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?  Continue reading →

This is the second 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.

Unclear on the Concept

 [Originally published in Law Technology News, May 2005]

A colleague buttonholed me at the American Bar Association’s recent TechShow and asked if I’d visit with a company selling concept search software to electronic discovery vendors.  Concept searching allows electronic documents to be found based on the ideas they contain instead of particular words. A concept search for “exploding gas tank” should also flag documents that address fuel-fed fires, defective filler tubes and the Ford Pinto. An effective concept search engine “learns” from the data it analyzes and applies its own language intelligence, allowing it to, e.g., recognize misspelled words and explore synonymous keywords.

I said, “Sure,” and was delivered into the hands of an earnest salesperson who explained that she was having trouble persuading courts and litigators that the company’s concept search engine worked. How could they reach them and establish credibility?  She extolled the virtues of their better mousetrap, including its ability to catch common errors, like typing “manger” when you mean “manager.”

But when we tested the product against its own 100,000 document demo dataset, it didn’t catch misspelled terms or search for synonyms. It couldn’t tell “manger” from “manager.” Phrases were hopeless. Worse, it didn’t reveal its befuddlement. The program neither solicited clarification of the query nor offered any feedback revealing that it was clueless on the concept. Continue reading →

One of the conceits of writing is the perception that when you’ve written on something, it’s behind you.  Not that nothing else need be said on the topic, but only that it need not be said by you.  That’s silly for a host of reasons.  I started writing the print version of Ball in Your Court ten years ago–before the 2006 Federal Rules amendments and before the EDRM.  Half my readers weren’t in the field then, and veteran readers surely missed a few missives. Plus, if the point was worth making, perhaps it bears repeating. So, I now revisit columns and posts from the primordial past of e-discovery–starting over as it were, updating and critiquing in places, and hopefully restarting a few conversations. As always, your comments are gratefully solicited.

The DNA of Data

[2005: the very first Ball in Your Court]

Discovery of electronic data compilations has been part of American litigation for two generations, during which time we’ve seen nearly all forms of information migrate to the digital realm.  Statisticians posit that only five to seven percent of all information is “born” outside of a computer, and very little of the digitized information ever finds its way to paper.  Yet, despite the central role of electronic information in our lives, electronic data discovery (EDD) efforts are either overlooked altogether or pursued in such epic proportions that discovery dethrones the merits as the focal point of the case.  At each extreme, lawyers must bear some responsibility for the failure.  Few of us have devoted sufficient effort to learning the technology, instead deluding ourselves that we can serve our clients by continuing to focus on the smallest, stalest fraction of the evidence: paper documents.  When we do garner a little knowledge, we abuse it like the Sorcerer’s Apprentice, by demanding production of “any and all” electronic data and insisting on preservation efforts sustainable only through operational paralysis.  We didn’t know how good we had it when discovery meant only paper. Continue reading →