I’ve lately been immersed in the minutiae of load files while trying to complete a primer on forms of production and craft a load file exercise for the workbook students will use in the upcoming Georgetown E-Discovery Training Academy.

By the way, there’s still time to register for the ultimate e-discovery master class cum boot camp—a week in Washington, D.C. studying electronic discovery with a dedicated faculty, getting down and dirty with data.  You promised you were going to get your arms around the e-stuff; now is the time, and the Georgetown Academy is the place.  June 1-6, 2014.  I’ll sweeten the pot: Use the code EDTAREFERRAL when registering and take $300.00 off the price.

While sojourning in load file hell, I stumbled upon a tidbit of information I thought other e-discovery groupies might find mildly diverting.

Our Sesame Street words for today are Thorn and Pilcrow.

I refer, of course to the two symbols that serve as familiar field delimiters in Concordance load files; those persnickety text files that carry metadata and other information into e-discovery review tools.  In order for tabular data to be discretely searchable, it has to be set off (“fielded”) from other data by a separator.  On paper, we do this with vertical and horizontal lines, drawing rows and columns.  We literally delineate the fields of data so first names don’t wander into, say, last names or street names.  To accomplish the same end with digital data in load files, we use delimiters, such as commas, tabs or, in the case of Concordance load files, thorns and pilcrows.

A Thorn looks like this: þ and a Pilcrow looks like this: ¶
When seen in a load file, they look like this:

If you’re like me, you’ve been happily calling pilcrows “paragraph symbols” for quite some time, and had no idea that very pregnant capital “I” was called a thorn.

But here’s the cool part: Thorns were very nearly a part of our modern English alphabet.  No kidding.  Apart from our boundless delight communing with thorns in load files, we nearly see a thorn every time we come across some cheesy shop that calls itself “Ye Olde This or That.”  The thorn was once a character standing in for the letter combination “TH” and pronounced the same way.   So, many signs in jolly ol’ England once read “þe” pronounced “the.”

Over time, what with old English scripts and fading paint and such, the thorn morphed into the letter “Y” and all those “þe Olde Curiosity Shoppes” became “Ye Olde Curiosity Shoppes.”  Another explanation is that, with the advent of the printing press, countries like Germany and Italy who exported typefaces didn’t use the thorn in their languages; so, they didn’t make thorn type.  Accordingly, those who thought the letter Y served as a reasonable facsimile started using it in lieu of the thorn.

When you see a thorn in a load file, smile.  We very nearly lost her forever.

Hat tip to http://mentalfloss.com/article/31904/12-letters-didnt-make-alphabet

U.S. District Judge James Browning is a fine fellow.  There are many reasons to say so; but the first is that, though he sits in New Mexico, he was born in the Great State of Texas.  Judge Browning kindly spoke to my E-Discovery class at the law school in September 2012.  I’d sought him out because he’d been ably grappling with e-discovery issues in a case styled S2 v. Micron.  In his remarks to my class, he splendidly recounted some of the challenges faced by judges who ascended to the bench before the Age of Digital Evidence.  Judge Browning has one of those C.V.s that could make any lawyer hate him (e.g., Yale, varsity letterman, Law Review editor-in-chief, Coif, Supreme Court clerk); but he’s a good judge and a nice guy to boot.

I share my admiration of Judge Browning to underscore that I feel a bit of a rat in expressing misgivings about his recent opinion in The Anderson Living Trust v. WPX Energy Production, LLC, No. CIV 12-0040 JB/LFG. (D. New Mexico March 6, 2014).  I think he got it wrong in some respects–not on the peculiar equities of the case before him, but in his broader analysis of Rule 34 of the Federal Rules of Civil Procedure and in conjuring a Hobson’s choice for requesting parties.  Continue reading →

Today was ostensibly the last day for public comment on the proposed amendments to the Federal Rules of Civil Procedure.  The good news for other procrastinators is that the submission deadline has been extended to accommodate scheduled website maintenance,  The new deadline for submitting public comments is 11:59 PM ET on Tuesday, February 18, 2014.  Over 1,600 comments have been submitted, and I’ve been trying to wade through them, unsurprised at the deep division between plaintiffs and corporate interests.  I can’t recall another time when so much has been spent by corporate lobbyists to influence the civil rulemaking process.  Clearly, corporate America expects a bigger payoff from these proposed amendments than I do.

Notwithstanding their strengths, there are aspects of the proposed amendments that should go back to the drawing board.  Many commentators focus on problems with Proposed Rule 26 and it’s efforts to narrow the scope of discovery.  Some are incensed that proposed Rule 37(e) offers insufficient immunity from sanctions for spoliation, choosing to ignore the fact that the incidence of spoliation sanctions in federal court is historically less than the national incidence of death by lightning strike.  Ironically, those grousing the loudest are the same white shoe-types who play golf in a thunderstorm.

I finally threw my comment on the pyre, I mean pile, or, at least I tried to do so; but, the submission web page was indeed shut down for website maintenance.  That gave me time to solicit your input, dear reader, while there’s still a chance to tweak my comments if you find I’ve made a mess of it.  Here’s what I’m planning to submit: Continue reading →

Over the course of the last decade, it’s been a Sisyphean task to get lawyers to lay aside rigid ideas about forms of production in e-discovery and focus on selecting forms that function. 

“Forms that function.”  Forms of production that work.

Ever since the demanding class, “Architecture for Non-Architects” at Rice University, I’ve been a wannabe architect, and the battle cry, “form follows function,” my mantra.  It’s ascribed to Louis Sullivan, legendary American architect and Father of the Skyscraper.  “Form follows function” fairly defines what we think of as “modern,” and it’s a credo at the heart of the clearest idea I’ve had in a while, being that we should produce e-mail in forms that can be made to function in common e-mail client programs like Microsoft Outlook.

I don’t point to Outlook because I think it a suitable review platform for ESI (I don’t, though many use it that way).  I point to Outlook because it’s ubiquitous and, if a message is produced in a form that can be imported into Outlook, it’s a form likely to be searchable, sortable, utile and complete.  More, it’s a form that anyone can assimilate into whatever review platform they wish at lowest cost.

The criterion, “Will the form produced function in an e-mail client?” enables parties to explore a broad range of functional native and near-native forms, not just PSTs.  It an objective “acid test” to determine if e-mail will be produced in a reasonably usable form; that is, a form not too far degraded from the way the data is used by the parties and witnesses in the ordinary course.

Forms that Function retain essential features like Fielded Data, allowing users to reliably sort messages by date, sender, recipients and subject, as well as Message IDs, supporting the threading of messages into coherent conversations.  Forms that Function supply the UTC Offset Data within e-mails that allows messages originating from different time zones and using different Daylight Savings Time settings to be normalized across an accurate timeline. Forms that Function don’t disrupt the Family Relationships between messages and attachments.  Forms that Function are inherently electronically searchable.

Best of all, producing Forms that Function means that all parties receive data in a form that anyone can use in any way they choose, visiting the costs of converting to alternate forms on the parties who want those alternate forms and not saddling parties with forms so degraded that they are functionally fractured and broken.

If you are a requesting party, don’t be bamboozled by an alphabet soup of file extensions when it comes to e-mail production (PST, OST, MSG, EML, DBX, NSF, MHTML, TIFF, PDF, RTF, TXT, DAT, XML).  Instead, tell the other side, “I want Forms that Function.  If it can be imported into Microsoft Outlook and work, that form will be fine by me.”

If the other side says, “We will pull all that information out of the messages and give it to you in a load file,” say, “No thanks, leave it where it lays, and give it to me in a Form that Functions!“

In my last post, I addressed why search terms used to cull data sets in discovery should not be protected as attorney work product.  Today, I want to distinguish an attorney’s “investigative queries” (for case assessment, to hone searches or to identify privileged content) from “culling queries” (to generate data sets meeting a legal obligation, whether conceived by an attorney, client, vendor or expert).   I contend culling queries warrant no work product protection from disclosure.

Let’s assume a producing party has a sizable collection of potentially responsive electronic information.  Producing party concludes that it would be too costly, slow or unreliable to segregate the ESI by reading everything and, instead, decides to examine just those items that contain particular words or phrases.  Keyword queries thus serve to divide the ESI into two piles: one that will be reviewed by counsel and another that no one and nothing will qualitatively review.  The latter is the “discard pile.”  Culling queries may be applied iteratively, first to collect data from the enterprise and later to cull the collection for review.  The reductive process may entail the successive use of a client’s local and enterprise search capabilities and/or a law firm’s or vendor’s search tools.

The common thread is that each lexical search mechanism serves to exclude ESI lacking certain terms from substantive review.  No one ever assesses the discards for relevance or responsiveness.

Now, if we could be confident that keyword culling worked reasonably well and that the persons who came up with keywords were lexical magicians, there’d be no need to worry over the discard pile.  We could trust that what we don’t know doesn’t hurt us.

But we do know that a hefty slug of responsive items ends up in that discard pile.  We know this because studies and experience have established that keyword search is a crude, mechanical filter.  It leaves most of what we seek behind.

Whether we are leaving behind an endurable or unendurable volume of responsive items depends on just how poorly those keywords performed.  To gauge that, we’ve got to know what queries were run. Continue reading →