This is the third in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations.  As always, your comments are gratefully solicited.

Cowboys and Cannibals

[Originally published in Law Technology News, June 2005]

With its quick-draw replies, flame wars, porn and spam, e-mail is the Wild West boom town on the frontier of electronic discovery–all barroom brawls, shoot-outs, bawdy houses and snake oil salesman.  It’s a lawless, anyone-can-strike-it-rich sort of place, but it’s taking more-and-more digging and panning to get to the gold.

Folks, we need a new sheriff in town.

A Modest Proposal
E-mail distills most of the ills of e-discovery, among them massive unstructured volume, mixing of personal and business usage, wide-ranging attachment formats and commingled privileged and proprietary content.  E-mail epitomizes “everywhere” evidence.  It’s on the desktop hard drive, the server, backup tapes, home computer, laptop on the road, Internet service provider, cell phone and personal digital assistant.  Stampede!

There’s more to electronic data discovery than e-mail, but were we to figure out how to simply and cost-effectively round up, review and produce all that maverick e-mail, wouldn’t we lick EDD’s biggest problem? 

The e-mail sheriff I envision is a box that pops up when you hit send and requires designation of the e-mail as personal or business-related.  If personal, it’s sent and a copy is immediately forwarded to your personal e-mail account.  The personal message is then purged from the enterprise system.  If business related, you must assign the message to its proper place within the organization’s data structure.  If you don’t put it where it belongs, the system won’t send it.  Tough love for a wired world.  On the receiving end, when you seek to close an e-mail you’ve read, you’re likewise prompted to file it within your organization’s data structure, deciding if it’s personal or business and where it belongs.

When I first broached this idea to my e-discovery colleagues, the response was uniformly dismissive: “Our people wouldn’t do it” being the common reply.  Hogwash!  They’ll do it if they have to do it.  They’ll do it if there’s a carrot and a stick.  They’ll do it if the management system is designed well and implemented aggressively.  I ask them, “Why do you make employees punch in a code to use the photocopier, but require no accountability for e-mail that may sink the company?”

Some claim, “Our people will just call everything personal or file all business correspondence as ‘office general.’”  Possibly, but that means that business data will be notable by its absence from its proper place.  Eventually, the boss will say, “Dammit Dusty, why can’t you keep up with your e-filing?”  In addition, Dusty won’t want the system to report that he characterizes 95% of the at-work electronic communications he handles each day as personal in nature.  Certainly, there needs to be audit and oversight, and the harder you make it to for a user to punt or evade the system, the better the outcome.  This model worked for paper.  It can work for e-mail.

Once, a discovery request sent a file clerk scurrying to a file room set aside for orderly information storage.  There, the clerk sought a labeled drawer or box and the labeled folders within.  He didn’t search every drawer, box or folder, but went only to the places where the company kept items responsive to the request.  From cradle to grave, paper had its place, tracked by standardized, compulsory practices.  Correspondence was dated and its contents or relevance described just below the date.  Files bore labels and were sorted and aggregated within a structure that generally made sense to all who accessed them.  These practices enabled a responding party to affirm that discovery was complete on the strength of the fact that they’d looked in all the places where responsive items were kept.

By contrast, the subject lines of e-mails may bear no relation to the contents or be omitted altogether.  There is no taxonomy for data.  Folder structures are absent, ignored or unique to each user.  Most users’ e-mail management is tantamount to dumping all their business, personal and junk correspondence into a wagon hoping the Google cavalry will ride to the rescue.  The notion “keep everything and technology will help you find it” is as seductive as a dance hall floozy…and just as treacherous.

E-discovery is not more difficult and costly than paper discovery simply because of the sheer volume of data or even the variety of formats and repositories.  Those concerns are secondary to the burdens occasioned by the lack of electronic records management.  We could cope with the volume if it were structured because we could rely on that structure to limit our examination to manageable chunks.  Satirist Jonathan Swift was deadly humorous when, in his 1729 essay, “A Modest Proposal,” he suggested the Irish eat their children to solve a host of societal ills, but I’m deadly serious when I modestly propose we swallow our reluctance and impose order on enterprise e-mail.  The payback is genuine and immediate.  Tame the e-mail bronco and the rest of the herd will fall in line.

Does imposing structure on electronic information erase the advantages of information technology?  Is it horse-and-buggy thinking in a jet age?  No, but it has its costs.  One is speed.  If the sender or recipient of an e-mail is obliged to think about where any communication fits within their information hierarchy and designate a “location,” that means the user has to pause, think and act.  They can’t just expectorate a message and hit send.  Dare we re-introduce deliberation to communication?  The gun-slinging plaintiff’s lawyer in me will miss the unvarnished, res gestae character of unstructured e-mail, but in the end, we can do with a little law west of the Pecos.

Way back in 2005, I said we needed a new sheriff in town (harkening back to what I supposed was an old Gary Cooper line from High Noon, although I can’t find any proof that Cooper ever spoke the famous line).  Seven years later, U.S. Magistrate Judge John Facciola pinned on the tin star in Taydon v. Greyhound Lines, Inc., writing, “[t]here is a new sheriff in town–not Gary Cooper, but me. The filing of forty-page discovery motions accompanied by thousands of pages of exhibits will cease and will now be replaced by a new regimen in which the parties, without surrendering any of their rights, must make genuine efforts to engage in the cooperative discovery regimen contemplated by the Sedona Conference Cooperation Proclamation.”

A decade on, it’s still all hat and no cattle when it comes to electronic records management.  Those who predicted even the simplest organizational taxonomies wouldn’t gain traction were dead right.  Yes, we’ve coined another buzzword for ERM, viz., “Information Governance;” but, we are no closer to ESI law and order west (or east) of the Pecos than we were in 2005.  If anything, the ascendency of text and social networking has made matters worse.  

What optimism exists springs from the hope that we will move from the Wild West to Westworld, that Michael Crichton-conceived utopia where robots are gunslingers.  The technology behind predictive coding will one day be baked into our IT apps, and much as it serves to protect us from spam today, it will organize our ESI in the future.