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: 

1. 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.

2. 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.

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This is a rant.  So, it will be mercifully short and posted on the weekend when few stop by.  I’m fed up with e-discovery surveys.  I mean those ersatz “studies” that solicit opinions about things that could be measured but aren’t, polling those sufficiently underemployed to respond and tallying and touting their responses as if they signified more than attitudes and prejudices.

Surveys have almost entirely displaced measurement in e-discovery.  When you scratch the surface of the many so-called studies of e-discovery that aspire to an academic aura, they’re just studies of surveys of attitudes.  No statistical rigor can make a lot of wild ass guesses anything more than a lot of wild ass guesses.  The studies do a decent job documenting what people think might be fact, but tell us nothing about fact because guesses about measurement are not the same as measurement. No, not even when you gather many guesses.

The Blair & Marron BART document study famously showed us that perception of e-discovery outcomes and measurement of those outcomes diverge markedly.  Polls don’t tell us where the money goes in e-discovery; and, why should we be surprised by this?  A poll of ancient Greek scholars could have “proven” the flatness of the Earth.  Seventy-seven percent of Americans polled believe angels are real and among us.  People believe what suits them; but, smart people believe what they can measure.

My point is this:  when it comes to e-discovery, virtually everything we hear—certainly every study of EDD cost I’ve ever seen—is based on processes wholly devoid of real measurement.  Authors tally up guesstimates from surveys then pass them off as scholarship.  It’s like taking tranches of bad mortgages and securitizing them as triple-A paper.  We all know how well that worked.

So, enough with the silly surveys!  They’re tired.  They’re useless.  They’re bunk.  Let’s try defining and measuring to arrive at numbers that mean something.  We’re not playing Family Feud here.  I don’t want to know what the survey says.  I want genuine metrics.

This is the eleventh 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.

A Golden Rule for E-Discovery

[Originally published in Law Technology News, March 2006]

Albert Einstein said, “In the middle of every difficulty lies opportunity.”  Electronic data discovery is certainly one of the greatest difficulties facing litigants today.  So wouldn’t you know some genius would seize upon it as an opportunity for abuse?  Perhaps Einstein meant to say, “In the middle of every difficulty is an opportunity for lies.”

I’m not talking about the pyrotechnic failures to produce email or account for back up tapes that brought low the mighty in such cases as Zubulake v. UBS Warburg and Coleman (Parent) Holdings v. Morgan Stanley.  Stonewalling in discovery predated electronic discovery and will likely plague our progeny’s progeny when they grapple with photonic or neuronal discovery.  But while an opponent’s “No, we won’t give it to you,” may be frustrating, it’s at least sufficiently straightforward to join the issue and promote resolution.  The abuses lately seen make stonewalling seem like fair play. Continue reading →

This is the seventh 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.

The Path to Production: Retention Policies That Work

(Part II of IV)

[Originally published in Law Technology News, November 2005]

We continue down the path to production of electronic mail.  Yesterday, I reminded you to look beyond the e-mail server to the many other places e-mail hides.  Now, having identified the evidence, we’re obliged to protect it from deletion, alteration and corruption.

Preservation
Anticipation of a claim is all that’s required to trigger a duty to preserve potentially relevant evidence, including fragile, ever-changing electronic data.  Preservation allows backtracking on the path to production, but fail to preserve evidence and you’ve burned your bridges.

Complicating our preservation effort is the autonomy afforded e-mail users.  They create quirky folder structures, commingle personal and business communications and — most dangerous of all — control deletion and retention of messages.

Best practices dictate that we instruct e-mail custodians to retain potentially relevant messages and that we regularly convey to them sufficient information to assess relevance in a consistent manner.  In real life, hold directives alone are insufficient. Users find it irresistibly easy to delete data, so anticipate human frailty and act to protect evidence from spoliation at the hands of those inclined to destroy it.  Don’t leave the fox guarding the henhouse.

Consider the following as parts of an effective e-mail preservation effort:

• Litigation hold notices to custodians, including clear, practical and specific retention directives. Notices should remind custodians of relevant places where e-mail resides, but not serve as a blueprint for destruction. Be sure to provide for notification to new hires and collection from departing employees.
• Suspension of retention policies that call for purging e-mail.
• Suspension of re-use (rotation) of back up media containing e-mail.
• Suspension of hardware and software changes which make e-mail inaccessible.
• Replacing backup systems without retaining the means to read older media.
• Re-tasking or re-imaging systems for new users.
• Selling, giving away or otherwise disposing of systems and media.
• Preventing custodians from deleting/ altering/corrupting e-mail.
• Immediate and periodic “snapshots” of relevant e-mail accounts.
• Modifying user privileges settings on local systems and networks.
• Archival by auto-forwarding selected e-mail traffic to protected storage (i.e., journaling).
• Restricting activity like moving or copying files tending to irreparably alter file metadata.
• Packet capture of Instant Messaging (traffic or effective enforcement of IM prohibition.
• Preserve potential for forensic recovery.
• Imaging of key hard drives or sequestering systems.
• Suspension of defragmentation.
• Barring wiping software and encryption, with audit and enforcement.

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