I speak with a lot of judges about e-discovery and digital evidence. I’ve taught at Federal Judicial Center programs from coast-to-coast and addressed confabs of judges in various states. Some of these presentations have turned into annual pilgrimages. Have PowerPoint. Will travel.
It’s a privilege to address judges because, among their own, judges are more cordial, relaxed and candid than in their courtrooms. But, it’s also a responsibility and a challenge. In the state systems, I can often be a judge’s first exposure to e-discovery.
Lawyers want the quick course in e-discovery. They expect to glean ESI skills in minutes, before they glaze over with the talk of metadata and forms of production. Lawyers seek the canned checklist or scripted list of questions, and little care if they understand what the check boxes mean or what the follow up question should be.
It drives me bonkers.
Judges want the quicker course in e-discovery. They’re not driven to win the case. They’re not worried about losing a client or looking bad to the partners. They know that discovery rulings are discretionary and rarely prompt findings of reversible error. Federal District Judges get to keep their jobs for life. Apart from hereditary monarchs, who else has that sort of job security?
Judges have hardly any incentive to learn something new, save one: They really want to make the right decisions.
But despite such purity of purpose, there are many reasons why e-discovery can be more challenging for the bench than for practicing attorneys, viz.:
- Judges tend to be more senior, with the consequence that most had little hands-on experience with electronically stored information (ESI) in their own law practices;
- Most lawyers are at sea with the technology, so less adept at framing ESI issues, making a record and educating courts;
- The common practice to “split the baby” to achieve a just result rarely prompts good outcomes in e-discovery.
Recently, a judge asked me to pull together tips for jurists dealing with e-discovery; a list slated to be part of a presentation to a statewide judicial conference later this year. Responding to that request became the topic of my upcoming column in the October issue of Law Technology News, where I offer ten tips for judges who want to get e-discovery right. Some are merely aspirational. Some are pretty specific. Here’s a preview:
Tip 1: Evidence is Digital: Embrace It
Electronic evidence is the new normal, and there is no going back. If you don’t fully accept that ESI is here and growing in importance, litigants will prey on your nostalgia and exploit your desire to stay within a last-century comfort zone. It’s okay if you lack hands-on experience with, e.g., social networking content, geolocation data, metadata and new forms of communication and collaboration; but, don’t assume that these aren’t powerful, probative and persuasive sources of evidence because they’re unfamiliar. Embrace the new evidence, or at least allow others to do so.
Tip 2: Manage More
Almost everything in e-discovery gets harder with inattention and the passage of time. So aggressively manage cases to flush out e-discovery problems early. Compel litigants to report on issues of preservation, scope, search, forms of production and privilege at the start of the case. Set scheduling conferences right after parties have answered. Impose deadlines, hold status conferences and keep matters on track.
Tip 3: Get the Geeks Together
Information Technology is a complex, challenging discipline with its own language. Lawyers are becoming more proficient with electronic evidence, but it may take a generation (or two) for them to become competent. Until then, we must rely upon forensic technologists to discern the different forms information takes and the location and operation of the systems storing responsive data. IT experts understand the structure of load files and grasp that metadata matters. Requiring the warring camps to designate technically-astute liaisons and making the lawyers simmer down while their experts figure things out may be the single smartest step a judge can take to promote an efficient resolution of e-discovery issues.
Tip 4: Focus on Forms of Production First
Intractable disputes often flow from litigants’ failure to settle on sensible forms of production at the start of a case. Issues as varied as how you collect and preserve ESI to the choice of tools used for review hinge on the forms of production. Rarely is a single form of production suited to all information produced. For example, imaged formats like TIFF or PDF coupled with extracted text and metadata supplied in load files may work reasonably well for e-mail messages, but fail miserably when applied to Excel spreadsheets, Word documents or PowerPoint presentations. The best results come from selecting the right forms of production considering the nature of the ESI and the needs of the parties.
Tip 5: Hardware, Software and Wetware
Most cases still come down to people a/k/a “wetware.” What people said. What people did. What people knew or didn’t know. So, directing discovery at the documents, communications and databases used by key people makes for a sensible scope of discovery. Doing so requires early disclosure of key players and compulsory transparency respecting the systems used in their work. It may also entail discovery about those systems from the technical personnel who manage them. A little discovery about discovery can stave off a lot of discovery about nothing.
Tip 6: Keywords are Tools Best Used by Those who Know What They Seek
Litigants frequently leap to keyword search without considering whether the ESI under scrutiny is well-suited to a lexical search or if it has been processed appropriately to support reliable outcomes. Because most parties lack tools and processes that support comprehensive search, culling with keywords typically entails collecting lots of data and tendering it to a service provider to be indexed and searched. Because vendors charge by the gigabytes of data ingested and lawyers aren’t especially adept at selecting keywords, the customary approach often proves frustrating and wasteful.
Instead, require parties to agree upon sensible collection and culling criteria and to test proposed searches on representative samples of ESI; then, have both sides look closely at the (non-privileged) results to identify ways to eliminate false positives. Be wary of limiting or expanding search based on the sheer number of searches or the magnitude of reported hits alone.
Tip 7: Make them Sample, Test and Iterate.
Trying to be efficient, a judge told parties quarreling over keywords, “I really only want to see a search done once.” But failing to employ an iterative approach and limiting litigants to a single set of search terms prompts approaches that bring back more, not better. A requesting party afforded a second or third search needn’t demand every conceivable term and variation. Search can be surgical; moreover, most e-discovery efforts process data into a database, such that subsequent searches of the database add little cost or burden.
Tip 8: Don’t Confuse Storage Media with its Contents
You’d look askance at a demand to rifle through an opponent’s desk in a civil case, so be wary of requests to gain unfettered access to an opponent’s computers and online accounts absent steps to protect privilege and privacy. To insure production of responsive ESI, you may need to order a party to get technical help or even appoint a neutral specialist; but, resist the temptation to compel a confused or recalcitrant party to surrender hard drives and passwords to an opponent.
Tip 9: Don’t Make Yourself the Standard
It can be tempting to rule by the standards of your former practice or your personal experience with technology. Don’t. Just because something is easy for you to find on your laptop, don’t assume it’s as easy on a corporate network. Simply because you don’t utilize certain metadata, don’t conclude that it’s inconsequential. It’s appropriate to expect greater competence in ESI from the parties and counsel than you possess. It’s not your job to know. It’s their job to educate you.
Tip 10: Demand Competence
The next time counsel says, “Judge, I don’t understand this e-discovery stuff,” don’t let it pass. Coming unprepared fosters waste, delay and injustice. It’s disrespectful to you and to our justice system. Demand competence in ESI from counsel in matters involving ESI.
I have more to add about the tips in the column and even offer a bonus tip; so, please look for the Ball in Your Court column when it comes out in print (or online after October 1, 2013 at www.lawtechnews.com). As always, I invite you to add your tips and feedback as comments to this post.
Ed Fiducia said:
Right on target as usual! Great stuff. The last sentence in item 3 jumped right off the screen. (I all but shouted AMEN at the computer). I would, however, propose to expand on that sentence in one way. Not only should the warring parites get their geeks together, but I would suggest that they include the Service Provider’s geeks in the conversation. Parties could save thousands upon thousands of dollars in wasteful conversion and processing costs if the hand-off between the IT department and the outside vendor was spec’d out correctly in the first place.
Regional Vice President and Sr. E-Discovery Consultant
Amen, Ed. Amen.
David Greetham said:
Great advice all round. I do notice the increase in understanding with some of the judges (albeit sometimes slower than ideal), in large part to the provision of credible recommendations, like the contents of this article!
pat c said:
It is “flesh” out, not “flush” out. Although, given most attorneys understanding of the issues, it usually is flush as opposed to flesh.
Actually, both usages work. You “flesh out” a problem as a means to analyze its ramifications for resolution. You “flush out” a problem, if you want to force it from the underbrush so that it can be fleshed out. I intended the latter, but wish I’d said “flush out and flesh out” (for the alliteration and parallelism).
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