This is the fifth 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.

Don’t Try This at Home

[Originally published in Law Technology News, August 2005]

The legal assistant on the phone asked, “Can you send us copies of their hard drives?”

As court-appointed Special Master, I’d imaged the contents of the defendant’s computers and served as custodian of the data for several months.  The plaintiff’s lawyer had been wise to lock down the data before it disappeared, but like the dog that caught the car, he didn’t know what to do next.  Now, with trial a month away, it was time to start looking at the evidence.

“Not unless the judge orders me to give them to you,” I replied. Continue reading →

Being a judge looks easy, and most trial lawyers secretly believe they could do the judge’s job as well as His Honor.  But, being a good judge is harder than it looks. Trial judges must be gifted generalists.  They handle disputes in contract law, tort, patent, trademark and copyright law, eminent domain, employment law, criminal law, domestic relations, administrative law, environmental law—you name it.   Judges have to understand procedure and the process of protecting (or muddying) a record better than the average practitioner.  Judges manage bigger dockets than most lawyers with less help.  Trust me: that bozo on the bench is a lot smarter than he looks, and few imagine how much he has to endure from the advocates that come before him.  Sometimes, district court is just traffic court with better shoes.

I offer all that as preface for judging a judge who was just trying to make justice work with precious little help from the lawyers.  I speak of the judge in Armstrong Pump, Inc. v. Hartman, 2014 WL 6908867, No. 10-cv-446S (W.D.N.Y. Dec. 9, 2014).  I’ve never met U.S. Magistrate Judge Hugh B. Scott, but I know that he has twenty years of distinguished service on the federal bench in Buffalo; so, you can be confident he has a well-honed judicial demeanor and has seen it all before.  But, he may suffer from the same debilitating condition that afflicts me:  He was born at an early age and grew up before computers ruled our lives.  He likely learned discovery when everything was paper, and while he may have evolved into judex electronicus (the wired judge), few of his generation of judges have.  It’s asking a lot of judges to keep up with all they must do and become well-schooled in electronic search and retrieval.  That may explain why his order for relief in Armstrong Pump seems destined to fail.  Unhappily so, because when he cries, “Enough” in the opinion, I am with him wholeheartedly. Continue reading →

I posted here a year ago laying out a detailed methodology for collection and preservation of the contents of a Gmail account in the static form of a standard Outlook PST.  Try as I might to make it foolproof, downloading Gmail using IMAP and Outlook is tricky.  Happily since my post, the geniuses at Google introduced a truly simple, no-cost way to collect Gmail and other Google content for preservation and portability.  It sets a top flight example for online service providers, and presages how we may use the speed, power and flexibility of Google search as a culling mechanism before exporting for e-discovery. Continue reading →

In his keynote speech at the Zapproved Preservation Excellence Conference in Portland, Dr. Tony Salvador of Intel compared the “encores” of performers today to those of performers a century ago. “Encore,” Salvador noted, is French for “again;” yet, we use it to mean “more.”  Today, performers brought back by applause don’t repeat their performance; they play a different song.

But for hundreds of years, the encore was an unpredictable, spontaneous eruption.  Stirred by a brilliant aria in the midst of a performance, members of the audience would leap to their feet in applause, shouting, “ENCORE! ENCORE!” The singer and musicians were compelled to stop and perform the same song AGAIN.  This might happen over and over, until the rapture was so fixed in the listeners’ minds they’d relent and let the performance continue.

The audiences of the 18^th and 19^th centuries demanded repetition of what they heard because there was no technology to reproduce it.  Once Edison made sound stick to a cylinder, the mid-show encore disappeared, and the race to record everything began.

The natural world is an analog world.  The signals to our senses vary continuously over time, experienced as waves of light, vibration or other stimuli.  Much of the last century was devoted to recording analogs of these analogs; that is, preserving the waves of the natural world as waves that could be impressed upon tinfoil, wax and vinyl, as areas of transparency and opacity on photographic film or as regions of varying magnetic intensity on tape.

Then, late in the 20th century, we learned to mimic analog information using the rapid “on” and “off” of digital data, and devoted the last quarter of the century to converting our vast collection of analog recordings to digital forms.  ENCORE! ENCORE! (But this time, do it in ones and zeroes, okay?). It was my generation’s take on converting manuscripts to movable type in the middle ages. Continue reading →

I am not a dinosaur.  Except that I prefer e-mail to texting, and I forget that my students have never used a record player or lived without the Internet.  I’m not near the national average of 14 daily visits to Facebook, and I’ve yet to text a photo of my genitals–a practice so routine that it has a name, “junk shots” and its very own app, “Snapchat.”  When I need to know how to turn off a nagging dashboard light, I prefer written instructions over YouTube, and I do not video every concert and papal investiture I attend.  I still have two landline phone numbers.

Omigosh!  That last one.  I AM a dinosaur!

According to the U.S. Center for Disease Control, more than 41% of American households have no landline phone, relying on wireless service alone.  For those between the ages of 25 and 29, two-thirds are wireless-only.  Per an IDC report sponsored by Facebook, four out of five people start using their smartphones within 15 minutes of waking up and, for most, it’s the very first thing they do, ahead of brushing their teeth or answering nature’s call.

I cite these astonishing statistics to underscore a tendency in e-discovery to seek information in those places where we’ve grown comfortable despite compelling evidence that relevant information is elsewhere.  I’ve written on this “Streetlight Effect” before (at p. 252 of this collection of articles), in the context of the blind eye long turned to shortcomings of keyword search.  The latest manifestation is graver still, and will make for a perilous future if we do not rise to the challenge now.

I speak of the rapid accretion of unique, relevant data on mobile devices that has greatly outstripped our ability (or willingness) to preserve and process same.  Look around you.  Do you see the look down generation out there?  Why do you suppose the person in front of you on the jetway is walking so #$%^& slowly?

Apple just sold ten million units of its latest iPhone.  Ten million.  In a week.  How many of those purchasers sought a better device for making phone calls?  Did Apple even hint it had improved the phone as a phone?  No siree, Bob! Continue reading →