Eight years ago, my old friends and Über-thought leaders Bill Hamilton and George Socha created an e-discovery conference targeting an underserved constituency: lawyers without the luxury of an e-discovery practice group or litigation support staff. Regular folks. The always enlightening and enjoyable University of Florida E-Discovery Conference has been a fixture on my speaking calendar for years. This year, the pandemic foreclosed the customary face-to-face confab in central Florida, so we convened virtually– just Bill, George, me and 3,000 of our closest friends. Seriously, the turnout was astounding: 3,058 unique attendees! BRAVO!
My contribution was modest–fifteen minutes chatting about Life Lessons from E-Discovery. Here’s what I shared:
Thirty years ago, Robert Fulgham published a bestseller called, “All I Really Need To Know I Learned In Kindergarten.” It posited that the simple lessons we gained as children can guide us all our lives.
The lessons were things like:
- Share everything.
- Play fair.
- Don’t hit people.
- Put things back where you found them.
- Clean up your own mess.
- Don’t take things that aren’t yours.
- Say you’re sorry when you hurt somebody.
- Flush and wash your hands.
That last one proved especially useful of late!
Fulgham’s point was that childish precepts extrapolate well to our adult lives, to relationships, business, government, really to everything.
I’ve been a student and teacher of electronic evidence for forty years, so when Professor Hamilton asked me to say a few words today, I wondered what I’d gleaned from electronic discovery that might yield life lessons like those kindergarten rules. Many things came to mind. Things like:
They all say basically the same thing: treat others with respect and courtesy. I commend them all to you, but the shameful truth is I’ve violated enough of those precepts that I feel unworthy to preach their indisputable value.
Instead, I sought five precepts uniquely suited to e-discovery, five lessons I’ve acquired and come to believe in through hard experience.
I should confess that my point of view is a jaundiced and cynical one. As a special master, Courts bring me in when discovery’s gone off the rails, often when sanctions are in the offing. In my world, incompetence and deceit are the norm. So, if my lessons strike you as too obvious or too simple, I’m thrilled to hear it.
The first rule, and really the most fundamental is:
Tell the truth based on fact.
Albert Einstein said, “Imagination is more important than information.” Sorry, Al, not in e-discovery.
When it comes to e-discovery, information is more important than imagination. In e-discovery, information is everything. Measurement trumps opinion. Your gut sense that the other side is withholding evidence is fascinating, but it’s not proof. Your certainty that the client has no responsive data is just baloney without a competent search.
If we are to be credible professionals, We must concede what we don’t know, share what we do know and recognize that cooperation isn’t a hallmark of weakness but a harbinger of strength. Bluffing is fine at the poker table, but it will kill you in Court. Your word—your credibility—your reputation for honesty is worth more than all your education and skill.
And a variant on number one is:
Tell the truth, no matter the consequences.
I’ve written hundreds of articles about e-discovery and forensics. Colleagues ask, “Aren’t you afraid something you wrote will be used against you in cross-examination?” I tell them I’ve never worried about that because I’ve told the truth as I knew it in everything I wrote. Sometimes I was mistaken, but I was never false. So, I don’t have to remember what I said. I just hold on to what I know to be true.
If someone wants to cite me to impeach me, bring it on! I’ll take them from punched cards to magnetic media to solid state storage, from big iron mainframes to client-server to the Cloud. I’ll share my conviction that learning never ends, and, yes, mistakes happen along the way. The measure that matters is how we own our errors. If we stick to the truth, we can gain more from failure than success.
My second precept is just one word. A century ago, IBM’s founder Thomas J. Watson put a word on an easel at a business meeting. It read “THINK.” That’s still IBM’s slogan, and it’s what I want to shout at lawyers who serve ridiculous requests for production or file boilerplate objections.
THINK! I want to stamp it on the foreheads of lawyers who just don’t think about where evidence is likely to be found or sensible ways to find it. I know lawyers to be first-class thinkers; so, it’s maddening when good lawyers take off their thinking caps in e-discovery. Any lawyer can learn enough tech to master the “E” in e-discovery. Anyone. All of us on this conference faculty are convinced of it. It’s what gets us out of bed each day.
But to do it, lawyers must cast aside doubt and turn off the parts of their brains that tell them they’re too old, too busy or just too much a lawyer to learn something new. Conferences like this one help—thank you for being here–but it takes more than a few hours on Zoom or a big litigation budget to become competent to serve your clients in the realm of electronic evidence. It requires a willingness to fearlessly embrace an unfamiliar discipline–to learn a second thing.
It takes a commitment to study, question, pursue and explore information about information and a commitment to THINK, THINK, THINK about how people communicate, what tools and software they use, their language, what metadata matters and where data lives. So, please don’t think you can’t learn it, or worse, that you need not learn it. You can and you must. Nothing less than the future of the civil justice system depends on it. Of course, you’re here pursuing greater expertise, so I’m preaching to the choir.
My third lesson is: Have a plan.
In my thirties, I read Robert Caro’s epic biography of Robert Moses. Moses was an urban planner who reshaped New York. Robert Moses’ massive projects got built. The secret to his success was that, where others came to planning meetings with ideas, Robert Moses arrived with blueprints and budgets. He was a man with a plan.
In e-discovery, lawyers are brilliant at articulating objections, at saying what clients won’t do; but what’s often missing is a well-reasoned plan for what clients will do. When you come with a plan, it’s clear you thought about what must be done. A practical plan demonstrates a commitment to progress. A reasonable plan forces the other side to work within your framework. Judges love it when lawyers have a plan. The Rules of discovery are written to better serve litigants with a plan.
The e-discovery plan is a protocol. E-discovery demands a good protocol and success in e-discovery requires that lawyers know which features of a protocol are crucial and which are negotiable. So, always show up with a plan.
Number four is: Never attribute to guile that which can be explained by incompetence.
I borrowed and adapted this one from my late friend, Browning Marean, who had a huge store of wise sayings. In fairness, Browning borrowed it from Robert Heinlein, whose “Heinlein’s Razor” reads, “never attribute to malice that which is adequately explained by stupidity.” Because we know lawyers aren’t stupid, I prefer to term it a shortfall in competence.
When a party messes up in e-discovery, the victims of failure often cry “foul” and suspect an intent to deprive them of the evidence. In my experience, intent,–I’m calling it “guile,”– when it’s genuine, tends to manifest as efforts to conceal the screw up—it’s the cover up that kills you, not the failure itself. Most screw ups are just… screw ups. Always avoidable, sometimes reprehensible, but more often the result of apathy than antipathy. Maybe that’s why the last set of Rules amendments shielded parties from serious sanctions for mere incompetence. In my mind, the decision to tie judges’ hands when disciplining incompetence and spoliation was a poor one. A mistakenly political one. Fear of sanctions was the prime driver of the e-discovery revolution. It was the reason lawyers and companies came around and started preserving and producing ESI. Sanctions were the driver of competence. Sadly, we never had much of a carrot, and now they’ve taken away the stick.
And my final lesson is one of human nature:
Remember that Courts guard their authority more scrupulously than your client’s rights.
What I mean by this, with no disrespect to the judges on this faculty or listening, is a recognition born of experience, that a party is considerably more likely to be disciplined for violating a court order than for failing to fulfill obligations to an opponent. The takeaway is that an effort to secure sanctions is a marathon, not a sprint.
You must take the time and make the effort to mature motions to compel or for protection into explicit orders of the Court. A court cannot function if its orders are ignored with impunity. So, if sanctions are your objective, position the failure to produce to be more than simply a transgression of your client’s rights, put it in the posture of something that threatens the court’s sovereignty.
And while we’re talking sanctions, never forget that sanctions are exceptional remedies. Courts hate to sanction parties or counsel. Though the threat of sanctions carried along in a case can be a useful tactic, seeking sanctions to patch a weak case is a fool’s errand. Discovery is a mechanism to gather evidence to make your case, nothing more or less than that.
Those are my five. I expect you have some great ones of your own. Next year, I’d like to hear you sharing yours right here. Even better, let’s all meet in Gainesville. Share our ideas. Break bread and toast a return to normalcy. That’s an invitation to join the e-discovery community. Being part of it has been one of the great delights of my professional life. I’ve made wonderful friends that way. You will, too.
Be well and thank you.
Along the lines of #4, I’ve always liked Oliver Wendell Holmes’ famous quote: “Even a dog knows the difference between being kicked and being stumbled over” Perhaps your lesson suggests that’s not the case for attorneys though.
Yes, I love that quote and use it all the time. Agreed it would have been a splendid choice, especially as demonstrating intent has become the central feature of spoliation battles. I often cite Holmes’ wisdom to the parties in the cases where I’m a master because, when called in to investigate data loss, the Court is often vitally interested in a report and recommendation going to intent Intent is the polestar that guides judges as they wend their way between remedial and punitive responses to lost evidence.
Mark Michels said:
I had the privilege of seeing your presentation. I appreciate your very thoughtful life lessons. Thank you!
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