prompt, clear objection.  There are exceptions to this, but any trial lawyer worth his salt understands the duty to protect the record by timely objection.  Even if you’re loath to appear obstructionist by objecting, you nevertheless rise and say, “Objection.  May we approach, Your Honor?”  Then, quietly make your record at the bench.

This is rooky stuff: You protect the record by timely objection or waive grounds for that objection.

While I’m pointing fingers, I’m wondering why on Earth plaintiffs’ counsel Mark Bankston thought he could broach allegations of discovery misconduct in front of a Texas jury?!? 

This point hasn’t come up in any reporting I’ve seen but the Texas Supreme Court takes a dim view of litigants airing the dirty linen of discovery abuse to jury panels.  Texas’ approach is in marked contrast to Federal practice where judges let juries hear questions of spoliation. In Texas, as a matter of law, the trial judge determines whether spoliation has occurred and what sanctions to impose.  Evidence of spoliating conduct is inadmissible in Texas. Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014)

An argument can be made that spoliation is one thing and telling the jury that opposing counsel “messed up” and supplied documents meant to stay hidden is something else.  Perhaps; but, I’ll bet my boots there was a pretrial order on a Motion in Limine barring mention of discovery disputes without first seeking leave of court.  Too, the Texas Supreme Court’s concern that juries may be prejudiced by discussion of matters reserved exclusively to the Court’s determination would seem to hold true for telling juries that opposing counsel “messed up.” 

There’s been a lot of digital ink devoted to lambasting defense counsel for his mistakes, but in his fervent (and understandable) eagerness to tag Alex Jones, it remains to be seen if Plaintiffs’ counsel overstepped and the whole damages phase must be retried. If so, UGH, just UGH!

P.S. I just noticed that plaintiffs’ counsel practices with a Houston firm with “Ball” in its name. That’s not me nor anyone in my family. No connection whatsoever.

Ripped from the Headlines: Alex Jones and Inadvertent Waiver

I reserve this space for topics I’ve mulled over carefully in hopes that, even if I’m late to the party, at least I’ll be properly dressed. But yesterday, the media covering the Alex Jones defamation damages trial in Austin lit up with the news that Jones’ counsel inadvertently produced privileged mobile text messages and failed to seek their return in time to prevent waiver of privilege. The “inadvertently” produced messages reveal that (SPOILER ALERT!) Jones is a discovery-obstructing, lying scumbag.

That’s not political commentary; that’s the key fact finding of the Court during the liability phase of the case (“scumbag” is synopsis, implicit but unstated by Her Honor).  Jones’ discovery misconduct was so egregious, it compelled the judge to enter a default judgment on liability.  Hence, the ongoing case determines only compensatory and punitive damages.

Wow! Seamy Texas headlines in my wheelhouse of e-discovery and digital evidence! Got to love that! I write (hastily) to explore the applicable Texas rules as well as to parse—admittedly on skeletal information–what seems to have transpired and what it signifies.

To begin, Alex Jones is a 48-year-old, right-wing conspiracy theorist broadcasting rants and raves to millions of listeners who get off on the garbage he spews. Jones and his InfoWars entities were sued for defamation arising from such vile acts as claiming that the murder of 20 six- and seven-year-old children at Sandy Hook Elementary School was a hoax and “false flag.” So, he’s a horrible person, but the legal and factual issues don’t change because a party is a horrible person; horrible people are why we need courts and lawyers.

On August 3, 2022, Jones was on the stand under cross-examination when plaintiffs’ lawyer Mark Bankston asked:

“Mr. Jones, did you know that 12 days ago, your attorneys messed up and sent me an entire digital copy of your entire cellphone with every text message you’ve sent for the past two years?  And when informed, did not take any steps to identify it as privileged or protect it any way, and as of two days ago, it fell free and clear into my possession and that is how I know you lied to me when you said you didn’t have text messages about Sandy Hook.  Did you know that?”

Jones previously testified he’d searched his phone for texts about Sandy Hook and found none.

Consider five elements of the question, because all go to the question of whether privileged communications produced in error may be used by counsel:

  1. “12 days ago”
  2. “your attorneys messed up”
  3. “sent me…every text message you’ve sent for the past two years.”
  4. “when informed, did not take any steps to identify it as privileged or protect it any way”
  5. “as of two days ago, it fell free and clear into my possession….”

Hearing this, any lawyer’s ears will perk up, certainly any e-discovery lawyer’s. Diligent, competent lawyers don’t ‘mess up” by producing every text message irrespective of relevance, responsiveness and privilege! That could prompt a waiver of privilege–every lawyer’s nightmare!

Unless the lawyer practices in the Great State of Texas, a jurisdiction with strong safeguards against unwitting waiver of privilege by inadvertent production. Texas Rule of Civil Procedure 193.3(d) offers a get-out-of-jail-free card that’s easy to play:

Tex. R. Civ. P. Rule 193.3 Asserting a Privilege

d) Privilege not waived by production. A party who produces material or information without intending to waive a claim of privilege does not waive that claim under these rules or the Rules of Evidence if – within ten days or a shorter time ordered by the court, after the producing party actually discovers that such production was made – the producing party amends the response, identifying the material or information produced and stating the privilege asserted. If the producing party thus amends the response to assert a privilege, any party who has obtained the specific material or information must promptly return the specified material or information and any copies pending any ruling by the court denying the privilege.

Aha! So THAT’S what all the twelve days/ten days/two days stuff is about!

Jones’ counsel had ten days from his discovery that privileged information had been unintentionally produced to amend the response to assert a privilege and demand its return. In Texas, we call that “snap-back” and in federal court, it’s what Rule 502 of the Federal Rules of Evidence was intended to fix.

Texas has its own evidence rule on point, Rule 511(b)(2):

Tex. R. Evid. Rule 511: Waiver by Voluntary Disclosure

(b) Lawyer-Client Privilege and Work Product; Limitations on Waiver

(2) Inadvertent Disclosure in State Civil Proceedings. When made in a Texas state proceeding, an inadvertent disclosure does not operate as a waiver if the holder followed the procedures of Rule of Civil Procedure 193.3(d).

Pulling it together:

At some point on or before Friday, July 22, 2022, defense counsel supplemented discovery responses in such a way that two years of Jones’ cell phone messages were produced.  How?  No clue!    Perhaps by placing it into a production “drop box” repository hosted online?  The method of production doesn’t matter, and the form of production is unhelpfully characterized as “digital;” even the time of production isn’t critical.  What matters most is when did defense counsel discover privileged information was produced and what did he do about it?

I expect the July 22 date refers to a communication from plaintiff’s counsel informing defense counsel that privileged or confidential material may have been inadvertently produced. 

I expect it because ABA Model Rule of Professional Conduct 4.4(b) provides:

“A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.”

Texas’ disciplinary rules don’t mirror ABA Model Rule 4.4(b), but smart, ethical counsel will supply the notice if for no other reason than failing to do so puts the lawyer receiving the information at risk of unpleasant outcomes, including being booted from the case by disqualification.

Once notified, the snap-back provision kicked in and—tick…tick…tick—defense counsel had ten days to “[amend] the response, identifying the material or information produced and stating the privilege asserted.”  Again, Texas liberally protects against unwitting privilege waiver, so all defense counsel had to do was write something, anything, akin to “the texts we supplied contain privileged attorney-client communications and non-responsive confidential information.  Return them now, destroy any copies and do not use of share any information they hold.”  It wouldn’t have required much specificity since plaintiffs’ counsel knew what he had and believed his opponents counsel “messed up.”  All it would have taken was a peep of timely objection. Yet, as plaintiffs’ counsel put it in court, defense counsel “did not take any steps to identify it as privileged or protect it any way.”

But, literally just as I’ve written the preceding, my dear friend, Mary Mack, the Empress of E-Discovery, sent a text indicating Plaintiffs’ counsel Bankston e-mailed defense counsel Reynal shortly before midnight on Friday, 7/22 and, discussed the production stating: “My assumption is now that you did not intend to send us this? Let me know if I am correct.

The following day, July 23, 2022, defense counsel F. Andino Reynal replied:

Thank you Mark.  There appears to have been a mistake in the file transfer…. Please disregard the link and I will work on resending.  Andino

So, the plot thickens! It’s not clear that defense counsel “did not take any steps to identify it as privileged or protect it any way.” Still, if what I’ve related here is all there was in term of exchanges (and it shouldn’t be), plaintiffs’ counsel is betting heavily that specific assertions of privilege are required for snap back to apply and that citing a “mistake” and asking plaintiffs to “disregard the link” is insufficient to forestall waiver in a state that bends over backwards to protect attorneys from the consequences of inadvertent waiver.

Gutsy or unprofessional? Your call. Was a new link to a collection scrubbed of privileged content ever supplied? Why didn’t defense counsel promptly object at trial and protect the record? Will we next need to discuss the crime/fraud exception to attorney-client privilege? Any way you cut it, this mess promises to be a case study in discovery abuse and lawyer misconduct. Stay tuned!

UPDATE: Here’s a motion filed by Jones on August 4, 2022:

Understanding Air Conditioning…For When You Really Need to Keep Your Cool

This post isn’t about forensics or e-discovery, but you can hardly be expected to focus on ESI if you’re sweltering in a hot house!  Having lived most of my years in the balmy American South and Southwest, I regard air conditioning as essential; yet like water and electricity, air conditioning garners little thought until it stops working.  Recently, I explained the mechanics of air conditioning to a curious friend, and it made me see that grasping the fundamentals of air conditioning is more than just a useful academic exercise; it’s a skill that can spare you discomfort and even save significant sums.  If nothing else, you’ll understand what an A/C repair person does and maybe recognize when you’re being conned. 

I handle much of my own A/C maintenance and repair although I deal solely with the electrical components and leave the pressurized parts to professionals.  It’s not that pressurized components are terribly difficult to service, but doing so carries additional risks to person, property and the environment, and requires access to specialized tools and the correct formulation of refrigerant gas, the latter sold only to licensed service personnel.  Most often, “fixing” my central air conditioning system entails no more than blowing out drain lines, cleaning coils to improve thermal transfer and occasionally replacing a starter capacitor or contactor relay.  None of that is rocket science, but still, undertake electrical repair only if you know how to do so in safety!

The ABCs of A/C

Let’s spend a minute on thermodynamics and put names to the major components of a cooling system.

Air conditioning is extracting heat from interior air and transferring (“exchanging”) that heat to exterior air.  In so doing, moisture in the interior air condenses on cold surfaces lowering interior humidity, helping the interior to feel still cooler because our bodies cool better when air is drier.  The heat exchange process entails a pair of separate, connected coils of tubing over which a pair of electric fans circulate air.  The cold coil inside the house is called the “Evaporator” and the hot one outside is called the “Condenser.”  In the U.S., these coils contain a hydrofluorocarbon (HFC) gas serving as a “Refrigerant.”  For many years, the most common refrigerant was branded as Freon®, so most still refer to air conditioning refrigerants that way.

Refrigerants are gases at normal pressures and temperatures but become liquids when compressed.  If you’ve ever sprayed compressed air to, e.g., clean computer components, you may have noticed how the nozzle where the compressed air emerges gets quite cold or even freezes.  The process where a compressed liquid expands to a vapor or where a vapor becomes a liquid when pressurized is called “Phase Transition.”  Think of compressing a gas to liquid as pushing heat out and its expansion from liquid to gas as pulling heat in.

The compression and expansion of the liquid/gas refrigerant in the coils and connective tubing is the work of two more components: a “Compressor” and an “Expansion Valve.”  The compressor receives the expanded gaseous refrigerant and pressurizes it into a liquid state liberating its heat energy and pushing it through the condenser coils to carry that heat away.  In central air conditioners, the compressor sits outside the home, typically surrounded by the condenser coils and surmounted by a large fan circulating air over the hot condenser coils to disperse that heat to outside air.  The condenser coils travel through many thin metal fins serving as heat sinks, increasing the surface area over which the fan blows air to better disperse heat.

As the cooler, compressed liquid refrigerant leaves the condenser, it travels through copper tubing and enters the evaporator coil (usually located in an attic, basement or utility space) via the expansion valve regulating the flow of expanding refrigerant as it vaporizes.  This expansion chills the evaporator coil and a second blower fan circulates filtered air over the cold evaporator coil drawing heat from the interior air.  The warm, humid air traversing the evaporator coil leaves water on the coil like beads of sweat on a glass of iced tea—falling into a collection pan and draining to the sanitary system or outside.

Finally, and familiarly, the operation of the fans and compressor is controlled by an adjustable, temperature-sensing switch called the “Thermostat.”

Here’s a helpful infographic courtesy of the U.S. Department of Energy:

What Can Go Wrong?

If your A/C system fails because it’s lost refrigerant, that’s your worst-case scenario.  Apart from a repairable puncture of a refrigerant line by a nail or screw during construction or another freak occurrence, refrigerant leaks typically stem from deterioration of the coils and tubing as a result of corrosion.  When that occurs, your system is dead or dying and only a professional can help you. Too, rarely can they do much in the way of repairs short of replacing leaking components and recharging the system at great cost.

But coolant loss is not the most common reason A/C systems stop working, and you should be certain all quick, cheap fixes are considered before letting anyone sell you a replacement coil or system. 

In my experience living in communities where 100° Fahrenheit (38°C) temperatures are commonplace, central air conditioners most often stop cooling properly because:

  1. A clogged drain line trips a float switch;
  2. A starter capacitor has dried up; or
  3. A dirty coil has caused a thermal limit switch to trip.

Of course, there are other things that go wrong, and I respect you enough, Dear Reader, to elide over causes like the circuit breaker has tripped or the thermostat is set to heat.  In medicine, there’s a wonderful diagnostic metaphor that counsels, “When you hear hoofbeats, think horses, not zebras.”  Here, too, consider the most common problems before deciding that the compressor has shorted out or the Freon in your system is now parked somewhere over the North Pole.

Clogged Drain Line: All that water that drips from the cold evaporator coil has got to go somewhere and most of us prefer it not come down through the ceiling.  So, there are usually two drip pans below the evaporator.  The first, inside the A/C unit, tends to emerge via a short length of PVC drain line connected to a float switch, an aptly-named electrical device that turns off the A/C unit when a clogged drain line causes water to back up and “float” a switch to break a circuit.  The second is an external drain pan that serves as a failsafe when the main drain clogs AND the float switch fails.  This external pan should remain dry at all times, so it’s being dry signifies nothing respecting the primary drain line and float switch.  Clogged drain lines tend to manifest as the frequent cycling of the A/C such that the system doesn’t run long enough to cool the house.  In my homes, clogged lines tended to be caused by debris, mold or insects that blocked the line.  I resolve this by locating the standing riser (a short, often-capped, vertical piece of PVC in the drain line near where it exits from the inside air handler) and blowing or vacuuming it out, then flushing the line with vinegar or a diluted bleach solution.  I sometimes clear the line by blowing into the tubing using just my lung power, but I don’t recommend it as safe or satisfying.

Start Capacitor Failure: We all know how hard it is to move a static load (like a broken down automobile) and how much easier it becomes once it gets moving and you have the benefit of momentum.  When an A/C compressor or fan motor starts, it lacks momentum and must draw a heavy load of electrical current to get going.  A/C compressors and fans employ a start capacitor holding an extra “kick” of current to get things spinning without tripping a circuit breaker.  Over time, and particularly in very hot weather, capacitors lose their ability to deliver the surge of power needed to start the compressor or fan motor.  To the uninitiated, a bad capacitor presents just like a failed compressor, except that a replacement capacitor costs a few dollars whereas replacing a compressor runs to thousands of dollars.

Swapping out a bad start capacitor is dead simple and dirt cheap, but it requires that you take essential safety precautions including turning off power at the circuit breaker AND physically removing the A/C safety disconnect switch located at the condenser unit.  Also, be careful to note that the capacitor being replaced may store enough power to deliver a jolt, so don’t touch or short its terminals.  Often an aging capacitor and compressor can be rejuvenated by installation of a so-called “hard start kit,” a $10.00-$15.00 device that piggybacks on the existing capacitor and ensures sufficient start current to kick over a reluctant compressor.

Rather than supply the step-by-step of a capacitor replacement or hard start kit installation here, permit me to point you to countless Youtube videos on the topic.  The DIY parts are readily available on Amazon and again, safety first!

Dirty Coils: Coils are heat exchangers and anything that impedes thermal transfer, including dust, dirt, debris, corrosion on the coils, serves to diminish the system’s ability to shed heat and cool efficiently.  If the system can’t shed heat, it may overheat and trip a thermal limit switch shutting the compressor down  or causing it to “short cycle” erratically.  Accordingly, it’s important to only run your A/C system with air filters in place and to periodically hose off dirt and debris from the fins and coils of the exterior condenser unit.  For most systems, an annual rinse should suffice.

With luck, the fixes outlined above will ensure you keep cool and spare you needless service calls and expense.

Fast v. Exemplary Jurisprudence and Overlooked Opportunity?

Two weeks ago, U.S. District Judge David Campbell of Arizona issued an order imposing serious sanctions for discovery abuse against a deceitful plaintiff in a case styled, Kristin Fast v LLC et al.  The full 41-page opinion is an instructive read and I commend it to you; but if you’re in a hurry, Phil Favro offers a synopsis here.

Plaintiff Kristin Fast sought damages on theories built around an injury she claimed was aggravated by her work at  A skiing accident and surgery led Fast to be diagnosed with a syndrome called Complex Regional Pain (CRP).  I have every confidence CRP Syndrome is awful for those afflicted, but I would have gone in a different direction on the acronym. “Doctor, how long has the patient suffered from crap?”   But I digress.

Though he never stoops to say so, it’s clear Judge Campbell regards the plaintiff as full of crap, and she reveals herself to be someone who imagines she is the smartest person in the room…any room.  Ms. Fast is so smart that she felt entitled to creatively curate facts and jettison and recast unfavorable evidence–actions Judge Campbell finds Ms. Fast undertook with that rarest species of hubris, the “intent to deprive.”

Rule 37(e) of the Federal Rules of Civil Procedure was amended in 2015 to make it well-nigh impossible for a U.S. federal judge to punish a party’s failure to preserve electronically stored information (ESI) absent proof that the party acted with an “intent to deprive another party of the information’s use in the litigation.”  By “punish,” I mean assessing the most severe sanctions, like dismissing the action or instructing the jury it can infer that whatever the guilty party lost was unfavorable to the party who destroyed it.

Since its inception, there’s been uncertainty attendant to whether Rule 37(e) is the sole and exclusive remedy for the loss of ESI that should have been preserved for litigation.  Reasonable minds may conclude that, if “lost” ESI is ultimately recovered, sanctions aren’t available despite gross malfeasance.  That is, if the “lost” ESI wasn’t irreparably lost, it wasn’t “spoliated,” and no sanction may issue.  Not just no serious sanction; no sanction at all.

Not so, Judge Campbell makes clear.  Rule 37(e) is NOT the exclusive remedy for spoliation of ESI…so long as you dress the loss up as something you don’t call “spoliation.”

For example, plaintiff secretly recorded conversations using her phone, and a few (but not all) of these recordings miraculously surfaced long after they were supposed to have been produced.  Addressing a truly ‘lost’ digital recording, Judge Campbell writes, “And Defendants continue to be prejudiced by the failure of Plaintiff to produce the fourth recording she claimed to have made. It is not clear whether that recording is lost or Plaintiff has not produced it. Sanctions under Rule 37(c)(1) are authorized.” Fast at pp. 33-34.

As Chair of the Advisory Committee on the Federal Rules of Civil Procedure when the 2015 revision of Rule 37(e) was developed and adopted, Judge David Campbell is chief architect of the revision.  He knows how the Rule is supposed to work as well as anyone.[1]

That Judge Campbell construes the failure to produce ESI for causes not tied to spoliation as being a sufficient ground for FRCP 37(c)(1) sanctions ;is eye-opening to this writer.  Not that he’s the first judge to do so, but he’s an 800-pound gorilla on the point.

If the conventional wisdom is “Rule 37(e) is the exclusive remedy for spoliation sanctions for loss of ESI,” then Judge Campbell turns that on its head by adding in effect, ‘the full range of sanctions available under Rule 37(c)(1) are available for failing to produce ESI.’

Whoa, Nellie!  If the failure to produce ESI occurred because it was “lost,” then why isn’t Rule 37(e) the sole and exclusive path to sanctions?  The chief architect of 37(e) clearly indicates that sanctions for failing to produce lost ESI are proper under 37(c)(1) unless the failure was substantially justified or harmless. 

Granted, you’re still not likely to secure an order of dismissal or an adverse inference instruction for merely negligent delay or failure to produce; elements of bad faith are sure to be needed before the big guns come out.  But see FRCP Rule 37(b)(2)(A)(i)-(vi) and its sanctions for not obeying a discovery order.[2]

Still, Rule 37(c)(1) packs its own punch for conduct that violates Rule 26(e) (that’s the rule requiring parties to timely supplement discovery responses if the party learns that prior responses are materially incomplete or incorrect).  As the Court notes at p. 4, “Rule 37(c)(1) provides that a party who violates Rule 26(e) may not use the withheld information at trial unless the failure was substantially justified or harmless. This is “a ‘self-executing, automatic sanction to provide a strong inducement for disclosure of material…’” The Court adds, Rule 37(c)(1) also permits a court to order the payment of reasonable expenses caused by the failure, to inform the jury of the party’s failure, or to “impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).”  Those are big guns, too.  

Backup your Phones, Folks!

Another positive aspect of the sanctions order in Fast v is that it characterizes mobile devices as sources of ESI that must be routinely preserved in anticipation of litigation.  I’ve been beating that drum for years, so it’s delightful to hear it from a Senior District Judge with tons of influence in e-discovery.

Still, there’s something about phones in the Order that throws me.  The Plaintiff claimed her iPhone was stolen, and the Court took the alleged theft to be true.  At p. 20, the Court states, “By failing to back up her iPhone, Plaintiff failed to take reasonable steps to preserve the ESI contained on the phone.”

I applaud that conclusion.  I’ve written and spoken quite a lot about how to quickly and cheaply backup iPhones for ESI preservation and of the need to do so.  Well done, Judge!

So, a party needs to foresee the loss of a phone or its contents and, rather than simply preserve the data in situ on the phone, a party must affirmatively act to back up the contents of the phone.

That would seem to be the takeaway, except when assessing intent on the next page, Judge Campbell writes, “Assuming the phone was stolen, that act could not have been foreseen or intended by Plaintiff, and neither could its corresponding loss of ESI. The Court therefore cannot find Plaintiff acted with an intent to deprive as required by Rule 37(e)(2).”

So, a party must foresee the loss of a phone or its contents as being sufficiently likely to require a copy of its contents be made, but that selfsame loss is not sufficiently foreseeable so as to supply the requisite intent to deprive?

I see the distinction, but where do we draw the line in practice?  Why is the phone itself not deemed a sufficient repository for the data to be preserved?  If the loss of the phone “could not have been foreseen,” why would there be an independent legal duty to back up the ESI contained on the phone?

It’s a fact that any device that stores ESI will fail or may be lost, stolen or destroyed.  Phones.  Laptops.  Electromagnetic drives.  Solid state drives.  Anything that stores ESI lives on borrowed time.  Is there a duty to maintain two copies of data stored on electronic media because of the inevitable and omnipresent risk of theft, loss or failure?  Or does that duty uniquely attach to phones?  If history has taught us anything it is that dogs have an insatiable hunger for homework.  Protect the evidence, people!

Duties of Counsel

Since the venerable Zubulake v. UBS Warburg decisions at the start of this millennium, Courts have warned lawyers over-and-over-again that there’s more to initiating a proper legal hold than just telling clients not to delete relevant ESI. Yet, lawyers seem resolutely immune to calls for competence.  Judge Campbell raises this in Footnote 18:

The Court is also concerned about the conduct of Plaintiff’s counsel in discovery. He had an affirmative obligation to ensure that his client conducted diligent and thorough searches for discoverable material and that discovery responses were complete and correct when made. See Fed. R. Civ. P. 26(g)Legault v. Zambarano105 F.3d 24, 28 (1st Cir. 1997) (“The Advisory Committee’s Notes to the 1983 amendments to Rule 26 spell out the obvious: a certifying lawyer must make ‘a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand.’”); Bruner v. City of PhoenixNo. CV-18-00664-PHX-DJH2020 WL 554387, at *8 (D. Ariz. Feb. 4, 2020) (“[I]t is not reasonable for counsel to simply give instructions to his clients and count on them to fulfill their discovery obligations. The Federal Rules of Civil Procedure place an affirmative obligation on an attorney to ensure that their clients’ search for responsive documents and information is complete. See Fed. R. Civ. P. 26(g).”); Stevens, 2019 WL 6499098, at *4 (criticizing “cavalier attitude toward the preservation requirement” where “counsel failed to immediately preserve obviously crucial evidence at a time when the duty to preserve existed and instead allowed the phone to remain in [his client’s] possession”).

Id. at Footnote 18, p. 39

The obligations of counsel to carry out a proper legal hold and collection, and counsels’ ability to meet those obligations, remains a river too few can ford.  But the lack of lawyer competence is not as reprehensible as the prevailing attitude of the bar respecting rife incompetence. No one seems to care, at least not enough to prioritize teaching information technology to lawyers and judges. If you don’t teach something, how can anyone be expected to learn it?  Just this month, we’ve seen two reported decisions where confusion concerning basic metadata made lawyers (and even a federal judge I admire) look incompetent in the management of ESI.  In re Cooley, No. 05-21-00445-CV, 2022 WL 304706 (Tex. App.–Dallas Feb. 2, 2022, orig. pro.) and Arconic Corp. v. Novelis Inc., No. 17-1434, 2022 BL 46179 (W.D. Pa. Feb. 10, 2022).

Coming back to Fast v., perhaps clucking one’s tongue at an errant lawyer in a footnote isn’t going to change things.  In their efforts to dredge a safe harbor in Rule 37(e), Judge Campbell and the distinguished Advisory Committee all-but-immunized the most common instances of spoliation from consequences.  Absent proof that spoliation occurred with an intent to deprive, what’s really the worst that occurs now?  The guilty party is compelled to belatedly do what they were obliged to do all along, or some split-baby fraction of same.  “Ow, my wrist!  Careful Judge, that slap nearly hurt.”

The efforts to rein in judicial discretion to punish gross incompetence has been good for business but bad for justice.  The fleeting interest in e-discovery education of 15+ years ago was driven by sanctions.  By Zubulake.  By Coleman (Parent) Holdings v. Morgan Stanley.  By Qualcomm v. Broadcom.  We never had much of a carrot supporting ESI competence, and 37(e) took away the stick.

Judges must get tougher, and demand more. Your Honors: Just because you didn’t know it when you were practicing doesn’t mean lawyers needn’t know it now. Citizens cannot hope for justice any better than you mete out.

If the bench, bar and public don’t demand competence be demonstrated to practice law, and we don’t meaningfully discourage incompetence in practice, why would anyone expect lawyer competence to improve?

If it weren’t so, I’d disclose it at the start; but to be clear in closing, I have no connection to the Fast v. case, the parties or counsel.

[1] He clearly wishes others understood Rule 37 half so well, e.g., his Footnote 2 states, “It is therefore quite frustrating that, years after the 2015 revision, some lawyers and judges are still unaware of its significant change to the law of ESI spoliation. Seee.g.Holloway v. Cnty. of Orange, No. SA CV 19-01514-DOC (DFMx), 2021 WL 454239, at *2 (C.D. Cal. Jan. 20, 2021) (granting ESI spoliation sanctions without addressing the requirements of Rule 37(e)); Mercado Cordova v. Walmart P.R., No. 16-2195 (ADC), 2019 WL 3226893, at *4 (D.P.R. July 16, 2019) (same); Nutrition Distrib. LLC v. PEP Rsch., LLC, No. 16cv2328-WQH-BLM, 2018 WL 6323082, at *5 (S.D. Cal. Dec. 4, 2018) (ordering adverse inference instructions without addressing the strict requirements of Rule 37(e)(2), and applying the negligence standard that Rule 37(e) specifically rejected).”

[2] One of my many maxims is that “a Court guards its power more scrupulously than a party’s rights.”  That’s not a slam on courts, who must scrupulously protect the sanctity of their orders lest chaos ensue.  The lesson being that parties should endeavor to convert agreements about discovery obligations into orders whenever possible because a judge is far more likely to punish a transgression of its own order than an offense to a party.  At bottom, it’s just human nature to do that, right?

Six Powerful Points for Better Presentations

I use PowerPoint in my law practice more often than Microsoft Word.  Word processing tools are for preparing documents for people to read and understand; I use presentation tools like PowerPoint when I want people to see and understand.  PowerPoint isn’t a word processor; it’s a visual presentation tool.  You can fill slides with text as you might a word-processed document, but when you do, you’re killing the power of PowerPoint.

Text documents speak for themselves.  Presentations benefit from a narrator, i.e., you sharing your message.  An effective presentation supports your message.  It’s your ally and must not be your competitor.  The human brain cannot simultaneously read text and listen to words because both tasks draw on the same cognitive capability.  When we ask an audience to read text and hear words, text doesn’t reinforce the words; it competes with them.  Our language centers are overwhelmed trying to process both.  The result is a breakdown in comprehension and retention.  That breakdown is worst when a presentation proceeds at the brisk pace required to hold the attention of younger listeners.  And we need our audience’s attention! Attention is the hardest thing to grab and hang onto in this time of ubiquitous screens and constant connection.

We’ve all experienced someone talking to us as we try to read a document.  It’s rude, and makes it tough to follow the document or the conversation.  When handing a document to a judge, savvy advocates know to shut up and let the document do the talking.

Why then, do so many fine advocates insist on reading the text on their slides to the audience?

A savvy presenter knows not to speak when listeners are reading slides and limits the amount of text onscreen.  An effective presentation is Show and Tell, not Speak and Spell.  An effective presentation doesn’t stand alone; it needs a narrative.

This is heresy.  Most presenters build slide decks to suffice as handouts (NO!!) and present them by reading aloud that text which the listeners have already read or are struggling to plow through.  This is Death by PowerPoint, and it’s the reason so many presentations are far less effective and memorable than they could be.

PowerPoint in Trial?  Not So Much.

When I started using PowerPoint thirty-odd years ago, it was hard and costly to use visual persuasion in court.  Courtrooms weren’t well-equipped for presentation and old-school judges took a dim view of innovative techniques they worried might slow proceedings or inject error.  But I used them anyway, and greatly benefited.  Today, going to trial or a key hearing without a compelling visual presentation is going underprepared.  Judges like good visuals, and jurors need them.  Today, the presentation tools are right at hand in modern courtrooms.  Yet, even as we focus on visual presentation in court, the reality is that only a handful of disputes today are decided in courtrooms.  Most are resolved in settings unconstrained by the rules of evidence, making it more important that your presentation be engaging and informative than evidentiary.  Accordingly, it’s fine to use, say, stock photography, sound and even music, if the effect will be to get and hold focus so you can instruct and persuade.  Cases settle because one side fears an outcome more than the other.  When you are seeking to persuade an opponent to settle, it’s sensible to use and underscore emotion.  Few things do that as well as images, sounds and music.

As my practice gravitated from trial to teaching, testifying and consulting, I am less constrained by strict rules of evidence in framing my presentations.  I use richer media and more creative and provocative imagery, and I strive to use visual persuasion everywhere.  Whether you are presenting in a courtroom or in more free-wheeling settings, you need never eschew visual persuasion.  If you follow a few simple rules, it will always improve comprehension and retention of your message.

  1. Use Pictures to Persuade: Persuasion is telling a story the listener takes as true.  When you tell that story in pictures, you free the speech center of the listener’s brain to hear your words, and you empower the visual cortex to forge connections between the story and the memories and emotions conjured up by the images.  Instead of fighting to reconcile the written and spoken word, the visual and language cortices pull together, each reinforcing the other.  No doubt there is a pithy biochemical explanation for why this works; but all we need know is that it works.  It works really, really well.
  2. Follow the Five Second Rule: I won’t use a slide that takes more than a few seconds to apprehend.  If you must use text to make a point, never use more text than an average reader can read and understand in five seconds, tops.  That doesn’t mean spreading loads of text over many slides and clicking through like mad.  Make the point verbally, as narrator, at your own pace.  Text on the slide merely anchors a point and provides essential context.  Don’t ask it to do more.  Using just an image or a single word injects tension and prompt listeners to forge their own connections between the visual and the message.  The connections built of a listener’s curiosity are sturdy.  We better retain what we think through than what we are told.  If you can make the point with no text at all, do it.  The words come from you.  Use the screen for imagery.
  3. Fill the Slide: Don’t be afraid to give over the entire slide to your image.  Too many presenters leave room for text even when there’s little or no text.  We are so conditioned to treat images as adjuncts to the written word those images too often get added as little rectangles floating in a sea of dead space.  Don’t do it!  Use images of sufficient resolution that can be stretched to fill the screen without pixilation.  I’m fond of using solid areas of images for whatever bit of text I include.  Feel free to get creative with the image, using just a section or changing its orientation.  I sometimes add subtle movement to images using the Morph transition or motion path animation or a grow/shrink enhancement to take advantage of the fact that our primal survival senses are intensely attuned to movement.  It draws our attention, even when the movement is almost imperceptible.
  4. PowerPoint is not a Teleprompter: Presenters lard their slides with tons of text when they’re afraid they won’t otherwise remember what they want to say.  That’s lazy, but it’s also foolish, because it guarantees that your message won’t come across as clearly or stick as firmly.  Trust me: If you know your stuff, it won’t take more than one well-chosen image or word to trigger your recollection of everything you want to say.  If you need notes, use them or use the Speaker Notes feature of PowerPoint; but, be warned:  Audiences have a low tolerance for presenters reading to them.  While it’s acceptable to read a sentence or two, most people would rather hear your narration in a relaxed, conversational way.  Nothing belies your competence quite like reading a presentation.
  5. Bullet Points Don’t Wrap: I despise bullet points and strive not to use them. But, when I must use a bulleted list, I follow the ironclad rule that bullet points don’t wrap.  No “buts.”  No “what ifs?”  Never!  If any item in a bulleted list is so long that it won’t fit on a single line, it’s not a bullet point, and it’s got to go.
  6. Make It Big; Make It Flow: The presentation viewers can’t read is no better than the speech they can’t hear.  Never put text on a slide that you expect viewers to read unless it at least 24 points in size.  Bigger is better.  Don’t fudge on this.  You should be able to read the text on a slide when in slide sorter mode. 

A slide presentation doesn’t have to “feel” like a PowerPoint.  I’m flattered when people come up and ask me what program I used to present.  They’re shocked when I respond, “just PowerPoint.”  Use transitions and backgrounds to smooth the flow between slides and eliminate jarring segues.  A simple fade is sufficient; but I’m a huge fan of the Morph transition in PowerPoint that enables objects, words and text to re-assemble before the viewers’ eyes.  It’s slick; so, use “slick” with care and subtlety.  The transition should help the flow, not interrupt it.  Morph is also terrific for enlarging sections of images or documents.  It handles all of the calculations required for smoothly animating between slides called “tweening.”

But, Wait!  There’s More: PowerPoint does much more in my practice than just serve as a presentation tool.  I use its powerful screen capture and video editing tools to obtain and tweak imagery.  I use it to fashion sophisticated animations, and its powerful suite of drawing and photo-manipulation tools support extensive customization of images.  The drawing tools are handy when I need to crop an image, remove a background or convert vector graphics to pictures.  It’s also a convenient, adaptable canvas to paste to when capturing screen shots.

Electronic Evidence Workbook 2022

I’ve released a new version of the Electronic Evidence Workbook used in my three credit E-Discovery and Digital Evidence course at the University of Texas Law School, UT Computer Science School and UT School of Information. I prefer this release over any before because it presents the material more accessibly and logically, better tying the technical underpinnings to trial practice.

The chapters on processing are extensively revamped. I’m hell bent on making encoding understandable, and I’ve incorporated the new Processing Glossary I wrote for the EDRM. Glossaries are no one’s idea of light reading, but I hope this one proves a handy reference as the students cram for the five quizzes and final exam they’ll face.

Recognizing that a crucial component of competence in electronic discovery is mastering the arcane argot of legaltech, I’ve added Vital Vocabulary lists throughout, concluded chapters with Key Takeaway callouts and, for the first time, broken the Workbook into volumes such that this release covers just the first eight classes, almost entirely Information Technology.

Come Spring Break in mid-March, I’ll release the revamped omnibus volume adding new practical exercises in Search, Processing, Production, Review and Meet & Confer and introducing new tools. Because university students use Mac machines more than Windows PCs, the exercises ahead employ Cloud applications so as to be wholly platform-independent. The second half of the course folds in more case law to the relief of law students and chagrin of CS and IS students. The non-law students do a great job on the law but approach it with trepidation; the law students kiss the terra firma of case law like white-knuckled passengers off a turbulent flight.

Though written for grad students, the Workbook is also written for you, Dear Reader. If you’ve longed to learn more about information technology and e-discovery but never knew quite where or how to start, perhaps the 2022 Workbook is your gateway. The law students at UT Austin pay almost $60,000 per year for their educations; I’ll settle for a little feedback from you when you read it.

A Dozen Nips and Tucks for E-Discovery

Annually, I contribute to an E-Discovery Update presentation for top tier trial lawyers and annually I struggle to offer a handout that will be short enough for attendees to read and sufficiently pointed to prompt action. Ironically, predictably, the more successful the lawyers in attendance, the less moved they are to seek fresh approaches to discovery. Yet, we would be wise to observe that success tends not to depart abruptly but slips away on little cat feet, or as Hemingway described the velocity of a character’s path to bankruptcy, “Gradually, then suddenly.” A few nips and tucks may be all that’s needed to stay in fighting form. Accordingly, I wanted my list to be pithy with actionable takeaways like “have a production protocol, get a review platform and test your queries.” That may seem painfully obvious to you, Dear Reader, but it’s guidance yet to be embraced by leading lights in law. Here’s my 2022 list:

  1. Forms from a decade ago are obsolete.  Update your preservation letters and legal hold notices.  Remember: preservation letters go to the other side; legal hold notices to your clients.
  2. Custodial holds don’t fly.  Just telling a client, “don’t delete relevant data” isn’t enough and a misstep oft-cited by courts as attorney malfeasance.  Lawyers must guide and supervise clients in the identification, preservation and collection of relevant evidence.
  3. Be sure your legal hold process incorporates all elements of a defensible notification:
    i. Notice is Timely
    ii. Communicated through an effective channel
    iii. Issued by person(s) with clout
    iv. Sent to all necessary custodians
    v. Communicates gravity and accountability
    vi. Supplies context re: claim or litigation
    vii. Offers clear, practical guidance re: actions and deadlines
    viii. Sensibly scopes sources and forms
    ix. Identifies mechanism and contact for questions
    x. Incorporates acknowledgement, follow up and refresh
  4. Data dies daily; systems automatically purge and overwrite data over time.  The law requires parties promptly intercede to prevent loss of potentially relevant information by altering purge settings and otherwise interdicting deletion.  Don’t just assume it’s preserved, check to be certain.
  5. No e-discovery effort is complete in terms of preservation and collection if it fails to encompass mobile devices and cloud repositories.  Competent trial lawyers employ effective, defensible methods to protect, collect and review relevant mobile and cloud information.
  6. The pandemic pushed data to non-traditional locations and applications.  Don’t overlook data in conferencing apps like Zoom and collaboration tools like Slack.
  7. You should have an up-to-date ESI production protocol that fits the data and workflow. Know what an ESI protocol does and what features you can negotiate without prompting adverse outcomes.
  8. Don’t rely on untested keyword queries to find evidence.  Embrace the science of search.  TEST!
  9. Modern litigation demands use of review systems dedicated to electronically stored information (ESI) and staff trained in their use. Asked “What’s your review platform?” You should know the answer.
  10. Vendors paid by the gigabyte lack incentive to trim data volumes.  Clients will thank you to have sound strategies to cull and deduplicate the data that vendors ingest and host.  Big savings lie there.
  11. Courts demand an unprecedented level of communication and cooperation respecting ESI.  Transparency of process signals confidence and competence in your approach to e-discovery.
  12. There are no more free passes for ignorance.  Now, learn it, get help or get out.