Anyone 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.