Fast v. Godaddy.com: 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 Godaddy.com 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 Godaddy.com.  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 Godaddy.com 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. Godaddy.com, 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. Godaddy.com 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.

Federal Court Rules on Whether Documents Containing Agreed-Upon Keywords are Responsive Per Se

Today, Doug Austin‘s splendid eDiscoveryToday blog featured O’Donnell/Salvatori Inc. v. Microsoft Corp., No. C20-882-MLP (W.D. Wash. Oct. 1, 2021), where a U.S. Magistrate sitting in Seattle opined on an issue I wrote about nine years ago (when there wasn’t a case to be found on the question): “Must a party produce all ESI retrieved from the use of negotiated search terms?” Magistrate Peterson wisely held that “a party’s agreement to run search terms does not waive its right to review the resulting documents for relevance so long as the review can be done in a reasonably timely manner.”

Because the issue remains contentious, I thought reprinting my long ago post and the associated practice tip (that would have kept the parties from tripping up) might be timely. Here it is (from March 22, 2013):

More than once, I’ve faced disputes stemming from diametrically different expectations concerning the use of keywords as a means to identify responsive ESI.  I don’t recall seeing a case on this; but, it wouldn’t surprise me if there was one.  If not, there soon will be because the issue is more common than one might imagine.

When requesting parties hammer out agreements on search terms to be run against the producing party’s ESI, sometimes the requesting party’s expectation is that any item responsive to the agreed-upon keywords (that is, any item that’s “hit”) must be produced unless withheld as privileged.  Put another way, the requesting party believes that, by agreeing to the use of a set of keywords as a proxy for attorney review of the entire potentially-responsive collection, and thereby relieving the producing party of the broader obligation to look at everything that may be responsive, those keywords define responsiveness per se, requiring production if not privileged.

Now I appreciate that some are reading that and getting hot under the collar.  You’re saying things like:

  • “We always have the right to review items hit for responsiveness!”
  • “It’s the Request for Production not the keyword hits that define the scope of e-discovery!”
  • “Nothing in the Rules or the law obliges a party to produce non-responsive items!”
    [Expletives omitted]

Perhaps; but, there’s sufficient ambiguity surrounding the issue to prompt prudent counsel to address the point explicitly when negotiating keyword search protocols, and especially when drafting agreed orders memorializing search protocols.

To appreciate why expectations should be plainly stated, one need only look at the differing incentives that may prompt disparate expectations.

What is a producing party’s incentive to limit the scope of search to only a handful of queries and keywords?  Federal law requires a producing party to search all reasonably accessible sources of information that may hold responsive information and to identify those potentially responsive sources that won’t be searched.  That’s a pretty broad mandate; so, it’s no wonder producing parties seek to narrow the scope by securing agreements to use keyword queries.  Producing parties have tons of incentive to limit the scope of review to only items with keyword hits.  It eases their burden, trims their cost and affords requesting parties cover from later complaints about scope and methodology.

What is the requesting party’s incentive to limit an opponent’s scope of search to only those items with keyword hits?  Requesting parties might respond that their incentive is to insure that they get to see the items with hits so long as they are not privileged.  By swapping keyword culling for human review, requesting parties need not rely upon an untrusted opponent’s self-interested assessment of the material.  Instead, if it’s hit by the agreed-upon keywords, the item will be produced unless it’s claimed to be privileged; in which case the requesting party gets to see its privilege log entry.  That’s often the contemplated quid pro quo.

Both arguments have considerable merit; and, yes, you can be compelled to produce non-responsive items, if the agreement entered into between the parties is construed to create that obligation.  Some might argue that the agreement to use queries is an agreement to treat those queries as requests for production.  You don’t have to agree, dear reader; but, you’d be wise to plan for opponents (and judges) who think this way.

These are issues we need to pay attention to as we move closer to broader adoption of technology-assisted review.  We may be gravitating to a place where counsel’s countermanding a machine’s “objective” characterization of a document as responsive will be viewed with suspicion.  Responding parties see electronic culling as just an extension of counsel’s judgment; but, requesting parties often see electronic culling as an objective arbiter of responsiveness.  Face it: requesting parties believe that opponents hide documents.  TAR and keyword search may be embraced by requesting parties as a means to get hold of helpful documents that would not otherwise see the light of day.

Practice Tip:  If you enter into an agreement with the other side to use keywords and queries for search, be clear about expectations with respect to the disposition of items hit by queries.  Assuming the items aren’t privileged, are they deemed responsive because they met the criteria used for search or is the producing party permitted or obliged to further cull for responsiveness based on the operative Requests for Production?  You may think this is clear to the other side; but, don’t count on it.  Likewise, don’t assume the Court shares your interpretation of the protocol.  Just settling upon an agreed-upon list of queries may not be sufficient to insure a meeting of the minds.

Did You Miss Tom’s Checklist Manifesto?

I don’t often feature the work of others here; but sometimes I come across something that’s just so good, I can’t wait to sing its praises even as I wish it were something I’d written. One such gem is my great friend Tom O’Connor’s E-Discovery Checklist Manifesto. To give credit where due, Jeremy Greer and ACEDS honcho Michael Quartararo are authors as well, and their splendid work was underwritten by software seller, Digital WarRoom. As we all do, the Manifesto owes an acknowledged debt to the Electronic Discovery Reference Model (EDRM) where much of the same information can be found, but the Checklist Manifesto pulls the essentials together more simply and accessibly without leaving key points behind.

Because it emerged in the abyss of pandemic 2020, there’s a good chance you never heard mention of the E-Discovery Checklist Manifesto, so I hope you’ll like getting this heads up. It’s a quick read and worthy of being kept close at hand by newbies and old hands alike.

Then his head exploded!

In the introduction to my Electronic Evidence Workbook, I note that my goal is to change the way readers think about electronically stored information and digital evidence. I want all who take my courses to see that modern electronic information is just a bunch of numbers and not be daunted by those numbers.

I find numbers reassuring and familiar, so I occasionally forget that some are allergic to numbers and loathe to wrap their heads around them.

Lately, one of my bright students identified himself as a “really bad with numbers person.” My lecture was on encoding as prologue to binary storage, and when I shifted too hastily from notating numbers in alternate bases (e.g., Base 2, 10, 16 and 64) and started in on encoding textual information as numbers (ASCII, Unicode), my student’s head exploded.

Boom!

At least that’s what he told me later. I didn’t hear anything when it happened, so I kept nattering on happily until class ended.

As we chatted, I realized that my student expected that encoding and decoding electronically stored information (ESI) would be a one-step process.  He was having trouble distinguishing the many ways that numbers (numeric values) can be notated from the many ways that numbers represent (“encode”) text and symbols like emoji.  Even as I write that sentence I suspect he’s not alone.

Of course, everyone’s first hurdle in understanding encoding is figuring out why to care about it at all.  Students care because they’re graded on their mastery of the material, but why should anyone else care; why should lawyers and litigation professionals like you care?  The best answer I can offer is that you’ll gain insight.  It will change the way you think about ESI in the same way that algebra changes the way you think about problem solving.  If you understand the fundamental nature of electronic evidence, you will be better equipped to preserve, prove and challenge its integrity as accurate and reliable information.

Electronic evidence is just data, and data are just numbers; so, understanding the numbers helps us better understand electronic evidence.

Understanding encoding requires we hearken back to those hazy days when we learned to tally and count by numbers.  Long ago, we understood quantities (numeric values) without knowing the numerals we would later use to symbolize quantities.  When we were three or four, “five” wasn’t yet Arabic 5, Roman V or even a symbolic tally like ||||

More likely, five was this:

If you’re from the Americas, Europe or Down Under, I’ll wager you were taught to count using the decimal system, a positional notation system with a base of 10.  Base 10 is so deeply ingrained in our psyches that it’s hard to conceive of numeric values being written any other way.  Decimal just feels like one, “true” way to count, but it’s not.  Writing numbers using an alternate base or “radix” is just as genuine, and it’s advantageous when information is stored or transmitted digitally.

Think about it.  Human beings count by tens because we evolved with ten digits on our hands.  Were that not so, old jokes like this one would make no sense: “Did you hear about the Aggie who was arrested for indecent exposure?  He had to count to eleven.

Had our species evolved with eight fingers or twelve, we would have come to rely upon an octal or duodecimal counting system, and we would regard those systems as the “true” positional notation system for numeric values.  Ten only feels natural because we built everything around ten.

Computers don’t have fingers; instead, computers count using a slew of electronic switches that can be “on” or “off.”  Having just two states (on/off) makes it natural to count using Base 2, a binary counting system.  By convention, computer scientists notate the status of the switches using the numerals one and zero.  So, we tend to say that computers store information as ones and zeroes.  Yet, they don’t.

Computer storage devices like IBM cards, hard drives, tape, thumb drives and optical media store information as physical phenomena that can be reliably distinguished in either of two distinct states, e.g., punched holes, changes in magnetic polar orientation, minute electric potentials or deflection of laser beams.   We symbolize these two states as one or zero, but you could represent the status of binary data by, say, turning a light on or off.  Early computing systems did just that, hence all those flashing lights.

You can express any numeric value in any base without changing its value, just as it doesn’t change the numeric value of “five” to express it as Arabic “5” or Roman “V” or just by holding up five fingers. 

In positional notation systems, the order of numerals determines their contribution to the value of the number; that is, their contribution is the value of the digit multiplied by a factor determined by the position of the digit and the base.

The base/radix describes the number of unique digits, starting from zero, that a positional numeral system uses to represent numbers.  So, there are just two digits in base 2 (binary), ten in base 10 (decimal) and sixteen in base 16 (hexadecimal).  E-mail attachments are encoded using a whopping 64 digits in base 64.

We speak the decimal number 31,415 as “thirty-one thousand, four hundred and fifteen,” but were we faithfully adhering to its base 10 structure, we might say, “three ten thousands, one thousand, four hundreds, one ten and five ones.  The “base” ten means that there are ten characters used in the notation (0-9) and the value of each position is ten times the value of the position to its right.

The same decimal number 31,415 can be written as a binary number this way: 111101010110111

In base 2, two characters are used in the notation (0 and 1) and each position is twice the value of the position to its right.  If you multiply each digit times its position value and add the products, you’ll get a total equal in value to the decimal number 31,415.

A value written as five characters in base 10 requires 15 characters in base 2.  That seems inefficient until you recall that computers count using on-off switches and thrive on binary numbers.

The decimal value 31,415 can be written as a base 16 or hexadecimal number this way: 7AB7

In base 16, sixteen characters are used in the notation (0-9 and A-F) and each position is sixteen times the value of the position to its right.  If you multiply each digit times its position value and add the products, you’ll get a total equal in value to the decimal number 31,415.  But how do you multiply letters like A, B, C, D, E and F?  You do it by knowing the letters are used to denote values greater than 9, so A=10, B=11, C=12, D=13, E=14 and F=15.  Zero through nine plus the six values represented as letters comprise the sixteen characters needed to express numeric values in hexadecimal.

Once more, If you multiply each digit/character times its position value and add the products, you’ll get a total equal in value to the decimal number 31,415:

Computers work with binary data in eight-character sequences called bytes.  A binary sequence of eight ones and zeros (“bits”) can be arranged in 256 unique ways.   Long sequences of ones and zeroes are hard for humans to follow, so happily, two hexadecimal characters can also be arranged in 256 unique ways, meaning that just two base-16 characters can replace the eight characters of a binary byte (i.e., a binary value of 11111111 can be written in hex as FF).  Using hexadecimal characters allows programmers to write data in just 25% of the space required to write the same data in binary, and it’s easier for humans to follow.

Let’s take a quick look at why this is so.  A single binary byte can range from 0 to 255 (being 00000000 to 11111111).  Computers count from zero, so that range spans 256 unique values. The following table demonstrates why the largest value of an eight character binary byte (11111111) equals the largest value of just two hexadecimal characters (FF):

Hexadecimal values are everywhere in computing.  Litigation professionals encounter hexadecimal values as MD5 hash values and may run into them as IP addresses, Globally Unique Identifiers (GUIDs) and even color references.

Encoding Text

So far, I’ve described ways to encode the same numeric value in different bases.  Now, let’s shift gears to describe how computers use those numeric values to signify intelligible alphanumeric information like the letters of an alphabet, punctuation marks and emoji.  Again, data are just numbers, and those numbers signify something in the context of the application using that data, just as gesturing with two fingers may signify the number two, a peace sign, the V for Victory or a request that a blackjack dealer split a pair.  What numbers mean depends upon the encoding scheme applied to the values in the application; that is, the encoding scheme supplies the essential context needed to make the data intelligible.  If the number is used to describe an RGB color, then the hex value 7F00FF means violet.  Why?  Because each of the three values that make up the number (7F 00 FF) denote how much of the colors red, green and blue to mix to create the desired RGB color. In other contexts,  the same hex value could mean the decimal number 8,323,327, the binary string 11111110000000011111111 or the characters 缀ÿ.

ASCII

When the context is text, there are a host of standard ways, called Character Encodings or Code Pages, in which the numbers denote letters, punctuation and symbols.  Now nearly sixty years old, the American Standard Code for Information Interchange (ASCII, “ask-key”) is the basis for most modern character encoding schemes (though both Morse code and Baudot code are older).  Born in an era of teletypes and 7-bit bytes, ASCII’s original 128 codes included 33 non-printable codes for controlling machines (e.g., carriage return, ring bell) and 95 printable characters.  The ASCII character set follows:

Windows-1252

Later, when the byte standardized from seven to eight bits (recall a bit is a one or zero), 128 additional characters could be added to the character set, prompting the development of extended character encodings. Arguably the most used single-byte character set in the world is the Windows-1252 code page, the characters of which are set out in the following table (red dots signify unassigned values). 

Note that the first 128 control codes and characters (from NUL to DEL) match the ASCII encodings and the 128 characters that follow are the extended set.  Each character and control code has a corresponding fixed byte value, i.e., an upper-case B is hex 40 and the section sign, §, is hex A7.  To see the entire code page character set and the corresponding hexadecimal encodings on Wikipedia, click here.  Again, ASCII and the Windows-1252 code page are single byte encodings so they are limited to a maximum of 256 characters.

Unicode

The Windows-1252 code page works reasonably well so long as you’re writing in English and most European languages; but sporting only 256 characters, it won’t suffice if you’re writing in, say, Greek, Cyrillic, Arabic or Hebrew, and it’s wholly unsuited to Asian languages like Chinese, Japanese and Korean. 

Though programmers developed various ad hoc approaches to foreign language encodings, an increasingly interconnected world needed universal, systematic encoding mechanisms.  These methods would use more than one byte to represent each character, and the most widely adopted such system is Unicode.  In its latest incarnation (version 14.0, effective 9/14/21), Unicode standardizes the encoding of 159 written character sets called “scripts” comprising 144,697 characters, plus multiple symbol sets and emoji characters.

The Unicode Consortium crafted Unicode to co-exist with the longstanding ASCII and ANSI character sets by emulating the ASCII character set in corresponding byte values within the more extensible Unicode counterpart, UTF-8.  UTF-8 can represent all 128 ASCII characters using a single byte and all other Unicode characters using two, three or four bytes.  Because of its backward compatibility and multilingual adaptability, UTF-8 has become the most popular text encoding standard, especially on the Internet and within e-mail systems. 

Exploding Heads and Encoding Challenges

As tempting as it is to regard encoding as a binary backwater never touching lawyers’ lives, encoding issues routinely lie at the root of e-discovery disputes, even when the term “encoding” isn’t mentioned.  “Load file problems” are often encoding issues, as may be “search difficulties,” “processing exceptions” and “corrupted data.”  If an e-discovery processing tool reads Windows-1252 encoded text expecting UTF-8 encoded text or vice-versa, text and load files may be corrupted to the point that data will need to be re-processed and new production sets generated.  That’s costly, time-consuming and might be wholly avoidable, perhaps with just the smattering of knowledge of encoding gained here.

Thanks for Stopping By

Today marks the tenth anniversary of this blog. It was born of frustration when years of essays I’d contributed to an American Lawyer Media blog were sold to Lexis, and stashed behind a paywall without so much as a by your leave. “Never again!” I vowed. I knew I’d lose readers going it alone, but I would be master of my destiny.

I christened the site with a quote from David Copperfield: “Whether I shall turn out to be the hero of my own life, or whether that station will be held by anybody else, these pages must show, adding, “I want the heroes of this site to be its readers: the lawyers, judges, support personnel and others with the wisdom to know they must master electronic evidence and the temerity to try. Blogging is an indulgence and a responsibility.  If I want you to visit, I’ve got to give you something worth your time.  Here, I’ll share things I’ve picked up about electronic discovery and computer forensics, striving to make those topics as interesting, exciting and engaging for you as they are for me.” 

So it began, and ten years on, I’ve written 228 posts, acquired 1,715 subscribers and been privileged to have 260,000 heroes stop by. I hope that I have shaped your thinking as you have shaped mine. Thank you.

Writing these pages has been a decade of joy. Ball in Your Court has been my place to float ideas, debate issues, fete friends, share discoveries, celebrate triumphs and mourn the passing of the dearly beloved. It would count for nothing at all without you, Dear Reader. I’m so grateful to know you’re there. Be well.

Why E-Discovery and Digital Evidence?

On the eve of each semester, I revise my E-Discovery Workbook to hasten my law students’ arrival at that glorious “aha” moment when the readings and exercises coalesce into something like understanding. In the decade I’ve been teaching E-Discovery and Digital Evidence, I’ve learned a good deal about what does and doesn’t work. I’ve also learned what I need to change in myself to teach them; not just the superstars who make teaching a joy, but the students who stumble and grumble and worry me to death. Some of what I’ve learned goes to the assumptions that I can and cannot safely make about my students’ understanding of law practice and the so-called “real world.” I fear I may do them a disservice if I dive into the fantastic world of forensic evidence without ensuring they have a context for what it is and why it matters. So, the material that follows is my latest effort on that score. I hope you find it worth your time and I’m grateful for your feedback and comments.

Introducing E-Discovery and Digital Evidence

The passing mention made of discovery during first year civil procedure classes cannot prepare law students to grasp the extent to which discovery devours litigators’ lives. For every hour spent in trial, attorneys and trial teams devote hundreds or thousands of hours to discovery and its attendant disputes.

Too, discovery is a trial lawyer’s most daunting ethical challenge. It demands lawyers seek and surrender information providing aid and comfort to the enemy—over the objections of clients, irrespective of the merits of the case, and no matter how much they distrust or detest the other side. Is there a corollary duty to act against interest in any other profession?

Discovery is hard because it runs counter to human nature, and electronic discovery is harder because it demands a specialized knowledge and experience few lawyers possess and far afield of conventional legal scholarship. E-discovery skills, as much as they’ve been key to lawyer competency for decades, are yet apt to be denigrated or delegated.

Civil discovery is a high-stakes game of “Simon Says.”  Counsel must phrase demands for information with sufficient precision to implicate what’s relevant, yet with adequate breadth to forestall evasion. It’s as confounding as it sounds, making it miraculous that discovery works as well as it does. The key factors making it work are counsel’s professional integrity and judges’ enforcement of the rules.

Counsel’s professional integrity isn’t mere altruism; the failure to protect and produce relevant evidence carries consequences ranging from damaged professional reputations to costly remedial actions to so-called “death penalty” sanctions, where a discovery cheater forfeits the right to pursue or defend a claim. Lawyers may face monetary sanctions and referral to disciplinary authorities.

The American system of civil discovery embodies the principle that just outcomes are more likely when parties to litigation have access to facts established by relevant evidence. Since relevant evidence often lies within the exclusive province of those not served by disclosure, justice necessitates a means to compel disclosure, subject to exceptions grounded on claims of privilege, privacy, and proportionality.

The U.S. Federal Rules of Civil Procedure articulate the scope of discovery as, “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case….”  Adding, “Information within this scope of discovery need not be admissible in evidence to be discoverable.”  Rule 401 of the Federal Rules of Evidence defines evidence as relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action (i.e., the fact is material).

Relevant.  Proportional. Nonprivileged. Commit these touchstones to memory.

The discovery of an opponent’s electronically stored information begins with a request for production under Rule 34 of the Federal Rules of Civil Procedure or a similar state rule of procedure. Rule 34 lets a party request any other party produce any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—in the responding party’s possession, custody, or control.  The responding party must respond to the request in writing within 30 days and may lodge specific objections and withhold production pursuant to those objections.

The simplicity of the rule hardly hints at its complexity in practice.  A multibillion-dollar industry of litigation service providers and consultants exists to support discovery, and a crazy quilt of court rulings lays bare the ignorance, obstinance, guile, and ingenuity of lawyers and clients grappling with the preservation and exchange of electronic evidence.

To appreciate what competent counsel must know about digital discovery, consider the everyday case where a customer slips and falls in a grocery store. A store employee witnesses the fall, helps the customer up and escorts her to the store manager, who prepares a written incident report. The customer claims the fall was caused by a pool of grease on the floor alongside a display of roasted chickens.  The customer returns home but feels enough pain to visit an emergency room the next day. After months of medication and therapy, doctors diagnose a spinal injury necessitating surgery. When the grocery store refuses to pay for medical care, the customer hires a lawyer to seek compensation.

From the standpoint of relevance in discovery, the case will stand on three legs: liability, causation and damages.

To establish liability, tort law requires the plaintiff demonstrate duty and a breach of that duty. The store owes customers a duty to furnish reasonably safe premises and to act reasonably to correct or warn of an unsafe condition like slippery chicken fat on the floor.  Yet, the store’s personnel must be aware of the condition to be obliged to correct or warn of the hazard or the defect must be present for a sufficient time that a reasonable store should have become aware of the hazard and protected its customers.

The store defends against liability by asserting that there was no grease on the floor and, alternatively, that any grease on the floor was spilt by another customer and, despite exercising reasonable care, the store lacked the opportunity to find and clean up the spill before the fall. The store also asserts the plaintiff failed to watch where she was walking, contributing to cause her injuries. Finally, the store contests damages and causation, arguing that the plaintiff exaggerates the extent of her injuries and something other than the fall—perhaps a pre-existing condition or an unrelated trauma—is the true cause of plaintiff’s complaints.

As plaintiff’s counsel ponders the potentially relevant evidence in the store’s control, he wonders:

  1. Who might have witnessed the fall or the conditions?
  2. Were witness statements obtained?
  3. How did the store clean up after the fall?
  4. Were photographs taken?
  5. Were video cameras monitoring the premises?
  6. Is there a history of other falls?
  7. Did the roasted chicken display leak?
  8. How frequently are the floors inspected and cleaned?

Defense counsel has her own questions:

  1. Did the plaintiff stage the fall to profit from a claim?
  2. Did the plaintiff suffer from a pre-existing condition?
  3. Has the plaintiff made other claims?
  4. Was the plaintiff impaired by drink, drugs or disability?
  5. Has the plaintiff behaved inconsistently with her claimed infirmities?

Both sides worry whether the other side acted diligently to preserve relevant evidence and if anyone has altered or destroyed probative material. In gauging proportionality, comparable cases have prompted damage awards ranging from one-half million to two million dollars.

The store is part of a national chain, so there are detailed policies and procedures setting out how to police and document the premises for hazards and deal with injuries on the property. There’s an extensive network of digital video cameras throughout the store, warehouse, and parking lot.  A database logs register sales, and all self-checkout scanners incorporate cameras. Employees clock in and out of their shifts digitally. Multiple suppliers and subcontractors come and go daily. Virtually everyone carries a cell phone or other device tracking geolocation and exertion.  A corporate database serves to manage claims, investigations, and dispositions. Even a simple fall on chicken fat casts a long shadow of electronic artifacts.

Video of the fall and the area where it occurred is crucial evidence. Store policy required a manager review and preserve video of the event before recordings overwrite every 14 days. The manager reviewed the store video and, from one of the deli-area feeds, kept footage beginning one minute before the fall until five minutes afterward, when a store employee led the plaintiff away, but before cleanup occurred. In the video, another kiosk obstructs the view of the floor. The manager also preserved video of the plaintiff arriving and leaving the premises. In one, plaintiff is looking at her phone. The surveillance system overwrote other video recordings two weeks later.

The manager photographed the area showing the condition of the floor, but arrived after employees mopped and placed yellow caution cones. The store’s counsel claims staff mopped because the plaintiff dropped a chicken she’d selected, spilling grease when she fell, not because there was any grease already on the floor.

The parties engage in discovery seeking the customary complement of medical records and expenses, lost earnings documentation, store policies and procedures, similar prior incidents, and incident investigations.

Seeking to identify eyewitnesses or others who may have spilled grease buying roast chicken, plaintiff requests the store “produce for a period one hour before and after the fall, any photographic or transaction record (including credit- and loyalty-card identifying data) of any persons on the premises.”  Plaintiff makes the same request for “any persons who purchased roast chicken.”  Plaintiff also demands the names, addresses, and phone numbers of employees or contractors on the premises within one hour on either side of her fall.

In its discovery, the store asks that plaintiff “produce any texts, call records, application data or other evidence of phone usage for one hour before and after the alleged fall and the contents of any social networking posts for six months prior to the alleged injury to the present where any content, comment, or imagery in the post touches or concerns the Plaintiff’s state of mind, physical activity, or consumption of drugs or alcohol.”  The store also demands that plaintiff produce “data from any devices (including, but not limited to, phones, apps, fitness equipment, fitness monitors, and smart watches) that record or report information about the plaintiff’s sleep, vital signs, activity, location, movement, or exertion from six months prior to the alleged fall to the present date.”

Chances are both sides will balk at production of the electronically stored data, and it will eventually emerge that neither side considered the data sought when obliged to preserve potentially relevant evidence in anticipation of litigation. The parties will meet and confer, seeking to resolve the dispute; but when they don’t arrive at a compromise narrowing the scope of the requests, both sides will file Motions to Compel asking the Court to order their opponent to hand over the information sought.

The parties will object on various grounds, alleging that the information isn’t relevant, doesn’t exist, or is not reasonably accessible. Lawyers will point to undue burden and cost, oppression, excessive inroads into private matters, and even claims the data requested is privileged or a trade secret. Requests will be challenged as “disproportionate to the needs of the case.”

One side assures the judge it’s just a few clicks to gather the data sought.  With equal certainty, the other side counters that the task requires teams of expensive experts and months of programming and review.

Plaintiff’s counsel points out that every roast chicken sold the day of the fall bore a Universal Product Code (UPC) scanned at a register to establish its price and update the store’s inventory control system.  Thus, every roast chicken sale was logged and the name of every buyer who used a credit, debit, loyalty, or EBT/SNAP assistance card was likewise recorded. “It’s right there on the register receipts,” counsel argues, “Just print them out.”  “It’s the same for every employee,” he adds, “they scan people in and out like roast chickens.”

Plaintiff is less sanguine about the defense’s demand for phone, social networking, and fitness monitor evidence, uncertain how to collect, review, and produce whatever’s not been lost to the passage of time. “It’s going to take forever to look at it all,” she protests, “and who knows if there’s anything relevant? It’s disproportional!”

The defendant concedes it tracks purchases and card usage, but not in the same system. The store claims it can’t pair the transactions and, if they produce the names, will those buyers prove to be eyewitnesses? Defense counsel cries, “Judge, it’s a fishing expedition!”

As both sides dodge and dither, the information sought in discovery vanishes as, e.g., the store purges old records or plaintiff upgrades her digital devices.  All but a minute of video leading up to the fall has been overwritten by the time the first discovery request is served.  When that scant minute proves too short to establish how long the grease was on the floor, the plaintiff is prejudiced and files a Motion for Sanctions seeking to punish the defendant for the failure to preserve crucial evidence.  When it’s learned the plaintiff closed her Facebook account after the fall and her posts are gone, the defendant files its own Motion for Sanctions.

The defendant will argue that it shouldn’t be punished because it didn’t intend to deprive the plaintiff of the video; “it just seemed like a minute was enough.” Defendant will claim harm occasioned by the loss of plaintiff’s Facebook posts, positing the lost posts would have shown the plaintiff to be physically active and happy, undermining plaintiff’s claims of disability and lost enjoyment of life.

This is just a run-of-the-mill slip and fall case, but the outcome depends upon the exchange of an assortment of relevant and probative sources of electronic evidence.

Now, consider the far-flung volume and variety of electronic evidence in a class action brought for 100,000 employees, for a million injured by a massive data breach or a bet-the-company patent fight between technology titans. We cannot throw up our hands and say, “It’s too much! It’s too hard! It’s too expensive!”

Instead, we must balance the need to afford access to information enabling resolution of disputes based on relevant evidence against denying that access because costs and burdens outweigh benefits. Competency is key because disparity breeds distrust. Most would agree that the better a lawyer’s grasp of information systems and electronic evidence, the greater the potential for consensus with a knowledgeable opponent acting in good faith.

But, when it comes to competency in e-discovery, there’s little agreement. Must lawyers comprehend the discovery tasks they delegate to others? Where is the line between delegating discovery to laypersons and the unauthorized practice of law? How does a lawyer counsel a client to preserve and produce what the lawyer does not understand and cannot articulate?

We can define literacy and measure reading proficiency; but there is no measure of literacy when it comes to electronic evidence and e-discovery. How can one become literate in the conventional sense without knowing an alphabet, possessing a vocabulary, and understanding the concepts of words and phrases? A gift for pattern recognition might let a savant fake it for a time; but genuine literacy entails mastering fundamentals, like awareness of speech sounds (phonology), spelling patterns (orthography), word meaning (semantics), grammar, (syntax), and patterns of word formation (morphology). One in eight adult Americans cannot read. Do we expect any of them are lawyers?

Electronic evidence and e-discovery literacy demands more than what’s required for computer literacy (the ability to use computers and related technology efficiently) or digital literacy (the ability to find, evaluate, and communicate information via digital platforms). Computer and digital literacy are just a start: necessary but insufficient.

Competence in e-discovery and digital evidence encompasses a working knowledge of matters touching evidence integrity and being equipped to support and challenge the authenticity and admissibility of electronic evidence. Competence requires that one understand, inter alia, what electronically stored information is, where it resides, the forms it takes, and the metadata it implicates. What makes it trustworthy? How is it forged and manipulated? What constitutes a chain of custody sufficient to counter attacks on your handling of evidence? How do you properly preserve data without altering it? How do you communicate technical obligations to technical personnel without understanding the language they speak and the environment in which they work? How do you seek, cull, search, sort, review, and produce electronically stored information? What does it cost? How long does it take?

We expect banking attorneys to understand banking and real estate attorneys to understand real estate. Shouldn’t we expect trial lawyers to understand e-evidence and e-discovery? If so, do we start by teaching them the alphabet or do we hope they can learn to fake it without fundamentals?

This course reflects my sense that, while one can surely become a fine physician without it, I want my doctor to have taken biochemistry…and passed. Likewise, I believe students of electronic evidence and e-discovery must not be strangers to data storage, collection, encoding, processing, metadata, search, forms of production, and the vocabulary of information technology and computer forensics.

If you believe that all a trial lawyer needs to know is the law, this is not the course for you. Here, we celebrate the “e” in e-discovery and e-evidence. You’ll get your hands dirty with data, use modern tools and learn to speak geek. We strive together toward competence and confidence, so that you may emerge, not as ill-equipped computer scientists, but poised to be truly tech-savvy litigators.

Is Pinpoint the Future of eDiscovery?

Like most, I mark time in milestones, and a milestone year for me is 1908.  That was the year my lawyer father, Herbert Ball, was born–113 years ago tomorrow. To be clear, dad probably wasn’t born a lawyer; yet everything about him supported the conclusion that he sprang from the womb clutching a Harvard Law degree.  “Aught eight” was also the year another lawyer, William Howard Taft, became President of the United States; and still another lawyer, Thomas Riley Marshall, became Governor of Indiana.  Marshall would go on to be Vice President of the United States under Woodrow Wilson; yet, if you know Thomas R. Marshall’s name at all, it is only as the man who reportedly said, “What this country needs is a really good five-cent cigar.”

Nope.  Sorry.  Uh-uh. What this country needs is a really low cost e-discovery platform.  Something simple that lets lawyers see and search electronic evidence without spending a bunch of money.  Or any money, really.

I’ve decried the absence of low-cost eDiscovery tools since Edison recorded sound.  A dozen years ago, I laid down the EDna Challenge begging the vendor community for something a lawyer could use to process and review small collections of ESI for less than $1,000.00.  They all laughed.

The vendors are laughing still…all the way to the bank.  Yet, a glimmer of hope crept over the transom today as I dragged and dropped a container file holding 50,000 e-mail messages into a free Google tool called Pinpoint.

Within minutes, Google converted the emails to PDFs and ran optical character recognition (OCR) against embedded imagery.  I quickly realized that Pinpoint hadn’t processed email attachments, so I grabbed the native attachments and pointed Pinpoint to them.  The attachments uploaded, images were OCR’ed and audio files were transcribed!  Even handwritten items were converted to searchable text!  What? WHAT!

I expected a Google product to be adept at search, but WOW!  Pinpoint’s AI proved a powerful adjunct to human exploration.  Pinpoint automatically searches for spelling variants and synonymous terms, though you can restrict searches to exact matches using quotation marks.  Searching John Podesta’s email for “Hillary Clinton” turned up documents that only contained the initials, “HRC.”  Whoa!  A search for “victory” hit on documents with the term “winning,” and Pinpoint found those hits within images deployed in a PowerPoint presentation.

Pinpoint OCRs and enables keyword search and entity filtering for these file types:

  • PDF
  • Emails (.EML) and email archives (.MBOX)
  • Images (.JPEG, .PNG, .GIF, .BMP, .TIFF)
  • Text (.TXT, .RTF)
  • Structured text (.CSV, .XML, .TSV)
  • Microsoft Word (.DOC, .DOCX)
  • Microsoft Excel (.XLS, .XLSX)
  • Microsoft PowerPoint (.PPT, .PPTX)
  • Web pages (.HTML)
  • Audio (.MP3, .MP4, .M4A, .WAV, .FLAC, .WMA, .AAC, .RA, .RAM, .AIF, .AIFF)

When you run keyword searches, Pinpoint highlights hits. Highlighting works for native PDFs and files Pinpoint converted to PDFs:

  • Emails (.EML) and email archives (.MBOX)
  • Images (.JPEG, .PNG, .GIF, .BMP, .TIFF)
  • Microsoft Word (.DOC, .DOCX)
  • Microsoft PowerPoint (.PPT, .PPTX)
  • Audio (.MP3, .MP4, .M4A, .WAV, .FLAC, .WMA, .AAC, .RA, .RAM, .AIF, .AIFF)

Pinpoint instantly displays any document it converts to PDF and users can search and filter the following file types, but to view the content of these native formats you must open them outside of Pinpoint:

  • Microsoft Excel (.XLS, .XLSX)
  • Structured text (.CSV, .XML, .TSV)
  • Web pages (.HTML)

Pinpoint supports collaboration by enabling Pinpoint users to share their collections.  Other users can see, search, filter and download documents but won’t be able to add to the collection.

Pinpoint is a glimpse of an affordable future for eDiscovery.  Truly, it’s eDiscovery for everyone, but not without limitations.  Tagging is clumsy, export is an item-by-item slog and users are currently limited to 100GB of storage and about 200 thousand files.  Mail containers must be converted to MBOX or EML formats to load.  Right now, it’s just not built for eDiscovery.  It’s designed for journalists, and there are key things it can’t do that lawyers need.

But consider what it can do: no cost processing and hosting of the filetypes common to eDiscovery.  Brilliant search.  Automatic transcription of sound files and automatic OCR of images, with solid privacy and security for uploaded content. For free.

The power and the promise are there.  The price is right.  There’s no public development roadmap for Pinpoint but it won’t take much for it to become a capable tool for DIY eDiscovery.  Next time you wonder, “Where’s the Google for eDiscovery?” the answer may be easy to Pinpoint.