There’s been a lot of fuss and bother about the Da Silva Moore decision by Judge Andrew Peck, much of it fomenting the notion that a federal magistrate judge (approved) (required)(made mad passionate love to) predictive coding in a case.  I kept my own counsel until now because a judge going along with something the parties had already agreed to do struck me as something less than a jurisprudential watershed.  The question presented to the court was not whether an e-culling tool would be employed but how.  That is, the kids weren’t fighting about whether to play the radio but only about how to set the volume and station.  They took their quarrel to Dad, and now the kid who didn’t get his way is saying Dad played favorites.

The plaintiffs, whose QA and sampling values were rejected, have every right to complain about the metrics.  Where predictive coding is concerned, the devil is very much in the details.  But their pairing of valid concerns with a sleazy personal attack on the judge has to be one of the dumbest moves to come down the e-discovery pike since Creative Pipe named its line of stolen garbage can designs FUVISTA (for F*** yoU VIctor STAnley).  It puts the duh in Da Silva Moore. Continue reading →

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 →

Earlier this year, I delivered the keynote address for a corporate event in Canada,  I called the talk, “Spoiled and Deluded: Ugly Truths about Electronic Search.”  I lamented how our happy experience with Google and online legal research has left us woefully unprepared (“spoiled”) for the extreme difficulty of search in e-discovery, then dashed a few misconceptions about the efficacy of searching ESI in accepted ways (“deluded”).  Dear Reader, we need to be brutally frank about search; because in a world where the organization of information has gone the way of the typewriter and file room, effective, efficient search is something we cannot manage without.

Search has two non-exclusive ways to fail: your query will not retrieve the information you seek and your query will retrieve information you weren’t seeking.  The measure of the first is called “recall,” and of the latter, “precision.”  We want what we’re looking for (high recall) and only what we are looking for (high precision).

Recall and Precision aren’t friends.  In e-discovery, they’re barely on speaking terms.  Every time Recall has a tea party, Precision crashes with his biker buddies and breaks the dishes. Continue reading →

There was an old farmer who always took the trophy in the fishing tournament with the biggest catch.  The new game warden became suspicious and demanded the farmer take him fishing.  In the middle of the lake, the farmer pulls out a stick of dynamite, lights it and throws it into the water.  Boom!  When hundreds of stunned fish float to the surface, the farmer takes out a net and snags the biggest one.  The warden is outraged.  “You can’t do that!” he screams, “Do you know how many laws you’ve broken?”  Calmly, the farmer lights another stick of dynamite, hands it to the game warden and says, “Well boy, you gonna talk or you gonna fish?”

Litigants look to lawyers for guidance in preserving electronic evidence, and lawyers, clueless about information technology, hand them a stick of dynamite and say, “go fish.” Continue reading →