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Ball in your Court

~ Musings on e-discovery & forensics.

Ball in your Court

Monthly Archives: September 2018

On the Road Again: PREX and FEST

24 Monday Sep 2018

Posted by craigball in Computer Forensics, E-Discovery, General Technology Posts, Personal, Uncategorized

≈ Comments Off on On the Road Again: PREX and FEST

PREXFEST_SMThe Texan in me can’t hear the phrase “on the road again” without also hearing Willie Nelson’s nasal voice singing it.  But, the life I love IS making music with my friends, if by “music” we mean bringing “aha” moments to lawyers and others interested in e-discovery and forensic technology.

Today, I head to Portland, for the 2018 Preservation Excellence or PREX Conference put on annually by the good folks at Zapproved.  It’s a splendid faculty congregated in an always-lovely venue and punctuated by good conversation, fine food and the splendor that is Oregon in September.  PREX is always worth the trip; so, if you have the chance to go, by all means, attend.

This year I have a lot to do at PREX.  I have the privilege to host a keynote discussion with CNN and The New Yorker magazine legal commentator, Jeffrey Toobin.  You can be sure that the U.S. Supreme Court, the Mueller investigation and Brett Kavanaugh’s confirmation hearing will all come up.  Toobin is a bestselling author of seven books, including several on the Supreme Court and on the O.J. Simpson murder case and kidnapped heiress Patty Hearst.  Talking with Toobin rounds out my opportunity to do Charlie Rose-style conversations with Doris Kearns Goodwin and Nina Totenberg at earlier Zapproved events.

I’ll also moderate a “People’s Court” debate between Brett Tarr and Dan Nichols.  Brett is Chief Counsel for E-Discovery and Information Governance at gaming conglomerate Caesars Entertainment, and Dan is a partner with Redgrave LLP, the far-flung corporate e-discovery consultancy.  These two really despise each other, so there’s sure to be a lot of eye-gouging and attacks on legitimate parentage.  (That’s my story, and I’m sticking to it).

Finally on Wednesday, I’ll be doing a little speaking of my own in a lonely breakout session where we will talk about preserving and discovering evidence on mobile phones.  They’ve titled it, OMG, SMS & ESI: Preserving & Collecting from Mobile Devices.  The session description reads:

How does one craft a discovery request for text messages? What are the different techniques for preservation, collection and review of mobile data? When does it make sense to complete a full forensic collection on a mobile device? This session will deliver foundational information and practical examples of process and policy management for mobile devices in ediscovery.

if you haven’t yet come to grips with mainstreaming mobile devices into day-to-day e-discovery, know you’re not alone–everyone is struggling, or more likely closing their eyes, hoping mobile will go away.  Perhaps we can make some progress together.

PREX  September 25 – 27, 2018  |  Portland, OR

Then, no-rest-for-the-dreary, I wing to the Windy City of Chicago (so-called NOT due to weather, but for the propensity of its politicians to pontificate at length).  I’m heading to the annual Relativity Fest, a stupendous amalgamation of e-discovery education and evangelical tent meeting cum rock concert.  If there were the slightest doubt that Relativity dominates the e-discovery review space (and is hungry to gobble up the rest of the EDRM), such foolish doubt will be crushed by the power of Fest.

I enjoy Fest for many reasons, not the least of which is the chance to work with the always-engaging David Horrigan, Relativity’s discovery counsel and legal content director.  David is a fine writer, insightful commentator and skilled teacher.  Eclipsing that is his distinction as a great guy, someone always fun to be around and adept at eliciting the best from those he hosts.

At Fest, David will moderate a panel I’m on called The Internet of Things from a Legal, Regulatory, and Technical Perspective.  I’m fortunate to join Gail Gottehrer, Partner and Co-Chair of the Privacy, Cybersecurity, and Emerging Technology Practice at Akerman, who will give the regulatory perspective, and Ed McAndrew, Partner at Ballard Spahr and former DOJ cybercrime coordinator, who’s charged with the legal point of view.  I guess that leaves the technical stuff to me, which is where I’m happiest anyway.

Relativity Fest  Sep. 30 – Oct. 3, 2018 | Hilton Chicago

I hope to see you at one or both of these exciting confabs, enjoying two fine faculties in wonderful venues.  The joy and value of these events isn’t just what’s planned, but the interactions around and outside of the sessions, too.

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Meet Tom O’Connor

10 Monday Sep 2018

Posted by craigball in E-Discovery, Uncategorized

≈ 5 Comments

toc_smallAnyone who’s been around electronic discovery for long is sure to know my old friend, Tom O’Connor of New Orleans. Understand, I don’t call Tom “old friend” because we’ve known each other for a long time (though we have).  I do it because Tom’s OLD.  He’s freaking ancient. But, the centuries haven’t been entirely wasted on Tom because in addition to a three-foot ponytail and a beard to rival Santa’s, Tom has acquired a surfeit of wisdom and friends.  Tom has his finger squarely on the pulse of the e-discovery industry and possesses a refined sense of what’s coming and the personalities pulling strings.  People enjoy talking to Tom, and Tom listens.  He’s a guy to have on your team; someone who makes things better just by being part of them.

I mention Tom (and will now quit yanking his chain age-wise) because he often invites me to join him on a YouTube series called The eDiscovery Channel.  I took over co-hosting from the late, great Browning Marean.  Browning’s are big shoes to fill, but the stakes are low: we reach less than 100 viewers.  It’s just for the fun of it, and we have a lot of fun.  We record in offbeat NOLA venues like Tom’s favorite cigar shop or sitting in a park.  Our production values rival the Zapruder film and, despite a topic in mind when we start recording, we inevitably stray with antic results.  At least we’re laughing.

In our latest one-hour episode on drafting forensic examination protocols, we digressed to a discussion of innovation in litigation, touching the obligatory stations of the cross, predictive coding, artificial intelligence and blockchain.  I’m deeply concerned by diminished resources for lawyers to gain basic technical competency.  Buzzword technologies have sucked the air from the room when it comes to e-discovery education.  Lawyers have abdicated responsibility for the left side of the EDRM.

The problem I see is this:

Advanced review technologies like predictive coding and AI are routinely deployed against data lousy with errors in collection, culling and processing—errors born of poor e-discovery skills and fostered by a rush to apply fancy joinery to rotten wood.  As a requesting party, do you think that your interests are best served by a contentious push for predictive coding when you haven’t scrutinized the effectiveness of collection and exclusion?  E-discovery needn’t be a choice between bad collections and good tools or good collections and bad tools.

Lawyers must fight for quality before review.  Sure, review is the part of e-discovery most lawyers see and understand, so the part many fixate on.  As well, review is the costliest component of e-discovery and the one with shiny new tools. But here’s the bottom line: The most sophisticated MRI scanner won’t save those who don’t survive the trip to the hospital.  It’s more important to have triage that gets people to the hospital alive than the best-equipped emergency room. Collection, culling and processing are the EMTs of e-discovery.  If we don’t pay close attention to quality, completeness and process before review, review won’t save us.

We need balance and a focus on fundamentals.  We’ve lost the first; we never had enough of the second.  And if you need more e-discovery mirth and merriment, stop by the E-Discovery Channel and meet Tom O’Connor, REALLY FAMOUS consultant,  speaker,  writer.

P.S. I think I owe an explanation of the photo of Tom that begins this post.  Tom told a story about an author who always came to the ABA Techshow carrying a banner inviting attendees to meet him in person.  As a prank, I had a tongue-in-cheek banner made for Tom and was surreptitiously hanging it off his porch in New Orleans when he caught me red-handed,  Tom would never toot his own horn that way; but, he was a great sport about it .  And as for Tom being old, I have to concede that he’s not that far ahead of me.  I’m 20 in my mind’s eye, so that makes Tom around 25.

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Easing the Pain of Protective Orders

03 Monday Sep 2018

Posted by craigball in Computer Forensics, E-Discovery, Uncategorized

≈ 3 Comments

protective_orderDoes anyone read what they sign anymore?  We all click through EULA’s; but shouldn’t lawyers and experts pay close attention to the terms of protective orders?

Here’s a familiar scenario:

Client says, “we have discovery responses you need to review, sign this acknowledgement to be bound by a protective order.”  I read the order and respond, “I can’t,” adding, “Like you, I have work product to protect, and like you, I back up my data.  I can’t ‘return’ data residing on backups.  I’ll carefully protect the data, but I can’t commit to destroy or return it when the case concludes.”

I’m the bad guy because everyone else signs.

First, let me further explain the conundrum.  Continue reading →

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