Disagreements about scope and process in e-discovery shouldn’t split between plaintiffs’ and defendants’ interests. After all, everyone is a requesting and producing party, whether north or south of the “v.”  Yet, the reality is that most defense counsel see themselves as producing parties, and most plaintiffs’ counsel identify with requesting parties.  That unfortunate alignment poisons our ability to set aside allegiances and be officers of the Court mutually determined to find the most effective and efficient means to discover evidence illuminating the issues.

Cooperation in e-discovery is derided as naive in an adversarial system of justice, and “discovery about discovery” is vilified as a diversionary tactic, a modern take on the maxim, “if you can’t try the case, then try your opponent.” Counsel for responding parties are quick to note that no party is obliged to deliver a perfect production. They’re absolutely right.  Perfection is not the standard.  But, is a producing party entitled to fail before a requesting party may inquire into the scope and process of e-discovery?  Must we wait until the autopsy to question the care plan? Continue reading →

I did a free webcast today for OLP, billed as “Top Tips for Preservation.”  If you missed it, they will make it available to members online.  Although I spent much of my time addressing challenges unique to preservation of mobile devices like iPhones and tablets, I was faithful to the title and shared nine tips I termed “Preservation Platitudes.”  None break new ground, but I hope at least a few count as sensible advice:

One

Be Prepared to Preserve

READY: Have a preservation plan.
SET: Invest in preservation readiness.
GO: Do something.  Do it now.

You need to have an action plan at hand for any case that comes in.  There are sources of information and preservation obligations that cut across all matters and apply to those on both sides of the V.  If you wait until the case comes in to develop the framework of a defensible preservation plan, you subject the client to needless risk. Clients don’t pay us to learn on their nickel.  They pay us to know–or at least to know how to get started.

Preservation readiness means having strategies and resources to draw on, so as to be able to hit the ground running.  It might be training someone in IT to be competent in forensically sound imaging techniques and chain-of-custody documentation.  Or, it could be having established relationships with IT and service providers.  A professional knows who to call and has a sound sense of what it will cost.

Many failed preservation efforts come about because someone dithered.  They hoped that the case would settle.  They assumed it was someone else’s job.  They failed to act when action could have saved the day and lowered the cost considerably.  Do something.  Ideally, the right thing. Continue reading →

One e-discovery blog I never fail to read is Doug Austin’s eDiscoveryDaily.  It’s hard to come up with a post every day; yet, Doug makes it look easy.  Each post is a quick read with little editorializing; and, Doug faithfully includes a link to the opinion.  That last may seem a small thing; but, some bloggers don’t do it (or only share the full text of the decision with paying customers). There’s no substitute for reading the case.

Today, Doug posted on Harrell v. Pathmark, (USDC EDPA, February 26, 2015), where the Court dismisses the plaintiff’s slip-and-fall injury claim on summary judgment.  I don’t think the Court got it wrong on the merits; but, in weighing in, sua sponte, on the e-spoliation issue, I’m reminded of the maxim, “hard cases make bad law.”  Slip-and-fall cases must be some of the hardest cases around because the law often seems to lose its footing when it comes to the failure to retain video evidence in these disputes. Continue reading →

The core challenge of discovery is identifying information that is responsive but not privileged, achieved without undue burden or expense.  There are multiple ways to approach the task, none optimal.

The most labor-intensive method is called “linear human review,” where lawyers (for the most part) look at everything and cull responsive and privileged items.  It sufficed in the pre-digital era when much effort and resources were devoted to recordkeeping, which insured that information had a “place.”  Despite being costly, slow and error prone, linear review was all we had, so became the gold standard for identifying responsive and privileged information.

With the advent of personal computing, the internet and mobile devices, virtually all information today takes digital electronic forms that may be searched electronically.  Digitized textual content, whether obtained by applying optical character recognition (OCR) to hard copy or by utilizing native electronic sources, makes it possible to find potentially responsive or privileged material by comparing text strings within documents to search terms expected to coincide with responsive or privileged content.  Moreover, digital data always corresponds to a complement of digital metadata, viz. information that describes data’s location, nature and characteristics and that aids in the search, organization, interpretation and use of data.

As data volumes grew, text search and metadata culling became the new touchstones by which information was deemed potentially responsive and potentially privileged, usually as a precursor to manual assessment.  Search terms, either by themselves or in logical phrases called Boolean queries, were deployed against the text within each document or more commonly against a concordance index built from extracted text.  Items not making the keyword cut for responsiveness tended to be deemed not discoverable and afforded no further consideration. Continue reading →

When I think of the people who make good things happen in e-discovery education, William “Bill” Hamilton tops my list.  Bill is the National E-Discovery Partner at Quarles & Brady in Tampa. Bill speaks frequently and has penned a number of helpful articles on e-discovery (including one I use in my law school course).  But, it’s Bill’s catalytic energy and enthusiasm on behalf of practical e-discovery education that impresses me most.  Bill created the first and only forum for adjuncts teaching e-discovery in law schools, allowing us to exchange ideas and assist one-another.  Bill founded the University of Florida Law School’s E-Discovery Project that brings distinguished speakers to central Florida (most recently Judge John Facciola). As Dean of Graduate Students at Bryan University, Bill built its Electronic Discovery Project Management Certificate program.  I could go on, but Bill is a modest man, and I’m sure he would prefer I get to the point of this post: yet another Bill Hamilton contribution to practical e-discovery education, this one to aid both practitioners and students. Continue reading →

This is the fifteenth 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 Tips to Clip the Cost of E-Discovery

[Originally published in Law Technology News, September 2006]

E-discovery costs less than paper discovery.  Honest.  In comparable volumes, it’s cheaper to collect, index, store, copy, transport, search and share electronically stored information (ESI).  But we hoard data with an indiscriminate tenacity we’d label “mental illness” if we were piling up paper.  It’s not just that we keep so much; it’s that our collections are so unstructured.  Squirrel away twenty years of National Geographic with an index and you’re a “librarian.”  Without the index, you’re that “crazy cat lady.”

So the number one way to hold down the cost of e-discovery is: Continue reading →

I love the word “ennui” (pronounced on-we)  It’s from the French for vexing and describes a feeling of languor, lassitude and listlessness.  It speaks of an agitation and weariness born of having seen it all before.  I picture artists and writers from the Belle Époque or the Crawleys of Downton Abbey before the Great War.  “Bring the smelling salts, Carson. Her Ladyship has the vapors again.”

“Ennui” aptly describes what I’m seeing in the e-discovery world.  We are bored with e-discovery.  It hasn’t gone away, as some foolishly imagined it might.  Most have endured rather than embraced e-discovery.  The level of discourse about sources and process isn’t much higher than it was a decade ago despite the ascendency of social networking, Cloud computing and mobile devices.

E-discovery didn’t get old because lawyers mastered it and moved on.  It got old because lawyers found that they could get by doing what they’ve always done, spending more to deal with familiar forms of evidence and ignoring the rest.  Look at a Request for Production in use now and compare it to one from ten- or twenty year ago.  Is it all that different, or have we simply tossed “e-mail” or “ESI” into our tedious definitions of “Document?”

The sense of ennui is most palpable when I’m working with others to plan e-discovery education.  E-discovery conferences today are as apt to include sessions on cybersecurity, privacy or Information Governance as on e-discovery.  Those are fascinating topics in their own right; but, they aren’t the topics we must master to succeed in e-discovery.  We have allowed the novel topics to displace the core topics in e-discovery education because so many are bone-tired of hearing about preservation, legal hold, meet-and-confer, cooperation, search, review, forms of production, and the rest.

Plus, apart from predictive coding and all those emerging sources of ESI we’d rather ignore, there isn’t much new or exciting to get our juices flowing.  The sky hasn’t fallen on the people who didn’t learn e-discovery (sanctions are ridiculously rare), and when the amended Federal Rules of Civil Procedure kick in later this year, you need hardly fret about sanctions at all.  If the other side can’t show wilful destruction of ESI intended to shield it from discovery, you’re nearly bulletproof.

As the ennui settles in, we see fewer opportunities emerging for practical instruction on e-discovery: fewer “how to” courses, fewer law school classes, less in the way of “hands on” instruction and virtually no “next level” training.

Ennui.  We have grown weary of e-discovery.  It never interested most lawyers, and now it hardly excites any.

If you are reading this blog, chances are, I’m not talking about you.  You grasp the power of electronic evidence.  You still find this stuff pretty thrilling, and love learning about and sharing your knowledge of ESI.  The good news for us is that this season of ennui, like the winter storms plaguing much of the U.S., won’t last forever.  The sun will again shine on e-discovery education, and we will be warmed by the enthusiasm of a new generation of lawyers so thoroughly jacked into the net and databases that they will know to look there first when seeking evidence.  They will welcome the chance to learn how to do e-discovery well and cost-effectively.  They will revel in the way it will help them win; for ignoble or not, winning is what moves trial lawyers most.

Until then, can you please ask Carson to bring back those smelling salts?

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.

Continue reading →