Ten Common E-Discovery Blunders, Revisited

This is the fourteenth 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.

Ten Common E-Discovery Blunders

[Originally published in Law Technology News, August 2006]

A colleague recently asked me to list 10 electronic data discovery errors lawyers make with distressing regularity. Here’s that list, along with suggestions to avoid making them:

Committing to EDD efforts without understanding a client’s systems or data
It’s Russian roulette to make Electronic Data Discovery (EDD) promises when you haven’t a clue how much data your client has, or what and where it is. Instead, map the systems and run digital “biopsies” on representative samples to generate reliable metrics and gain a feel for how much are documents, e-mail, compressed files, photos, spreadsheets, applications and so on.It matters. A hundred gigabytes of geophysical data or video may be a handful of files and cost next to nothing to produce. The same 100 gigs of compressed e-mail could comprise tens of millions of pages and cost a fortune.

Thinking you can just “print it out”
Even if you’ve the time and personnel to stick with paper, is it ethical to subject your clients to the huge added costs engendered by your unwillingness to adapt? And remember that, in 2015, printing ESI to non-searchable, static TIFF images isn’t much better or cheaper than printing it out.

Foolishly believing that enough smart people can take the place of the right technologies or that the right technologies eliminate the need for enough smart people
No search tool yet invented finds every responsive or privileged e-document, and no law firm can marshal enough qualified people to manually review 100 million pages. The best outcomes in EDD flow from pairing well-trained people with the right tools. What was true then is truer now: effective, defensible discovery demands a mix of smart people and smart technologies. Advanced analytics like TAR are just tools. What’s a good hammer in the hands of a poor carpenter?

Ignoring preservation obligations until the motion to compel
The duty to preserve evidence doesn’t hinge on a preservation notice or lawsuit. You must advise your client to preserve potentially relevant paper and electronic evidence as soon as they reasonably anticipate a suit or claim. Even if they aren’t obliged to produce inaccessible electronic evidence, they’re probably obliged to preserve anything that may hold relevant information, including privileged content.

Thinking that search technology trumps records management
Sorry, but Google isn’t going to save us. Privileged communications once went straight from the printer into a file labeled “Attorney Correspondence.” Now, they’re jumbled with Viagra ads and notices about donuts in the coffee room. We need to enforce cradle-to-grave management for electronic records and restore the “power of place” that allows us to once more limit where we look for responsive data to just those places “where we keep that stuff.” Much of the heavy lifting will be over when users must “file” messages in a virtual “file room” when they’re sent or received.

Hammering out EDD agreements without consulting an expert
Just because both sides agree to something doesn’t make it feasible, or even a good idea. An agreed order stating that an expert will recover “all deleted files” sounds simple, but it’s the sort of muddled directive that needlessly drives up the cost of EDD. The right expert will identify efficiencies, flag pitfalls and suggest sensible, cost-effective search and sampling strategies from the earliest meet-and-confer session.If your client can’t afford an attending expert—though in the end, amateurs costs much more—at least run proposed agreements by someone in the know before they go to the judge.

Taking a “peek” at a computer that may contain critical evidence
Metadata is the data about data that reveals, inter alia, dates of creation, access and modification. Sometimes it’s the “who-knew-what-when” evidence that makes the case. But if you access an electronic document, even for a split second, you may irrevocably alter its metadata. So when metadata matters, beware the IT guy who volunteers to “ghost” the drive or run searches. Run—don’t walk—to engage a properly trained expert to create a forensically qualified image or clone of the evidence.

Failing to share sufficient information or build trust with the other side
The judges are serious about this meet-and-confer business. You can’t complain about the other side’s demand to see everything if you’re playing hide the ball. EDD-savvy requesting parties appreciate the futility of “any-and-all” requests, but how can they seek less if you keep them in the dark about the who, what and where of your client’s electronically stored information? Surviving the mutually assured destruction scenario for EDD means building trust and opening lines of communication. The EDD meet-and-confer isn’t the place for posturing and machismo. Save it for court.

Letting fear displace reason
Don’t let an irrational fear of sanctions rob you of your good judgment. Clients don’t have to keep everything. Judges aren’t punishing diligent, good-faith efforts gone awry. Your job is to help manage risk, not eliminate it altogether. Do your homework, talk to the right folks, document your efforts and be forthcoming and cooperative. Then, if it then feels right, it probably is.

Kidding ourselves that we don’t need to learn this stuff
O.K., you went to law school because you didn’t know enough technology to change the batteries on a remote control. This English major feels your pain. But we can’t very well try lawsuits without discovery, and we can’t do discovery today without dealing with electronically stored information.

You don’t want to work through an expert forever, do you? So, we have to learn enough about EDD to advise clients about preservation duties, production formats, deduplication, review tools, search methodologies and the other essential elements of e-discovery. Our clients deserve no less.

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I hadn’t read this column for a long time, and I’m pleased that it seems to hold up well. Perhaps that signifies we haven’t made all the progress we could have made. Although I’d written about the “power of place” in previous works, I was happy to see it here. I’m enamored of the “power of place;” not just because I coined that phrase in the context of e-discovery, but because I think it sums up the key difference between discovery then and now. Too many lawyers and judges imagine parties employ information governance mechanisms like the physical filing systems of the last century. Sure, they have something reminiscent of those–perhaps a folder hierarchy, network-shared repository or document management archive–but, it’s often just a feint toward information governance. These systems are typically, as my mentor Jim Kronzer used to say, “as weak as a popcorn fart.”

Much of what is responsive in e-discovery is just out there in the ether–shards of mail, messages, loose documents and data replicated hither-and-yon. It will be found only when we learn to manage it more intelligently and search for it more precisely. Or when an opponent thrusts a copy in your face while striding to the bench saying, “Your Honor, here is a perfect example of what they’ve been keeping from us.”

The fight for information is the fight for truth. My dream is that we will someday devote a fraction of the energy and ingenuity we give to “document retention” (which might fairly be called “discovery prevention” on the basis of what drives it today) to sensible information governance; viz., keeping more of the unique information that informs us because we can manage it well.