We are the transitional generation in terms of the shift from discovery in a world geared to information on paper to one where paper is largely an afterthought.   An airline boarding pass is a screen shot of a bar code, gate, time and seat number.  We print it in case TSA can’t scan our phone, then trash it when we touch down.

Growing up, the organization of information on paper was so ingrained in our education that we take our “paper skills” for granted even as paper has all-but-disappeared.  We learned to color inside the lines.  Put our name and the date at the top of our papers.  Organize alphabetically.  Staple and paper clip.

We learned the structure of a “business letter.”  Date and subject go here, salutation there, and don’t forget the CC: and BCC: addressees at the bottom.

All of it marched more-or-less seamlessly into a common culture of paper records management.  Correspondence flowed into files, folders, drawers, cabinets and file rooms.  Everything had a place, and everything depended upon information being in its place.  That is, everything depended upon organizing information from its creation and all along its path until it found its semi-permanent place in the storage and retrieval system.

As information went digital, we clung to metaphors of records management.  The screen icons remained files, folders and even envelopes.  But while we pretended digital information was still like paper, our culture of records management collapsed.  The fleeting phone call and the enduring business letter and “memo to file” all morphed into e-mail.  Subject lines ceased to reliably describe contents.  File clerks became baristas and file rooms became server rooms.  Everyone was left to their own devices—literally—in terms of information management.  Computerized search, they promised, would do away with all that pesky management of documents.

And, in many ways, the promise was kept.  We draw on vast reservoirs of information using search tools of such instantaneous ingenuity and complexity that we rarely reflect on what transpired for us to find that Chinese restaurant in San Francisco or convert U.S. Dollars to Brazilian Reais at market rates.  We’ve been content to leave it to the geeks.

And there’s the nub of the problem in e-discovery.  As information stopped being like paper records and everything became databases, lawyers were content to leave organization to the geeks.  We can’t imagine a competent lawyer not knowing how to find a document in a file folder or cabinet; yet, oddly, we can’t imagine a lawyer knowing how to fashion a competent ESI search protocol or query a database.  We barely expect lawyers to know what ESI protocols and databases are.  We’ve set the bar too low for the Bar, and clients and judges are suffering as a consequence. Continue reading →

There have lately been a boatload of good stories written about Google’s so-called ‘Billion Dollar E-Discovery Blunder.’  Yes, it was a blunder, and, though the damages are dwindling, maybe it will end up costing Google a billion bucks; but, I’m not so sure it’s all that much an e-discovery issue.  That said, I’m going to wind this post up with a suggestion of a simple technique for QA/QC in e-discovery you can use to keep your client or company from the same predicament.

First, the Blunder: Oracle sued Google claiming that Google’s Android smartphone platform infringes Oracle’s Java programming language patents.  With almost $27 billion in revenue and $6 billion in profits, Oracle is #96 on the Fortune 500 list of companies that suck at e-discovery.  Google is #92, with $29 billion in revenues and $8.5 billion in profits.  So, it’s a well-matched, Goliath vs. Goliath fight (and even Goliath is going, “Damn, they’re big and rich”).

Plus, it’s got to be personal for many folks in Silicon Valley.  Redwood City and Mountain View, California are just minutes apart, so you can imagine that when the two Larrys (Oracle’s Ellison and Google’s Page) bump into each other at Fry’s or waiting in line at the DMV, it’s can’t be all guy hugs and fist bumps. Continue reading →

The saga of Pippins v. KPMG took another just turn today as Judge Colleen McMahon of the Southern District of New York emphatically sustained Magistrate Judge Cott’s refusal to allow KPMG to destroy thousands of hard drives.  I don’t title this post “Justice 1, Bullies 0” as a slap at KPMG.  Though I thought KPMG’s position anemic and oddly out-of-touch with an expert’s appreciation of user data on hard drives, KPMG isn’t the bully here.  No, the bully in my bullseye was the U.S Chamber of Commerce, which threw its fat wallet into the fray, selfishly attacking Magistrate Cott’s well-reasoned discovery order.  No friend of the court, the Chamber has been buying influence at the statehouse for so long, it must have decided to see what it could peddle down at the courthouse.  Happily, all that lobbyist lucre went right down the drain.  Kudos Judge McMahon! Continue reading →

Patel v. Havana Bar (E.D. Pa. Dec. 5, 2011) breaks no new ground in e-discovery, but it makes for interesting reading on several fronts.  First, it’s a prosaic personal injury case brought by a bar patron who suffered a severe fall, either because he was sober and the bar was negligent, or because he was wasted and the bar was negligent.  The plaintiff is uncertain of his sobriety, but he’s positive the bar was negligent.  The plain vanilla context is a reminder that the obligation of e-discovery competence runs to all counsel, even those who handle the bread-and-butter stuff that fills the dockets.  Second, the case presents dueling spoliation claims and bilateral sanctions.  Everyone gets slapped down!  Finally, the e-evidence at issue–FaceBook postings and video imagery–is a welcome respite from the usual squabbling over e-mail, and points up the variety of ESI that must be considered in setting a proper scope of preservation. Continue reading →